(SnrnpU ICam Bcl^aal Hihraty Cornell University Library KF 1250.C45 Handbook, of the law of lorls. 3 1924 019 203 078 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/cu31924019203078 Of Elementary Treatises on all the Principal Subjects of the Law The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. t. Notes and authorities. Published in regular octavo form, and bound In buclcrani, Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional Law (3d Ed.). ^ Black on Judicial Precedents. Bogert on Trusts. Burdick on Real Property. Chapin on Torts. Childs on ' Suretyship and Guaranty. Clark on Contracts (3d Ed.). Clark on Corporations (3d Ed.). Clark on Criminal Law (3d Ed.). Clark on Criminal Procedure C2d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Adniinlstrators. Dobie on Bailments and Carriers. Eaton on Equity. Gardner on Wills (2a Ed.). Gilmore on Partnership. Hale on Damages (2d Ed.). Hughes on Admiralty (2d Ed.). Hughes on Federal Jurisdiction and Procedure (2d Ed.). McKelvey on Evidence (2d Ed.)'. ' Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (2d Ed.). Shipman on Equity Pleading. Smith's Elementary Law.' Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (3d Ed.). Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Fubllshed and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. C11517— i HANDBOOK OF THE LAW OF TORTS BY H." GERALD CHAPIN, LL. M, PROFESSOR OF LAW IN FORDHAM UNIVERSITY AND IN NEW JERSEY LAW SCHOOL ST. PAUL, MINN. WEST PUBLISHING CO. 1917 CcfPYBIQHT, 1917 BY WEST PUBLISHING *CO. (Chap.Tobts) . >• To- V D. K. C. and M. G. C. my wife and my mother, I dedicate this ivork written while actively engaged in practice and in teaching, for to them is redlly due whatever has been achieved. (V)' • PREFACE The author desires to acknowledge his indebtedness for many vajuable suggestions to Professor George Chase, Dean of the Faculty of the New York Law School, who read much of this work while in proof. He wishes also to express his appreciation of the courtesy of Mr. Charles Walter Dumont, President of the American Law Book Company, who sanctioned resort to the author's article on "Torts" as heretofore published in "Cyc," and of the West Publishing Company, whose patience after he had exceeded the time set for completion enabled him to devote to this work greater care and thought. H. Gerald Chapin. Decembeb 11, 1916. (vii)* TABLE OF CONTENTS PART I GENERAIv PRINCIPIvES CHAPTER I THE TORT CONCEPT Section Page 1. Definition ' 1-3 2-3. Analysis of the Tort Concept 3 4. Tort and Crime 4-7 5'. Violation of Moral Duties 7-11 6. Assumption of Moral Duties 11-12 7-10. Tort and Contract 12-32 11. Statutory Tarts 32'-40 12. Method of Violation— Act or Omission 40-42 13-14. Method of Redress 42-^7 15. Histor^f and Bibliography 47-51 16. Outline of the Present Work 61-52 CHAPTER II GENERAL PRINCIPLES— LEGAL RESPONSIBILITY AS DE- PENDENT UPON CONDITION OF MIND AND PROOF OF DAMAGE 17. Responsibility for Voluntary Acts 53-58 18. Intent and Motive 58-59 19. Mental Attitude of the Party Wronged 59 20. Mental Attitude of the Wrongdoer 60 21. Intent of Wrongdoer — Nature and Accomplishment of Act .' 60-63 22. Intent of Wrongdoer as to Result 63-64 23. Motive of Wrongdoer 64-67 24. Legality Dependent on Motive 67-69 .25. Damage 69-76 Ohap.Tobts (ix) TABLE , OF CONTENTS CHAPTER III GENERAL PRINCIPLliS (Coni-inued)— LIABILITY UNDER THE LEGAL RULES DEFINING CAUSE AND EFFECT Section Page 26. Proximate Cause 76-79 27. Intervention of Natural Force 79-Sl 28. Fright and Mental Anguish 81-86 29. Intervention ofVoluntary Act or Neglect 86-91 30. Intervention of Irresponsible Individual or Un- conscious Instrument 91-94 31. Arbitrary Rule in Certain Cases of Fire 94-96 32. Concurrihg Cause. 97-100 33. Accompanying Condition 101-103 34. Functions of Court and Jury 103-104 CHAPTER IV GENERAL PRINCIPLES (Continued)— DEFENSES 35: In General '. , 105 36. Inherent Defenses 105-117 (1) Necessity 106-107 (2) Acts of State 107-108 (3) The Police Power 108-111 (4) Illegal Conduct of Plaintiff L 111-114 (5) License .;.... 114-117 37. Collateral Defenses 117-131 (1) Abatement by Death 117-120 (2) Accord and Satisfaction 120-123 (3) Release and Covenant Not to Sue 123-127 (4) Statutes of Limitation 127-131 CHAPTER V GENERAL PRINCIPLES (Continued)— PARTIES 38. The Party Wronged 132-137 39. The Wrongdoer — Several Liability— Personal Cul- pability 137 40. Public Officers in General 138-142 41. Judicial and Discretionary Acts 142-151 42. Ministerial Acts 151-157 43. Infants 157-161 44. Insane Persons 162-165 45. Husband and Wife 165-168 4€. Servants and Agents 169-175 47. Masters 175-186 48. Assumption of Risk 186-195 TABLE OF CONTENTS XI CHAPTER VI GENERAL PRINCIPLES— PARTIES (Continued) Section Page 49. The Wrongdoer (Continued) — Several Liability— Im- puted Culpability 196 50. The State 196-197 51- Corporations 198-208 52. Employers 208 53. Servants and Agents 209-214 54. Independent Contractors 214-225 55. Partners 225-227 56. pwners 227-229 57. Joint and Several Liability — How Arising 229-235 58. Results 236-239 CHAPTER Vll GENERAL PRINCIPLES (Concluded)— CONFLICT OF LAWS 59. Local and Transitory Torts Distinguished 240-243 60. Transitory Torts — Governing Rules 244-252 PART II SPECIFIC TORTS CHAPTER VIII INFRINGEMENT OF PERSONAL SECURITT 61. Assault 253-256 62. Battery 257-258 63. Assault and Battery — Defenses 258-272 . 64. False Imprisonment 273-277 65. Defenses 277-286 66. Seduction 287 Xii TABLE OF CONTENTS CHAPTER IX Section I'ase THE EIGHT OF PRIVACY 288-291 CHAPTER X INJURIES TO REPUTATION— DEFAMATION 68. Definition 292-296 69. Publication 296-303 70. Slandei^-When Damage Presumed 304-313 71. Libel — When Damage Presumed 314-316 72. Defamation with Special Damage 316-318 73. Complete Defenses 319-340 74. Partial Defenses 341-345 CHAPTER XI INFRINGEMEINT OF PRIVATE PROPERTY— TRESPASS 75. Definition , 346-352 76. Right Invaded '. 353-356 77. Trespass ab Initio 356-357 78. Remedies 358-360 79. Defenses 360-364 80. Damages ^ 365-369 CHAPTER XII INFRINGEMENT OF PRIVATE PROPERTY (Continued)— CONVERSION 81. Definition . •. '. . 370-374 82. Method of Accomplishment 374-381' 83. Quantum of Plaintiff's Interest 381-383 84. Defenses [ .', 384-385 85. Damages 386-388 CHAPTER XIII INFRINGEMENT OF PRIVATE PROPERTY (Continued)— WASTE 86. Definition 389-393 TABLE OF CONTENTS Xlil CHAPTER XIV INFRINGEMENT OF PRIVATE PROPERTY (Continued)— FRAUD Section Pjgg 87. Deflnition 394^95 88. Ifilenients 396-418 (1) Statement of Fact 397-403 (2) Intent to Cause Action 404-405 (3) Action by Complainant 405-409 (4) Falsity 410 (5) Scienter . » 410-416 (6) Damage 416-418 CHAPTER XV INFRINGEMENT OF PRIVATE PROPERTY (Continued)— SLANDER OF TITLE 89. Definition 419-420 90. Elements 420-123 CHAPTER XVI INFRINGEMENT OF PRIVATE PROPERTY (Continued)— INTERFERENCE WITH CONTRACTUAL RIGHTS 91. (I) Prospective Contracts of Employment 426-436 92. (II) Prospective Contracts Not of Employment 436-444 93. (Ill) Existing Contracts of Employment 444-449 94. (IV) Existing Contracts Not of Employment 449-456 CHAPTER XVII INTERFERENCE WITH DOMESTIC RELATIONS 95. Injuries to the Husband 457-464 96. Injuries to the Wife 464-i66 97. Injuries to the Parent. 467-472 98. Injuries to the Master 473 Section XIV TABLE OF CONTENTS CHAPTER XVIII THE OBSTRUCTION AND PERVERSION OF LEGAL REMEDIES p^g^ 99. Obstruction of Legal Remedies 474rAK 100. Perversion of Legal Remedies — Malicious Prosecution 476-493 101. Malicious Use and Abuse of Process 493-495 102. Unauthorized Suit in Another's Name 496 103. Maintenance and Champerty 497-498 CHAPTER XIX NEGLIGENCE 104. Definition 499-501 105. Elements— Duty to Exercise Care 501-503 106. Duty of Occupant of Land 503-517 107. Duty of Maker or Vendor of Chattel 517-520 108. Duty of Keeper of Aaaimals 520-523 109. Standard of Care 523-527 110. Of innkeeper and Common Carrier 528-532 111. Determining Standard of Care — Res Ipsa Loquitur. . 532-539 112. Damage 539-541 113. Contributory Negligence. 541-556 CHAPTER XX NUISANCE 114. Definition 557-559 115. Public and Private Nuisances \ 560-563 116. Nuisances per Se and per Accldens 564-570 117. Remedies 571-579 CHAPTER XXI CONSPIRACY IIH. Definition 580-584 TABLE OF CASES CITED (Page 585) INDEX (Page 675) HANDBOOK ON THE LAW OF TORTS PART I GENERAIv PRINCIPIvES CHAPTER I THE TORT CONCEPT 1. Definition. 2-3. Analysis of the Tort Concept 4. Tort and Crime. 5. Violation of Moral Duties. 6. Assumption of Moral Duties. 7-10. Tort and Contract. 11. Statutory Torts. 12. Method of Violation — ^Act or Omission. 13-14. Method of, Redress. 15. History and Bibliography. 16. Outline of the Present Work. DEFINITION 1. A tort is an unlawful violation of a private legal right, not created by contract, whiich gives rise to a com- mon-law action for damages. Derivation The word "tort" (taken directly from the French) is de- rived from the Latin "torquere" to twist; "tortus" twisted or wrested aside. The metaphor is apparent. Tortious con- Chap.Toets — 1 2 THE TORT CONCEPT (Ch. 1 duct is conduct which is crooj^ed.^ not straight.' As a synonym "for "wrong" the word was at one time in common use.' Other Definitions A satisfactory definition of a tort has yet to be found. The difficulty, it has been well said, is due to the fact that "there is no such thing as a typical tort, an actual tort; that is to say, which contains all the elements entering into the rest. One tort is as perfect as another, and each tort dififers from the others in its legal constituents." * The elements necessary to constitute a cause of action for such wrongs ias assault, defamation, deceit, and negligence are so radically different that it is difficult at first to perceive what they can possibly have in common, and although there are underlying principles common to all, yet a study of this subject must, to a large ex- tent, require an examination into the specific rules applicable to each particular tort. A favorite definition is "a wrong' independent of con- tract." " Others are "an act or omission, not a mere breach 1 Cf. the colloquial "crook." 2 Speaking of the law of Continental Europe, Professor Holland has observed that, "since conduct which is straightforward came to be spoken of eulogistically as being 'rectum,' 'directum' (whence 'droit'), 'recht,' and 'right,' conduct of the opposite character natur- ally came to be expressed by the terms 'delictum,' 'dilit,' as deviat- ing from the right path, and 'wrong' or 'tort,' as twisted out of the straight line." Holland on Jurisprudence (10th Ed.) 318. a Thus we find it employed by Spenser in the "Faerie Queene" in the following passage in the fourth book: , "The lyoB there did with the lamb consort. And eke the dove eate by the taulcona side; Ne each ot other feared traud or tort But did In safe security abide." * Bigelow on Torts, 64. In 1882 Judge Finch, of the New York Court of Appeals, in PJCH v. NEW YORK CENT. & H R R CO 87 N. Y. 382, 390, Chapin Cas. Torts, 1, observed: "We have been unable to find any accurate and perfect definition of a tort. * • * The text-writers either avoid a definition entirely, or frame one plainly imperfect, or depend upon one which they concede to be in- accurate, but hold sufficient for judicial purposes." 5 Bouvier, L. Diet. ; and see Mobile Life Ins. Co. v. Randall 74 Ala. 170, 176; Denning v. State, 123 Cal. 316, 323, 55 Pac 1000 ■ Louisville &" N. K. Co. v. Spinks, 104 Ga. 692, 694, 30 S. E 968 • Bark- ley V. WilUams, 30 Misc. Rep. 687, 688, 64 N. Y. Supp. 318. § 3)' NATURE AND SOURCE OF THE VIOLATED RIGHT 3 of contract, and producing injury to anoth^, in the absence of any existing lawful relation of which the said act or omis- sion is a natural outgrowth or incident." * "An act or omis- sion giving rise, by virtue of the commonTlaw jurisdiction of the court, to a civil remedy which is not an action on a con- tract." ^ "An act or omission which unlawfully violates a person's right created by the law, and for which the appro- priate remedy is a common-law action for damages by the injured person." * Now it is evident that each of the foregoing, as well as the definition which we have given, invites rather than answers inquiry ; but it will likewise be observed that all of them lay stress upon one or two important facts, which will now be considered. The remainder of this chapter will amount to but little else than an analysis and explanation of the defini- tion which has been selected. ANALYSIS OF THE TORT CONCEPT 2. This definition, when analyzed, will be found to require a consideration of the following: (a) The nature and source of the right violated. (b) The method of its violation. (c) The method of redress. NATURE AND SOURCE OF THE VIOLATED RIGHT 3. For a tort to exist it is essential that the wrongdoer should have failed to observe a duty which— (a) He owed to the injured party, and (b) Which was imposed by law. 8 "A proposed new definition of a tort," by F. H. Cooke, 12 Har- vard I* Rev. 335, 336. ^ Jaggard on Torts, 2. s Burdick on Torts (3d Ed.) 12. 4 THE TOKT CONCEPT (Ch. 1 VIOLATION OF PUBLIC RIGHTS— TORT AND CRIME 4, The fact that a duty must have been owing to the in- jured individual shows the distinction between tort and crime. The former involves the idea of a pri- vate right violated, the latter of a public right; the tort is a wrong to the individual, the crime to the comanunity. From this results further differ- ences — (a) As to the mental attitude of the wrongdoer; (b) As to the methods of redress. The Character of the Party Injured It is evident that, if A. should strike B., the act may be regarded from a double standpoint. On the one hand, there is an injury to B. B. should be compensated for his pain and suffering, and, if he has been incapacitated from attending to his business, an amount equivalent to his earnings should be paid to him. So, if A. should steal B.'s chattel, the wrong- doer should be compelled to pay its value, or to restore the specific article and pay damages for its detention. This is all that B. can expect. But, over and beyond this, the com- munity as such has an interest in preventing the commission of acts which militate against the security of all. Self- preservation demands that organized society insist upon the observance of the principles which bind its members together and render life in common possible. Hence the duty which A. owes to the community to abstain from a breach of these rules having been violated, the imagination is not strained in considering that the state, as typifying the community, has been wronged as deeply as B.* » "It Is sometimes alleged by books of authority that the difference between a tort and a crime is 'a matter of procedure; the former be- ing redressed by the civil, while the latter is punished by the crim- inal, courts. But the distinction lies deeper, and it is- well expressed by Blaekstone, who says that torts are an 'Infringement or privation of the private, or civil, rights belonging to Individuals considered as Individuals; crimes are a breach of public rights and duties which affect the whole community considered as a community.' The right § 4) VIOLATION OF PUBLIC EIGHTS 5 It must not be inferred from the foregoing that tort and crime are convertible terms, for they are not. Treason, failing to respond to military duty, and in some states attempting suicide, afe crimes, but not torts, while slander, malicious prosecution, and interference with contractual rights are gen- erally regarded as torts, but not crimes. Condition of Mind Intention is of the very essence of criminal liability. "All crime exists primarily in the mind. A wrongful act and a wrongful intent must concur." ^^ This does not mean that the'intent to accomplish the particular crime is always spe- cifically to be proven. It may be found by the jury from the circumstances under which the act was committed.*^ Now it is not altogether true that intent is never involved in a tort ; for instance, before a recovery can be had for fraud, it must be shown that there was a design on the part of de- fendant to mislead the plaintiff.^* Generally, however, as will be more fully explained later, the law of torts does not depend upon intention. The reason for this difference is obvious. The result of a criminal prosecution is punishment, and punishment cannot properly be inflicted where the culpable mind can neither be shown nor inferred. The result of an action for tort is com- pensation, and as between the injured party and the wrongdoer it is evident that the latter generally should bear the loss, be his state of mind what it may. The difference between these two theories is well illustrated in the following cases : which Is violated by a tort is always a different right from that which Is violated by a crime. The person of Inherence In the former case Is an individual; In the latter case is the state." Holland on Jurisprudence (10th Ed.) p. 320; Ehobidas v. City of Concord, 70 N. H. 90, 116, 47 Atl. 82, 51 L. R. A. 381, 85 Am. St. Rep. 604; Huntington v. Attrill, 146 U. S. 657, 688, 13 Sup. Ct. 224, 36 L. Ed. 1123. 10 Gordon T. State, 52 Ala. 308, 309, 23 Am. Rep. 575. " People V. Fish, 125 N. Y. 136, 26 N. B. 319 ; People v. Batting, 49 How. Prac. (N. Y.) 392 ; Commonwealth v. Hersey, 2 Allen (Mass.) 173; Crosby v. People, 137 III. 325, 27 N. E. 49; People v. Carter, 96 Mich. 583, 56 N. W. 79 ; United States v. Long (C. C.) 30 Fed. 678. 12 See infra, p. 410 et seq. 6 THE TORT CONCEPT (Ch. 1 Suppose an infant of tender years, while playing with matches, start a fire and burn my house. He cannot be held guilty of the crime of arson. Nor, should a maniac wound me with a revolver, can he be punished for attempted hom- icide. But if infant or maniac possess an estate, it is only fair that I should be reimbursed for my injuries.^* Suppose A. point a pistol at B. The pistol is unloaded, but B. does not know this. It has been held that the act will not constitute criihinal assault, since intention to shoot is necessarily lacking, though the courts are not in accord on this point. But, as B.'s right to a sense of personal security has been violated he can properly recover in tort.^* Again, if property stolen from A. is purchased from the thief by B. in the honest belief that the thief had title, B. cannot be convicted of larceny if he subsequently sell in good faith. But as by the act of sell- ing he has exercised dominion over A.'s property in denial of the latter's right, he has committed the tort of conver- sion.'" Later on we shall discuss at length the mental at- titude both of the party wronged and of the wrongdoer. Redress Redress for the crime assumes the form of punishment; redress for the tort, compensation. The method pursued in the former instance is a prosecution instituted by the com- munity as such, in which the plaintiff is described as "The People of the State of ," "The State of ," "The Commonwealth of ," or in England as "The King." In the case of a tort, it is an action brought directly by the injured party. Merger It has frequently been stated that by the common law of England, where the same act constituted both a tort and a fel- ony, the 'private injury was deemed merged in the public wrong, and the reason suggested that, as conviction of a fel- ony entailed -the forfeiture of all the felon's lands and goods to the crown, any action in tort would prove fruitless. But it seems better to say that the private remedy was merely 13 See infra, pp. 157 et seq. (infants), 162 et seq. (insane persons). KThiougli the distinction is not universally admitted. See infra, p. 256. 15 See infra, p. 375. § 5) VIOLATION OF MORAL DUTIES 7 stayed until public justice was satisfied, since in England "the party injured is relied upon to take the place of the public prosecutor, and his interest in the accomplishment of public justice is enlisted and kept alive by postponing the redress of his private grievance." ^' The doctrine did not apply to mis- demeanors, and in all probability it would not now be sustained by the English courts. In the United States civil and criminal proceedings are kept separate. They may be begun simultaneously or successively, and the result of one will have no bearing upon the result of the other.^^ VIOLATION OF MORAL DUTIES 5. That a mere moral duty has been disregarded, or a moral right violated, is not sufficient to give rise to an action for tort, where no legal right has been infringed. Damnum Absque Injuria There is a legal maxim that wherever there is a right the law will provide a remedy; but it must be evident upon re- 18 Cooley on Torts, p. 152; Crosby v. Leng, 12 East, 409; Pettingill V. Rideout, 6 N. H. 454, 25 Am. Dec. -473. "The source whence the doctrine took Its rise in England is well known. By the ancient common law felony was punished by the death of the criminal and the forfeiture of all his lands to the crown. Inas- much as an action at law against a person, whose body could not be taken in execution and whose property and effects be- longed to the king, would be a useless and fruitless remedy, it was held to be merged in the public offense. Besides, no such remedy In favor of the citizen could be allowed without a direct interfer- ence with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except, after the conviction of the offender, by a proceeding called an appeal of felony, which was long disused and wholly abolished by St 59 Geo. Ill, c. 46, or under St. 21 Hen. VIII, c. 11, by which the judges were empowered to grant writs of restitution, if the felon was convicted on the evidence of the party injured, or of others by his procure- ment." Boston & W. R. Corp. v. Dana, 1 Gray (Mass.) 83, 97. IT Williams v. Dickenson, 28 Fla. 90, 9 South. 847; Pettingill v. Rideout, 6 N. H. 454, 25 Am. Dec. 473; Boston & W. Rw Corp. v. Dana, 1 Gray (Mass.) 83 ; Mairs v. Baltimore & O. B. Co., 175 N. Y. 8 THE TORT CONCEPT (Ch. 1 flection that, however desirable it may be that law and morals should coincide, the courts cannot well undertake to enforce every obligation which conscience imposes. Emphasis must be laid upon the fact that to give a cause of action the right or duty violated must have been recognized by the law. No mat- ter how great may be the damage suffered by the injured party, he cannot secure redress where such recognition is not given. If I, standing on a pier, see my neighbor struggling in the water, no law requires me to throw him the life preserver which I hold in my hand^ "If I know that a villain intends to defraud or in any way to injure my neighbor, it is doubt- less my duty as a good citizen and as a Christian man to put him oh his guard. But there is no rule of law which renders me liable for his loss in case of my neglect of the duty. It is a moral duty simply, not recognized by law." ^* Suppose a master unjustifiably refuses to give to a servant a letter of- recommendatibn or a certificate of character. The want of the letter or certificate may prevent the servant from procur- ing employment and may cause him infinite loss. Yet at com- mon law the master owes to the servant no duty to furnish him such a statement, and the servant can maintain no ac- tion.^" Suppose A., knowing that B. is about to make a will 409, 67 N. E. 901 ; Newton v. Porter, 5 Lans. (N. T.) 416 (affirmed in 69 N. Y. 133, 25 Am. Rep. 152) ; Smith v. Lockwood, 13 Bairb. (N. Y.) 209. "Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged in the other." Code Civ. Proc. N. Y. § 1899 ; Story v. Hammond, 4 Ohio, 376 ; Ballew v. Alex- ander, 6 Humph. (Tenn.) 433 ; Allison v. President, etc., of Farmers' Bank of Virginia, 6 Rand. (Va.) 204. "It is written on the hornbook of the law that the public and a party particularly aggrieved may each have a distinct, but concurreait, remedy for an act which hap- pens to be both a public and a private wrong. Thus a person beaten may prosecute an action for the battery, while the commonwealth prosecutes an indictment for the breach of the peabe, or a nuisance may be visited by indictment as a public wrong, while it is visited hy action as a private Injury; and for reasons equally good a libeler may be punished as a disturber of the peace, while he Is made to re- spond in damages by the person libeled as a defamer of his charac- ter." Per Gibson, J., in Foster v. Com., 8 Watts & S. (Pa.) If. 79. 18 Ohio & M. R. Co. V. Kasson, 87 N. Y. 218, 224. 18 Cleveland, C, C. & St. L. Ry. Co. v. Jenkins, 174 111. 398, 51 N. E. 811, 62 L. R. A. 922, 66 Am. St. Rep. 296 ; Carrol v. Bird, 3 Esp. 201, 6 Rev. Rep. 824. § 5) VIOLATION OF MORAL DUTIES 9 in favor of C, persuades hirri^not to do so, or persuades B. to revoke a will already made. In what respect is C. injured? He had no existing right to the legacy, for until the testator's death he was merely the possible recipient of a mere gratui- ty.^" Again, A. would have no cause of action against B. merely because the latter has purchased from A.'s debtor property which might have been applied to the payment of the debt and persuaded the debtor to abscond so long as A. had no lien by judgment or otherwise on the property."^ A physician is under no obligation to render professional services, and he tvill not be liable for arbitrarily reftjsing to respond to a call.^^ Nor is there a right of action against a merchant for his refusal to sell goods. ^* In a recent case it was shown that plaintiff, while visiting the defendant's jani- tor, was taken violently ill. Defendant ordered her to leave, threatening that if she did not do so he would have her re- moved. In so doing he was held to have violated no legal duty to plaintiff, so as to render him liable for the aggravation of her illness consequent upon her leaving.^* Illustrations of the principle are legion, and it would serve no useful purpose to multiply citations.^* The maxim, "Bx damno sine injuria non oritur actio," "' applies. It may be readily understood, if we translate "injuriaf' as "injury to a legal right" giving to ''damage" its ordinary meaning. Torts Not Necessarily Moral Wrongs Reversing the shield we find that many torts for which the law gives a cause of action are really not moral wrongs at soMarehall v. De Haven, 209 Pa. 187, 58 Atl. 141; Hutchins v. HutcMns, 7 Hill (N. X.) 104. 21 Lamb v. Stone, 11 Pick. (Mass.) 527 ; Braem v. Merchants' Nat. Bank, 127 N. Y. 508, 28 N, K. 597; Hurwitz v. Hurwitz, 10 Misc. Kep. 353, 31 N. Y. Supp. 25 ; Klous v. Hennessey, 13 R. I. 332 ; Hall V. Eaton, 25 Vt. 458. And see infra, p. 475. 22 Hurley v. Eddingfield, 156 Ind. 416, 59 N. B. 1058, 53 L. K. A. 135, 83 Am. St. Rep. 198. 2.3 Brewster v. Miller, 101 Ky. 368, 41 S. W. 301, 19 Ky. Law Bep. 593, 38 L. R. A. 505. 24 Tucker v. Burt, 152 Mich. 68, 115 N. W. 722, 17 L. B. A. (N. S.) 510. 25 See 38 Cyc. 418 et seq., where further illustrations are given. 2« "No cause of action arises out of damage without Injury." 1Q THE TOET CONCEPT (Cu. 1 all. For instance, I shall be held accountable for the acts of my servant or agent, if done withiif the course of his employment, though I not only never sanctioned them, but expressly for- bade their commission."' My horsei may break his halter and wander upon my neighbor's' land." I may set off a blast and hurl a mass of rock upon his property." A ferocious animal belonging to me may escape from his cage and bite a passer- by.*" In all these cases I must respond in damages, though i have exercised all the care imaginable to prevent the harm. So, too, if one agree to sell me a certain ox, he having one animal in mind and I another, and after paying the price I take possession of , the ox which I believe I have bought, I have infringed his right of property, though I did so honest- ly.*^ Again, if I purchase premises where there are some hot house plants which, contrary to my belief, do not be- long to the seller, I will be liable if I refuse to deliver the plants, though the day after, learning that they are not my , property, I offer to return them to the owner.'* Unlawfulness of Violation Although the statement may appear tautological, it is well to emphasize that the violation of the legal right must be unlawful. To strike another is an invasion of his right of personal security; but if in defense of self, or of one's prop- erty, it is excusable.'* To destroy the house of another will ordinarily give rise to a cause of action; but houses may be torn down for the purpose of preventing the spread of a con- flagration.'* Entry upon another's land will usually consti- tute trespass; but entry is allowed when a highway becomes obstructed from temporary causes,'" or where the party en- tering does so for the purpose of saving property in danger of loss by the elements.'* In these and other cases the law, from rpotives of public policy and for the common good, will permit private rights to be overridden. The subject will 2' See infra, p. 212. 29 See infra, p. 346. 28 See infra, p. 347. so See infra, p. 521. SI Hobart v. Hagget, 12 Me. 67, 28 Am. Dec. 159. 8 2 CARPENTER v. MANHATTAN LIFE INS. CO., 22 Hun (N Y ) 47, Chapin Cas. Torts, 200. S3 See infra, pp. 258, 262. sb See infra, p. 107. «4 'See infra, p. 106. ss igee infra, p. 107. I 6) ASSUMPTION OF MORAL DUTIES 11 be discussed later, when we come to the defenses which may be interposed to the various tort actions. ASSUMPTION OF MORAL DUTIES 6. Though a right be not primarily enforceable, yet if the corresponding duty be voluntarily assumed, the law may impose an obligation as. to the method of performance. Scope of Principe At first blush this principle may seem self-contradictory, or at best to cover only cases of contract, but this is not so. Take the case of a physician. No law, as we have seen, would compel him to give relief to the suffering. But if he undertake to treat a patient, and fail to exercise the proper degree of care and skill, he will be held accountable.'^ So, too, while a merchant may not be compelled to sell even to a starving man, yet if he does so, and the article contains a concealed defect, known to him, which renders its use im- minently dangerous, his responsibility to the purchaser in- jured thereby is well established.'* Suppose a trespasser on the tracks of a railroad company is injured without the fault of the company's employes, who leave him lying where he fell. There is here no liability rest- ing upon the railroad. But assume, in addition, that the con- ductor and brakeman attempt to bind up his wounds, and do so in a brutal and bungling manner. Now, no duty required , them to render any aid at all ; but, having undertaken to do so, it is but fair that they should be held to the exercise of reason- able care.'" So where plaintiff, an intoxicated passenger, is assisted by the' conductor and trainman, on leaving the car, up a flight of 8» Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S W. 562. Also an attorney. .Lawall v. Groman, 180 Pa. 532, 37 Atl. 98, 57 Am. St. Eep. 662. 8 8 See Infra, p. 517 et seq. 3 Union Pacific Ky. Co. v. Cappler, 66 Kan. 649, 72 Pac 281, 69 L. R. A. 513. 12 THE TOET CONCEPT (Ch. 1 Steps from the platform to the sidewalk. At about the fifth or sixth step they leave him, and he falls and is injured. Here, again, conductor and trainman were under no legal obligation to remove the plaintiff ffova the car or to provide for his safety; but they have undertaken to do so, and a duty assumed is not less than one imposed.*" Indeed, the duty which is assumed need not, as will be seen when negli- gence is discussed, be a moral one. The circumstances are exceptional under which I would be required by any principle of ethics to invite a friend for a ride. But, having invited him, I becomp bound to take proper care in the management of the horse and vehicle. VIOLATION OF CONTRACT DUTIES 7. As the duties whose violation constitute a tort are im- posed by law irrespective of the volition of the parties, they must be distinguished from obliga- tions which are assimied by agreement. Tort and Contract As has been intimated, the right violated must have been created and the corresponding duty imposed by law; for, if right or duty trace its origin to an agreement of the parties, the violation will not be viewed as a tort, but as a breach of contract. In the first case the consent of the parties does not enter into the question at all. If A. strike B., a cause of action is given, not because of any agreement upon A.'s part to refrain from the commission of this act, but because the right of personal security given by the law to B. has been violated. Indeed, B.'s permission that A. might strike him, as in. cases of duels, would constitute no defense to a suit by B. against A., since there can be no valid consent to a breach of the peace.*^ Hence, we repeat, to determine the form in which redress must be sought, whether in an action in tort or on contract, it is necessary to ascertain source or ori- 40 Black V. New York, N. H. & H. R. Co., 193 Mass. 448, 79 N. B 797, 7 li. R. A. (N. S.) 148, 9 Ann. Cas. 485. *i See Infra, p. 116. § 7) VIOLATION OP CONTEACT DUTIES 13 gin.** If it be found that right or duty was created inde- pendent of the consent of the parties concerned, the action is in tort ; if because of such consent, it is on contract.*' Thus, where defendant had induced plaintiff to bid on the construction of a railway by promising to sell rails at a fixed figrure, falsely representing that he had already procured the rails, it was held that any cause of action was on contract. Had defendant supplied the rails, there would have been no injury, and hence the promise could not be separated from the statement of fact. The damage was here caused by nonper- formance, which was the gist of the action, not by the false representation.** So, where it was alleged that defendants had agreed with plaintiff to prepare the remains of the latter's husband for burial and shipment by a certain train, but failed to do so, the action was held one on contract; defendants being under no duty independent of the agreement to per- form the obligation.*" Applying the same test, we arrive at an identical result where a physician has contracted to treat a person's family for a year and refuses to attend when sent for. The cause of action is for breach of contract, and not for tort ; *' and the same is true where a tenant receives an <2 "In cases of tort the duty that has been violated is general. It is owed either to all our fellow subjects, or to some considerable class of them, and it is fixed by the law and the law alone. Here lies the difference between civil wrongs, properly so called, and breaches of contract • • * But breach of contract, willful or not, is the breach of duties which the parties have fixed for them- selves. Duties under a contract may have to be interpreted or sup- plemented by artificial rules of law ; but they cannot be superseded while there is any contract in being. The duties broken by the com- mission of civil wrongs are fixed by law and independent of the will of the parties ; and this is so, even where they arise out of circum- stances in which the responsible party's own act has placed him." Pollock on Torts (7th Ed.) 2. *3 38 Cye. 426. ** Dawe V. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. E. A. 158, 14 Am. St. Rep. 404. *s Newton v. Brook, 134 Ala. 269, 32 South. 722. 46 Randolph's Adm'r v. Snyder (1910) 139 Ky. 159, 129 S. W. 562 ; Galveston, H. & S. A. R. Co. v. Hennegan, 33 Tex. Civ. App. 314, 76 S. W. 452. 14 THE TOET CONCEPT (Ch. 1 injury due to the landlord's failure to make repairs as he had contracted to do.*' Tort Growing Out of and Coincident with Contract Nevertheless suit may lie in tort, although the relationship existing between the parties is the result of contract; for it is well settled that tort may grow out of and be coincident with contract. Take the case where plaintiff delivered a picture to defend- ant, who was to ascertain whether it was genuine. Defend- ant gave a receipt therefor, but, finding the picture to be spurious, refused to restore it, except on condition that plain- tiff would acknowledge it to be a forgery, -which plaintiff declined to do. Now, here the relationship of the parties primarily arose out of their agreement; but was the plaintiff obliged to resort to the agreement in order to establish any right for the violation of which he might recover? The fact , remains that defendant was holding a picture which belonged to plaintiff, and how he obtained it is immaterial. His de- tention violates the plaintiff's right of property.** . Again, where a treasurer receives moneys of a township, his relation with the township is certainly contractual, being that of debtor and creditor. But it is likewise true that the moneys belong to the township, and the treasurer has no more right to con- vert them to his own use than he has to take the town clock.** Suppose an employe does an illegal act within the scope of his duties, which causes injury to a third party. The em- ployer may be held responsible, and, although there has been a violation of the contract of emplovment, he mav in turn sue *7 Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580 ; Tuttle V. Gilbert Mfg. Co., 145 Mass. 169, 13 N. B. 465 ; Dustln v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Gas. 169 ; Schick v. Fleischauer, 26 App. Div. 210, 49 N. Y. Supp. 962. If, however, the landlord had undertaken the duty of making re- pairs, and had done so in an improper manner, he would, of course, have been responsible. *8 Bryant v. Herbert, [187S] L. R. 3 C. P. D. 389 47 U J C P 670, 39 L. T. Rep. (N. S.) 17. *9 Monroe v. Whipple, 56 Mich. 516, 23 N. W. 202. V § 7) VIOLATION OF CONTRACT DUTIES 15 the employe, and recover from him the amount of the dam- ages he has been forced to pay."" Put in another way, it can be said that, although the rela- tionship between the parties is contractual, yet the law, apart from the terms of the contract, will cause certain rights and obligations to arise of a personal nature, the vio- lation of which will be considered tortious. The contract is here the occasion and not the source of the right violated. This principle has frequently been applied, in actions against carriers. When A. purchases a ticket and takes his seat in the car, his right to insist upon the exercise of the highest degree of care and skill can be traced either to an agreement which he makes with the railroad at the time he purchases his ticket, an agreement none the. less binding that it may not have been expressed in words, or to an obligation which the law places upon every carrier as such. If A. is injured, the railroad or steamship company having been neg- ligent, or if he is ejected without proper cause, or treated with discourtesy, and elects to bring suit upon the former theory, his action is necessarily in contract. He may, however, prefer to sue for the violation of a common-law duty, which makes his action one of tort."* A common carrier of goods is like- wise under a duty created by law, independent of the contract which may have been entered into with the shipper."* See infra, p. 238. SI City & Suburban Ry. Oo. of Savannah v. Branss, 70 Ga. 368; Nevln V. Pullman Palace Oar Co., 106 111. 222, 46 Am. Rep. 688 ; Run- yan v. Central R. Co. of New Jersey, 65 N. J. Law, 228, 47 Atl. 422 ; Purcell V. Richmond & D. R. Co., 108 N. C. 414, 12 S. E. 954, 956, 12 Ij. R. A. 113 ; Bretherton v. Wood, 3 Brod. & Bing. 54. Thus, where the action was to recover damages for discourteous treatment of a passenger, it was said: "The relation between a carrier and its pas- senger is more than a mere contract relation, as it may exist in the absence of any contract whatsoever. Any person rightfully on the cars of a railroad company is entitled to protection by the carrier, and any breach of its duty in that respect is in the nature of a tort, and a recovery may be had in an action of tort, as well as for a breach of the contract." Gillespie v. Brooklyn Heights R. Co., 178 N. T. 347, 352, 70 N. B. 857, 66 L. B. A. 618, 102 Am. St. Rep. .503. 82 Catlin V. Adirondack. Co., 11 Abb. N. C. (N. T.) 377; Smith v. Seward," 3 Pa. 342; Central Trust Co. v. East Tennessee, V. & G. R. Co. (D. C) 70 Fed. 764 ; St. Louis & N. A. R. Co. v. Wilson, 85 Ark. 257, 16 THE TOET CONCEPT (Ch. I No rights can apparently be more peculiarly contractual than those of master and servant, or principal and agent, and some of them, it is true, such as the right to wages, can be considered as contractual alone. But, once establish the relation of master and servant, and the law will, as in the case of carriers, cause certain rights to arise, although the contract may be silent respecting them. The master will, for example, be compelled to exercise reasonable care to furnish his serv- ant with a safe place in which to work and with safe tools and appliances."* On the other hand, the servant or agent may be enabled to violate the legal rights of his master or principal in ways which, but for his position, he would have been unable to do. Thus, where a broker, employed to sell land, had reporte'd to his employer an offer which was less than the offer he had actually received, with the intent to ap- propriate the difference, or to assist another to do so, it was an actionable wrong if the fraud succeeded, although "it is true that, but for the contract of agency, the concealment and misrepresentation might not be a tort." °* Physician and patient,"" attorney and client,"' innkeeper ,.^nd guest," and bailor and bailee^* are relations covered by 107 S. W. 978 ; Mershon V. Hobensack, 22 N. J. Law, 372 ; Eckert v. Pennsylvania R. Co., 211 Pa. 267, 60 Atl. 7^, 107 Am. St. Rep. 571 ; Tattan v. Great West. R. Co., 2 Ell. & Ell. 844. us Kansas City, Ft. S. & M. E. Co. v. Becker, 67 Ark. 1, 53 S. W. 407, 46 L. R. A. 814, 77 Am. St. Rep. 78; Rincicottl v. John J. O'Brien Contracting Co., 77 Conn. 617, 60 Atl. 115, 69 L. R, A. 930; Barnett & Record Co. v. Schlapka, 208 111. 426, 70 N. E. 343; Swo- boda V. Ward, 40 Mich. 420 ; Welle v. Celluloid Co., 175 N. T. 401, 67 N. B. 609 ; Rice v. King Philip Mills, 144 Mass. 229, 11 N. E. lOl, . 59 Am. Rep. 80 ; Bums v. Delaware & A. Telegraph & Telephone Co.' 70 N. J. Law, 745, 59 Atl. 220, 592, 67 L. R. A. 956; Vanesse v. Cats- burg Coal Co., 159 Pa. 403, 28 Atl. 200. And see infra, p. 179 et seii. 54 Emmons v. Alvord, 177 Mass. 466, 59 N. E. 126. And see LAV- ERTY V. SNETHEN, 68 N.. T. 522, 23 Am. Rep. 184, Chapin Cas. Torts, 191 ; Haas v. Damon, 9 Iowa, 589. 55 Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111, 25 Am. St Rep. 442 ; Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228 1 L. R A. 719 7 Am. St. Rep. 900. 18 Lawall V. Groman, 180 Pa. 532, 37 Atl. 98, 57 Am. St. Rep. 662 57 De Wolf V. Ford, 193 N. X. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Clancy v. Barker, 71 Neb. 83, 98 N. W. 6 8 See infra, p. 378. § 7) VIOLATION OP CONTRACT DUTIES 17 the . foregoing rule. There may even be instances where the patient, client, guest, or bailor, who has been injured through the negligence or misconduct of the physician, attorney, inn- keeper, or bailee, may be forced to sue in, tort, as where the services were undertaken gratuitously, since no action could be maintained on contract, owing to the lack of considera- tion; °' for, though one who undertakes to act without com- pensation will not be responsible for the failure to comply with his promise, he will still be responsible for an improper performance by which damage is caused. °° Contract as an Etement of Tort A tort is none the less such because of the fact that a breach of contract may enter into and form a part of the cause of action, provided only that it can be said that the de- fendant has violated a right given to the plaintiff by law. If, for example, I obtain goods from A., promising at the time to pay for them thirty days hence, and fail to do so, this is manifestly nothing more than a broken contract. But suppose that at the time of the purchase I had no intention of paying? When analyzed, the situation amounts to this: A. had a right of property in the goods. That right is violated, whether I take the goods forcibly or induce him to deliver them to me by a false representation of fact. My acquisi- tion of the goods is as truly contrary to his will in the latter case as in the former. The condition of my mind at the time of the purchase is an existing fact. This I have mis- represented. Hence the conclusion is clear that in addition 440, 103 N. W. 446, 69 L. R. A. 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682; Eommel v. Schambaclier, 120 Pa. 579, 11 Atl. 779, 6 Am. St. Rep. 732 ; Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733, 97 Am. St. Rep. 517. 5 9 Peck V. Hutchinson, 88 Iowa, 320, 55 N. W. 511; McOandless V. McWha, 22 Pa. 261 ; (semble) Du Bois v. Decker, 130 N. Y. 325, 29 N. E. 313, 14 T,. R. A. 429, 27 Am. St. Rep. 529. 80 Lawall v. Groman, ISO Pa. 532, 37 Atl. 98, 57 Am. St. "Rep. 662. Thus, where defendant gratuitously undertook to remove several hogsheads of brandy from one cellar to another, and broke one of the hogsheads through negligence, though a contract could not have been enforced, yet as a bailee he became liable for his misfeasance. Coggs V. Bernard, 2 Ld. Raym. 909, 1 Smith, Lead. Cas. 177, 92 Eng. Reprint, 107. Chap.Tobts — 2 18 THE TORT CONCEPT (Ch. 1 to the violation of a contractual right there is a tort,'* though in a sense the breach of contract may enter into the cause of action. Again, if A. and B. have entered into a contract by which the latter is to render personal services to the former, and I maliciously induce B. to break his agreement, it is wrell set- tled that A.'s right to have B. perform is a property right, and I will be liable in tort.'" So, too, "a breach of contract may be so intended and plan- ned, so purposely fitted to time and circumstances and condi- tions, so inwoven into a scheme of oppression and fraud, so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its association with the attendant circumstances, a tortious and wrongful act or omission." *" CONTRACT AND TORT— PARTIES INJURED 8. Where a duty wholly contractual is violated the cause of action is limited strictly to the parties to the con- tract and those in privity with them. But privity is not essential to an action in tort by one special- ly injured by the act or omission constituting a breach of contract, where it also constitutes an invasion of a legal right existing in the plain- tiff independently or concurrently with the con- tract. Violation of Contractual Rights — Parties and Privies The question whether a right is contractual or legal is not in any sense ti purely academic one, for upon its answer may frequently depend the result of the action. It is obvious that, 61 Nichols V. Pinner, 18 N. T. 295. And see Infra, p. 397. '2 See Infra, p. 444 et seq. 83 Per Finch, J., RICH v. NEW YORK CENT. & H R. E CO 87 N. Y. 382, 398, Ghapin Cas. Torts, 1. In this leading case it appear- ed that plaintite owned property heavily mortgaged, which had depreciated by the removal of defendant's depot. In consideration of defendant's agreement to return the depot, plainUff surren- dered certain riparian rights. Because of his refusal to consent § 8) CONTRACT AND TORT— PARTIES INJURED 19 if I by contract assume towards A. a duty which the law does riot place upon me, it would be illogical to force me to per- form that duty to B. unless A. should happen to have assigned his rights to B., B. should have otherwise succeeded to them, or, as some courts have held, the contract was expressly en- tered into for B.'s benefit. One of the best examples of how a right purely contractual is confined to the parties is found in the celebrated case of Winterbottom v. Wright.** Here the defendant had con- tracted with the Postmaster General to provide mail coaches. Plaintiff's employer had contracted with the Postmaster Gen- eral to supply Irtjrses and coachmen. Plaintiff was injured while driving a coach furnished by defendant. Now, any duty that defendant owed to provide safe coaches arose solely from his contract with the Postmaster General, to which plaintiff was neither party nor privy, and hence it is evident that he could have no cause of action. Again, a servant, while a passenger, is injured through the negligence of the railroad. The master, having lost the services of the servant, sues the railroad. How did the wrong arise? Manifestly out of the contract between the railroad and the servant, to which the master was not a party.°° The same result follows where defendant, an attorney, is employed and paid by A. to ex-- amine and report as to the latter's title to a lot of ground. He certifies in writing that the title is good and the property without compensation to the closing of a street, defendant mali- ciously broke its agreement and delayed the restoration of the depot to prevent plaintiff from warding ofiE a foreclosure. It also instigated a sale by the mortgagee, at which the property was bid off for a small sum. Thereafter the street was closed and .the depot restored; the mortgagee having been Induced to waive all damages. It was held that the wrongful delay in restoring the depot was a breach of contract, but, outside of and be- yond this, there was an actual and affirmative fraud, a scheme to accomplish a lawful purpose by unlawful means, and that this scheme of oppression and fraud, the breach of contract being only one of the elements, constituted a tort. See, also, Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609. 64 11 L. J. Exch. 415, 10 M. & W. 109. 85 Alton V. Midland R. Go., 19 C. B. (N. S.) 213, 11 Jur. (N. S.) 672, .34 L. J. C. P. 292, 12 L. T. Eep. (N. S.) 703, 13 Wkly. Rep. 918, 115 E, C. L. 213. 20 THE TORT CONCEPT (Ch. 1 unincumbered. Plaintiff, a third party, sees this certificate, and, relying upon it, loans money to A." Nor will an in- surance company, who has been conipelled to pay insurance on the life of a party killed by defendant, have a cause of action.'^ Violation of Legal Duty Independent of Contract We now come to the second branch of the rule, namely, that though there may exist a duty wholly contractual in its nature, nevertheless its violation may also amount to an in- vasion of the legal right of a third party. This does_ not in any sense militate against what has already been said con- cerning the enforcement of a contract _ solely by parties and privies. It is quite true that strangers cannot sue for a failure to perform it. But though there be a contract, yet the law may place upon a party the burden of acting in such a man- ner that he shall not harm others while carrying it out. "The question is : Has the defendant broken a duty apart from the contract? If he has merely broken his contract, none can sue him but a party to it; but if he has violated a duty to others, he is liable to them." °' This rule has found frequent application in cases where one sells an article which he knows or may be presumed to have known is to be sold to or used by third persons, with knowledge that it is inherently danger- 88 National Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621. For further illustrations, see Curtin v. Somerset, 140 Pa. 70, 21 Atl. 244, 12 U R. A. 322, 23 Am. St Bep. 220 ; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Conklin y. R. P. & J. H. Staats, 70 N. J. Law, 771, 59 Atl. 144 ; Galbraith v. Illinois Steel Co., 133 Fed. 485, 66 C. G. A. 359, 2 L. R.^A. (N. S.) 799. 87 "To open the door of legal redress to wrongs received through the mere voluntary and factitious relation of a contractor with the Immediate subject of the Injury would be to encourage collusion and extravagant contracts between men,. by which the death of either through the Involuntary default of others might be a source of splendid profits to the other, and would also invite a system of liti- gation more portentous than our jurisprudence has yet known." Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265, 65 Am. Dec. 571, per Storrs, J. And see Mobile Life Ins. Co. v. Brame, 95 TJ. S. 754, 24 L. Ed. 580. The foregoing statement, al- 8 8 Peters v. Johnson, 50 W. Va. 644, 647, 41 S. E. 190, 57 U R. A. 428, 88 Am. St. Rep. 909. § 8) CONTRACT AND TOET PARTIES INJURED 21 ous by reason of hidden defects, particularly where he has tak- en steps to conceal the danger. Now, the duty of the seller is, of course, in a sense contractual. It rests upon his agree- ment of sale; and hence at first blush it would seem that, if the buyer in turn sells the article to one who is injured, the latter can maintain no action against the first vendor. The courts, however, h.ave decided that there exists a duty on the part of the vendor to a subsequent purchaser or user of the article entirely distinct from the duty which he owed to the intermediate vendee. The injury to the last purchaser or user was a thing which the original vendor could reasonably have foreseen and anticipated. Take the case of one who manu- factures a land roller, the tongue of which contains a knot which he conceals with putty and paint, so that the defect cannot be seen on inspection. This he sells to one who in turn sells the article to the plaintiff.*' Can it be said that he owed no duty to the one who finally purchased the roller and who suflFered injury by reason of the willful and fraudulent concealment? True, he owed none by contract; but is there not a general obligation imposed upon every man to refrain from acts which he knew or should have known would in the natural course of events cause injury to another? This duty has been broadly stated as follows: "Whenever one person is by circumstances placed in such a position with re- gard 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 circum- stances, he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." '■" This rule has been applied though true of the facts involved, appears too broad. A tort may exist, though the damage would not have been suffered, had a con- tract not existed between the sufferer and a third party. Thus one who deposits on a highway stone, earth, and rubbish, and thereby causes Injury to one having a contract with the town to keep the highway in repair, is liable for such damage. McNary v. Chamber- lain, 34 Conn. 384, 91 Am. Dec. 732. eoKuelllng v. Eoderlck Lean Mfg. Co., 183 N. T. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. 70 Per Brett, M. R., in Heaven v. Pender, 11 Q. B. D. 503, 47 J. P. 22 THE TORT CONCEPT (Ch. 1 where poison was sold, labeled as a harmless medicine,'^ and illuminating oil, which was explosive through inherent de- fects,^'' and in other cases which will be discussed when we consider the liability of the vendor of goods. Of course, there can be no question, even on contract, where the purchaser is shown to be the actual agent of the injured party.''* Furthermore, as has already been intimated, the fact that one is under contract properly to perform a certain duty will not exempt him from liability for his invasion of the rights of the third party while attempting to perform it. "If the agent once undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care ^n the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts." '* In cases such as this there is an essential difference between not acting and acting improperly. True, the servant or agent cannot be compelled by a third party to undertake the work; but it is very different from the right which the third party has to insist that the work be performed in such a manner as not to injure him. ELECTION BETWEEN TORT AND CONTRACT 9, In many cases the injured party has his election to waive the tort and sue on contract, or to w^aive the con- tract and sue in tort. Waiving the Contract As we have already seen, the violated duty may have been imposed both by contract and by law. Thus the passenger, 709, 52 L. J. Q. B. 702, 49 L. T. Rep. (N. S.) 357, where a defective staging was sold to plaintiffs employer. 71 Thomas v. Winchester, 6 N. T. 397, 57 Am. Dee. 455. "Wellington v. Downer Kerosene Oil Co., 104 Mass. 64- KIggs V. Standard Oil Co. (C. C.) 130 Fed. 199. js George v. Skivlngton, U R. 5 Exch. 1, 39 L. J. E5xch. 8, 21 L. T. Rep. (N. S.) 495 ; Langridge v. Levy, 6 L. J. Exch. 137, 2 M. & w" 519. T4 Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 439. Here the agent was held liable for damage due to the fall of a tackle block and chain which he had allowed to remain in such a manner that § 9) ELECTION BETWEEN TOHT AND CONTRACT 23 client, or patient may proceed against carrier, attorney, or physician in many cases on either tlieory. So, too, if the seller falsely warrants his title to or the soundness of the article sold, it is a breach of contract; and if the statement is known to him at the time' to be false, it is a tort as well.'" Of course, if the vendee sue on the latter theory, he sets up a cause of action which is more difficult to prove, since he must show the defendant's gwilty knowledge.'* If a sale of goods is induced by fraudulent representations on the part of the vendee, the vendor likewise has a choice of remedies. He^may disaffirm the sale, treat the contract as rescinded, and bring a proceeding in replevin to recover the goods, or he can treat the contract as subsisting and sue for the price.'" If a bank without just cause refuse to honor a depositor's check, the latter may sue, it is true, for breach of contract; but he may also proceed in tort for what is regarded as a slander upon the depositor's credit.''* The latter theory is generally better for the plaintiff. Suppose the check were only for five dollars. If plaintiff has elected to proceed on the theory of a breach of contract, his damages will be the five dollars and interest, provided that the check remain un- paid, and if it has subsequently been paid his recovery can be but nominal. But, on the other hand, if the wrong is to be considered as a slander upon the depositor's credit, it is ■ evident that where the latter is a trader, and perhaps in other cases, the smaller the check the greater the slander.'* they were likely to cause Injury. And see Southern K. Co. v. Griz- zle, 124 Ga. 735, 53 S. B. 244, 110 Am. St. Bep. 191. In Rice v. To- cum, 155 Pa. 538, 26 Atl. 698, the servant or agent had unlawfully taken a machine helonglng to plaintiff and turned it over to his prin- cipal. rs See infra, p. 410 et seq. T8 Eoss V. Mather, 51 N. X. 108, 10 Am. Rep. 562. T7 HeUbronn v. Herzog, 165 N. T. 98, 58 N. B. 759. T8 Atlanta Nat. Bank v. Davis, 96 Ga. 834, 23 S. E. 190, 51 Am. St. Rep. 1.39; J. M. James Co. v. Continental Nat. Bank, 105 Tenn. 1, 58 S. W. 261, 51 I/. B. A. 255, 80 Am. St. Rep. 857 ; Davis v. Stand- ard Nat. Bank, 50 App. Div. 210, 63 N. Y. Supp. 764. 79 In Atlanta Nat. Bank v. Davis, 96 Ga. 334, 23 S. E. 190, 51 Am. 24 THE TORT CONCEPT (Ch. 1 Again, if property is intrusted to another for a considera- tion, to be cared for, used, repaired, or for other purposes, to be later returned,' and it is negligently injured, the owner may proceed on the theory of a breach of contract; but he may likewise sue in tort.'" Quasi Tort This term has sometimes been adopted to designate casfes coming within the foregoing class. Thus, in an action against a railroad for injuries received by a passenger, Lindley, L. J-, observed that: "Every one who has studied the English law will know perfectly well that there is debatable ground be- tween torts and contracts. There are what are called quasi contracts and quasi torts ; and if is sometimes not easy to say whether a cause is founded on contract or on tort. Very often a cause of action may be treated either as a breach of contract or as a tort." *^ Though the expression has often been used by text-writers,'* it has not as yet appeared to any extent iii the decisions, nor does its exact significance seem to have been definitely determined. St. Rep. 139, a check for $12.48 was returned unpaid through a cler- ical error. The bank apologized to Its depositor and wrote a special letter to the payee, explaining the circumstance.. Though special damages were not prored, a verdict for $200 was sustained on ap- peal. In SchaflCner v. Ehrman, 139 111. 109, 28 N. E. 917, 15 L. R. A- 134, 32 Am. St Rep. 192, under practically the same state of facts, the check being for $249, the recovery was for $450. In Birchall v. Third Nat. Bank, 15 Wkly. Notes Cas. (Pa.) 174, where there were two checks, for $68 and $250, respectively, a verdict for $1,000 was considered excessWe and was reduced to $600. But in New York it has been held mat In the absence of proof of special damage or malice a recovery will be limited to nominal damages. T. B. Clark Co. V. Mt. Morris Bank, 85 App. Div. 362, 83 N. Y. Supp. 447, IIT N. Y. St. Rep. 447. Cf. Davis v. Standard Nat Bank, 50 App. Div. 210, 63 N. Y. Supp. 764. 8 One who, having in hia' charge th'e horse of another to keep and use, without the exercise of proper care lets him on a very hot day to a stranger, who overdrives him so as to cause his death, may be found to be liable either on a count In contract for breach of an agreement to keep and use the horse carefully, or on a count in tort for negligently keeping and using it Pelton v. Nichols, 180 Mass. 245, 62 N. E. 1. 81 Taylor v. Manchester S. & L. R. Co., [1895] Q. B. D. 134, 138. 82 See Jaggard on Torts, p. 22 ; Burdick on Torts (3d Ed.) p. 32. § 9) ELECTION BETWEEN TORT AND CONTEACT 25 Advantage of Suing in Tort Generally speaking, it will be more advantageous for the injured party to proceed on the theory of tort rather than in contract. Two reasons should be particularly noted: First, the damages may be greater; second, the method of redress may be more complete. "In actions on contract, except prom- ises to marry, the amount recoverable is limited to the actual damages caused by the breach; the measure being the same whether the defendant fails to comply with his contract through inability or willfully refuses to perform it. But in torts the rule is different. The motiveofthedefendantjbe- comes material. In those that a^re comrmttedTKrough mistake, ignorance, or mere negligence, the ordinary rule is mere com- pensation ; but in such as are committed willfully, maliciously, or so negligently as to indicate a Yranton disregard of the rights of others, the jury are not restricted to compensation merely. They may, if the evidence justifies it, give vindictive or exemplary damages, such as will not only compensate the injured party, but at the same time tend to prevent a repeti- tion of the wrong either by the defendant or others." *' The method of redress may be more effective, for the rea- son that, in actions for tort, the plaintiff under the procedure in many states is entitled to an order of arrest, by means of which the defendant will be held to abide the event of the ac- tion, and, should a judgment finally be rendered against him, an execution against his person may be issued. But in ac- «3 Per Sterrett, J., In Pittsburgh, C. & St. L. Ry. Co. v. Lyon, 123 Pa. 140, 150, 16 Atl. 607, 609, 2 L. R. A. 489, 10 Am. St. Rep. 517. And see Davis v. Standard Nat. Bank, 50 App. Div. 210, 63 N. Y. Supp. 764. It has been intimated, however, that In actions by pas- sengers against railroads, though on contract, exemplary damages may be recovered where they would be allowed had suit been brought In tort. Alabama Great Southern R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St Rep. 17; Memphis & C. Packet Co. v. Nagel, 97 Ky. 9, 29 S. W. 743, 16 Ky. Law Rep. 748; Morrison v. The John L. Stephens, 17 Fed. Cas. 838, No. 9,847. But this seems open to question. The better rule Is that punitive damages are -given only when the action is brought as for a tort. Trout v. Wat- kins Livery & Undertaking Co., 148 Mo. App, 621, 130 S. W. 136: Sutherland on Damages, § 99. 26 THE TOET CONCEPT (Ch. 1 tions on contract, with a few exceptions, as where a debt was fraudulently contracted, this is usually not permitted." Waiving Tort and Suing on Contract Outside of the cases already alluded to, there are others in which the injured party may make his election. Here, al- though the injury may primarily be regarded as a tort, he may nevertheless treat it as a breach of a theoretical contract. In other words, from the existence of certain facts the law will imply a promise on the part of the wrongdoer to make com- pensation, although he has actually made no promise to that effect.'" Cases in which this doctrine is most frequently ap- plied are those where the defendant has wrongfully appro- priated plaintiff's property. Suppose A. unlawfully takes a diamond belonging to B., which he sells to C. The taking was an invasion of B.'s property rights, and B. may sue A. for the tort conversion, recovering the value of the diamond at the time of the taking.*' As against C, B. may likewise recover either the diamond itself, since A. could transfer no greater title than he had, or its value, though, as it is held in some states, only, after a demand made upon C. and a re- fusal by the latter to return.*' But, assuming that, owing to market fluctuations, the value of the diamond at the time it was taken was but small in comparison with the price for which A. sold it, it would be unfair to permit A. to en- rich himself by means of his own wrong at B.'s expense, for which reason B. should be allowed to treat A. as his agent and recover the price which the latter has obtained, in an action 8* See Comp. Laws Mich. §§ 9996, 9998 ; Code Civ. Proc. N. Y. §§ 549, 1487. 86 "From certain acts or omissions of a party creating a liability to make compensation in damages the law implies a promise to pay such compensation. Whenever this is so, and the acts or omissions are at the same time tortious, the twofold aspect of the single lia- bility at once follows, and the injured party may treat it, as arising from the tort, and enforce it by an action setting forth the tortious acts or defaults, or may treat it as arising from an implied con- tract, and enforce it by an action setting forth the facts from which the promise la inferred by the law." Pomeroy on Remedies and Be- medial Rights, § 568. 88 See infra, p. 374. st See Infra, p. 375. § 9) ELECTION BETWEEN TORT AND CONTRACT 27 on contract for money had and received.*' If the thief has not sold or disposed of the property, but retains it in his pos- session, the courts are not in accord whether the owner may sue on an implied contract of sale to the wrongdoer. The weight of authority apparently is that he can.'* But other courts have adopted a contrary doctrine.'" Following this principle, the Supreme Court of Wisconsin, after a careful analysis of the doctrine, held that, where the _ cattle of defendant had trespassed upon plaintiff's lands, a suit might be sustained in implied contract for the value of the pasturage."^ This was evidently on the theory that the tort- feasor was enriehed, for ordinarily an action cannot be brought on contract for a naked trespass to land in the ab- sence of a statute permitting it."^ Another illustration is supplied by cases holding that, where money or property has been obtained by fraud," or duress,** an action will lie in contract. Now, the limits of the principle are apparent. The de- fendant has enriched himself unjustly. It must be a case 88 Cragg V. Arendale, 113 Ga. 181, 38 S. B. 399; Howe v. Clancey, 53 Me. 130 ; Dallas v. Koehler Sporting Goods Co., 86 N. J. Law, 651, 92 Atl. 356 ; Harpending v. Shoemaker, 37 Barb. (N. Y.) 270 ; Small V. Robinson, 9 Hun (N. T.) 418 ; Brittain v. Payne, 118 N. C. 989, 24 S. a 711. 8 » Roberts v. Evans, 43 Cal. 380; City of Elgin v' Joslyn, 136 111. 525, 26 N. B. 1090; Aldine Mfg. Co. v. Barnard, 84 Mich. 632, 48 N. W. 280 (semble). And see Tolan v. Hodgeboom, 38 Mich. 624; Watson V. Stever, 25 Mich. 386; Gordon v. Bruner, 49 Mo. 570; TERRY T. MUNGER, 121 N. Y. 161, 24 N. B. 272, 8 L. R. A. 216, 18 Am. St Rep. 803, Chapin Cas. Torts, 8. »o Cragg v. Arendale, 113 Ga. 181, 38 S. E. 399; Moses v. Arnold, 43 Iowa, 187, 22 Am. Rep. 239 ; Jones v. Hoar, 5 Pick. (Mass.) 285 ; Willet V. Willet, 3 Watts (Pa.) 277. »i Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782. 92 See St John v. Antrim Iron Co., 122 Mich. 68, 80 N. W. 998 ; Downs V. Finnegan, 58 Minn. 112, 59 N. W, 981, 49 Am. St Rep. 488 ; Fanson v. Linsley, 20 Kan. 235. »» Dashaway Ass'n v. Rogers, 79 Cal. 211, 21 Pac. 742 ; Cory v. Board of Chosen Freeholders of Somerset County, 47 N. J. Law, 181; Byxble v. Wood, 24 N. X. 607; Western Assur. Co. v. Towle, 65 Wis. 247, 26 N. W. 104. »* Chandler v. Sanger, 114 Mass. 364, 19 Am. Rep. 367. 28 THE TORT CONCEPT (Ch. 1 where he is "under an obligation from the ties of natural jus- tice to refund." Then "the law implies a debt and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract — 'quasi ex contractu,' as the Roman law ex- presses it." °° The distinction between cases such as the, foregoing and those where the remedy is obviously in tort alone, such as as- sault and battery, slander, or libel, can readily be perceived. The theory upon which the former proceed is that the promise may be implied, and when the promise is implied it is "be- cause the party intended it should be, or because natural jus- tice plainly requires, it in consideration of some benefit re- ceived." " Certainly the mere "duty to pay damages for a tort does not imply a promise to pay them." " Hence, "as- suming a defendant to be a tort-feasor, in order that the doc- trine of waiver of tort may apply, the defendant must have unjustly enriched himself thereby. That the plaintiff has been impoverished by the tort is not sufficient. If the plaintiff's claim, then, is in reality to recover damages for an injury done, his sole remedy is to sue for tort." '* Nor is the difference between contract and quasi contract: less marked. Assent is of the essence of the first, whether shown by words or by acts. The evidence to prove the agree- ment may be different; but the willingness to assume the ob- ligation must be shown. On the other hand in quasi contract,, not only does defendant's obligation "not depend in any case upon his assent, but in many cases exists notwithstanding his dissent." »' 95 Per Lord Mansfield, in Moses v. Macferlan, 2 Burr. 1005, 1008. 06 Per Mellen, C. J., in Webster v. Drinkwater, 5 Me. 319, 322, 17 Am. Dec. 238. oT Per Allen, J., in Cooper v. Cooper, 147 Mass. 370, 373, 17 N. E. 892, 9 Am. St. Rep. 721; Bigby v. United States, 188 U. S. 400, 409, 23 Sup. Ct. 468, 47 L. Ed. 519. 08 Keener on Quasi Contracts, p. 160. And see New York Guar- anty & Indemnity Co. v. Gleason, 78 N. Y. 503 ; National Trust Co. V. Gleason, 77 N. Y. 400, 33 Am. Rep. 632; Fanson v. Linsley, 20- Kan. 235. »» Keener on Quasi Contracts, p. 3. § 10) ELECTION BETWEEN TOKT AND CONTKAOT 2& ELECTION BETWEEN TORT AND CONTRACT- CREATING CAUSE OF ACTION 10. The party wronged cannot, merely by waiving what is essentially a tort, create a cause of action in con- tract, nor, by waiving what is essentially a cause of action in contract, create a tort. Rule Applied The word "create" should be emphasized. We have hither- to pointed out the gssential differences between the contract and tort concept, and have noted the border-line cases where suit may be brought on either theory, as well as those of quasi contracts 'arising by pure implication of law. But, however clear the distinction may be between the two classes of rights, the line of demarcation is in fact by no means well defined, and many cases exist showing a failure of counsel to view the cause of action from a proper standpoint. One of the leading decisions is found in Bigby v. United States.^"" Here plaintiff had been injured in an elevator operated in a fed- eral building. The jurisdiction of the United States Court of Claims did not cover cases of tort, but it did extend to cases of "contract expressed or implied." Plaintiff's conten- tion was that he might sue on an implied contract with the government to carry him safely, analogous to that of the com- mon carrier ; but the wrong, if any, was held to be a pure tort founded on negligence.^"^ On the other hand, it is equally well settled that "the plain- tiff cannot, by changing the form of his action, change the nature of the defendant's obligation, and convert that into a tort which the law deems to be a simple breach of an agree- ment." ^°* Thus, where a reorganization agreement made by the bondholders of an insolvent railway company confers up- 100 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519. i»i And see, for further Illustrations, Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Kep. 721; Raymond v. Lowe, 87 Me. 329, 32 Atl. 964; Noyes v. Loring, 55 Me. 408; St. John v. Antrim Iron Co., 122 Mich. 68, 80 N. W. 998; North Haverlll Water Co. V. Metcalf, 63 N. H. 427. 102 Per Brown, J., In "Walter y. Bennett, 16 N. X. 250, 252. 30 THE TORT CONCEPT (Ch. 1 on a committee the title to the bonds, authorizing them to prepare a plan of reorganization and give notice thereof to the bondholders, so that any of them might withdraw from the agreement if the plan should not be satisfactory, with further power in the committee to form a new corporation and use the bonds for the purpose of purchasing any of the assets and franchises of the old company, an action against the members of the committee for using the bonds to pay the purchase price of the railway's property bid in by them, with- out first making a plan of reorganization and giving notice thereof, must be brought f9r breach of contract; there being no wrong to be redressed on the theory of tort.^"* It was here pointed out that the wrong, if any, for which a bond- holder might bring his action, consisted in the one fact of the failure to file a plan of reorganization. In so doing the com- mittee violated the reorganization agreement, and whatever responsibility attached to them was based on and limited thereby. So, where a contract made with an agent requires him to guarantee all sales and to remit the proceeds thereof, the agent's failure to collect the amounts due from the pur- chasers is not a tort. The principal's remedy is by suit on the guaranty.^"* But perhaps the rule is best illustrated where relief has been unsuccessfully sought in tort in actions founded on al- legations of fraud. As will be seen later,^"* in order that this tort must exist, it is necessary that the fraudulent rep- resentations under which plaintiff was induced to act relate to past or existing facts. A mere promise or declaration of intention will not be sufficient; unless there was no design on defendant's part at the time to perform it. To hold otherwise would plainly destroy all distinction between tort and con- tract. Hence, where defendant had obtained plaintiff's signa- ture to a note by certain representations as to what would be done with the proceeds,^"' or to an assignment of patent io» Industrial & General Trust v. Tod, 170 N. T. 233, 63 N. B. 285. lot Standard Fertilizer Co. v. Van Valkenburgh, 21 Misc. Eep. 559,.47N. X. Supp. 703. 100 See infra, p. 397. xoe Dickinson v. Atkins, 100 111. App. 40L § 10) ' ELECTION BETWEEN TOET AND CONTRACT 31 rights, royalties, etc., by promising to furnish funds for the purpose of carrying on a certain business,^ °^ or had brought about an exchange of farms by representing that the interest on a certain mortgage would be paid,^*" ^n action based on an alleged tort cannot be maintained.^"' The importance of selecting the proper form of action can- not be underestimated. True, the tendency is now as strongly toward liberality in construing pleadings as it was formerly the reverse ; but misconception by the pleader of the particular right, whether ex delicto or ex contractu, on which an action is based, may prove fatal.^^* If an action is plainly brought on one theery, the plaintiff cannot, merely by prov- ing a state of facts showing injury had he brought it on the other, be permitted to recover.^^^ But, if a cause of^action essentially on contract is properly set forth, the courts will be liberal in holding that mere allegations of bad faith, "fraud, or negligence are not sufficient to convert it into an action in tort,^^^ and in New York it is well established that if fads are set forth in a complaint which constitute a cause of ac- lOT Smith V. Parker, 148 111. 127, 45 N. E. 770. 108 Alletson V. Powers, 72 Vt. 417, 48 Atl. 647. 10 » And see, further, as Ulustrating the principle stated, Dawe v. Morris, 149 Mass. 188, 21 N. E. 318, 4 L. R. A. 158, 14 Am. St. Rep. 404; Henry W, Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co. (Sup.) 115 N. Y. Supp. 1102; Grove v. Hodges, 55 Pa. 504. • 110 The New York Code of Civil Procedure although it abolishes forms of pleading previously existing, did- not change the distinction between actions in tort and those on contract. Barnes v. Quigley. 59 N. Y. 265 ; Austin v. Rawdon, 44 N. Y. 63. 111 Manker v. Western Union Tel. Co., 137 Ala. 292, 34 South. 839; Neudecker v. Kohlberg, 81 K Y. 297; Degraw v. Elmore, 50N. Y. 1; Postal V. Cohn, 83 App. Div. 27, 81 N. Y. Supp. 1089, holding that ■where an action was brought for fraud in falsely warranting the soundness of a horse, recovery could not be had on contract, plaintiff having failed to prove defendant's knowledge of the falsity of the representation at the time it was made; Katzenstein v. Raleigh & G. R. Co., 84 N. C. 688 ; Osborn v. First Nat. Bank of Athens, 154 Pa. 134, 26 Atl. 289; Welker v. Metcalf, 209 Pa. 373, 58 Atl. 687; Francisco v. Hatch, 117 Wis. 242, 93 N. W. 1118. 112 Garcelon v. Commercial Travelers' Eastern Ace. Ass'n, "184 Mass. 8, 67 N. E. 868, 100 Am. St. Rep. 540- Critten v. Chemical Nat. 32 THE TORT CONCEPT (Ch. 1 tion on either theory, and there is nothing in the complaint to show whether the pMntiff sues in tort or on contract, he will be permitted to recover such a judgment as is warranted by the facts proved.^^* STATUTORY TORTS 11. Though the majority of torts have a common-law ori- gin, many are purely statutory, The duty may have been created by legislative act, and for its vi- olation a liability will arise to an individual for whose protection it was imposed, where damage of the character which the statute was designed to prevent has proximately resulted. With .the advance of civilization, legislation becomes neces- sary to safeguard the rights of the individual against new dangets,^^* or to supply the deficiencies of the common law by creating entirely new rights. Thus, until the passage of Lord Campbell's Act in England in 1846, no right of a per- sonal representative or next of kin was considered to be vio- lated by the negligent or willful killing of a human being, however great might be the resulting damage.^^" Valuable kinds of property and privileges, like patents and copyrights, with their corresponding rights and duties, are matters of « Bank, 171 N. T. 219, 63 N. E. 969, 57 L. R. A. 529 ; Ledwich v. Mc- Kim, 53 N. T. 307 ; Jones v. Leopold, 95 App. Div. 404, 88 N. Y. Supp. 568 ; Van Oss v. Synon, 85 Wis. 661, 56 N. W. 190. 118 Bradbury's Rules of Pleading, p. 3;, Conaughty v. Kichols, 42 N. T. 83. In Georgia it li,as been held that if the allegaljons are equivocal the action will be deemed in tort. Central of Georgia R. Co. V. Chicago Portrait Co., 122 Ga. 11, 49 S. E. 727, 106 Am. St. Rep. 87. 11* As by requiring the erection of fire escapes on apartment hous- es, WILLY V. MULLBDT, 78 N. Y. 310, 34 Am. Rep. 536, Chapin Cas. Torts, 10; or factories, Pauley v. Steam Gauge & Lantern Co., 131 N. Y. 90, 29 N. E. 999, 15 L. R. A. 194. 11 B Carey v. Berkshire R. Co., 1 Gush. (Mass.) 475, 48 Ana. Dec. 616 ; The Harrisburgh, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358. It is believed that this statute has been adopted in every state, though necessarily with some modifications. § 11) STATUTORY TORTS 33 statutory creation, "liquoV laws" in many states permit one who is injured by an intoxicated person to bring an action against the seller under certain conditions/^' and in one state at least the so-called "right of privacy," which protects an in- dividual against the unauthorized use of his name or picture for advertising purposes, owes its origin to specific legisla- tion."^ Public or Private Duties Statutes of this character may assume such diverse forms that anything like a clear statement of underlying principles becomes well-nigh hopeless. There can, of course, be no doubt where the act specifically gives a cause of action to the individual aggrieved. But all legislation is not so clear, and many difficult questions have arisen in consequence. A new crime is created. Hitherto the commission of the act has re- sulted in damnum absque injuria. Will the creation of a penal liability, apparently to the state alone, give rise to a civil right? Thus the Legislature passes an act prohibiting the operation of unlicensed ferries under a penalty of $5. A licensed ferryman sues in tort one who has no license, on the theory that the wrongful acts of the latter had disturbed the enjoyment of plaintiff's right. But plaintiff having at the common law no right to the exclusive enjoyment of his ferry, and the statute having undertaken to state just what the rem- edy should be, he could recover only the specific penalty im- posed.^** Again, where an act requires a certain waterworks company to keep its pipes charged vfith water at a given pressure un- der a penalty of £10., half of which is to go to the informer, there can be no cause of action in favor of one whose build- ings are destroyed by fire owing it is alleged, to the lack of iiflMcMahon v. Sankey, 133 111. 6S6, 24 N. E. 1027; Ward v. Thompson, 48 Iowa, 588 ; Gardner v. Day, 95 Me. 558, 50 Atl. 892 ; George V. Gobey, 128 Mass. 289, 35 Am. Rep. 376 ; Lucker v. Liske, 111 Mich. 683, 70 N. W. 421; Quinlan v. Welch, 141 N. X. 158, 36 N. E. 12; Sibila v. Bahney, 34 Ohio St. 399; Da vies v. McKnight, 146 Pa. 610, 23 Atl. 320. iiT Consol. Law's N. Y. 1909, c. 6, art. 5, §§ 50, 51; and see infra, p. .288. 118 Almy V. Harris, 5 Johns. (N. Y.) 175. Chap.Torts — 3 34 THE TORT CONCEPT (Ch. 1 pressure.^^* Nor can one who is drafted into military service as an alternate recover against one drafted into th^ first class, who flies the country, in consequence of which the alternate is forced to serve.^"" On the other hand, where defendant suspended a sign , across a street in violation of a public ordinance, by means of a wire rope fastened to an iron bolt in his building, and the bolt fell, breaking plaintiff's window, it was held that the latter might recover.^^^ The test to be applied is indicated by Brett, 1,. J., in the Atkinson Case, already cited, when he observes that "on the true construction of this statute it is plainly the intention of the Legislature that the only remedy for such a breach of duty as the present should be the recovery of the penalty." In other words, did the Legislature intend to stop short at making the act a public offense? If it did, then a public prosecution, whether it assume the form of an action insti- tuted by the state or at the instance of the informer, .can be the only result of the violation. Applying this rule, the de- cisions in the four cases quoted appear eminently logical.^''' iis.Atkinson v. Newcastle Waterworks C!o., 2 Ex. D. 441. 12 Dennis v. Larkin, 19 Iowa, 434. And see Mack v. Wright, 180 Pa. 472, 36 Atl. 913 ; Utley v. Hill, 155 Mo. 232, 55 S. W. 1091, 49 L. R. A. 323, 78 Am. St. Rep. 569. 121 Salisbury v. Herchenrocler, 106 Mass. 458, 8 Am. Rep. 354. It made no difference that defendant was not negligent in hanging the sign or in maintaining it, since the act was inherently unlawful. And see Klatt v. N. C. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563. In some states, however, the violation of an ordinance is merely some evidence on the question of negligence to be submitted to the jury. Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488. And see in- fra, p. 534. The statute of Westminster II (13 Edw. I, c. 50) express- ly gave a remedy by an action on the case to all who are aggrieved by the neglect of any duty created by any statute. 2 Inst. 486. In Virginia it has been enacted that "any person injured by the viola- tion of any statute may recover from the offender such dam- age as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the safne be expressly mentioned to be in lieu of all damages." Norfolk & West R. Co. v. Irvine, 84 Va. 553, 5 S. E. 532. 12 2 See, further, Harrod v. Latham Mercantile & Commercial Co., 77 Kan. 466, 95 Pac. 11 ; Groves v. Winborne, [1892] 2 Q. B. 402, 67 L. J. Q. B. 862, 79 L. T. Rep. (N. S.) 284; Mairs v. Baltimore &.O. R. Co., 73 App. Div. 265, 76 N. Y. Supp. 838. § II) STATUTORY TOETS 35 A close case was where a seaman sued, alle^ng injury be- cause of the violation of an act requiring shipowners to keep medicine on board. Though the decision went in plaintiff's favor, considerable doubt was subsequently expressed of its correctness.^^^ Duty to Party Injured Now, conceding that the act may be so drawn that it impos- es a duty in favor of some one, the next question is whether it imposes a dj^ty in favor of the particular individual by whom the suit is brought; for it is not sufficient that the duty has been created, nor even that the breach thereof should consti- tute actionable neglFgence so far as some members of the com- munity are concerned. It must appear in addition that the plaintiff is one of a class of persons for whose benefit the Legislature passed the statute. For instance, a statute requir- ing fire escapes to be maintained on apartment houses is evi- dently for the benefit of tenants.^''* An act obliging railroad companies to blow whistles and ring bells at crossings,^ ^° or to maintain a flagman ^^° or a signboard ^" there, is for the benefit of one crossing the road, while failure to provide stat- utory safeguards for dangerous machinery will give a cause of action to employes injured thereby.^** For other cases reference is made to the note.^^' 123 C!oucli V. Steel, 3 El. & Bl. 402. But see Atkinson v. Newcastle Waterworks Co., 2 Ex. D. 441. 12* WILIiX V. MULLEDY, 78 N. Y. 310, 84 Am. Rep. 536, Chapin Cas. Torts, 10. 125 Richardson v. New York Cent. R. Co., 45 N. Y. 846; Ernst v. Hudson River R. Co., 35 N. Y. 9, 90 Am. Dec. 761 ; Chicago & E. I. R. Co. V. Boggs, 101 Ind. 522, 51 Am. Rep. 761. Liability is not re- stricted to cases of collision. Norton v. Eastern R. Co., 113 Mass. 366, holding that a recovery might be had, where a warning was not given, for injury to a horse driven by plaintiff, which was fright- ened by the sudden approach of the cars and broke its leg. Green V. Eastern R. Co. of Minnesota, 52 Minn. 79, 53 N. W. 808, where plaintiff's horse, having been frightened, jumped and whirled around, throwing plaintiff. 126 Johnson v. St Paul & D. R. Co., 31 Minn. 283, 17 N. W. 622. 12T Dodge V. Burlington, C. R. & N. R. R. Co., 34 Iowa, 276. 128 Davis V. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899; Ash- man V. Flint & P. M. R. Co., 90 Mich. 567 51 N. W. 645; Klein v. 12 9 See note 129 on following page. 36 THE TORT CONCEPT (Ch. 1 On the other hand, a statute which required that all en- gaged in blasting should give seasonable notice of each ex- plosion, so that "all persons or teams that .may be approach- ing shall have a reasonable time to retire to a safe distance," will not give a cause of action to a workman injured by the failure of. a fellow q.uarryman to give such notice.^" Nor is the advertising of letters unclaimed at the post office deemed to be for the benefit of the newspapers wherein such adver- tisements appear.^*^ An act requiring railroads to block "frogs" in 'their yards is designed for the protection of those rightfully upon the Garvey, 94 App. Div. 183, 87 N. T. Supp. 99S ; Klatt v. N. O. Foster Lumber Co., 97 Wis. 641, 73 N. W. 563 ; Groves v. Wlnborne, [1898] 2 Q. B. 402, 67 L. J. Q.B. 862, 74 L. T. Rep. N. S. 284. ,129 Burk V. Creamery Package Mfg. Co., 126 Iowa, 730, 102 N. W. 793, 106 Am. St. Rep. 377; Billings v. Breinig, 45 Mich. 65, 7 N. W. 722 ; Keyser v. Chicago & G. T. Ry. Co., 66 Mich. 390, 33 N. W. 867 : Kinney v. Koopman, 116 Ala.. 310, 22 South. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, note ; Channon Co. v. Hahn, 189 111. 28, 59 N. E. 522 : Brown v. Wittner, 43 App. Div. 135, 59 N. Y. Supp. 385 ; Mc- Rickard v. Flint, 114 N. Y. 222, 21 N. E. 153. 130 "'Persons that may be approaching' seem rather intended to apply to those only who are not engaged in or around the quarry, and whoy therefore, being ignorant of their proximity to danger, are seen coming withiu the danger line, instead of including with them Such persons also as are constantly engaged there, and have personal knowledge of what is taking place there!" Hare v. Mclntire, 82 Me. 240, 19 Atl. 453, 8 L. R. A. 450, 17 Am. St. Rep. 476. 131 STRONG V. CAMPBELL, 11 Barb. (N. Y.) 135, Chapin Cas. Torts, 13. Action by proprietors of a newspaper, alleged to have tlie largest circulation in Rochester, against the postmaster of that city, based on the latter's refusal to advertise unclaimed letters as re- quired by an act of Congress. The statute, it was held, was not passed "that publishers of newspapers might be enabled to obtain profitable employment and receive emoluments from the public treas- ury. That was no part of the design of the lawmakers. The design of the law obviously was, first, to benefit persons receiving communi- cations through the post office, by giving the widest possible notice that letters remained on hand ready for delivery, and secondly, to secure the greatest amount of revenue to the department by the de- livery of letters and the receipt of postage thereon, wtiich might otherwise never be called for and consequently be returned to the dead letter office." § 11) STATDTOKT TORTS 37 premises, and not of trespassers; ^'' and a city ordinance that in every factory elevators, "when so located as to endanger the lives and limbs of those employed therein while in dis- charge of their duties, shall be so far as practicable so covered or guarded as to insure against any injury to such employes," cannot, when disobeyed, form the basis, of an action by a member of the fire patrol, who enters such building in the dis- charge of his duties, since he is not an "employe." *'* Again an act making it obligatory for railroads to fence against live stock "running at large," which contains a further provision that the operating of trains on depot grounds, where no such fence is built, at a 'greater rate of speed than eight miles per hour, shall be deemed negligence, creates no cause of action in favor of the owner of a horse killed at the depot while harnessed to a wagon, since such horse was not "running at large." "* Not only must the statute create a duty to the very class of persons to which plaintiff belongs, but the loss which plain- tiff suffers must be of the kind which the statute was de- signed to prevent. Hence, where a statute enacted for the purpose of guarding against the spread of contagious diseases among animals carried into England required the construction of pens on vessels, it was held that a shipper could recover no damages for sheep^vashed overboard, although the sheep would not have been lost had the pens been built.'^* Creation of Remedy If, upon construing the statute, it is found that its viola- tion gives a cause of action to the particular party who may have suffered loss, it then becomes necessary to note whether 132 Akers v. Chicago, St. P., M. & O. Ry. C!o., 58 Minn. 540, 60 N. W. 669. 133 Gibson v. Leonard, 143 HI. 182, 32 N. E. 182, 17 L. R. A. 588, 36 Am. St. Rep. 376. 134 Cohoon V. Chicago, B. & Q. R. Co., 90 Iowa, 169, 57 N. W. 727. For further illustrations, see Mobile Life Ins. Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580 ; Carper v. Receivers of Norfolk & W. R. Co., 78 Fed. 94, 23 C. C. A. 669, 35 L. R. A. 135 ; Wright v. Southern Ry. Co. (C. C.) SO Fed. 260; Kansas City, Ft S. & M. R. Co. v. Kirksey, 60 Fed. 999, 9 C. C. A. 321 ; People v. Linck, 71 111. App. 358. 135 Gorris v. Scott, L. R. 9 Exch. 125. 38 T&B TORT CONCEPT (Ch. 1 the Legislature has provided a specific remedy, which can alone be followed. It is important at this stage to differentiate, on the one hand, between cases where the right created is entirely new, and is not one already recognized by the common law, and, on the other, where the right, although recognized by the stat- ute, was not created by it. In the former instance (i. e., where the right created is entirely new), if the statute pro- vides for the method of redress, the injured party is to be regarded as confined thereto. For instance, at common law, property may be destroyed to prevent the spread of fire, and no compensation was allowed. Where the statute gives a right to compensation, and prescribes how it shall be collected, that method must be pursued.^'' A further example illustrative of this principle is found in the case of patents. As we have already seen, the patent right is purely statutory, and as jurisdiction of suits for infringe- ment is vested solely in the United States courts, state tri- bunals have no authority to entertain them.^^' Where a mu- nicipality is made liable under circumstances where it would not be responsible at common law, providing that preliminary notice is served, such notice is essential to the maintenance of an action against it.^^' Statutes giving a cause of action for death due to wrongful act or neglect can be brought only by ^^° and for the benefit of persons to whom the cause of ac- tion is given,^*" and only to the extent ^*^ and within the time specified.^*^ i3» Russell V. Mayor, etc., of City of New York, 2 Denio (N. Y.) 461. 187 Dudley v. Mahew, 3 N. Y. 9; Continental Store Service Co. v. Clark, lOp N. Y. 370, 3 N. E. 335 ; Waterman v. SWpman, 130 N. Y. 301, 308, 29 N. E. 111. 18 8 Sachs V. City of Sioux City, 109 Iowa, 224, 80 N. W. 336. 189 Schmidt v. Menasha Woodenware Co., 99 Wis. 300, 74 N. W. 797. 140 Western Union Tel. Co. v. McGlU, S)7 Fed. 699, 6 C. C. A 521 21 L. R. A. 818. 1*1 Ohnmacht v. Mt. Morris Electric Light Co., 66 App. Div. 482 73 N. Y. Supp. 296. 1*2 Staeffler v. Menasha Woodenware Co., Ill Wis. 483, 87 N. W. 480; County v. Pacific Coast Borax Co., 68 N. J. Law, 273 SSAtl' 386. § 11) STATUTOBT TORTS 39 The principle will be found further illustrated in cases cited in the note.^*' If, however, a statute creates a wholly new right, but pro- vides no method of enforcing it, the general rule applies that the law will not permit a right to fail for want of a remedy, or, a§ the maxim has it, "ubi jus ibi remedium." Thus, al- though the statute requiring fire escapes on apartment houses, to which we have already referred, failed to provide for any specific action to be brought by the injured party, neverthe- less a tenant was permitted to recover damages for the death of his wife by a fire which destroyed the building, where it appeared that, if the fire escape had been constructed, the deceased could and probably would have espaped.^** The same principle applies to actions brought by employes injured by a violation of the act requiring the employer to provide specific safeguards not hitherto required,^*" as well as to ac- tions brought by the owners of property taken by municipal corporations, where a constitutional provision requires pay- ment to be made, but provides for no specific remedy.^*" Then there may be cases where the statute has merely given an additional remedy for a common-law right, and here we may have to determine whether the remedy was designed to be cumulative, or was to supersede that already in existence. In general, it is deemed cumulative. Thus the fact that a statute gives the right to distrain and sell cattle damage feas- ant will not take away the common-law remedy of an action 1*3 Smith V. Drew, 5 Mass. 514; McKinney v. Monongahela Nav. Co., 14 Pa. 65, 53 Am. Dec. 517; French v. Wilier, 126 111. 611, 18 N. E. 811, 24 L. R. A. 717, 9 Am. St. Rep. 651 ; Hodges v. Tama County, 91 Iowa, 578, 60 N. W. 185 ; City of Rochester v. Campbell, 123 N. Y. 4(», 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760; Jessup v. Carnegie, 80 K Y. 441, 36 Am. Rep. 643 ; Commissioners of Hancock County V. Bank of Findley, 32 Ohio St. 194 ; Fourth Nat. Bank T. Francklyn, 120 U. S. 747, 7 Sup. Ct. 757, 30 L. Ed. 825. 1** WILLY V. MTJLLEDY, 78 N. Y. 310, 34 Am. Rep. 536, Chapln Cas. Torts, 10. 145 Wolf V. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A. (N. S.) 338. I 148 Chester County v. Brower, 117 Pa. 647, 12 Atl. 577, 2 Am. St. Rep. 713 ; Householder v. Kansas City, 83 Mo. 488. 40 THE TOET CONCEPT (Ch. 1 for trespass.*** A statutory proceeding for the location of lost corners and disputed boundaries will not do away with an action of ejectment;"' and the fact that a railroad is made liable, without proof of negligence, under an act re- quiring it to fence its right of way, will riot prevent the owner of a cow killed by a locomotive from bringing a common- law action to recover the value, where the killing was negli- gent."' So the "Employer's Liability Acts," which impose additional obligations on« the master, did not take away a cause of action for the violation of a duty which existed prior to their passage. The servant has his election."" In a restricted class of cases, however, although a right has previously existed, it may be inferred that the Legislature intended that the remedy provided should be regarded as ex- clusive and as superseding the previous method of redress.*'* METHOD OF VIOLATION 12. Though a tort is usually the result of an act, it may consist as well in the omission to perform a duty imposed by law. Act or Omission , It has been well stated that a tort may arise because "of nonfeasance, * * * the omission of an acts which a per- 1*7 Golden v. Eldred, 15 Johns. (N. Y.) 220; Stafford v. Ingersol, 3 Hill (N. Y.) 38, where it was said: "Where a statute merely gives a new remedy without any negative, expressed or implied, the old rem- edy is not taken away, and a party may have his election between the two." And see Coxe v. Robbins, 9 N. J. Law, 384;' Coffin v. Field, 7 Cush. (Mass.) 355. 148 Keller v. Harrison, 139 Iowa, 383, 116 N. W. 327. 149 Iba V. Hannibal & St. J. R. Co., 45 Mo. 4G9. 150 Ryalls V. Mechanics' Mills, 150 Mass. 190, 22 N. E. 766, 5 L. R. A. 667 ; Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411. And see generally, as illustrating the principle referred to, McKay v. Woodle, 28 N. C. 352; Cumberland & Oxford Canal Corp. v. Hitchings, 59 Me. 206 ; Reliant v. Brown, 78 Mich. 204, 44 N. W. 326 ; Lott v. Swe- zey, 29 Barb. (N. Y.) 87 ; Adams v. Richardson, 43 N. H. 212. iBi Young V. Kansas City, St. J. & C. B. Ry. Co., 33 Mo. App. 509 ; Calking v. Baldwin, 4 Wend. (N. Y.) 667, 21 Am. Dec. 168. § 12) METHOD OF VIOLATION 41 son ought to do; misfeasance, * * * the improper do- ing of an act which a person might lawfully do; and mal- feasance, the doing of an act which a person ought not to do at all." ^"^ Let us take as illustration the case of a railroad. An entry without authority of law upon my land for the pur- pose of laying rails will constitute malfeasance, since the act is inherently unlawful. The railroad may also injure me be- cause its trains are run at an excessive rate of speed, and since the running of trains is inherently lawful and the tort arises here out of the method of performance, it will be a case of misfeasance But the railroad as a common carrier is under a duty imposed by law to transport freight ^'^^ and passengers,'^"* and a refusal to do so without lawful excuse will constitute nonfeasance, for which a cause of action will lie. An analagous common-law duty rests upon the innkee^ter, who is bound to receive and entertain travelers who are able to pay for their accommodation, provided that he has the facilities at his disposal.^*" In these and other instances ^"^ the law departs from its usual formula of "Thou shalt not," and declares, "Thou shalt." A striking illustration is the tort negligence. As will be seen hereafter, this is in reality a failure to observe the degree of care which a reasonable man would have observed under the circumstances of the particular case, by reason of which injury is proximately caused to one to whom a duty to exercise care was owing.^^' It is thus diametrically- opposed to will- 1B2 Bell V. Josselyn, 3 Gray (Mass.) 309, 311, 63 Am. Dec. 741. 153 Chicago & A. R. Co. v. Suffem, 129 111. 274, 21 N. E. 824. 154 Nevln V. Pullman Palace Car Co., 106 111. 222, 46 Am. Rep. 688. 15 5 Watson V. Cross, 2 Duv. (Ky.) 147; Cornell v. Huber, 102 App. Div. 293, 92 X. Y. Supp. 434. 106 A railroad company is liable to a passenger for injuries due to the failure to heat its waiting room, St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 66 S. W. 661, 91 Am. St. Rep. 74 ; and for the failure to exftcise due care to protect a passenger from a drunken fellow passenger. United Rys. & Electric Co. of Baltimore v. State, to Use of Deane, 93 Md. 619, 49 Atl. 923, 54 L. R. A. 942, 86 Am. St Eep. 453. 167 See Bucki v. Cone, 25 Fla. 1, 6 South. 160. And see infra, p. 499. 42 THE TOET CONCEPT (Ch. 1 fulness or wantonness, since the latter terms presuppose in- tent and deliberation existing in the mind of the wrongdoer — a distinction of considerable importance, as different rules govern the defenses which may be interposed and the damages which may be assessed. METHOD OF REDRESS 13. To constitute a tort, the act or omission must give rise to a common-law action for damages. But if the wrong may be redressed thereby, it will be none the less a tort, though courts of equity or of ad- miralty have concurrent jurisdiction, or redress by act of the injured party may be permitted. Concurrent Jurisdiction in Equity and Admiralty It has been said that the word "torts" in legal phraseology does not include all wrongs for which redress is given, even though the right invaded has not been created by contract, since "no civil injury is to be classed as a tort, unless the ap- propriate remedy for it is an action for damages. Such an action is an essential characteristic of every true tort." ^°* But it must not be concluded from this that an action for damages is the sole remedy which must be Sought when a tort has been committed, for in many instances the plaintiff may have an election. At common law the owner of chattels un- lawfully withheld may recover them in actions o'f detinue or replevin, though he may alsa recover their value in an action of trover based on the conversion,'^" and a court of equity will afford relief by injunction in many instances where property rights are threatened and money damages would be inadequate, as in cases of trespass where irreparable damage is threaten- ed.^'" So, too, the equitable remedy of injunction, discovery, and accounting will lie in cases of unfair competition.^"^ Al- though damages may be recovered in cases of nuisance, a court "8 Salmond on Torts, p. 2. 10 9 See infra, p. 370. 160 See Infra, p. 358. 101 See Regis v. Jaynes & Co., 191 Mass. 245, 77 N. E. 774; Leather § 13) METHOD OF REDRESS 43 of equity may order an abatement as additional relief,^'^ and contracts procured by fraud may be canceled or reformed.^" In all these cases the money damages which could alone be given in a common-law action are clearly inadequate, although "it is solely by virtue of the right to damages that the wrong complained of is to be classed as a tort." ^°* Furthermore, in many instances equity will interfere where there would be no recovery at the common law. Thus a land- owner has a right to the lateral support of his premises in their natural state. Suppose his neighbor commences to dig on adjoining lands^ taking no precautions to avoid an inevit- able landslide, which will work serious injury. Up to this point there has been no tort, since no damage has been suffer- ed for which the law will give redress. The land must first fall. Equity, however, will step in and enjoin the threatened wrong.^'^ It may be, too, that a given combination of circumstances will furnish a cause of action to be redressed either in the courts of common law or in the courts of admiralty. The latter have jurisdiction over wrongs committed on the high seas or public navigable waters. Maritime torts are therefore of the same nature as common-law torts, with the element of locality added.^" To confer jurisdiction on an admiralty court, the tort must be consummated upon the water. Thus, the common-law courts, it was held, could alone take cognizance where a vessel , Cloth Co. T. Hirshfeld, 1 Hem. & M. 295, 1 New Rep. 551, 11 Wkly. Rep. 933, 71 Eng. Repr. 129. 182 See Carlisle v. Cooper, 18 N. J. Eq. 241 ; and see infra, p. 574. 163 See infra, p. 394. 164 Salmond on Torts, p. 2. 165 Trowbridge v. True, 52 Conn. 190, 52 Am. Rep. 579; Farrand V. Marshall, 21 Barb. (N. Y.) 409; Finegan v. Eckerson, 32 App. Div. 233, 52 N. Y. Supp. 993. An injunction will issue in equity to pre- vent the threatened obstruction of a right of way. Smith v. People, 142 111. 117, 31 N. E. 599. 166 In re Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087; Philadelphia, W. & B. R. Co. v. Philadelphia H. De G. Steam Tow- boat Co., 23 How. 209, 16 L. Ed. 433 ; The Genessee Chief v. Fitz- hugh, 12 How. 443, 13 L. Ed. 1058; Greenwood v. Town of Westport (D. C.) 53 Fed. 824. 44 THE TORT CONCEPT (Ch. 1 lying at a wharf caught fire by the negligence of those ifi charge and the flames spread to plaintiff's storehouse on the wharf/*'' where a vessel's boom struck a warehouse on the wharf,^" and where a workman was injured by the slipping of a ladder which rested on the wharf and extended up the ship's side.^*' Admiralty courts do not, however, always follow common- law principles. For instance, in admiralty the contributory negligence of the plaintiff may not prevent his recovery, where negligence has existed on the part of the defendant, although at common law it will constitute a bar.^^" The procedure also may diflFer; for, whereas a tort is riedressed at common law only by a proceeding against the individual wrongdoer, in personam, admiralty will in some cases permit a dioice be- tv(reen an action in personam and a proceeding in rem. In the latter "the thing itself against which the right is claimed or liability asserted is proceeded against by name, irrespective of its ownership, arrested or taken into legal custody, and finally sold to answer the demand, unless its owner appears and bonds it." ^''^ Thus, in case of collision, the injured party may proceed in rem directly against the ship alone, or against the master or ownfer alone in personam, or against the ship in rem and the master in personam,^'" while for an as- sault or beating the suit is in personam only.^" Self-Redress Again, the injured party is sometimes permitted by the policy of the law to redress his own wrongs,' as where prop- erty is unlawfully taken from him and he forcibly regains possession forthwith,^'* or where he abates a nuisance.^'* 107 The Plymouth, 3 Wall. 20, 18 L. Ed. 125. les Johnson v. Chicago & P. Elevator Co., 119 TT. S. 388, 7 Sup. Ct. 254, 30 L. Ed. 447. i»» The H. S. Plckands (D. C.) 42 Fed. 239. And see Gordon v. Drake (Mich. 1916) 159 N. W. 340. 170 THE MAX MOKKIS, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586. Chapln Cas. Torts, 350. And see infra, p. 542. 171 Hughes on Admiralty Law, p. 354. 17 8 Admiralty Rules of Practice, No. 15. And see The Corsair 145 TJ. S. 335, 12 Sup. Ct 949, 36 L. Ed. 727. 173 Admiralty Rules of Practice, No. 16. IT* See infra, p. 265, 17b See infra, p. 571. § 14) ACTIONS OF TRESPASS AND CASE 15 ACTIONS OF TRESPASS AND CASE 14. At common law injuries which constituted a direct and forcible invasion of personal or property rights were redressed in an action of trespass. Under other circumstances the Statute of Westminster JI permitted an action to be brought on the case. Trespoiss and Case At common law an action was begun by the issuance of an "original writ" {breve originale), the ancient forms of which, called "brevia formata," are found in the Registrum Brevium, or register of writs. Three forms of action were recognized — real, mixed, and personal.; the first for the recovery of real property only, the second for the recovery of real property with damages for any injury thereto, as ejectment, and the third for recovery of a debt or a chattel or to obtain dam- ages either for breach of cdntract or for injury to the person or property. These personal actions were necessarily in form ex contractu or ex delicto. Of the personal actions brought to obtain damages for injuries to .the person or to property, among the earliest was trespass. This was restricted to cases where there was a direct,, forcible, and immediate in- vasion of another's right: For instance, in assault and battery or false imprisonment, the particular form was trespass vi et armis, where the wrong consisted in an unlawful entry upon the real property of another it was trespass quare clausum fregit, and where personal property was carried away it was trespass de bonis asportatis. As new causes of action arose, though the wrong was con- ceded to exist, the injured party found himself without rem- edy, since he might find no writ in the Registrum Brevium to fit his case. This continued until the Statute of Westminster II ( 13 Edw. I, c. 24) , which provided that as often as it shall happen that in one case a writ is found and in a like case (in consimili casu) falling under the same right and requiring like remedy no writ is to be found, the clerks of the chancery shall agree in making a writ or adjourn the complaint and 46 THE TORT CONCEPT (Ch. 1 refer the matter to the next Parliament.^'' From this arose the celebrated writs of "trespass on the case" (brevia de transgressione super casum), so called, as founded on the peculiar circumstances involved which required a remedy. Now the distinction between the old trespass and the new trespass on the case, or as it was usually called "case," was well defined. To maintain the first form of action the injury must have resulted directly from the forcible act of the de- fendant ; for, if the injury was consequential only, the remedy was in case.^'^ This has been well illustrated by supposing that a log is cast into the highway. If, while in motion, it hits a traveler, the injury is immediate, and trespass lies; but if, after it reaches the highway and becomes stationary, a traveler falls over it and is hu;t, the injury is consequential, and the remedy is case.^'* Hence an action for damages re- ceived from an ajnimal kept by the defendant and known by him to be ferocious ''° is in case, since the wrong here is in the keeping of the beast; though if the defendant sets the animal on it will be trespass.^'" False imprisonment, as we have seen, is in trespass; but malicious prosecution is in case.^'^ Perhaps the largest class where case lies embraces actions founded on the failure to do an act, or to exercise proper care in doing it.^*^ Anything like a full discussion of these forms of action is, of course, impossible within the compass of a work which does not attempt to treat of common-law pleading. At common law, if 'the pleader mistook his remedy, his action would be dismissed. The ^ arbitrary distinction between trespass and 178 Shipman on Common Law Pleading, p. 4. 177 Scott V. Shepherd, 2 Wm. Bl. 892; Covell v. Laming, 1 Camp. 178 Painter v. Baker, 16 111. 103, 104. 17 8 Stumps V. Kelley, 22 111. 140. ISO Painter v. Baker, 16 111. 103, 104. 181 Luddington v. Peck, 2 Conn. 700; Hamilton v. Smith, 39 Mich 222 ; Beaty v. Perkins, 6 Wend. (N. X.) 382 ; Kennedy v. Bamett 64 Pa. 141. 182 Coggs V. Bernard, 2 Ld. Raymond, 909; Gate v. Gate, 50 N H 144, 9 Am. Rep. 179; Dearborn v. Dearborn, 15 Mass. 316; Hamil- ton V. Plainwell Water Power Co., 81 Mich. 21, 45 N. W. 648 § 15) HISTORY AND BIBLIOGEAPHT 47 case has generally been abolished, though the words still sur- vive in current legal language. 15. HISTORY AND BIBLIOGRAPHY History Considered as a whole, the law of torts presents startling anomalies. It is at once the most ancient and one of the most modern branches of jurisprudence. As Sir Henry Maine has pointed out, the conception of compensation to the individual far antedates that of an injury to the community."' Even murder was subject to this rule.^'* In the more primitive stages of racial development, force and violence constituted the chief wrongs, and in consequence the rules governing such i8»"The penal law of ancient communities Is not the law or crimes; it is the law of wrongs, or, to use the English technical word, of 'torts.' The person injured proceeds against the wrongdoer by an ordinary civil action, and recovers compensation in the shape of money damages, if he succeeds. If the Coromentaries of Gains be opened at the place where the writer treats of penal jurisprudence founded on the Twelve Tables, it will be seen that -at the head of the civil wrongs recognized by the Eoman law stood furtum, or theft Offenses which we are accustomed to regard exclusively as crimes are exclusively treated as torts, and not theft only ; but assault and violent robbery are associated by the jurisconsult with trespass, libel, and slander. All alike give rise to an obligation, or vinculum juris, and were all requited by a payment of money. This peculiarity, how- ever, is most strongly brought out in the consolidated laws of the Germanic tribes. Without an exception they describe an immense system of money compensation for homicide, and with few excep- tions as large a scheme of compensation for minor injuries. * • • If, therefore, the criterion of a Relict, wrong, or tort be that the per- son who suffers it, and not the state, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen de- pends for protection against violence or fraud, not on the law of crime, but on the law of tort" "Ancient Law," by Sir Henry Maine, 358. A curious illustration is given by Gibbon ("Decline and Fall of the Koman Empire," c. 44), who tells how one Veratius found amuse- ment in rushing through the streets and striking in the face inof- fensive travelers, while his attendant purse bearer immediately si- lenced their claims by the legal tender of twenty-five pieces of cop- per, about the value of one shilling. 184 The lack of primitive perception of the difference between crim* inal and civil wrongs is shown when we come to the weregeld. By 48 THE TOKT CONCEPT (Ch. 1 torts as assault, battery, false imprisonment, and trespass to lands and chattels are well fixed; and the same is true to a large extent of abuse of process, malicious prosecution, waste, nuisance, and defamation, although the recognition of these injuries must of necessity have dated from a later epoch. Though the principles governing fraud and negligence, torts of ancient origin, are well establishedi they are necessarily largely modem in their application, while the law of unfair competition, interference with contractual rights and with legal remedies, violation of the right of privacy, and conspiracy is yet in process of evolution.^*" To the difference between conditions prevailing in this coun- try and in England must be attributed the changes which, without legislation, some of the common-law principles have undergone in America. In the more settled country it may be only fair to consider a window in existence for 20 years as "an ancient light," the owner of which may maintain an action in tort aga,inst one who blocks air, light and view, though the obstruction be' erected wholly on the property of the builder> But such a doctrine cannot "be applied in the growing cities and villages of this country without working the most mischievous consequences," ^^° though in a tew states the law of ancient Greece, where a murder was done under the Im- pulse of a sudden passion or insanity, the culprit was allowed to choose compensation. In the earlier periods the form such compen- sation took was that of servile labor for a term of years, generally eight. In later times this was superseded by a money payment. Hist. Jur., by Guy Carleton Lee, 169. In England payment of the weregeld was regulated from time to time by royal ordinance, the most complete having been published by Edward the Elder (A. D. 901-924). At the head stood the king, with 30,000 thrimsas, or £500. of the money of the period, half of which went to the king's kindred and half to the state; an archbishop or earl 15,000, or £250.; a bishop or alderman 8,000, or £133. 6s. 8d. ; a priest or thane, 2,000, or £33. 6s. 8d. ; a ceorl or common person, 267, or 9s. In a similar way a pecuniary fine. of smaller amount would relieve a man of cor- poral punishment for various minor offenses. "The King's Peace," by F. A. Inderwick, Q. C, 26 ; Reeve, Hist. Eng. L. vol. 1, p. 28. 186 See 38 Cyc. 417. 188 Per Bronson, J., In Parker v. Foote, 19 Wend. (N. Y.) 309, 318. And see Guest v. Reynolds, 68 111. 478, 18 Am. Rep. 570; Hayden v. § 15) HISTORY AND BIBLIOGEAPHT 49 Statutes have been passed giving a cause of action where the structure was maliciously erected.^*^ To cut down trees in England is waste, since it may well work a serious injury to the freehold, while in America it might be a valuable improvement.^ °* Cases of Novel Impression The maxim that "wherever there is a right there is a remedy," to which reference has already been made, has played an important part in the development of the tort theory. The common law, it has been said, is founded on precedent, and the fact that no precedent can be found for an action in tort based upon a particular act or omission will be considered by the court in determining whether an action will lie; ^^' but where a legal right is manifestly violated, the mere fact that the proceeding is novel will not of itself operate as a bar to redress. Such actions are said to be of "novel im- Duteher, 31 N. J. Eq. 217; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177. 18T Rideout v. Knox, 148 Mass. 36S, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560 ; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St Rep. 670; Id., 72 N. H. 600, 58 Atl. 42. 188 See Infra, p. 390. 18 8 Rice V. Coolidge, 121 Mass. 393, 23 Am. Rep. 279 ; Ryan v. New Xork Cent R. Co., 35 N. Y. 210, 91 Am. Dec. 49. In Davis v. Minor, 2 U. C. Q. B. 464, 468, where it was held that an action on the case in the nature of conspiracy would not lie against a person for supplanting another in the purchase of goods which had first been contracted for by the latter, the court said: "No doubt it is not decisive against this action lying that no precedent of precisely such an action can be found, when the princi- ple upon which it is governed is not new ; hut if the question seems a doubtful one, and the occasions for such actions must very fre- quently have arisen, then 'the absence of any precedent is a strong argument against the action." 180 Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 South, 556, 21 Xj. R. a. (N. S.) 1034; Piper v. Hoard, 107 N. Y. 73, 13 N. E. 626, 1 Am. St. Rep. 789; Van Pelt v. McGraw, 4 N. T. 110; Graham V. Wallace, 50 App. Div. 101, 63 N. X. Supp. 372; Ring v. Ogden, 45 Wis. 303 ; Western Counties Manure Co. v. Lawes ' Chemical Manure Co., L. R. 9 Exch. 218, 43 L. J. Exch. 171, 23 Wkly. Rep. 5. Thus, where plaintiff was induced to marry by defendant's state- ment that the girl was virtuous, defendant knowing this to be false, Chap.Tobts — 4 50 THE TORT CONCEPT (Ch. 1 Bibliography While, as we Have seen, the principles applicable to many specific injuries are exceedingly ancient, the recognition of torts as a separate branch of the law, and not as a mere series of disconnected wrongs, each governed by its distinct code of rules, is comparatively recent. It was not until 1859 that a treatise appeared, the work of an American author, covering the law of torts as a whole.^"^ This was followed a year later by an English work,^'* which in its eighth edition is still a standard. Although preceded by both the works of Professor Bigelow and of Judge Cooley, and although five years earlier Mr. Justice Holmes in his "Common Law" had discussed the judgment for plaintiff was affirmed. "While no precedent Is cited for such an action," said the court, "It does not follow that there is no remedy for the wrong, because every form of action, when brought for the first time, must have been without a precedent to support it. Courts sometimes of necessity abandon their search for precedents and yet sustain a recovery upon legal principles clearly applicable to the new state of facts, although there was no direct precedent for it, because there never had been occasion to make one. The question, therefore, is not whether there is any precedent for the action, but whether defendant inflicted such a wrong upon plaintiff as resulted in lawful damages." KUJEK v. GOLDMAN, 150 N. Y. 176, 178, 44 N. E. 773, 774, 34 L. R. A. 156, 55 Am. St. Rep. 670, Chapin Cas. Torts, 16. So where defendant suborned witnesses to testify falsely to defamatory statements concerning plaintiff, neither plaintiff nor defendant being a party to the suit, it was held that "the fact that an action is without a precedent would call upon the court to con- sider with care the question whether it Is justified by correct princi- ples of law; but, If this is found, It is without weight." Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279. 181 Hilllard on Torts. The experience of Mr. Bishop as told. In his Non-Contract Law, p. 2, shows how such a work was at first con- sidered. "In 1853, after my Marriage and Divorce had appeared, and, urged by friends and publishers, I had determined to write more twoks, I proposed to publishers a book on the law of torts. Present- ing the subject, first to one publishing house, and then to every other law publishing house In the United States, and explaining the nature of the subject and the need of a book upon It, I received from all the reply that there was no call for a work on that subject, and there could be no sale for it. 'If,' said one, voicing the undivided opinion, 'the book were written by the most eminent and prominent author that ever lived, not a dozen copies a year could be sold." " 182 Addison on Torts. § 16) SCOPE OF THE PRESENT WOKK 51 question whether there was any common ground at the bottom of all liability in tort, it is practically with the classic treatise of Sir Frederick Pollock that the development of the general law of tort begins. Writing in 1886, the author declared that his purpose was "to show that there is really a law of torts, not merely a number of rules about various kinds of torts; * * * that there is a true, living branch of the common law, and not a collection of heterogeneous instances." Sev- eral editions have appeared, both of "Bigelow on Torts" and "Cooley on Torts," and they are to-day recognized as leading authorities. In 1885 Professor Jaggard's work was published, and was followed the next year by Mr. Hale's "Handbook on the Law of Torts." The former pursues in the main the plan of Sir Frederick Pollock, making the discussion of specific wrongs more an illustration and developnient of general principles, while the latter is practically an abridgment of Professor Jaggard's two-volume treatise. In 1905 Professor Burdick's work appeared, a third edition of which was published in 1913. 16. SCOPE OF THE PRESENT WORK In discussing this subject we shall first consider certain general principles applicable to the entire range of tort actions, and in particular those determining liability for accidental injuries, responsibility as dependent upon condition of mind, and the existence of damage, liability under the legal rules which define cause and eflFect, certain defenses which, broadly speaking, may be interposed to all tort actions, and the right to recovery as determined by the locality where the tort was committed. We shall then take up the parties to a tort, under which head will be included actions against the single and the joint wrongdoer, and responsibility for individual acts as distinguished from responsibility for the acts of "another. It will then become necessary to discuss the specific torts themselves. Much difficulty has been experienced by writers in classifying wrongs of this character. The following, while far from satisfactory to the author, will, it is believed, prove sufficient for all practical purposes. It is to be noted that 52 THE TORT CONCEPT (Ch. 1 sbme of the torts may appear under two or more heads, _as they may constitute an invasion of different rights. With each tort there will be considered its appropriate remedy. A. Infringement of Personal Security. 1. Assault. 2. Battery. 3. False Imprisonment. 4. Seduction. !B. Infringement of Right of Privacy. C. Injuries to Reputation — ^Defamation. D. Infringement of Private Property. 1. Trespass. a. To Land. b. To Chattels. 2. Conversion. 3. Waste. 4. Fraud. - ' 5. Slander of Title. 6. Interference with Contractual Rights, E. Interference with Domestic Relations. 1. Injuries to Husband. 2. Iniuries to Wife. 3. Injuries to Parefnt. 4. Injuries to Master. F. Obstruction of Legal Remedies. G. Perversion of Legal 'Remedies. L Malicious Prosecution. 2. Malicious Abuse of Process. 3. Unauthorized Suit in Another's Name. 4. Maintenance and Champerty. H. Negligence. I. Nuisance. J. Conspiracy. Ch. 2) 6ENEBAL PKINCIPLE3 53 CHAPTER II <3ENERAL PRINCIPLES— LEGAL RESPONSIBILITY AS DE- PENDENT UPON CONDITION OF MIND AND PROOF oe; damage 17. Responsibility for Voluntary Acts. 18. Intent and Motive. 19. Mental Attitude of the Party Wronged. 20. Mental Attitude of the Wrongdoer. 21. Intent of Wrongdoer — Nature and Accomplishment of Act 22. Intent of Wrongdoer as to Result 23. Motive of Wrongdoer. 24. Legality Dependent on Motive. 25. Damage. RESPONSIBILITY FOR VOLUNTARY ACTS 17. For injury resulting from an act which was voluntary in the strictest sense, the common law held the doer responsible and refused recognition of acci- dent or self-protection as a defense; but modem authorities have in many respects repudiated this doctrine. Doctrine at Common Law It is difficult to realize that originally the law of crime took no cognizance either of misadventure or self-protection as a defense, and the only hope of the offender lay in an appeal to the king's mercy. "The man who commits homicide by misadventure or in self-defense deserves, but needs, a pardon. Bracton cannot conceal this from us, and it is plain from mul- titudinous records of Henry Ill's reign. If the justices have before them a man who, as a verdict declares, has done a deed of this kind, they do not acquit him, nor can they pardon him ; they bid him hope for the king's mercy." ^ This has been best explained by "the extreme difficulty of getting any proof of 1 Pollock & Maitland, History of Eng. Law, vol. 2, p. 479. 54 GENERAL PRINCIPLE8 (Ch. 2 intention or its absence in archaic procedure," * so that it was thought better to place the burden of absolute responsibility upon the wrongdoer rather than to. permit him to interpose a defense, which it might be almost impossible to disprove. But, though a pardon might relieve him from punishment, it did not exempt him from the necessity of making comjJensa- tion. ' Now, bearing in mind what has already been said of the difference between the tort and crime concept, when regarded from the standpoint of the mental attitude of the wrongdoer,* it may be understood why it was that the courts in the former case, while recognizing a distinction between injuries which were the result of strictly voluntary and involuntary acts, should have refused to admit such excuses as misadventure or self-defense. It has been said that "in all civil acts the law doth not so much regard the intent of the actor as the loss and damage of the party suffering. * * * for though a man doth a lawful thing;* yet if any damage due thereby be- fall another, he shall answer for it if he could have avoided it." * Though the intent may have been innocent, though the act may have been inherently lawful, though the highest d'e- gree of care may have been exercised, nevertheless compensa- tion was awarded. Thus in Weaver v. Ward," decided in 1616, where the defendant while skirmishing with his train band discharged his musket, whereby plaintiff was injured, it was held that the plea of accident * was insufficient, for "no man shall be excused of a trespass * * * except it be adjudged utterly without his fault ; as if a man by force take my hand and strike you." It was sufficient that the defend- ant had willed to pull the trigger. The act was then deemed voluntary, though the result was not to be foreseen.^ So, 2 Pollock & Maltland, History of Eng. Law, vol. 1, p. 55. » Supra, p. 5. * Lambert v. Bessey, T. Eaym. 421. c Hob. 134, 80 Eng. Repr. 284. » "Casualiter et per Infortunimn et contra voluntatem suum." T To the same effect, Dickenson v. Watson, T. Jones, 205, 84 Eng Repr. 1218 ; Leame v. Bray, 3 East, 593, 102 Eng. Repr. 724 • James V. Campbell, 5 C. & P. 372. 24 E. C. L. 611. For an act strictly § 17) BESPONSIBILITT FOB VOLUNTARY ACTS 55 too, though the defendant may have acted strictly in self-de- fense ; the plaintiff having been the aggressor.* Modem Doctrine While the absurdity of this do(?trine was soon admitted in criminal law, yet so firmly was the rule established th^t, al- though selffprotection was recognized at an early date,* still accident or misadventure does not appear to have been squarely admitted as a defense to tort actions in this country until the decision in 1835 of Vincent v. Stinehour,^" and in England until Stanley v. Powell ^* in 1891. The facts in the latter case, wheif contrasted with those in Weaver v. Ward, show a total repudiation of the common-law rule, for plaintiff was injured by a glancing bullet fired from fhe gun of defend- ant, there being no negligence on the latter's part. At the pres- ent time, therefore, it may be considered as thoroughly estab- lished that (for purely accidental injuries arising from the doingof an inherently lawful act in a proper manner no lia- bility may.arise)^' Though the qualifying terms "inevitable" or "unavoidable" accident have sometimes been urged, these are manifestly improper, since.it is well-nigh impossible to conceive of a case which would comply with such a test.^' Involuntary, see Smith v. Stone, Style, 65, where In an action for trespass defendant pleaded that he was carried upon the land of the plaintiff by force and violence of others. This was held, to be "Ehe trespass of the party that carried the defendant upon the land, and not the trespass of the defendant." 8 Anonymous, T. B. 21 & 22 Edw. I, 586; Anonymous, Y. B. 12 Edw. II, fol. 381. 8 Chapleyn of Greye's Inn v. , Y. B. 2 Hen. IV, fol. 8, pi. 40 ; Anonymous, Y. B. 33 Hen. VI, fol. 18, pi. 10. 10 7 Vt. 62, 29 Am. Dec. 145. 11 STANLEY V. POWEI/L, 1 Q. B. 85, J. P. 327, 60 U J. Q. B. 52, 63 L. T. Kep. N. S. 809, 39 Wkly. Rep. 76, Chapin Cas. Torts, 21. 12 Brown v. Kendall, 6 Cush. (Mass.) 292 ; Spade v. Lyun & B. R. Co., 172 Mass. 488, 52 N. E. 747, 43 L. R. A. 832, 70 Am. St. Rep. 298 ; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372 ; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623 ; WaU v. Lit, 195 Pa. 375, 46 Atl. 4 ; Miller v. Casco, 116 Wis. 510, 93 N. W. 447. i« Thus, where plaintiffs injuries were the result of the act of defendant's employ^, who was ejecting a drunken passenger, an ob- jection that the phrase "inevitable or unavoidable accident" was not used in the charge was not sustained. The accident was not 56 GENERAL PRINCIPLES (Ch. 2 Not only does the modern rule find its application in cases where the defendant has acted under circumstances which gave him an absolute freedom of choice to do or not to do the particular thing from \diich damage resulted, as where he undertook to part fighting dogs,** to eject a drunken passen- ger,*» or to maintain a boiler,** but it has also ^en applied where, having been placed in a position of peril,'Tie acts in- stinctively or according to his best judgment at the time. And this is true, although mature reflection might have enabled him to adopt a course which would have obviated the injury. The court will, in such cases, put itself in the position of the party from whom an instant decision is required, and will not undertake to speculate too closely at its leisure as to the means which would have been preferable. Thus recovery has been denied where the injury was received from a burn- ing lamp thrown by defendant's servant in an endeavor to save himself,*' and from a pistol fired by one who was de- fending himself against the aggression of a third person.** "That the duties and responsibilities of a person confronted with such a danger are different, and unlike those which fol- low his actions in performing the ordinary duties of life un- der other conditions, is a well-established principle of law. The rule applicable to such a condition is stated in Moak's Underbill on Torts *' as follows : 'The law presumes that the act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily, and it is there said that this rule seems to be founded upon the maxim that self-preservation is the first law of nature, and that, where it is a qviestion whether one of two men shall suffer. Inevitable In the sense that It must have happened. It Is possible to eject a drunken passenger without injuring others. It was not unavoidable, for if the drunken passenger had not been admitted the injury would not have occurred. Feary v. Metropolitan St. Ry. Co., 162 Mo. T5, 62 S. W. 452. I* Brown v. Kendall, 6 Cush. (Mass.) 292. IS Spade V. Lynn & B. R. Co., supra. 18 Losee v. Buchanan, supra. " Donahue v. Kelly, 181 Pa. 93, 37 Atl. 186, 59 Am. St Rep. 632. 18 Morris v. Piatt, 32 Conn. 75. i» Page 14. § 17) EESPONSIBILITT FOR VOLDNTAEY ACTS 57 each is justified in doing the best he can for himself.' " *" Under such circumstances the act of the defendant is not really voluntary in the true sense of the term, however it may have been regarded at common law. But emphasis should be laid upon the requirement that the act of defendant should not be inherently wrongful, when considered as an act, and not merely from the standpoint of the result, nor should the method of its accomplishment be. unlawful. Take the case of injuries received from the dis- charge of a gun. -If the defendant has fired to protect him- self, as we have seen, there can be no liability, though he wound a bystander; but the converse is true if he fire with- out justification, intending to kill A., but by mistake wound B., and it makes no difference that he may have exercised the greatest care imaginable not to injure any one but A.'^ Again, the gun may have been lawfully discharged, as in hunting, and yet the circumstances may indicate a failure to observe that degree of care which an ordinarily careful man would have exercised.'^ Based upon this principle are cases where the damage arises out of the maintenance of a nuisance.'* For example, the operation of a powder manufactory or magazine in a thickly populated district being unlawful in itself, one who is injured by an explosion may recover, without regard to the question of negligence.'* And for the same reason a similar result is reached where the action is against the owner 20 Laidlaw v. Sage, 158 N. Y. 73, 89, 52 N. E. 679, 44 I.. R. A. 216. 21 Thus, where defendant tmlawfnlly threw a stick at two boys and hit a third, the fact that the injury resulted to another than was intended will not relieye him from responsibility. Talmage v. Smith, 101 Mich. 370, 59 N. W. 656, 45 Am. St. Eep. 414. And the same Is true where one of two persons, fighting, unintentionally strikes a third. James v. Campbell, 5 O. & P. 372. 22 Bullock V. Babcock, 3 Wend. (N. Y.) 391. 23 See infra, p. 557 et seq. 24Eemy V. Erie R. Co., 177 N. Y. 547, 69 N. E. 1130, affirming 72 App. Div. 476, 76 N. Y. Supp. 620; HEEG v. LIGHT, 80 N. Y. 579, 36 Am. Rep. 654, Chapin Cas. Torts, 377. And see infra, p. 558. The rule may also be applied to such cases as bulging walls. Sim- mons V. EJverson, 124 N. Y. 319, 26 N. E. 911, 21 Am. St. :^ep. 676. 58 GENERAL PRINCIPLES (Ch. 2 of an animal which is of a ferocious species," or of a species not naturally ferocious, where the owner is aware of the vi- cious propensities of the particular animal.^' Another illustration of an act inherently unlawful is found in the case of trespass to land. If my cattle unlawfully enter upon my neighbor's close,' my responsibility does not depend upon whether I have been careful or careless in keeping . them.*^ So, too, if by a blast set off on my own land I cause earth or stone to be cast upon another's, the fact that I may have exercised the greatest care imaginable will not protect me.*' INTENT AND MOTIVE 18. To determine the effect to be given to condition of mind there will be considered— (a) The mental attitude of the party wronged; (b) The mental attitude of the vcrongdoer. Intent and Motive It is necessary to point out the distinction between intent and motive. The former is purpose or object in the con- crete — the stretching out, such is the figure of the mind, to- wards the end desired; while the motive is that which in- spires and causes that stretching out. Now, the intent niay 25 Such as an elephant, FILiBUBN v. PEOPLE'S PALACE & AQUARIUM CO., L. B. 25 Q. B. D. 258, Chapin Cas. Torts, 330; a bear, Vredenburg v. Behan, 33 La. Ann. 627 ; or a buck deer in the autumn. Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487. And see infra, p. 521. 29 As in the case of a cow, Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686 ; a horse, Reynolds v. Hussey, 64 N. H. 64, 5 Atl. 458 ; or a dog, MuUer v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123, where it was observed that, "when accustomed to bite persons, a dog is a public nuisance." And see infra, p. 52L 11 Lyons v. Merrick, 105 Mass. 71; Noyes v. Colby, 30 N. H. 143; Wood V. Snider, 187 N. X. 28, 79 N. E. 858, 12 L. B. A. (N. S.) 912 ; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255, 49 Am. Dec. 239. And see infra, p. 347. 28 Hay V. Cohoes Co., 2 N. Y. 159, 15 Am. Dec. 279; Gary Bros. & Hannon v. Morrison, 129 Fed. 177, 63 C. O. A. 267, 65 L. R. A. 659. And see infra, p. 346. § 19) MENTAL ATTITUDE OF THE PAKTT WRONGED 59 be morally culpable, while the motive is good enough; the intent may be to inflict harm, while the motive is one of or- dinary self-interest.^® Thus, suppose I go before a magistrate and charge A. with having committed larceny. My intent is to procure his arrest and punishrnent. My motive, however, may have been good, j. e., to bring to justice one whom I honestly believe to be a criminal ; or it may have been bad, in that I sought to gratify a personal grudge. So, too, the critic who published a re- view, while it was his purpose to disseminate his views, may have been actuate^ either by a desire to enlighten the public or by express malevolence against the author." THE MENTAL ATTITUDE OF THE PARTY WRONGED 19. In general, the mental attitude of the party wronged is immateriaL It is evident that the intent of the party wronged can, in general, have no bearing upon his right to recover; though an exception must be made in cases of fraud, since, as will be seen hereafter,'* it is an essential ingredient of this tort that he who seeks relief must show that he believed and acted upon the representation that was made to him. So, too, as to motive. Where a legal right of the injured party has been infringed, the law will not refuse him redress merely because he has resorted to litigation with a view to harassing his adversary, and not with the design of protecting himself. A court, it has been said, has "no power to deny to a party his legal right because it disapproves his motives for insisting upon it" ** 29 Bigelow on Torts, p. 20. *o See "MotlTe as an Element In Torts In tbe Common and in the Civil Law," by B. P. Walton, 22 Harv. Law Rev. 501. »i See infra, p. 406. 32 Clinton v. Myers, 46 N. Y. 511, 520, 7 Am. Rep. 373. Here it was held that a riparian proprietor may insist upon his legal right to the natural flow of the stream at all times as against one who detains the water by means of a dam during autumn and spring, 60 GENERAL PEINCIPLES (Ch. 2^ THE MENTAL ATTITUDE OF THE WRONGDOER 20. There will be considered here— (a) The intent of the wrongdoer— (1) As to the nature and accomplishment of the act;^ (2) As to the result. (b) The motive of the wrongdoer-^ (1) Where the act is inherently lawful; (2) Where the act is inherently unlawful ; (3) Where lawfulness is dependent upon motive. • INTENT OF WRONGDOER— NATURE AND AC- COMPLISHMENT OF ACT 21. Absence of a design to commit an act tortious in its nature will in general constitute no defense. It has already been seen that in the case of acts truly in- voluntary the common law gave no cause of action, a doctrine which has now been extended to cases of misadventure and acts committed under an apprehension of impending peril. Bearing in mind the sense in which the word "voluntary" is now used, the rule can be laid down that the mere absence of a design to commit a wrong will not, in general, constitute an excuse. Once the intentional doing of an act has been es- tablished in assumed exercise of a right, the actor must like- wise assume the burden of proving that such right exists in him. The auctioneer or broker who sells goods under the instructions of a principal must submit to having his right tested bythat of the principal. True, he may not have in- tended to sell property which did not belong to such prin- cipal, yet in fact if the article belonged to a third party, from whom the goods were stolen, the fact remains, that he has intentionally exercised acts of dominion, and, though morally innocent, he will be legally culpable." If I enter upon your thus insuring an equal flow. The mere fact that he does so insist from malicious motives Is immaterial. 88 SWIM V. WILSON, 90 Cal. 126, 27 Pac. 33, 13 I* R. A. 605, 25- § 21) INTENT OF WKONGDOER 61 land, though not meaning to cross the boundary line between our premises, I will be none the less guilty of trespass. One is "bound in law- to know the limits of his possessions." '* Indeed, it has been said that "the pretended ownership aggra- vates the wrong." ^' If a newspaper publish a defamatory article concerning A., it is no excuse that the writer intended to apply the words to B. ;** or if the proprietor of a place of public amusement mean to eject C, but by mistake attempt to eject D.*^ Indeed, actual intent on the part of the indi- vidual held accountable may in fact be absolutely lacking, as where a master is held responsible for the wrong of a servant committed by the latter within the course of his employment.'* But, though the intent- to commit a technical wrong may be immaterial,'" an intent of a different sort may be an essential Am. St. Rep. 110, Chapin Cas. Torts, 189; Robinson v. Bird, 158 Mass. 357, 33 N. E. 391, 35 Am. St. Rep. 495 ; Hoffman v. Carow, 22 Wend. (N. Y.) 285. And see infra, p. 377. 34Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 417, 43 -Am. Rep. 560 ; Maye v. Yappen, 23 Cal. 306 ; Pearson v. Inlow, 20 Mo. 322, 64 Am. Dec. 189 ; Wood v. New York Cent. & H. R. R. Co., 184 N. Y. 290, 77 N. E. 27 ; McCloskey v. Po'weU, 123 Pa. 62, 16 Atl. 420, 10 Am. St. Rep. 512; Perry v. Jefferies, 61 S. C. 292, 39 S. E. 515. 35 DOUGHERTY v. STEPP, 17 N. C. 371, Chapin Cas. Torts, 179, per RuflBn, C. J. This, however, has not met with universal acquies- cence, and some of the courts have held that the honesty of the mis- take may bear uppn the quantum of damages. Thus, If trees are cut in good faith, the measure of damages is their value as stand- ing trees, and not their value as logs. Clark v. Holdrldge, 12 App. Div. 613, 43 N. Y. Supp. 115. Contra, McCloskey v. Powell, 123 Pa. 62, 16 Atl. 420, 10 Am. St Rep. 512, where a statutory penalty of treble damages was allowed. , 36 Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730 ; Griebel v. Rochester Printing Co., 60 Hun, 319, 14 N. Y. Supp. 848 ; Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392. BT Davis V. Tacoma Ry. & Power Co., 35 Wash. 203, 77 Pac. 209, 66 li. R. A. 802. Here defendant's employe had been Informed that a woman of the criminal class had entered a public park which the de- fendant owned. He mistook plaintiff for the woman and .ordered her to leave. Discovering his mistake almost Immediately, he apologized to her and called the attention of defendant's manager to the mis- take, when the latter likewise apologized. 38 See infr^, p. 209. »»As where cattle belonging to plaintiff became mingled with 62 GENERAL PEINOIPLES (Ch. 2 element of certain wrongs. Take as an illustration the tort conversion.*" Tlie exercise of dominion over the personal property of another may or may not give a cause of action, dependent upon whether the doer has acted in subordination to or in denial of the rights of the true owner.** So one who sues for the tort fraud must prove that the defendant had made a false representation with the intent that it be acted upon,*^ though this intent is regarded as established when the attending circumstances justify the -inference.*' Thus, false statements regarding financial condition made to a mercantile agency will be regarded as having been made for the pur- pose of inducing subscribers to extend credit.** The distinc- tion between intent and motive is strongly apparent in cases of fraud, since, though the intent must be . to deceive, , the defendant's cattle, while the latter were being driven along the highway, and defendant, after rejecting all the cattle which he be- lieved did not belong to. him, nevertheless retained and slaughtered under a mistake cattle belonging to the plaintiff, his Innocence will not protect him. Dexter v. Cole, 6 Wis. 319, 70 Am. Dec. 465. 40 See infra, p. 370. *i See infra, p. 371. Though this point will be discussed later, two cases may be referred to here as illustrating the difference be- tween acting in defiance of the true owner's rights and acting in subordination to them. In Hobart v. Hagget, 12 Me. 67, 28 Am. Dec. 159, defendant purchased an ox belonging to plaintiff and took from plaintiff's possession the ox ■s^hich he supposed he had purchased. As a matter of fact plaintiff did not intend to sell that particular ox, but supposed that he was selling another. The minds of the parties did not meet, and therefore defendant had no title to the ox. But he nevertheless took it in the assertion of a right in himself. In Frome v. Dennis, 45 N, J. Law, 515, plaintiff had left his plow on C's land with 0.'s consent. Later the farm passed into the posses- sion of H., and defendant, supposing the plow belonged to H., bor- rowed It from him and later returned it, still supposing It to be H.'s property. Whatever defendant did here was without reference to and was in subordination of the rights of the true owner. 42 See infra, p. 404. Buschman v. Codd, 52 Md. 202 ; Hunnewell V. Duxbury, 154 Mass. 286, 28 N. B. 267, 18 L. R. A. 733 ; Brackett v. Griswold, 112 N. T. 454, 20 N. B. 376 ; McAleer v. McMurray, 58 Pa. 126. * 4» Collins V. Denison, 12 Mete. (Mass.) 549. ** Tindle v. Birkett, 171 N. Y. 520, 64 N. B. 210, 89 Am. St. Eep. 822; Genesee Co. Sav. Bank v. Michigan Barge Co., 52 Mich. 164, 438, 17 N. W. 790, 18 N. W. 206. And see infra, p. 404. § 22) INTENT OF WKONGDOEB AS TO EESULT 63 motive, whether expectation of advantage to the party him- self, or ill will towards the other, or good will towards a third party, will be immaterial/' INTENT OF WRONGDOER AS TO RESULT 22. Responsibility for the result of the wrongdoer's act or omission does not depend on whether he intended to produce it. Later there will be discussed the principles applied to de- termine the legal existence of cause and effect.*' Suffice it to say that it is not essential that the wrongdoer should have foreseen the specific consequences which actually occurred. Instances are almost legion. Thus, where a municipality neg- ligently permitted a board walk to fall into disrepair, it was held responsible for injuries received by one who tripped over the loose end of a board raised by the act of another coming in an opposite direction, who stepped on the other end.*' In another case defendant sold ball cartridges to children aged 10 and 12. The children left a pistol loaded with the cartridge? on the floor of their home, where a younger brother of 6 picked it up and discharged it, inflicting injuries, from which death resulted.** Again, a railroad is responsible where one of its trains, negligently managed, struck a third party, who at the time was carrying a box of tools, one of which was thrown to some distance, striking the plaintiff.*' *B Cowley V. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432. "It Is fraud in law if a party makes representations which he knows to be false and injury ensues, although the motive from which the representations proceeded may not have been bad ; the person who makes such representations is responsible for the consequences." Foster v. Charles, 7 Bing. .105, 107, 8 L. J. O. P. O. S. 118, 31 Rev. Rep. 446, 20 E. O. I* 55, per Tindal, C. J. *8 See infra, pp. 76-104. *T City of Dixon v. Scott, 181 lU. 116, 54 N. B. 897. 48 Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508. 49 Hammill v. Pennsylvania R. Co., 56 N. J. Law, 370, 29 Atl. 151, 24 L. R. A. 531. 64 GENERAL PEINCJPLBS (Ch. 2 The case of Estes v. Missouri Pac. R. Co." was one where considerable imagination would certainly have been required to foresee the result. Plaintiff was a passenger on defendant's train.. Through defendant's negligence a collision occurred. Thereafter some one stated in plaintiff's hearing that another train was approaching and that another collision was immi- nent, whereupon plaintiff left the car and went to the side of the track, where she was poisoned by poison ivy. But the law does not stop with the rule that the wrongdoer need not intend to accomplish the specific injury which re- sulted in order that" he may be held. A tort-feasor may be bound to render compensation, though he may not have in- tended that any injury should ensue.^^ Hence, where defend- ant's servants wrongfully removed the fixtures and connection of a rival gas company from plaintiff's lodging house, a re- covery was allowed for the loss of profits from the latter's tenants. Nor was it material that it was not in the defend- ant's contemplation that any loss would occur."* MOTIVE OF WRONGDOER 23. In determining legal liability, the motive witK which the act wa^ done is not, in general, open to consid- eration. Motive— ^Act Inherently Lawful It has already been seen that the motive which prompts the plaintiff in standing upon his technical rights cannot be con- sidered. The same reasons will apply where the conduct of the defendant is in question. The civilians, it is true, deemed an act, otherwise lawful in itself, illegal if done with the ma- licious motive of injuring a neighbor; but this principle has not found place in our law, save in a very limited sense." 80 111 Mo. App. 1, 85 S. W. 909. Bi Bonnell v. Smith, 53 Iowa, 2S1, 5 N. W. 128; Reynolds v. Piet- son, 29 Ind. App. 273, G4 N. E. 484. 02 Kentucky Heating Co. v. Hood, 133 Ky. 383, 118 S. W. 337 22 L. R. A. (N. S.) 588, 134 Am. St. Rep. 457. B3 Chasemore v. Richards, 7 H. L. Cas. 349, 388. § 23) MOTIVE or WRONGDOEB 65 "If a man has a legal right, courts will not inquire into the motive by which he is actuated in enforcing the same." °* Though the results may at times seem harsh, it is preferable that the rights and liabilities of the individual be marked by defined lines, rather than be measured by a shifting standard, to be fixed in each case upon a consideration of the ethical propriety of the defendant's act. It seems better, therefore, to hold that "malicious motives make a bad act worse, "^ but they cannot make that wrong which in its own essence is law- ful. * * * Any transaction, which would be lawful and proper if the parties yere friends, caimot be made the founda- tion of an action merely because they happen to be enemies. As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to Him who searches the heart." " In a recent case in Iowa "' plaintiff's wife had been awarded a decree of divorce and the custody of their minor child. She took up her residence with defendant, her father. The son Jiaving died, it was held that plaintiff might maintain no action against the father for malicious^ refusing to permit him to attend the funeral. Defendant had a legal right to exclude the husband from his house at any time and under all circumstances, just as he could have ex- cluded any one. Having the right to select his guests or visi- tors, his malicious motive in excluding one of them does not give that one a right of recovery. B4 "A different rule," it was said, "would lead to the encourage- ment of litigation an^ prevent in many instances a complete and full enjoyment of the right of property. * • • An idle threat to do what is perfectly lawful, or declarations which assert the in- tentions of the owner, might often be construed as evidencing an improper motive and a malignant spirit, when in point of fact they merely stated the actual rights of the party. Malice might easily be inferred sometimes from idle and loose declarations, and a wide door be opened by such evidence to deprive an owner of what the law regards as well-defined rights." Phelps v. Nowlen, 72 N. Y. 39, 45, 28 Am. Kep. 93, per Miller, J. B5 And hence may permit the injured party to recover exemplary damages. B8 Jenkins v. Fowler, 24 Pa. 308, 310, per Black, 3. B7 RADER v. DAVIS, 154 Iowa, 306, 134 N. W. 849, 38 L. R. A. (N. S.) 131, Ann. Cas. 1914A, 1245, Chapin Cas. Torts, 27. Chap.Toets — 5 66 GENERAL PRINCIPLES (Ch. 2 One bank cannot complain that another bought up and kept out of circulation a large amount of the former's bills and notes, refusing to exchange them for other funds, and de- manded specie, though the motive which inspired such a course was to inflict injury on the complaining institution by bringing its bills into discredit and preventing their circula- tion/' Nor can plaintiff, the proprietor of an independent theater, recover from a corporation owning the principal thea- ters in which burlesque shows are given in the chief cities, because it required the owners of such shows to agree' to re- frain from playing in any theater not owned by defendant as a condition of booking, though defendant's motive was ill will to the plaintiff." Other illustrations will be found in the note.*' Act Inherently Unlawful The existence of good motives will, in general, no more operate to legalize an act inherently unlawful than will their absence affect the 'legality of an act inherently lawful, though, as has already been intimated, the fact that defendant did what he did with a proper purpose may prevent the jury from imposing exemplary damages. Thus, where defendant, being sued for trespass for taking corn, pleaded that the corn was in danger of being eaten by cattle, wherefore he -removed it to the barn of' the plaintiff, the owner, such plea was held bad.°^ Nor is the owner of a lot, who is excavating thereon, justified in going upon the property of his neighbor for the purpose of shoring up the latter's building against his wishes. It matters not that the act was without maUce, and was largelv prompted by a design to 58 South Royalton Bank v. Suffolk Bank, 27 Vt. 505. so Roseneau v. Empire Circuit Co., 131 App. Div. 429, 115 N Y Supp. 511. ooMcCune v. Norwich City Gas Co., 30 Conn. 521, 79 Am Dec 278 ; Kelly v. Chicago, M. & St. P. Ry. Co., 93 Iowa, 436, 61 N W 957; ainton v. Myers, 46 N. Y. 511, 7 Am. Rep. 373; Lancaster v Hamburger, 70 Ohio St. 156, 71 N. E. 289, 65 L. R. A. 856, 1 Ann Cas. 248 ; Smith v. Johnson, 76 Pa. 191 ; Allen v. Flood, [18981 Add Cas. 1, 62 J. P. 595, 67 L. J. Q. B. 258, 77 L. T. Rep. N. S. 717 46 Wkly. Rep. 258. o. .xi, ao ei Anonymous, Y. B. 21 Hen. VIII, 27. § 24) LEGALITY DEPENDENT UPON MOTIVE 67 minimize the injury which his neighbor would otherwise have suffered; and this, although, had the building fallen, there might have been no liability.'^ "That which is essentially a trespass cannot become lawfiil from being done with good in- tentions." "' If this is so where a good motive has been shown, it must necessarily be true of a case where it can only be said that bad motive was lacking.'* The law does not encourage intermed- dling, LEGALITY DEPENDENT UPON MOTIVE 24. In a few instances, which must be specially enumerated, the legality of the act is made to depend upon the motive of the actor. There are some torts, however, where the culpable mind of the actor must be proven. In slander of title, which consists in the publication of false statements concerning the title to or quality or quantity of lands or goods,*" malicious prosecu- tion,®* and in certain instances of interference with contrac- S2 Ketcham v. Cohn, 2 Misc. Rep. 427, 22 N. Y. Supp. 181. •s Bruch V. Carter, 32 N. J. Law, 554, 562, per WoodhuU, J. "Every one inust be sure ot his legal right when he invades the possessions of another." Cubit v. O'Dett, 51 Mich. 347, 351, 16 N. W. 679, 680, per Cooley, J. And see G. B. & L. Ry. Co. v. Eagles, 9 Colo. 544, 13 Pac. 696. 8* Thus, In an action brought against selectmen who have un- lawfully refused to receive plaintifCs vote, a lack of malicious mo- tives on the defendants' part will constitute no defense. "Now," it is said, "If a party duly quali0ed Is unjustly prevented from voting, and yet can maintain no action for so important an in- jury unless he is able to prove an ill design In those who obstruct him, he is entirely shut out from a judicial investigation of his right, and succeeding Injuries may be founded on one originally com- mitted by mistakft He may t!>us be perpetually excluded from the common privilege of citizens, ^lithout any lawful means of assert- ing his rights and restoring hliaself to the ranks of an active citi- zen." Lincoln v. Hapgood, 11 Mass. o50, 355, per Parker, C. J. Oto the same effect. Lamed v. Wheeler, 140 Mass. 390, 5 N. E. 290, 54 Am. St. Rep. 483. 6B See infra, p. 422. «» See Infra, p. 487. 68 GENERAL PRINCIPLES (Ch. 2 tual rights," though the injured party, to secure a recovery, need not establish that the doer acted from express malev- olence, he must nevertheless show that there was the ab- sence of proper motive, which in legal significance is deemed "malice." *° The same is true of defamation, where the de- fense of qualified privilege, or of fair comment upon matters, of public interest, is interposed.*' In some instances, too, the Legislature has seen fit to create a cause of action and make its existence dependent on motive ; and the same result has been accomplished by decisions of the courts, which have made the malice of the actor a deter- minative factor. Of these, the case of "spite fences" is prob- ably the best illustration. Suppose that from malicious mo- tives, and not because I am prompted by a desire to improve my property, I er^ct a fence which obstructs my neighbor's light and air. Now, by the doctrine generally prevailing in this country, the fact that my motives were malicious cannot make my action unlawful." But this rule is by no means universally applied, for it has been held that proof of malice is sufficient on which to base a cause of action,'^ and in some states this has been provided by statute."* 67 See infra, p. 424 et seq. <5» See infra, p. 339. 6 8 See notes 65, 66, 67, and 69. TO "To permit a man to cause a cer^-in injurious effect upon the premises of his neighbor by the erection of a structure on his own premises if such structure is beneficial or ornamental, and to pro- hibit him from causing the same effect in case the same structure is neither beneficial or ornamental, but erected from motives of pure malice, is not protecting a legal right, but is controlling his mos-al conduct." Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. B. A. 177, per Burkett, J. To the same effect, Parker- v, Foote, l9 Wend. (N. T.) 809 ; Levy v. Brothers, 4 Misc. Rep. 48, 23 N. Y. Supp. 825 ; Guest v. Reynolds, 68 111. 478, 18 Am. Rep. 570 ; Metzger v. Hochrein, 107 Wis. 267, 83 N. W. 308, 50 L. R. A. 305, 81 Am. St. Rep. 841. 71 Burke v. Smith, 69 Mich. 380, 37 N. W. 838; Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510. T2 Rideout V. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. B. A. 602, 101 Am. St. Rep. 670 ; Id., 72 N. H. 600, 58 Atl. 42 ; Lord V. Langdon, 91 Me. 221, 39 Atl. 552; Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345. "The statute speaks of § 25) DAMAGB 69 Another illustration is found where the owner of real prop- erty destroys his neighbor's supply of percolating subterranean water.'* Though many courts have held that his right to deal therewith is absolute, and cannot be affected by the fact that he was actuated by malice,'* others of equal authoJrity have denied the right of interference, unless exercised by the land- owner "for the benefit and improvement of his own property or for his own beneficial use." " DAMAGE , 25. There will novr be considered— (a) Under what circumstances a legal right may be deemed' to have been violated, with consequent assumption of damage ; and — (b) Where judicial recognition of a wrong will be con- ditioned upon the proof of injurious consequences flowing therefrom. It has frequently been asserted that a cause of action will arise out of injury to a legal right, though the party wronged the structure intended as a 'malicious erection' and one the Intent of which is to annoy and injure any proprietor of adjacent land. We think we do not go too far in saying that this malicious intent must be so predominating as a motive as to give character to the structure." Gallagher v. Dodge, 48 Conn. 387, 392, 40 Am. Eep. 182, per Loomis, J. 73 What is said here only applies to percolating waters, not to subterranean waters flowing in a defined channel. In the latter case the rules governing surface streams apply. Gould on Waters, §§ 280, 281. T* Wheelock r. Jacobs, 70 Vt. 162, 40 Atl. 41, 43 I* R. A. 105, 67 Am. St. Kep. 659; Huber v. Merkel, 117 Wis. 355, 94 N. W. 354, 62 L. B. A. 589, 98 Am. St. Rep. 933; Mayor, etc., of Bradford v. Pickles, [1895] App. Gas. 587, 64 L. J. Ch. N. S. 759, 73 L. T. N. S, 353. 7 5 Stillwater Water Co. v. Farmer, 89 Minn. 58, 66, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St. Rep. 541, per Collins^ J. ; Barclay V. Abraham, 121 Iowa, 619, 98 N. W. 1080, 64 L. R. A. 255, lOO Am. St. Rep. 365 ; Chesley v. King, 74 Me. 164, 43 Am. Rep. 569 ; Greenleaf v. Francis, 18 Pick. (Mass.) 117 (semble) ; Wheatley v. Baugh. 25 Pa. 528, 64 Am. Dec. 721 (semble). 70 GENERAL PEINCIPLES (Ch. 2 may have suffered no damage.^" But this statement is open to the serious objection that it is almost meaningless. "The simple truth is that sometimes plaintiff can recover when he has not shown damage, and sometimes he cannot. On the one hand, mere damage may not constitute a cause of action, in the absence of violation of duty. On the other hand, mere violation of duty may not constitute a cause of action, in the absence of damage. There may be no such thing as a legal wrong without damage ; ^but sometimes there cannot be a le- gal wrong unless there has been damage. In some cases the law presumes dahiage, and in some cases damage must be proved. In other words, there are two kinds of right— (-one a simple right, the infringement of which is, in the absence ■ of exceptional circumstances, necessarily actionable; the other is a right not to be harmed, the violation of which is action- able only when harm is suffered.^' '' In reality, therefore, there is no such thing as injuria sine damno; for injuria must of necessity include damage.^' We are therefore obliged to place tortious wrongs in one of two classes, /in the first, the law will assume the existence of damage, and will give recovery, though the extent of the latter will depend upon the evidence.) In the second class, the existence of damage is not assumed, but, on the contrary, T» "I am not able to understand how It can correctly be said. In a legal sense, that an action wiU not lie even In case of a wrong or violation of a right, unless it is followed by some perceptible damage, which must be established as a matter of fact; in other words, that injuria sine damno is not actionable." Webb v. Portland Mfg. Co., 3 Sumn. 189, Fed. Cas. No. 17,322, per Story, J, Tr Jaggard on Torts, p. 80. T8 "As an Injury or violation of his right necessarily Imports damage, there can be no such thing as an injury without damage. An Injury is a wrong; and for the redress of every wrong there Is a remedy. A wrong is a violation of one's right; and for the vindication of every right there is a remedy. Want of right and want of remedy are justly said to be reciprocal. Where, therefore, there has been a violation of a right, the person injured is entitled to an action. If he Is entitled to an action, he is entitTed at least to nominal damages, -or else he would not be entitled to a recovery. Such damages are given, In order to vindicate the right which has been invaded; and such further damages are awarded as are proper to remunerate him for any specific damage which he has § 25) DAMAGE 71 must be shown. An act or omission then becomes wrongful as to any particular individual only because he has suffered injurious consequences. Damage Presumed It is evident that, where there has been a direct invasion of person or property, the cause of action is complete in itself. "So if a man give another a cuff on the ear, although it cost him nothing, no, not so much as a little diachylon, yet he shall have his action; for it is a personal injury." ''" In- deed, an act of this character may have been done under such circumstances that the shame and humiliation suffered by the party assailed would warrant the imposition of heavy- damages, though the physical suffering was negligible. It is when we come to the invasion of property rights, how- ever, that we find the best illustrations. If I unlawfully enter upon my neighbor's land, though I merely pass over it, yet damage will be assumed, if it be no more than the tramping of the herbage.'" Nor need there have been any actual entry, as the term is commonly understood ; for, as will be seen when the subject is discussed,*^ it is not essential that there be a touching of the soil. The maintenance of a cornice,' ' or a flashboard,'^ over the division line, though it merely be for an inch, will be deemed a continuous trespass.'* "If a person fish in another's fishery and catch nothing," " sustained." Parker v. Griswold, 17 Conn. 288, 303, 42 Am. Dec. 739, per Storrs, J. 7 9 Ashby V. WMte, 2 Ld. Raym. 938, 955, 92 Eng. Bepr. 126, 1 Salk. 19, 91 Eng. Eepr. 19, per Holt, L. J. 80 Welch V. Seattle & M. R. Co., 56 Wash. 97, 105 Pac. 166, 26 L. R. A. (N. S.) 1047; Dixon v. Clow, 24 Wend. (N. Y.) 188; DOTJGH- ERTX V. STBPP, 18 N. C. 371, Chapin Cas. Torts, 179. And see infra, p. 346. 81 See Infra, p. 348. 82 Harrington v. McCarthy, 169 Mass. 492, 48 N. B. 278, 61 Am. St. Rep. 298. 88 Puorto V. Chieppa, 78 Conn. 401, 62 Atl. 664. 8* See infra, p. 348. 8B Tunbridge Wells' Dipper Case, 2 Wils. 414. 72 GENERAL PRINCIPLES (Ch. 2 or unlawfully divert," obstruct,*^ or foul a stream," or over- flow his neighbor's lands,"' he is bound at least to pay nom- inal damages. The rule has a substantial reason to support' it. If the owner of the land were not permitted to bring his action until substantial damage had been suffered, he might eventually be deprived of his property, since by the continuance of the wrongful act for a period of twenty years the wrongdoer might acquire a right by prescription. "' To deprive a qualified elector of his right to vote constitutes a distinct tort in itself,"^ and so, too, is the refusal of a can- didate's demand for a poll; it being immaterial that the re- sult of the election would remain unchanged.*' Under such circumstances showing the invasion of a legal right, the maxim "de minimis non curat lex" "^ can have no application.'* For that matter, the cause of action will be so.Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504; Parker v. Griswold, 17 Conn. 288, 42 Am. Dec. 739. 8T Branch V. Doane, 18 Conn. 233; Bower v. Hill, 1 Blng. N. Cas. 549, 27 E. C. L. 759. 88 Wood V. Waud, 3 Exch. 748, 13 Jur. 742, 18 li. J. Excb. 305. 88 Ellington v. Bennett, 59 Ga. 286; Dorman v. Ames, 12 Minn. 461 (Gil. 347) ; Jones v. Hannovan, 55 Mo. 462. «e "Wherever any act Injures another's right, and would be evi- dence in future in favor of the wrongdoer, an action may be main- tained for an invasion of the right, without proof of any specific injury." Mellor v. Spateman, 1 Saund. 343, 346, note 2, 85 Eng. Repr. 495 (quoted in Searles v. Cronk, 38 How. Prac. [N. Y.] 320, 324, and Delaware & H. Canal Co. v. Torrey, 33 Pa. 143, 149). If an unlawful diversion of a stream Is suffered for 20 years, it ripens Into a right which cannot be controverted. If the party injured cannot be allowed in the meantime to vindicate his right by action, it would depend upon the will of others whether he should be per- mitted, or not, to enjoy that species of property. Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504. To the same effect, Francis v. Schoellkopf, 53 N. Y. 152. And see cases cited in preceding notes. 81 Lamed v. Wheeler, 140 Mass. 390, 5 N. E. 290, 54 Am. Rep. 483; Lincoln v. Hapgood, 11 Mass. 350; Ashby v. White, 2 Ld. Raym. 938, 92 Eng. Repr. 126, 1 Salk. 19, 91 Eng. Repr. 19. 82 Starling v. Turner, 2 Lev. 50, 83 Eng. Repr. 44^, 2 Vent. 25, 86 Eng. Repr. 287 ; Lincoln v. Hapgood, 11 Mass. 350. 88 "The law takes no account of trifles." 84 Boody V. Watson, 64 N. H. 162, 9 Atl. 794 ; Wartman v. Swin- § 25) DAMAGE 73 deemed perfect, even though the immediate result of the wrongdoer's act has been beneficial to the pafty wronged, as where the land on which trees were unlawfully cut v/as shown to be worth more in its cleared than in its natural state," ° where a ditch made by defendant, while it forced some water upon plaintiff's land at a time of heavy rains, yet drained as much or more,°° a fence standing upon plaintifl^'s property, a portion of which was cut off by defendant, was improved thereby," or an old mill torn down and a new mill erected in its place.'* "The owner of a, horse might be benefited by a skillful rider taking the horse from the pasture and using him, yet the law would give damages, and under circumstances very serious damages, for such an act. * * * The rule is nec- essary for the general protection of property; and a greater evil could scarcely befall a country than the rule being frit- tered away or relaxed in the least, under the idea that, al- though an exclusive right be violated, the injury is trifling, or,. indeed, nothing at all." '"' Proof of Damage Essential The instances chiefly to be noted in which the cause of ac- tion will be regarded as perfect only when damage is shown- to have resulted actually to the party 'seeking redress are fraud, negligence, certain cases of defamation, slander of title, and nuisance. * Each will be considered more fully here>^ after. As to the first, it may be said that, though I have made a false statement, knowing its falsity and intending it to be acted upon, though it was acted upon in a belief in its truth, yet if no injurious results have followed, I am not accountable; deU, 54 N. J. Law, 589, 25 Atl. 356, 18 L. R. A. 44; Seneca Road Co. V. Auburn & B. R. Co., 5 Hill (N. T.) 170 ; Fullam v. Stearns, 30 Vt. 443. »5 Huddleston v. Johnson, 71 Wig. 336, 37 N. W. 407. 90 Jones v. Hannoran, 55 Mo. 462. And see East Jersey Water Co. V. Bigelow, 60 N. J. Law, 201, 88 Atl. 631. " Fisher v. Cowling, 66 Mich. 370, 33 N. W. 521. »8 Jewett V. Whitney, 43 Me. 242. »» Seneca Road Co. v. Auburn & R. R. Co., 5 Hill (N. T.) 170, 176, per Cowen, J. 74 GENERAL PRINCIPLES (Ch. 2 for it is thoroughly established that friud without damage will not sustain an action. ^"'° Again, although I have been guilty of the grossest negli- gence, having omitted to exercise the very slightest degree of care, it is evident that the world at large cannot complain, but only some individual who has suffered. It is the occur- reftice of the damage that perfects the cause of action.^"^ Thus, where the cashier of a bank, under the direction of its president, forwarded securities to brokers for sale, and re- ceived a portion of their value, but negligently omitted to collect the balance, it was held that, as the brokers remained hnancially responsible and were liable for the balance to the bank, the latter had sustained no injury from the cashier's neg- ligence, and the cashier was not liable.^"^ Defamation, whether appealing to the ear,^"' or to the eye,^"* occupies, as will be seen later on, a peculiar position. Suffice it to say that the statement or charge may be of so grave a character that, although damage is an essential ele- ment of the tort, the law will under such circumstances as- sume its existence. Under what conditions this rule -may be invoked will be discussed in connection with this specific wrong.^°" Special damage mbst also be alleged and proved in actions for slander of title.^" • 100 Freeman v. McDanlel, 23 Ga. 354; Danforth v. CusWng, 77 MTe. 182; Freeman v. Venner, 120 Mass. 424; Alden v. Wright, 47 Minn. 225, 49 N. W. 767; Byard v. Holmes, 34 N. J. Law, .296; Aron V. De Castro, 36 N. Y. St. Rep. 716, 13 N. Y. Supp. 372, a£- flrmea 131 N. Y. 648, 30 N. E. 491. And see infra, p. 416 et seq. 101 Jones V. Texas & P. R. Co., 125 La. 542, 51 South. 582, 136 Am. St. Rep. 339 ; Sullivan v. Old Colony St Ry., 200 Mass. 303, 86 N. E. 511; Ocha v. Public Service R. Co., 81 N. J. Law, 661, 80 AtL 495, 36 L. R. A. (N. S.) 240, Ann. Cas. 1912D, 255 ; Bluedorn v. Mis- souri Pac. Ry. Co. (llo.) 24 S. W. 57. And see infra, p. 539. 102 Commercial Bank of Albany v. Ten Eyck, 48 N. Y. 305. los Slander. 10* Libel. 105 See infra, pp. 304, 314. 106 Burkett v. Griffith, 90 Cal. 532, 27, Pac. 527, 13 L. R. A 707 25 Am. St Eep. 151; DOOLING v. BUDGET PUB. CO., 144 Mass 258, 10 N. e: 809, 59 Am. Rep. 83, Chapln Cas. Torts, 235; Tobias v' Harland, 4 Wend. (N. Y.) 537. And see infra, p. 421 § 25) DAMAGE 75 . , t A nuisance, whether consisting of the unwarrantable, un- reasonable, or unlawful use by a person of his own prop- erty, real or personal, to the injury of another, which is re- ferred to as a "private nuisance," "' or which affects rights enjoyed by the public generally,^"" which is denominated a "public nuisance," ^"^ requires a showing of some damage suf- fered by the one who seeks redress.^^" And though the indi- vidual is not precluded from recovering, as an individual, dam- age arising out of the maintenance of a public nuisance, he must show that such damage is peculiar to himself, and not of the general character which members of the community have suffered as such.^^^ Now, where the right is dependent upon the existence of damage, as in the cases referred to and in other instances which will be mentioned .when the specific torts are consid- ered, it is evident that the maxim "de minimis non curat lex" can properly be applied. If, therefore, the action is trivial or vexatious, the courts may refuse to entertain it.*^^ But such cases must necessarily be rare, and the doctrine should not be lightly invoked. 107 HEEG V. LIGHT, 80 N. Y. 579, 582, 36 Am. Eep. 654, Chapin Gas. Torts, 377. 108 As the right of navigating a river or traveling on a public highway, rights to which every citizen is entitled. 100 King V. Morris & E. E. Co., 18 N. J. Eq. 397, 399. 110 This is shown by the fact that the harm of which the plain- tiff complains must be substantial and not merely fanciful. Eogers V. EUiott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. Eep. 316 ; Sparhawk v. Union Pass. E. Co., 54 Pa. 401; Price v. Grantz, 118 Pa. 402, 11 Atl. 794, 4 Am. St. Eep. 601. 111 Francis v.. Schoellkopf, 53 N. Y. 152. And see infra, p. 560. 112 Steinbach v. Hill, 25 Mich. 78 ; Price v. Grantz, 118 Pa. 402, 11 Atl. 794, 4 Am. St. Eep. 601. "It Is not only to those who are greatly damnified by the illegal act of another to whom the law gives redress ; but Its vindication extends to every person who Is damnified at all, unless, Indeed, the loss sustained is so small as to be unnotlceable by force of the maxim, 'De minimis non curat lex.' " Beseman v. Pennsylvania E. Co., 50 N. J. Law, 235, 13 Atl. 164, per Beasley, J. 76 GENERAL PEINCIPLBS (Ch. 3 CHAPTER JII GENERAL PRINCIPLES (Contintjed)— LIABILITY UNDER THE LEGAL RULES DEFINING CAUSE AND EFFECT 26. Proximate Cause. 27. Intervention of Natural Force. 28. Fright and Mental Anguish. 29. Intervention of Voluntary Act or Neglect 30. Intervention of Irresponsible Individual or Unconscious In- strument. 3L Arbitrary Rule In Certain Cases of Fire. 32. Concurring Cause. 33. Accompanying Condition. 84. Functions of Court and Jury. PROXIMATE CAUSE 26. To determine responsibility, the law will consider the proximate and not the remote cause of an injury. Philosophically speaking, the sum of all the antecedents of any event constitutes its cause.* But it is obvious that such a rule could not be applied in determining legal responsibility without producing absurd results. "It were infinite," said Lord Bacon, "for the law to consider the causes of causes and their impulsions one upon another; therefore it content- eth itself with the immediate cause and judgeth of acts by that, without looking to any further degree." * "The maxim of the schoolmen, 'causa causantis causa est causati,' ° may be true ; but it obviously leads into a labyrinth of refined and bewildering speculation, whither the law cannot attempt to follow." * lAtchison, T. & S. P. B. Co. v. Bales, 16 Kan. 252, 256, per Valen- tine, J. ' 2 Bacon, Max. Beg. 1, quoted In Marble v. City of Worcester, 4 Gray (Mass.) 395, 411. 8 "The cause of the thing causing is the cause of the thing caused." 4 Oilman v. Noyes, 57 N. H. 629, per Gushing, J. Hie following abridged news item suggests the difficulties which would be encountered "if the cause of the thing causing" were to § 26) PROXIMATE CAUSE 77 In a sense, "the true rule, broctdly stated, is that the wrong- doer is liable for the damage which he causes by his miscon- duct. But this rule must be practicable and reasonable, and hence it has its limitations." ' 'A man's responsibility "must end somewhere." * Hence the maxim, "Causa proxima nor, remota spectatur." ' While this principle, is universally ac- cepted, its application is frequently attended with considerable difficulty, and it cannot be said that the tests which have been applied are entirely satisfactory, however proper the final results of the decisions themselves may have been.' be sought without res'trlction. Initials are substituted for names: A'., the janitor of Graham avenue, Brooklyn, having a sore hand, asked B. to shovel the snow from the roof. B. started to do so. C, a tenant, stuck his head out of the window and received a shovelful in his face. He went to the roof and engaged in a fight with B. D., another tenant, heard the disturbance and fired , his revolver out of the window. The bullet just missed E., a woman on the lower floor, and she cried, "Fight!" F., in the street, heard her and misunderstanding her, called, "Fire!" G., hearing F., turned in a fire alarm. The engine driven by H. dashed through the street in response and grazed a carriage driven by I. I.'s horse be- came frightened, ran away, and Injured X Query: Is A. to be held liable to J. on the theory that, without his request to B., the in- jury would never have occurred? If so, why not go ba£k still fur- ther and hold the real estate agent, who appointed A., and the owner, who appointed the agent, and, for that matter, the parents of A., who, being responsible for the latter's existence, are in one sense a cause? Or why stop short with them? 5 Ehrgott V. Mayor, etc., of City of New York, 96 N. T. 264, 2S1, 48 Am. Kep. 622, per Earl, J. 8 Hoag V. Lake Shore & M. S. R. Co., 85 Pa. 293, 298, 27 Am. Kep. 653, per Paxson, J. T The proximate and not the remote cause Is to be considered. 8 "It is impossible by any general rule to draw a line between those injurious causes of damages which the law regards as sut- flciently proximate and those which are too remote to be the founda- tion of an action." Scott v. Hunter, 46 Pa. 192, 195, 84 Am. Dec. 542, per Strong, J. Each case must be decided "largely upon the special facts belonging to it, and often upon the very nicest discrim- inations." Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 52, 19 L. Ed. 65, per Miller, J. "The true rule is that what is the proximate cause of the injury is ordinarily a question for the jury. It Is not a question of science or of legal knowledge. It is to be determined as a fact. In view of the circumstances of fact attending it." MIL- WAUKEE & ST. P. R. CO. V. KELLOGG, 94 U. S. 469, 474, 24 L. Ed. 256, Chapin Cas. Torts, 31, per Strong, J. 78 GENERAL PRINCIPLES (Ch. 3 Probably the most frequently cited statement is that of Justice Strong in Milwaukee & St. P. R. Co. v. Kellogg.' It was there said: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation ? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause inter- vening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." Now, it will be observed that in the foregoing quotation two tests are laid down: First, whether there was a continu- ous succession of events ; and, second, whether the injury was the natural and probable consequence which should have been foreseen. The first; while the better, is open to criticism, in that the court omitted to define the nature of .the intervening cause. The second is open to the serious objection that it leads to an inference that the precise form of injury should have been foreseen, whereas it is sufficient that a reasonable man must have anticipated that some injury would have re- sulted, although its exact na,ture could not previously have been defined.^" Hence, where the latter rule has been adopt- ed, it has often been limited by the further statement^hat it "is not to be understood as requiring that the particular re- sult might have been foreseen, for if the consequences follow in unbroken sequence from the wrong to the injury without an intervening, efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might by the exercise of ordi- 8 MILWAUKEE & ST. P. R. CO. v. KELLOGG, 94 U. S. 469, 474, 24 L. Ed. 256, Chapin Cas. Torts, 31. 10 See "Torts," 38 Cyc. 444, where tie author has coUated many decisioBS. § 27) INTERVENTION OP NATURAL FORCE 79 nary care have foreseen that some injury might result from his negligence." ^^ From what has been said it necessarily appears that neither time nor distance is essentially a controllin g elem mt in deter- mining_whether a certain cause is the proximate cause.^" Nor, as will be seen hereafter, is it required that the proximate cause be the sole cause. INTERVENTION OF NATURAL FORCE 27. The sequence of events is not broken by the interven- tion of an act of iiature occurring while the re- sulting operation of the wrongful act or neglect is effective. In one of the earlier cases .^' the defendant's vessel struck upon a-shoal through the negligence of the captain and crew. It was blowing hard, all control over the ship was lost, and through the action of the wind and tide it was carried against and injured plaintiff's sea wall. Manifestly the proximate cause of the injury was the negligent grounding. Neither wind nor tide could be considered to be intervening factors 11 Pullman Palace Car Co. v. Laack, 143 111. 242, 260, 32 N. E. 285, 18 L. K. A. 215 ; Louisville & J. Ferry Co. v. Nolan, 135 Ind. 60, 34 N. E. 710 ; Hill v. Winsor, 118 Mass. 251 ; Bhrgott v. Mayor, etc., of City of New York, 96 N. X. 264, 48 Am. Rep. 622; Drum V. Miller, 135 N. C. 204, 47 S. B. 421, 65 L. R. A. 890, 102 Am. St Rep. 528 ; Smith v. London, etc., R. Co., L. R. 6 C. P. 14, 40 D. J. C. P. 21, 23 L. T. Rep. N. S. 678, 19 Wkly. Rep. 230. 12 WUls v. Ashland Light, Power & St. Ry. Co., 108 Wis. 255, 84 N. W. 998. Where a rotten stump was set on fire by the negligerice of the railroad company, It was held that "the fact that the fire smouldered awhile in the stump, and, after it was supposed to have been extinguished, broke out again the next day, while It makes the conclusion less obvious that the damage was done by the same fire, does not interpose any new cause or enable the court to say as matter of law that the causal connection was broken." Haverly V. State Line & S. R. Co., 135 Pa. 50, 58, 19 AO. 1013, 20 Am. St. Rep. 848. i3Romney Marsh v. Trinity House, L. R. 5 Exch. 204, 39 L. J. Exch. 163, 22 L. T. Rep. N. S. 446, 18 Wkly. Rep. 869, affirmed L. R. 7 Exch. 247, 41 L. J. Exch. 106, 20 Wkly. Rep. 952. 80 GENERAL PEINOIPLES (Ch. 3 which would isolate the defendant's negligence. A similar • result was reached where a ship captain negligently caused water to be puniped into a boiler in midwinter. The water froze, cracked a pipe, and escaped, damaging the cargo. It was not the frost which was the proximate cause of the loss, but the act of the captain.^* So, too, if I negligently start a fire and the wind carries the sparks, or burning oil floats down a stream to the point where damage occurs, it is evi- dent that there has been no break in the chain of causation.^" Under this rule come cases where defendant has unlawfully caused a physical shock, resulting in functional disturbance, from which damage results. Thus, where a passenger on a railroad was thrown to the floor, cut and bruised, his mental functions subsequently becoming affected, and paralysis finally supervenmg, a verdict was upheld which constit,uted a finding that the paralysis was caused by the rupture of a blood ves- sel, the result of the shock and injury.^" It must be kept in mind, however, that, as already stated, the effect of the negligence or wrongful act must not have ceased to be operative when the natural cause interv^ed. If, therefore, a state of facts is produced which, although con- cededly due to the defendant's fault, did not do more than ren- der possible the occurrence of the subsequent events, the orig- inal wrongdoing is here a condition and not a cause of the ultimate damage. To illustrate: Suppose a railroad negli- gently delays transportation of goods from town A. to town 1* Slordet v. Hall, 4 Bing. 607, 6 L. J. P. O. S. 137, 1 M. & P. 561, 29 Rev. Eep. 651. 13 E. C. L. 657. loHIggins V. Dewey, 107 Mass. 494, 9 Am. Eep. 63; Llllibrldge v.. McCann, 117 Micli. 84, 75 N. W. 288, 41 L. R. A. 381, 72 Am. St. Eep. 553; Poeppers v. Missouri, K. & T. Ry. Co., 67 Mo. 715, 29 Am. Eep. 518 ; Kubn v. Jewett,' 32 N. J. Eq. 647 ; HofCman v. King 160 N. T. 618, 55* N. E. 401, 46 L. E. A. 672, 73 Am. St. Eep. 715! Decisions to the contrary, such as Hoag v. Lake Shore & M. S. E. Co., 85 Pa. 293, 27 Am. Eep. 653, and Marvin v. Chicago, M. & St. P. Ry. Co., 79 Wis. 140, 47 N. W. 1123, 11 L. E, A. 506, are not to be commended. 18 BISHOP V. ST. PAUL CITY EY. CO., 48 Minn. 26, 50 N. W. 927, Chapin Cas. Torts, 35. See, also, Ehrgott v. Mayor, etc of City of New York, 96 N. Y. 264, 48 Am. Ilep. 622; Davies v. McKnight 146 Pa. 610, 23 Ati. 320. § 28) FRIGHT AND MENTAL ANGUISH 81 C. SO that they arrive at town B., an intermediate point, sev- eral days overdue, and upon arrival they are destroyed by a flood. Here the loss was not immediately due to the negli- gence of the railroad, for the immediate cause was the flood. Nevertheless, had proper diligence been displayed in transit, the loss would not have occurred, since the goods would not have been at B. when the flood came. But ,is the negligent delay the proximate cause of the loss ? The better view is that it is not, as it ceased to be operative upon the arrival of the goods at B.^^ FRIGHT AND MENTAL ANGUISH 28. Where the cause of action is perfect in itself, the party vwronged may include in his recovery damages for mental anguish proximately resulting. Whether mental angiiish alone can be considered a proximate result, to supply the damage where damage must be proved, is in dispute. From what has been said concerning the intervention of a natural cause, the conclusion might appear that, in all cases, mental suffering, where it exists, is to be regarded as a re- sult of the wrongdoing. This may be true (a) in cases where a cause of action may be established without reference to the mental anguish; but (b) in other instances the courts are not in accord. Under the first head would come a case where defendant had trespassed upon a cemetery lot owned by plaintiff and removed the body of the latter's child. Apart from the out- rage to plaintiff's feelings, he, would have a perfect right of 17 Hoadley v. Northern TransiJortation Co., 115 Mass. 304, 15 Am. Rep. 106; Denny v. New York Cent. R. Co., 13 Gray (Mass.) 481, 74 Am. Dec. 645; Daniels v. Ballantine, 23 Ohio St. 532, 13 Am'. Rep. 264; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909. But New York has adopted the opposite view. Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426, where it was held that the delay was equivalent to deviation and made the carrier an insurer. Chap.Toets — 6 82 GENERAL PRINCIPLES (Ch. 3 action for the trespass, and having it he may recover in the same action for his mental pain.^' In such torts as assault and battery," "false imprisonment,^" false arrest," malicious prosecution,^" seduction,"' and- in defamation, where damage is^presumed or proved,"* the principle has full play. This is likewise true of breach of promise to marry, which, although nominally an action on contract, is in many respects regarded as really in tort.^" Now, for the second class of cases, of which defamatioh and negligence probably furnish the best illustrations. If I publish a statement concerning A. of so grave a character that it will be said to be defamatory per _se,"* and from which damage will be inferred, as if I call him a murderer, or if the charge is not of this type, yet special damage cognizable 18 Meagher v. DriscoU, 99 Mass. 281, 96 Am. Dec. 759. To the same effect, HICKEY v. WELCH, 91 Mo. App. 4, Chapin Cas. Torts, 39 (trespass). In Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. E.. A. 85, '28 Am. St. Rep. 370, a right of action for mental anguish caused by the dissection of the body of plaintifiC's husband was recognized, though there was no trespass. 19 Kline v. Kline, 158 Ind. 602, 64 N. E. 9, 58 L. E. A. 397; Burns V. Jones, 211 Mass. 475, 98 N. E. 29; Morgan v. Curley, 142 Mass. 107, 7 N. E. 726; Wadsworth v. Treat, 43 Me. 163; Hamilton v. Third Ave. R. Co., 53 N. T. 25 ; Williams v. Underbill, 63 App. Div. 223, 71 N. Y. Supp. 291 ; Craker v. Chicago & N. W. R. Co., 36 Wis. 657, 17 Am. Rep. 504. 20 Harness v. Steele, 159 Ind. 286, 64 N. B. 875. 21 Young V. Gormley, 120 Iowa, 372, 94 N. W. 922. 22 Hamilton v. Smith, 39 Mich. 222. 23 Phillips r. Hoyle, 4 Gray (Mass.) 568; Phelin v. Kenderdine, 20 Pa. 354. 2* See infra, pp. 304, 314 ; Finger v. Pollack, 188 Mass. 208, 74 N. E. 317; Oribbs v. Yore, 119 Mich. 237, 77 N. W. 927; Knowlden v. Guardian Printing & Publishing Co., 69 N. J. Law, 670, 55 Atl. 287 ; Van Ingen v. Star Co., 1 App. Div. 429, 37 N. Y. Supp. 114, affirmed 157 N. Y. 695, 51 N. B. 1094 ; Hacker v. Heiney, 111 Wis. 317, 87 N. W. 249. Recovery for physical sickness, the result of mental dis- tress, allowed in Garrison v. Sun P. & P. Ass'n, 207 N. Y. 1, 100 N. B. 430, 45 L. R. A. (N. S.) 766, Ann. Cas. 1914C, 288 ; denied in Butler V. Hoboken P. & P. Co., 73 N. J. Law, 45, 62 Atl. 272. 25 Tobin V. Shaw, 45 Me. 331, 71 Am. Dec. 547 ; Grant v. Willey, 101 Mass. 356; Allen v. Baker, 86 N. C. 91, 41 Am. Rep. 444. 28 See infra, pp. 304, 314. § 28) FRIGHT AND MENTAL ANGUISH 83 at law flows from it, then, as has been seen, the defamed party may recover for the humiliation he may have experi- enced. But if the words are not defamatory per se, and the only damage is the mental damage, there will be no cause of action.^' Plaintiff's mental anguish alone will not, for in- stance, sustain an action for a slander or libel upon a deceased relative.''* When we come to negligence, we find the leading case of Mitchell V. Rochester Ry. Co."' Plaintiff, a pregnant wo- man, was standing on a crosswalk. Defendant's horses were negligently driven so'close to her that she stood between their heads when they were stopped. From fright, she became unconscious, and the result was a miscarriage. Now, if there' had been any impact, any immediate physical injury, however slight, another question would have been presented. There having been none, 'it was held that there could be no recov- ery. «» Courts which have adopted this view base their conclusion on one or both of the following grounds : First, that defendant cannot be said to have anticipated the injury, which was there- fore not proximate; second, that to permit recovery would be to admit a flood of litigation of such a character that in- juries might be feigned without possibility of detection, the * 27 So held of a charge of unchastity in Terwilliger v. Wands, 17 , N. Y. 54, 72 Am. Dec. 420 ; AUsop v. AUsop, 5 H. & N. 534, 6 Jur. N. S. 433, 29 L. J. Exch. 315, 2 L. T. Eep. N. S. 290, 8 Wkly. Kep. 449. But see infra, pp. 313, 316. 28 Bradt r. New Nonpariel Co., 108 Iowa, 449, 79 N. W. 122, 45 L. R. A. 681; Sorenson v. Balab^n, 11 App. Div. 164, 42 N. Y. Supp. 654. 2» MITCHELL V. ROCHESTER RY. CO., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604. Chapin Cas. Torts, 37. 3 To the same effect, see Braun v. Craven, 175 111. 401, 51 N. E. 657, 42 L. R. A. 199; Atchison, T. & S. F. R. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Smith v. Postal Tel. Cable Co., 174 Mass. 576, 55 N. E. 380, 47 L. R. A. 323, 75 Am. St. Rep. 374; Huston r. Freemansburg Borough, 232 Pa. 548, 61 Atl. 1022, 3 L. R. A. (N. S.) 49; Victorian Ry. Com'rs v. Coultas, 13 App. Cas., 222, 52 J. P. 500, 57 L. J. P. C. 69, 58 L. T. Rep. N. S. 390, 57 Wkly. Rep. 129. See Homans v. Boston El. Ry. Co., 180 Mass. 456, 62 N. E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324, where there was physical impact. 84 GENERAL PRINCIPLES (Ch. 3 damages for which would rest upon mere conjecture." Though the doctrine has been subjected to some criticism,''' and has not met with universal acceptance, the weight of au- thority is iri its favor.** 81 Argument Is scarcely necessary to show the unfortunate effect of these decisions. The first objection can be met by saying that it is an improper application ot the test of remoteness. In many of the cases, where plaintiff has not been permitted to recover, in- jury, although not in its precise form, could have been anticipated. It Is thoroughly established by modern science that physical dis- order may be the direct consequence of nervous shock. To the second objection It may be answered that public policy is invoked for a purpose wholly at variance with the reasons on which it is founded. For courts to deny justice, because of the difficulty of administering it, amounts to self-stultilicatlon. The inconsistency is apparent when we consider that no difficulty has been experi- enced in cases where damages are "at large," and even mental an guish has been considered a proper ground for damages where an independent cause of action has been found to exist. In reality, it is merely an arbitrary rule. 38 Cyc. 450, note 2. When we con- trast the conclusion reached by the New York Court of Appeals in the MITCHELL CASE, 151 N. Y. 107, 45 N. E. 354, 34 L. K. A. 781, 56 Am. St. Eep. 604, Chapln Cas. Torts, 37, with that in Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. K. A. 618, 102 Am. St. Kep. 503, its peculiarity becomes apparent. 82 "Why is the accompaniment of physical Injury essential? For' my own part I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not ac- 8s See cases cited in note 30, supra. Where plaintiff, with her husband, went to the woman's waiting room of defendant's rail- road depot to await the arrival of her sister, and defendant's em- ploye ordered the husband to leave, using abusive language, where- upon plaintiff suffered a nervous shock and became ill, held that, as the language was not addressed to plaintiff, nor any physical injury inflicted upon her, there might be no recovery. Bucknam v. Great Northern R. Co., 76 Minn. 373, 79 N. W. 98. To the same effect Nelson v. Crawford, 122 Mich. 466, 81 N. W. 335, 80 Am. St Rep. 577, where defendant dressed himself in woman's clothes and went to the house of plaintiff, who became frightened at his ap- pearance and six weeks later sustained a miscarriage ; also Taf t v. Taft, 40 Vt. 229, 94 Am. Dec. 389, where defendant sent an anony- mous threatening letter, with the design of annoying plaintiff and frightening him out of town. See "Fright as an Element of Recov- erable Damages," 77 Am. St Rep; 859, note; "Recovery for Dam- age Resulting from Nervous Shock," 15 Harv. Law Rev. 304. § 28) FRIGHT AND MENTAL ANGUISH 85 An important application has been made in cases of the negligent transmission of telegrams. In So Relle v. Western Union Tel. Co.," decided in 1881, the Supreme Court of Texas took the view that damages for mental suffering might be recovered when sustained through failure to deliver or delay in delivering a telegram advising the addressee of the death of a near relative, provided it appeared from the face of the telegram that mental anguish would naturally result from such failure of delay. This doctrine has been followed in a few jurisdictions with varying degrees of liberality, some applying it only to qases of illness or death,' ° and others al- lowing recovery where the message related merely to social tually accompanied by physical injury, althoush It may be impossi- ble, or at least difficult, to detect the injury at the time in the liv- ing subject I should not be surprised if the surgeon or the physi- ologist told us that nervous shock is or may be in itself an injuri- ous affection of the physical organism. Let it be assumed, how- ever, that the physical injury follows the shock, but that the jury are satisfied upon proper and sufficient medical evidence that it fol- lows the shock as Its direct and natural effect, is there any legal reason, for saying that the damage is less proximate in the legal sense than damage which arises contemporaneously? 'As well might it be said' (I am quoting from the judgment of Palles, C. B., Bell V. Great Northern R. Co., L. E. 26 Ir. 432, 439) 'that a death caused by poison is not to be attributed to the person who admin- istered it, because the mortal effect is not produced contemporane- ously 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 se- quence — the inability to trace in regard to the damage the 'propter hoc' in a necessary or natural descent from the wrongful act As a matter of experience, I should say that the injury to health which forms the main ground of damages in actions of negligence, either in cases of railway accidents or in running-down cases, fre- quently is proved, not as a concomitant of the occurrence, but as one of the sequelae." Dulieu v. White, [1901] 2 K. B. 669, 677, 70 L. J. K. B. 837, 85 L. T. Rep. N. S. 126, 50 Wkly. Rep. 76, per Ken- nedy, J. And see Watson v. Dilts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St Rep. 239. Spearman v. McCrary, 4 Ala. App. 473, 58 South. 927 ; HICKEY v. WELCH, 91 Mo. App. 4, Chapin Gas. Torts, 39. 84 55 Tex. 308, 40 Am. Rep. 805. 8 Western Union Tel. Co. v. Westmoreland, 151 Ala. 319, 44 South. 382 ; Western Union Tel. Co. v. McCaul, 115 Tenn. 99, 90 S. W. 856. 86 GENERAL PRINCIPLES (Ch. 3 matters, as an appointment to meet on the arrival of a train.** But the Texas view has been repudiated by a majority of the courts. ^^ It may also be added that a distinction has been recognized by some of the courts, which generally refuse to consider men- tal anguish, standing by itself, as sufficient, but which make an exception in cases where the defendant has been guilty of a willful wrong as distinguished from negligence.** INTERVENTION OF VOLUNTARY ACT OR NEGLECT 29. Intervention of a voluntary act or neglefct will break the chain of causation, unless it should have been foreseen by the wrongdoer. Unforeseeable Intervention It is evident that where a voluntary agent has interposed between the wrong and the damage, the law can go no fur- ther. The intervening factor must necessarily be regarded as the proximate cause. For example, I slander A. in a con- versation with B., or send to B. a libelous letter concerning A. These are acts for which A. may hold me responsible. But, generally speaking, I will not 'be liable for any repetition by 38 Green v. Western Union-Tel. Co., 136 N. C. 489, 49 S. E. 165, 67 L. K. A. 985, 103 Am. St. Sep. 955, 1 Ann. Cas. 349 ; Postal Tel. Cable Co. V. Terrill, 124 Ky. 822, 100 S. W. 292, 14 L. E. A. (N. S.) 92T. 37 Francis v. Western Union Tel. Co., 58 Minn. 252, 59 N. W. 1078, 25 L. R. A. 406, 49 Am- St. Rep. 507; Connell v. Western Union Tel. Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Kep. 575; Curtin v. Western Union Tel. Co., 13 App. Dlv. 253, 42 N. T. Supp. 1109; Morton v. Western Union Tel. Co., 53 Ohio St. 431, 41 N. E. 689, 32 L. R. A. 735, 53 Am. St. Rep. 648; Con- nelly V. Western Union Tel. Co., 100 Va. 51, 40 S. E. 618, 56 L. R. A. 663, 93 Am. St. Rep. 919. 3 8 Williams v. Underbill, 63 App. Div. 223, 226, 71 N. Y. Supp. 291; HICKEY V. WELCH, 91 Mo. App. 4, Cbapin Cas. Torts, 39 ; Kline V. KUne, 158 Ind. 602, 64 N. E. 9, 68 L. R. A. 397. In WUldnson v. Downton, [1897] 2 Q. B. 57, 66 L. J. Q. B. 493, 76 L. T. Rep. N. S. 493, 45 Wkly. Rep. 525, defendant, intending to play a practical joke, § 29) INTEEVENTION OF VOLUNTAET ACT OR NEGLECT 87 B., for this is his voluntary act.'* So, where defendant neg- ligently permits a pit to remain open in the highway, it is not liable to a constable thrown into it by a prisoner escaping from custody, since here "the person so intervening acts as a nonconductor, and insulates" the negligence of the defend- ant from the injury suffered by the plaintiff.*" In the foregoing cases the intervention was by a stranger; but the rule is, of course, the same where the injured party has himself interposed, as where plaintiff shot at a knothole in the wall of defendant's wooden building, containing dyjia- mite, and thus caused an explosion,*^ or has committed suicide in a fit of insanity caused by a wreck on defendant's road.*^ The principle also holds good where there is no intervening act, but a mere omission to perform a duty recognized by law, as where plaintiff has improperly failed to exercise care to lessen the damage ; for example, being aware that a fire upon adjoining property is likely to spread to his own, he omits to take reasonable precautions to prevent it from spreading,*' or, knowing of the unlawful removal of his fence, he neglects falsely stated to plaintiff that the latter's husband had met with a serious accident, by which both of his legs weife broken. Plaintiff was permitted to recover for a violent nervous shock, which rendered her iU. Contra, St. Louis, I. M. & S. Ey. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. K. A. (N. S.) 159. 39 Elmer v. Fessenden, 151 Mass. 359, 24 N. B. 208, 5 L. R. A. 724 ; Hastings v. Stetson, 126 Mass. 329,^30 Am. Rep. 683; TerwlUiger v. Wands, 17 N. X. 54, 72 Am. Dec. 420; Ward v. Weeks, 7 Bing. 211, 4 M. & P. 796. 40 ALEXANDER v. TOWN OF NEW CASTLE, 115 Ind. 51, 17 N. B. 200, Ohapin Cas. Torts, 44. For illustrations showing a voluntary unforseeable intervention, see BLleebauer v. Western Fuse & Ex- plosives Co., 138 Cal. 497, 71 Pac. 617, 60 L. R. A. 377, 94 Am. St. Rep. 62 ; Booth v. Sanford, 52 Conn. 481 ; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154 ; Leeds v. New York Tel. Co., 178 N. Y. 118, 70 N. E. 219 ; Vickers v. Wilcocks, 8 East, 1, 103 Eng. Repr. 244. *i McGhee v. Norfolk & S. R. Co., 147 N. O. 142, 60 S. E. 912, 24 L. K. A. (N. S.) 119. *2 Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U. S. 249, 26 L. Ed. 1070. 48 Haverly v. State Line & S. R. Co., 135 Pa. 50, 19 AtL 1013, 20 Am. St Rep. 848. 88 GENERAL PRINCIPLES (Ch. 3 to repair, and cattle enter and eat the crops,** or, having re- ceived personal injuries, he unreasonably fails to consult a physician or to follow the latter's advice.*' Poreseeable Intervention To the rule that the voluntary intervention of a respon- sible individual will exonerate a preceding wrongdoer we must note an exception in cases where "it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of ^events." *' Thus, as has been seen, while the original 'defamer is not ordinarily. liable for the repetition of his words, he will be responsible if their first utterance was under such circumstances that the repeti- tion was reasonably to be foreseen.*' So, where, defendant left a horse and cart standing in the street, with no one to watch, he was held liable for the damage done by them, al- though occasioned by» the act of a passer-by, who struck the horse ;*° and a similar result was reached where defend- ant's servants negligently left a signal torpedo on its railroad track, and a boy picked it up and in playing with it caused it to explode and .injure plaintiff, another boy'.** Such a case was Clark v. Chambers,"" where defendant had unlawfully placed a barrier set with spikes across a private ** He can, of course, recover for the original removal, thougli not for the value of the crops. Loker v. Damon, 17 Pick. (Mass.) 284. *5 His own negligence is the proximate cause of such conse-^ quences as are found to he the reasonable result of his failure. Schmidt v. Mitchell, 84 111. 195, 25 Am. Rep. 446 ; Sullivan v. Tio- ga E. Co., 112 N. Y. 643, 20 N. E. 569, 8 Am. St. Rep. 793 ; Sauter V. New York Cent. & H. R. R. Co., 66 N. Y. 50, 23 Am. Rep. 18. And see infra, p. 539. *« Stone V. Boston & A. R. Co., 171. Mass. 536, 540, 51 N. E. 1, 41 L. R. A. 794, per Allen, J. 47 Zier V. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9; Allen V. Wortham, 89 Ky. 485, 13 S. W. 73 ; State v. Lund, 80 Kan. 240, 101 Pac. 1000. See infra, p. 299. 48 lUidge V. Goodwin, 5 C. & P. 190, 24 E. 0. li. 520. 48 Harriman v. Pittsburg, C. & St. L. Ry. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507. 5 Clark V. Chambers, 3 Q. B. D. 327, 47 L. J. Q. B. 427, 38 L. T. Rep. N. S. 454, 26 Wkly. Rep. 613. § 29) INTERVKNTION OF VOLUNTARY ACT OE NEGLECT 89 road and a third party removed it, setting it across an adjoin- ing footpath. On a dark night plaintiff, walking along the footpath, encountered the barrier and was injured. The in- jury was held the proximate result of defendant's act." Involuntary Intervention Furthermore, in order that it should be regarded as the proximate cause, the intervening act either of the injured party or of some third person should be voluntary, in the sense that it was the offspring of a mind free to choose. An involuntary act, giving to the term its enlarged meaning, will be placed in the sarrte category as a natural force and the se- quence will be preserved."* An illustration frequently found is where a reasonable ap- prehension of peril has been created by defendant's wrong, and injury results from an endeavor to escape. Such a situ- ation may assume a variety of forms. For instance, danger '1 "A man who unlawfully places an obstruction across either a public or private way may anticipate the removal of the obstruc- tion by some one entitled to use tlie way as a thing likely to hap- pen ; and if this should be done the probability is that the obstruc- tion so removed will, instead of being carried away altogether, be placed somewhere near." Clark v. Chambers, 3 Q. B. D. 327, 338, supra, per Cockburn, J. For further illustrations, see LANE v. ATLANTIC WOKKS, 111 Mass. 136, Chapin Cas. Torts, 45 ; Cohen v. Mayor, etc., of City of New York, 113 N. Y. 532, 21 N. E. 700, 4 Z,. R. A. 406, 10 Am. St Rep. 506 ; Weick v. Lander, 75 111. 93 ; Smith V. New Xork, S. & W. R. Co., 46 N. J. Law, 7; Pishbum v. Bur- lington & N. E. Co., 127 Iowa, 483, 103 N. W.,481. But where a railroad company negligently allows its platform to become sat- urated with on, and a careless teamster drops a lighted match, the result being the destruction of plaintiff's buildings, the company was held not to be liable, since the act .of the teamster was not reasonably to have been anticipated. Stone v. Boston & A. R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794. 6 2 Thus, where a passenger has been forced unlawfully to alight from a car and walk to his -destination, injuries not attributable to his negligence and suffered by reason of the walk are deemed the proximate results of the expulsion. East Tennessee, V. & 6. R. Co. r, Lockhart, 79 Ala. 315 ; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 49 Am. Rep. 168; Cincinnati, H. & I. R. Co. v. Eaton, 94 Ind. 474, 48 Am. Rep. 179 ; Gulf, C. & S. F. Ry. Co. v. Green (Tex. dv. App.) 141 S. W. 341. 90 GENERAL PRINCIPLES (Ch. 3 may threaten the active and injured party. If the latter's actions induced by the apprehended peril measure up to the legal standard of what a man of ordinary prudence would have done under similar circumstances, there will be no such contributory negligence as will prevent a recovery, as where a pedestrian, for the purpose of avoiding a recklessly driven horse, sprang sidewise and struck his head against the wall of a building,"* or a passenger reasonably believing himself to be in danger from a threatened collision leaped from the train and was injured.'* Then, again, the peril may threaten a third party, and (a) the active and injured party has received his injuries while engaged in the work of rescue, where his conduct, bearing in mind the attendant circumstances requiring an instant de- cision, has not amounted to rashness in the judgment of a man of ordinary prudence;" or (b) the injured party is pas- 53 Coulter V. American Merchants' Union Exp. Co., 56 N. T. 585. For further illustrations, see Tuttle v. Atlantic City R. Co., 66 N. J. raw, 327, 49 Atl. 450, 54 L. R. A. 582, 88 Am. St. Rep. 491 ; Illinois Cent. R. Co. v. Anderson, 184 111. 294, 56 N. E. 331 ; Pennsylvania R. Co. V. Snyder, 55 Ohio St. 342, 45 JST. B. 559, 60 Am. St. Rep. 700. 04 Cody V. New York & Ni E. R. Co., 151 Mass. 462, 24 N. E. 402, 7 L. R. A. 843; Estes v. Missouri Pac. R. Co., 110 Mo. App. 725, 85 S. W. 627 ; Buel v. New York Cent. R, Co., 31 N. Y. 314, 88 Am. Dec. 271; Willis v. Second Ave. Traction Co., 189 Pa. 430, 42 Atl. 1; Jones v. Boyce, 1 Stark. 493, 18 Rev. Rep. 812, 2 E. C. h. J.O*7. BB Where defendant negligently permitted an opening in the rail- ing of a bridge over a canal to remain unguarded, it was held lia- ble for the death of a father, drowned while endeavoring to save his son, who had fallen through the opening. Gibney v State 137 N. Y. 1, 33 N. E. 142, 19 L. R. A. 365, 33 Am. St. Rep. 69o! In this case the negligence consisted of an omission; that is, a failure originally to construct the bridge properly or permitting it to become dangerous. But the result is the same where the negli- gence is active, as where a railroad train is driven at a dangerous speed and a person is killed while endeavoring to rescue a child ECKERT V. LONG ISLAND R. CO., 43 N..Y. 502, 3 Am. Rep. 72li Chapin Cas. Torts, 49. To the same effect, Louisville & N. R Co v' Orr, 121 Ala. 489, 26 South. 35; Mobile & O. R. Co. v. Ridley 114 Tenn.,727, 86 S. W. 606, 4 Ann. Cas. 925; Corbin v. City of Phil'adel- phia, 195 Pa. 461, 45 Atl. 1070, 49 L. R. A. 715, 78 Am. St Rep 825- § 30) INTERVENTION OF IRRESPONSIBLE INDIVIDUAL 91 sive, and has been harmed through the acts of the threatened individual committed while endeavoring to escape from the peril created by the negligence or wrongful act of the defend- ant;''' or (c) the injured party is passive, and a third person has caused the harm while engaged in the work of rescue . Such was the case where defendant descended in a balloon in the plaintiff's garden. His body was hanging out of the car in a very perilous situation, and a crowd broke into the garden for the purpose of rescuing him, and trampled down plaintiff's vegetables and flowers. Defendant having put himself in the position of inviting help, he was properly held responsible for the acts of those who' had responded."" INTERVENTION OF IRRESPONSIBLE INDIVID- UAL OR UNCONSCIOUS INSTRUMENT 30. Liability will continue where there -intervenes the act of an irresponsible person, or the injury is di- rectly caused by an unconscious instrument set in motion or made effective by the wrongdoer. Intervention by Irresponsible Individual The rule that the intervention of an irresponsible individual or an unconscious instrument will not break the chain of caus- Saylor y. Parsons, 122 Iowa, 679, 98 N. W. 500, 64 L. R. A. 542, 101 Am. St. Rep. 283. 58 As in the leading case of Scott v. Shepherd, W. Bl. 892, 96 Ehg. Repr. 525, 3 Wils. C. P. 408, 95 Eng. Repr. 1124. Here de- fendant threw a lighted squib into a market h5nse. It fell upon the standing of X. W., to prevent injury to himself and to the goods of Y., threw It across the market house, and it fell upon the standing of R., who in turn, to save himself, threw it to another part of the building, where it struck the plaintiff. While the ques- tion directly involved here was whether the remedy was in trespass or case, the decision in favor of the former has caused it to be cited as a leading authority in favor of the proposition laid down In the text. To the same effect, Ricker v, Freeman, 50 N. H. 420, 9 Am. Rep. 267; Lowery v. Manhattan R. Co., 99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12 ; Vandenburgh v. Truax, 4 Denio (N. Y.) 464, 47 Am. Dec. 268 ; Chambers v. Carroll, 199 Pa. 371, 49 Atl. 128. BT Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234. 92 GENERAL PRINCIPLES (Ch. 3 ation rests largely upon the principle just laid down; which makes the wrongdoer responsible where such intervention was to have been foreseen. The word "irresponsible" is here used both in a legal sense, as meaning one who will not be held accountable, and in a popular sense, as one who is un- conscious of the existence of the state of facts created by defendant's wrongdoing. In neither instance can the final injury be regarded as due to the intermediary. As examples of the first there are the cases where defendant has negli- gently created a dangerous situation and the immediate in- jury has been produced to and by a child, who, although ex- ercising the degree of care to be expected of one of his age and discretion, has nevertheless been guilty of what would be contributory negligence in an adult, or who is of such tender years that he will be termed "non sui juris," and can- not, therefore, be deemed guilty of contributory negligence at all. Such a case was Lynch v. Nurdin,"* where, defendant having negligently left his horse and cart unattended in the street, plaintiff, a child of between six and seven, got upon the cart and was injui-ed."' On the theory that the intermediary was irresponsible in the sense of unknowing, it has been held that one who delivers to a carrier a dangerous article, not informing him at the time of its nature, will be liable for an injury to a third party oc- curring during transit, though the act of the carrier may be the immediately productive cause."* Again, where a whole- sale dealer sells to a retailer an article rendered inherently dangerous by act of the vendor, the dangerous quality being secret and undisclosed, and the retailer in good faith sells to a customer, who is injured, the resale is deemed so far an involuntary act that the liability of the wholesaler will con- es 1 Q. B. 29, 5 Jur. 797, 10 L. J. Q. B. 73, 4 P. & D. 672, 41 E. C. L. 422, 113 Bng. Repr. 1041. 6 9 And see Ihl v. Forty-second St. & G., St Ferry R. Co., 47 N. T. 317, 7 Am. Eep. 450. For contributory negligence of infants see infra, p. 547. 8 Farrant v. Barnes, 11 C. B. N. S. 553, 8 Jur. N. S. 868, 31 L. J. C. P. 137, 103 E. C. L. 553 ; Boston & A. R. Co. v. Shanly, 107 Mass. 568. And see the Nitro-Glycerine Case, 15 Wall. 524, 21 L. Ed. 206. § 30) INTERVENTION OF IEKBSPON8IBLE INDIVIDUAL 93 tinue unbroken. This doctrine, while often applied where a noxious drug is sold as harmless, and the retail druggist has in turn sold it to a customer without knowledge of its danger- ous quality,*^ or where the drug is purchased by One to ad- minister to another/^' is by no means restricted to medicines.'* If, however, the intervening purchaser was aware of the de- fect, his act in supplying the injured party with the goods would break the causal connection.'* Intervention of Unconscious Instrument If the wrongdoer has set in motion an unconscious instru- ment, and the origiifel force imparted to it has not spent itself at the time of the injury, or if the instrument has been made effective by his negligence, which continued to be operative at the time the injury occurred, responsibility as in the case of the intervention by an irresponsible individual will remain existent. Thus one who unlawfully frightens a horse, caus- ing it to run away and inflict injury upon a third pa!rty, will be liable to the latter;"* and where a cow, thrown by an en- gine, struck the ground, bounced, and fell against plaintiff, it was held that the bounce and fall of the cow was not so far 61 Blood Balm Co. v. Cooper, S3 Ga. 457, 10 S. E. liS, 5 L. K. A. 612, 20 Am. St. Rep. 324; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. « 2 Norton v.'Sewall, 106 Mass. 143, 8 Am. St. Eep. 298; George v. Sklvington, L. R. 5 Exch. 1, 39 L. J. Exch. 8, 21 L. T. Rep. N. S. 495, 18 Wkly. Rep. 118. 83 Lewis V. Terry, 111 Cal. 39, 43 Pae. 398, 31 L. R. A. 220, 52 Am. St. Rep. 146 (folding bed); Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715 (food) ; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 U R. A. 818, 32 Am. St. Rep. 559 (ladder); Kuelllng v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124 (land roller); Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303 (threshing machine). And see infra, p. 517 et seq. 8* Lewis V. Terry, 111 Cal. 39, 43 Pae. 398, 31 L.. R. A. 220, 52 Am. St. Rep. 146. 8B Billman v. Indianapolis, C. & L. R. Co., 76 Ind. 166, 40 Am. Rep. 230; Stephenson v. Corder, 71 Kan. 475, 80 Pae. 938, 69 L. R. A. 246, 114 Am. St. Rep. 500; McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Forney v. Geldmacher, 75 Mo. 113, 42 Am. Rep. 388; Willis v. Providence Telegram Pub. Co., 20 R. I. 285, 38 AtL 947. 94 GBNEEAL PRINCIPLES (Ch. 3 the proximate cause of the injury as to isolate the negligence of the engineer.'^ Again, where a passenger on defendant's train is jolted to the track through the negligence of the engi- neer, and while lying there is run over and killed by an en- gine belonging to another railroad, the negligence of the de- fendant was held to have made effective the immediate cause of the death, which did not operate as an intervening cause."' So, too, where defendant's locomotive set fire to a fence, which was burned, and cattle got into plaintiff's field and damaged the crop, the burning of the fence is to be regarded as the proximate cause.°* ARBITRARY RULE IN CERTAIN CASES OF FIRE 31. An arbitrary rule has been adopted by some of the states in cases of fires due to negligence, and a point has been established at wrhich defendant's liability will cease, though logically the injury is the proximate result. If through my negligence a fire consume the house of A,, I am, of course, responsible. If, however, the fire communi- cate from the house of A. to that of B., which is destroyed, am I liable for the latter's loss? And if it spread thence to the house of C, and thence to the house of D., and thence consecutively to every house, until it reach and consume the house of Z., will I be liable for the damage sustained by these twenty-four sufferers? This was the proposition put by the New York Court of Appeals in Ryan v. New York Cent. R. Co." Here defendant by careless management had set fire to its woodshed. The fire spread to plaintiff's house, situated at a distance of 130 feet from the shed, and to a number of other «« Alabama Great Southern R. Co. v. Chapman, 80 Ala. 615, 2 South. 738. And see HammiU v. Pennsylvaiiia R. Co., 56 N. J. Law, 370, 29 Atl. 151, 24 L. R. A. 531. 87 Southern R. Co. v. Webb, 116 Ga. 152, 42 S. E. 395, 59 L. R. A. 109. 88 MiUer v. St Louis, I. M. & S. Ry. Co., 90 Mo. 389, 2 S. W. 439. 8 35 N. T. 210, 91 Am. Dec. 49. § 31) ABBITEARY BULK IN CERTAIN CASES OF FIRE 95 buildings. In holding plaintiff's damage too remote, the court bases its conclusion in part upon the fact "that a building upon which sparks and cinders fall should be destroyed or seriously injured must be expected, but that the fire should spread and other buildings be consumed is not a necessary or a usual result," since the result depends, "npt upon any necessity of a further communication of the fire, but upon a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the. condition of the materials of the adjoining structure, and the direction of the wind." In other words, the damages are not foreseeable. The decision ap- pears, however, 'to b6 based really upon public policy; for, as the court viewed it, it would be unjust to hold the original wrongdoer responsible.'"' The • unfairness of such a doctrine seems manifest. It may be true, as the court states, that, to hold the original wrong- doer liable under such conditions "would be to award a 'pun- ishment quite beyond the offense committed." But the answer is that in a 'tort action punishment is not sought, but compen- sation. It may likewise be true, as stated in a subsequent deci- sion, that "fires often occur from the 'trivial acts of most prudent persons. * * * No person, Jiowever cautious, is exempt. Misfortune may overtake him in a forgetful mo- ment, or 'through fault in the members of his family or serv- ants." '^ But how about the man whose house was burned? TO "Nearly all fires are caused by negligence, In its extended sense. In a country where wood, coal, gas, and oils are universally used, where men are crowded into cities and villages, where serv- ants are employed, and where children find their home in all hous- es, it is impossible that the most vigilant prudence should guard against the occurrence of accidental or negligent fires. A man may insure his own house, or his own furniture; but he cannot insure his neighbor's building or furniture, for the reason that he has no interest in them. To hold that the owner must not only meet his own loss by fire, but that he must guaranty the security of his neighbors on both sides, and to an unlimited extent, would be to create a liability which would be the destruction of all civilized society. No community could long exist under the operation of such a principle." Ryan v. New York Cent. K. Co., 35 N. Y. 210, 216, 91 Am. Dec. 49, per Hunt, J. 71 Hoffman V. King, 160 N. Y. 618, 628, 55 N. E. 401, 46 L. B. A. 672, 73 Am. St. Eep. 715, per Haight, J. 96 GENERAL PEINOIPLBS (Ch. 3 Why should the wrongdoer be favored at his expense? It seems better to say that the individual by whose neglect the in- jury was brought about should bear the loss. Although the New York courts have in terms adhered to this doctrine/'' the tendency has been towards limiting it, and it has been said that the Ryan Case "should not be extended beyond the pre- cise facts which appear therein." ^' It would not, for in- stance, apply where a railroad has negligently permitted com- bustible material to accumulate along ■ its right of way, by means of which fire is communicated from a burning tie, and from whence it spreads to a fence and on to plaintiff's wood- land, for here the tort consists in permitting the inflammabl'e matter to accumulate at a place where it was likely to cause damage.'* The New York doctrine is generally regarded with' strong disapproval,'" although it has in one instance been followed by the Supreme Court of Pennsylvania.'* 72 Van Inwegen v. Port Jervis, M. & N. Y. R. Co., 165 N. T. 625, S8 N. E. 878; Hoffman v. King, 160 N. Y. 618, 55 N. E. 401, 46 tu R. A. 672, 73 Am. St. Rep. 715 ; Frace v. New York, L. B. & W. R. Co., 143 N. Y. 182, 38 N. B. 102; Read v. Nichols, 118 N. Y. 224, 23 N. E. 468, 7 L. R. A. 130. " Frace v. New York, L. E. & W. R. Co., 143 N. Y. 182, 189, 38 N. E. 102, per Peckham, J. " Webb V. Rome, W. & O. R. Co., 49 N. Y. 420, 10 Ain. Rep. 389. To the same effect, see Fent v. Toledo, P. & W. Ry. Co., 59 lU. 362, 14 Am. Rep. 13 ; Delaware, L. & W. R. Co. v. Salqjon, 39 N. J. Law', 299, 23 Am. Rep. 214; Smith v. London & S. W. R. Co., 6 L R c' P. 14, 5 L. R. C. P. 98. ■ ■ In O'NeUl v. New York, O. & W. Ry. Co., 115 N. Y. 579, 22 N. E. fB Martin v. New York & N. E. R. Co., 62 Conn. 331, 25 Atl. 239; Fent V. Toledo, P. & W. Ry. Co., 59 111. 362, 14 Am. Rep. 13 ; Lou- isville, N. A. & C. Ry. Co. V. Nitsche, 126 Ind. 229, 26 N. E. 51, 9 L. R. A. 750, 22 Am. St. Rep. 582 ; Perley v. Eastern' R. Co., 98 Mass. 414, 96 Am. Dec. 645; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 299, 23 .Am. Rep. 214; Adams v. Young, 44 Ohio St. 80, 4 N. E. .599, 58 Am. Rep. 789; Atkinson v. Goodrich Transp Co., 60 Wis. 141, 18 N. W. 764, 50 Am. Rep. 352. TO Pennsylvania R. Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431. The forte of this decision, however, has been so greatly weakened that It may be questioned whether the doctrine has not been repudiated Haverly v. State Line & S. R. Co., 135 Pa. 50, 19 Atl. 1013, 20 Am. St. Rep. 848, which reviews the cases. § 32) CONCUEEING CAUSE 97 CONCURRING CAUSE 32. Where the injury is the proximate result of the wrong- doer's act or neglect, he is responsible, though the act or neglect of a third person or an accidental cause concurred in producing it. Later there will be discussed the liability of joint tort- feasors, and it will be found that the general rule is that the injured party can sue one, any, or all of those who have been engaged in the Commission of the wrong.'^ To fasten liability upon a particular individual it is not required that his wrongdoing should be the sole cause of the injury. It is sufficient that it is an efficient cause, and it will be no answer that another was equally guilty. "The general doctrine is that it is no defense, in actions for injuries resulting from negli- gence, that the negligence of third persons, or an inevitable accident, or that an inanimate thing contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred." '* This is peculiarly applicable where passengers have been injured by collisions between trains belonging to different roads, caused by the fault of both/" But illustrative cases present an almost infinite variety of 217, 5 L. R. A. 591, sparks from defendant's locomotive set fire to combustible material which It had permitted to accumulate. From thence the fire spread to the lands of C, and from thence to plain- tiff's lands. While plaintiff was permitted to recover, yet, as was pointed out in Hoffman v. King, supra, where a contrary result was reached, the point that the injury was not the proximate result, not having been raised at the trial, was not before the Court of Appeals. ■n See infra, p. 236. T8 City of Joliet v. Shufeldt, 144 111. 403, 411, 32 N. E. 969, 18 L. B. A. 750, 36 Am. St. Rep. 453, per Shope, J. 10 Wabash, St. L. & P. Ry. Co. v. Shacklet, 105 111. 364, 44 Am. Rep. 791 ; Barrett v. Third Ave. R. Co., 45 N. Y. 628 ; Mathews v. London St. Tramways Co., 52 J. P. 774, 58 L. J, Q. B. 12, 60 L, T. Rep. N. S. 47. Chap.Tobts — 7 98 GENERAL PEINCIPLES (Ch. 3 facts. Thus where defendants improperly piled lumber along a gangway, and a team was so negligently driven by one R. that the wheel caught the end of one of the timbers and threw it down, it was said that, "if the timbers were negligently piled by the defendants, the negligence continued until they were thrown down, and (concurring with the action of R.) was a direct and proximate cause of the injury sustained by the plaintiff." *" So, where defendant left barrels of fish brine on a public street, which were spilled by a third person, and a cow licked the brine and died, he was held liable ; the death of the cow being the proximate consequence of the leaving of the barrels of brine in the street; '^ and where a prescription is improperly written, the fact that the druggist who fills it may also have been negligent is no defense in an action against.^ the physician."^ Likewise, where a third party negligently went upon a railroad track, carrying a box of tools upon his shoulder, was struck by defendant's engine, negligently driven, and some of the tools flew through the air, injuring plaintiff, the injury was to be regarded as due to the concurring negli- gence of the third party and of the defendant.*' Naturally the same result is reached where the act or neg- lect of the wrongdoer co-operates with an accidental cause, as where a municipality culpably permits a defect to remain in a public highway it will be liable to the injured driver of a horse if the injury would not have resulted but for such defect, although the shying or starting of the horse co-op- erated to produce it.** Again, where it was claimed that de- 80 Pastene v. Adams, 49 Cal. 87, 90. 81 Henry v. Dennis, 93 Ind. 452, 47 Am. Eep. 378. 82 Murdock v. Walker, 43 111. App. 590. 83 Hammill v. Pennsylvania B. Co., 56 N. J. Law, 370, 29 Atl. 151, 24 L. R. A. 531. For other cases illustrating this doctrine, see Lake V. MiUiken, 62 Me. 240, 16 Am. Kep. 456 ; Eaton v. Boston & L. K. Co., 11 Allen (Mass.) 500, 87 Am. Dec. 730 ; Johnson v. Northwest- ern Tel. Exch. Co., 48 Minn. 433, 51 N. W. 225 ; SLATER v. MER- SERBAU, 64 N. Y. 138, Chapin Cas. Torts, 111 ; Koelsch v. Philadel- phia Co., 152 Pa. 355, 25 Atl. 522, 18 L. R. A. 759, 34 Am. St. Rep. 653 ; Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18 N. W. 764 50 Am. Rep. 352. 8 4 This view, it is generaUy held, is applicable only to cases where there is a momentary lack of control by the driver, as where § 32) OONCUEEING CAUSE 99 fendant's dog had caused plaintiff's horse to shy. and upset the carriage, it was held that if the act of the dog was the sole and proximate cause of the shying, and the shying was not the result of any vicious habit of the horse, the fact that the shying contribi^ted to the injury would not prevent a re- covery.'" This principle has been further illustrated by cases already cited, showing that the intervention of a natural force will not break the chain of events. °' It should be 'kept in mind, however, that the concurring cause must not be due to the act or neglect of the plaintiff himself, for, if such |hould be the case, then, as will be seen later, he will not be entitled to redress from the defendant." Furthermore, the rule does not do away with the necessity of showing that the alleged wrongdoer has been legally cul- pable and that the injury is the proximate result of his culpa- bility. "Where there are two or more possible causes of in- jury, for one or more of which the defendant is not respon- sible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence leaves it just as probable that the injury was the result of the borse shies or starts, and not to instances where the horse Is wholly freed from the driver's control and is running away, on the theory that municipal corporations are not bound to make their roads safe for unmanageable horses. Aldrich v. Gorham, 77 Me. 287 ; Spaulding v. Winslow, 74 Me. 528 ; Wright v. Templeton, 132 Mass. 49; Simons v. Casco Tp., 105 Mich. 588, 63 N. W. 500; Nich- ols V. Pittsfield Tp., 209 Pa. 240, 58 Atl. 283 ; Davis v. Snyder Tp., 196 Pa. 273, 46 Atl. 301 ; Yeaw v. Williams, 15 R. I. 20, 23 Atl. 33. But In New York it has been held that "where, without any fault of the driver, a horse becomes uncontrollable and rims away, it is regarded as an accidental occurrence, for which the driver is not xesponsible. • * * When two causes combine to produce an in- jury to a traveler upon a highway, both of which are in their na- ture proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party Is responsi- ble — the municipality Is liable, provided the injury would not have been sustained but for such defect" Ring v. City of Cohoes, 77 N. Y, 83, 88, 33 Am. Rep. 574, per Earl, J. directly in producing the injury or sets in motion other causes so producing it and forming a continuous chain in natural sequence down to th» injury." "* "A proximate cause is one in which is involved .-the idea of necessity." °* It must be causa caitsans and not merely the causa sine qua hon. If, therefore, all that can be said is that the wrongdoing of de- fendant urged as a basis of recovery, or that of the plain- tiff relied upon to defeat it, was productive simply of a state of facts which rendered the injury possible, it cannot be re- garded a« the cause, but will be considered only as a condi- tion, which, although a noticeable factor in the ultimate situ- ation in whiih the parties found themselves, in the sense that but for its existence the same result would not have been reached, cannot be considered as imposing any^ responsibility upon the^tor.®* Now, although all thp courts are agreed on the abstract proposition that an essential difference exists between a condi- tion !tnd a cause, they , are by no means in accord as to the precise nkture of this difference. Thus, as has been seen, there is wide divergence whether a carrier's failure to exercise dili- %gence in transportation is the cause of the loss of the goods en route, where the immediate destruction has been effectu- ated by an act of nature ; '" and a similar difference of opin- »i JEtna Ins. Co. v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395. 92 Meyer v. Milwaukee Electric R. & Light Co., 116 Wis. 386, 339, 93* N. W. e,%)er Dodge, J. . 1)3 Seifter v. Brooklyn Heights R. Co., 169 N. T. 254, 258, 62 N. E. 349; taldlaw^v. Sage, 158 N. Y. 73, 99, 52 N. E. 679, 44 L. R.>. 216. »4 "A condition Is a mechanical antecedent, without causal pow- er. A cause Is fbs responsible, voluntary agent, changing the ordi- nary course of nature." Cicero de Officii, lib. 1, cited in Whart. Neg. 824. . » 9 5 See supra, pp. 80, 81. 102 GENERAL PEINCIPLBS (Ch. 3 ion exists where plaintiff has received injuries while traveling on Sunday in violation of statute." Necessarily no definite test can be laid down, and each case must be regarded as largely a law unto itself. For instance, where a passenger was negligently carried past her destination, and the conductor advised her to spend the night at a certain hotel in the town at which she alighted, agreeing to pay her expenses and to carry her back in the morning, his negligence in carrying her past her station is not to be regarded as a cause of injuries received by her from the explosion of a lamp at the hotel.'' A similar con- clusion was reached where a railway company had fenced its right of way adjoining the premises of defendants, placing gates for the latter's convenience. Plaintiff's land adjoined that of defendants, and between them was another fence. A heavy windstorm blew down a tree, which broke the fence, and plaintiff's cattle passed through the gap, and from thence over defendants' land to the tracks by means of a gate which defendants had left open, and were killed by a train. The leaving open of the gate was here a condition of thp loss, but the cause was the breach by the fall of the tree.'' Again, where a borough negligently permits a tree to remain standing in a street notwithstanding its dangerous condition, which is blown down and strikes a motorman who is running his car at an illegal rate of speed, the illegal speed is a condition merely." An extended citation of authorities would serve no good purpose, particularly as the difference between condition and cause will be best illustrated when there is considered the illegality of plaintiff's conduct as a bar to his recovery.^"" It has been well said that the distinction between cause and con- dition would be valuable, if there were any definite standard »e See Infra, p. 114. 01 Central of Georgia Ey. Co. v. Price, 106 Ga. 176, 32 S. E 77 43 L. U) A. 402, 71 Am. St. Rep. 246. 8 Strobeck v. Bren, 93 Minn. 428, 101 N. W. 795. »» Berry v. Borough of Sugar Notch, 191 Pa. 345, 43 Aa 240. 100 See Infra, p. Ill et seq. § 34) FUNCTIONS OF COOET AND JUBT 103 for determining what is a cause and what is a condition. The only test by which this can be settled is the same as that which determines a proximate from a remote cause.^"*- FUNCTIONS OF COURT AND JURY 34. Whether the injury is the proximate result of the wrongful act or neglect is generally deemed a question of fact to be decided by the jury. "The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a ques- tion of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it." ^"^ Thus, where the plaintiff's sheep escaped from his pasture through defendant's negligence, wandered away, and were killed by bears, it was a question for the jury, under proper instructions, whether the defendant's negligence was the prox- imate cause of the loss.^"* But to this rule there is an exception in cases where the facts are undisputed and only one inference or deduction is to be drawn from them. A question is then presented for the. court, as it is the province of the jury to determine only in cases of conflict.^"* Hence, where defendant sold two pounds of gunpowder to plaintiff, a child of eight years, and the latter brought it home and placed it in a closet, from which some of it was taken by his mother and handed to him to play with, and later more was taken by the child with 101 Jaggard on Torts, p. 64. 102 MILWAUKEE & ST. P. RY. CO. v. KELLOGG, 94 TJ. S. 469, 474, 24 L. Ed. 256, Chapln Cas. Torts, 31, per Strong, J. 103 Gilman v. Noyes, 57 N. H. 627. To the same effect, Pullman Palace Car Co. v. Bluhm, 109 111. 20, 50 Am. Rep. 601 ; Schumaker V. St Paul & D. R. Co., 46 Minn. 39, 48 N. W. 559, 12 I* R. A. 257; Cox v. Pennsylvania R. Co., 76 N. J. Law, 786, 71 Atl. 250; Ehrgott V. Mayor, etc., of City of New York, 96 N. X. 264, 48 Am. Rep. 622 ; Scott v. Hunter, 46 Pa. 192, 84 Am. Dec. 542. 104 Missouri Pac. R. Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399 ; Henry v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 288, 43 Am. Rep. 762; West Mahanoy Tp. v. Watson, 112 Pa. 574, 3 Atl. 866, 56 Am. Rep. 336. 104 GENERAL PRINCIPLES (Ch. 3 the mother's knowledge, the jury should have been instructed to return a verdict for defendant in an action brought to recover for injuries due to an explosion caused by the child. There could here be no dispute that the negligence of the mother had intervened. ^"^ So, under the New York doctrine, a motion for a nonsuit was improperly refused where plain- tiff's evidence, in an action to recover for the destruction of property by a fire negligently started on defendant's land, showed that lands of other owners intervened between plain- tiff's land and the origin of the fire.^"' 10 5 Carter v. Towne, 103 Mass. 507. 106 Van Inwegen v. Port Jervis, M. & N. Y. R. Co., 165 N. T. 625, 58 N. E. 878. Ch. 4) GENERAL PEINGIPLBS 105 CHAPTER IV GENERAL PRINCIPLES (Continued)— DEFENSES 35. In General. 36. Inherent Defenses. (1) Necessity. (2) Acts of State. (3) The Police Power. (4) Illegal Conduct of Plaintiff. (5) Incense. 37. Collateral Defenses. (1) Abatement by Death. (2) Accord and Satisfaction. (3) Release and Covenant Not to Sue. (4) Statutes of Limitation. IN GENERAL, 35. There will be considered here certain defenses appli- cable in general to tort actions. For those of spe- cial application, reference must be made to the specific torts as treated elsewhere. Broadly speaking, defenses to a claim of wrongdoing may be: (1) Inherent, in the sense that they are based upon the very facts upon which it is sought to predicate a tort, or on contemporaneous circumstances forming a part of the trans- action; or (2) collateral, which depend upon facts arising entirely outside of and beyond the alleged tortious occurrence. INHERENT DEFENSES ' 36. Of the inherent defenses there will be considered — (1) Necessity; (2) Acts of state; (3) The police power; (4) Illegal conduct of plaintiff; (5) License. 106 GENERAL PRINCIPLES (Ql. 4 Other inherent defenses to be taken up later are defense of person and property, enforcement of discipline, assumption of risk, contributory negligence, and the privilege accorded to defamation under certain circumstances. ' Necessity < There are occasions when private rights must give way to the common welfare. "It is a maxim of the common law that, where public convenience and necessity come in' conflict with private right, the latter must yield to the former." ' Necessarily such cases must be comparatively few in number, as the necessity which would justify an interference with pri- vate rights should be extreme; but the principle, though re- stricted in its application, is none the less settled. For ex- ample,* we have the destruction of property to prevent the spread of fire,' or disease,* or to lessen the danger from a 1 Campbell v. Race, 7 Gush. (Mass.) 408, 412, 54 Am. Dec. 728, per Bigelow, J. 2 "The principle, as it is usually found stated in the books. Is that, 'if a house In a street be on fire, the adjoining houses may be pulled down to save the city.' But this is obviously intended as an example of the principle, rather than as a precise definition of its limits. The principle applies as well to personal as to real es- tate ; to goods as to houses ; to life as to property — ^in solitude as in a crowded city ; in a state of nature as in civil society. It is referred by moralists and by jurists to the same great principle, which justifies the exclusive appropriation of a plank in a ship- wreck, though the life of another be sacrificed; with the throwing overboard of goods in a tempest for the safety of the vessel; with the taking of food to satisfy the instant demands of hunger; with trespassing upon the lands of another to escape death from an enemy. It rests upon the maxim, 'Necessitas inducit privilegium quoad jura privata.' " American Print Works v. Lawrence, 21 N. J. Law, 248, 257, per Green, C. J. »SUKOCCO V. GEARY, 3 Gal. 69, 58 Am. Dec. 385, Chapin Gas. Torts, 52 ; Field v. Gity of Des Moines, 39 Iowa, 575, 28 Am. Rep. 46 ; Taylor v. Inhabitants of Plymouth, 8 Mete. (Mass.) 462 ; Mayor, * Meeker v. Van Rensselaer, 15 Wend. (N. Y.) 397 (destruction of filthy building calculated to spread disease, same having been done during prevalence of Asiatic cholera) ; Seavey v. Preble, 64 Me. 126 (removal of waU paper smeared with smallpox virus). And see abatement of nuisances, infra, p. 571. § 36) INHERENT DEFENSES 107 hostile advancing army ; ' »a dangerous maniac may be re- strained temporarily until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority ; " under certain conditions the private citizen is justified in arresting a criminal ; ' one may destroy property to save human life,' or may enter upon the premises of another for the same purpose," or to preserve property in peril from the elements,^" though not from peril due to the wrongdoing of the trespasser,^^ or of a third party j^^ and, where a highway becomes obstructed and impassable from temporary causes, a traveler may go extra viam upon adjoin- ing lands.^* Acts of State Though the state as a distinct entity may perpetrate a wrong through its agents, nevertheless, as sovereign and not amenable to legal process, it cannot be sued, except with etc., of City of New York v. Lord, 17 Wend. (N. Y.) 285 ; Bovvditch V. Boston, 101 U. S. 16, 25 L. Ed. 980. In some states the statute provides for compensation. See Taylor v. Inhabitants of Plymouth, snpra ; Mayor, etc., of City of New York v. Lord, 18 Wend. (N, Y.) 126 ; "Compensation for Property Destroyed to Stop the Spread of a Conflagration," by HaU & Wigmore, 1 111. Law Rev. 501. 5 Harrison v. Wisdom, 7 Heisk. (Term.) 99 (destruction of intoxi- cating liquors in anticipation of the arrival of an enemy). 6 Keleher y. Putnam, 60 N. H. 30, 49 Am. Rep. 304 ; Fletcher v. Fletcher, 1 B. & E. 420, 5 Jur. N. S. 678, 28 L. J. Q. B. 134, 7 Wkly. Rep. 187, 102 E. O. L. 420. And see infra, p. 285. 7 See infra, p. 282 et seq. = Passengers, to save their lives, may cast cargo overboard with- out incurring liability to the owner. Mouse's Case, 12 Coke, 63. » Ploof V. Putnam, 81 Vt. 471, 71 Atl. 188, 20 L. R. A. (N. S.) 152, 130 Am. St. Rep. 1072, 15 Ann. Cas. 1151. 10 PROCTOR V. ADAMS, 113 Mass. 376, 18 Am. Rep. 500, Chapin Cas. Torts, 54. " See Newkirk v. Sabler, 9 Barb. (N. Y.) 652. 12 Thus, In trespass, where defendant justified because the corn was set apart for tithes, and was in danger of destruction by cat- tle, and defendant took it to the bam of plaintlft, who was parson of the vUl, It was held that the plea was not good ; for, if the corn "had been destroyed, the plaintiff would have his remedy against the destroyer." Anonymous, Y. B. 21 Hen. VIII, 27, pi. 5. In ac- cord, McCarroll v. Stafford, 24 Ark. 224. 13 Campbell t. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728. 108 GENERAL PRINCIPLES (Ch. 4 its own consent.^* As will be seen hereafter, this immunity does not in general extend to its officers ^^ for acts commit- ted against their fellow citizens or subjects,^' though it is otherwise where injury results to an alien. It is essential, however, in order that the alien may be debarred from re- covery, that the act shall have been done by the direct com- mand of, or have been subsequently ratified by, the sover- eign.^' When either of these facts appear, the public offi- cer is not liable. This principle has been applied where ves- sels belonging to subjects of Spain were seized in the late war, although they had been adjudged by a prize court not to be subject of capture, where the United States, though it might have ordered their release, failed to do so and sought a forfeiture ;^* also where the American military governor of Cuba abolished plaintiff's hereditary right to a monopoly of the slaughter of cattle in the city of Havana.^' The Police Power Growing out of the doctrine of necessity is the right "which inheres in the state and in each political division thereof to 14 See infra, p. 196. i" See infra, p. 138 et seg. 18 United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Hd. 171 ; Mitchell v. Harmony, 13 How. 115, 14 L. Ed. 75. 17 "When the act of a public officer Is authorized or has been adopted by the sovereign power, whatever the immunities of the sovereign, the agent thereafter cannot be pursued." United States V. The Paquete Habana, 189 U. S. 453, 465, 23 Sup. Ct 593, 594, 47 L. Ed. 900, per Holmes, J. 18 United States v. The Paquete Habana, supra. i» O'Reilly de Camara v. Brooke, 209 U. S. 45, 28 Sup. Ct 439, 52 li . Ed. 676. Defendant a naval commander stationed off the coast of Africa with instructions to suppress the slave trade, flred the barracoons of plaintifC, a Spaniard, and liberated the slaves. These proceedings were reported to the lords of the admiralty and the foreign and colonial secretaries of state, and were adopted and ratified by them. It was held that the ratification being equivalent to a prior command, defendant was not liable, for his acts were acts of state. BUKON v. DENMAN, 2 Exch. 167, Chapin Cas. Torts, 56. Seizure of the property of the deceased Rajah of Tanjore by the East India Company as an escheat, having been ratified by the English government became an act of state. Secretary of State v. Kamachee Bore Sahaba, 7 Moore, Indian App. 476, 19 Eug. Repr 388, 13 Moore, P. C. 22, 15 Eng. Repr. 9. § 36) INHERENT DEFENSES 109 protect by such restraints and regulations as are reasonable and proper the lives, health, comfort and property of its citizens," "" which is somewhat indefinitely termed "the po- lice power." An extended discussion of this feature of gov- ernment is unnecessary in the present work. Indee^J, it has been said by a learned jurist that "it is much easier to per- ceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise." "^ Regulations have therefore been sustained which provided for the enforcement of- quarantine l^ws, whether to safeguard man ^'' or cattle,^* or designed otherwise to protect the public health,^* safety,'* or'morals.'^" Neither the municipality nor 2 City of Rochester v. West, 29 App. DIv. 125, 128, 51 N. Y. Supp. 4S2, per Adams, J., affirmed 164 N. Y. 510, 58 N. B. 673, 53 L. K. A.. 548, 79 Am. St Rep. 659. And see Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923. SI Commonwealth v. Alger, 7 Cush. (Mass.) 53, 85, per Shaw, C. J. A number of instances are here enumerated. "Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible ma- terial ; to prohibit buildings from being used for hospitals for con- tagious diseases, or for the carrying on of noxious or offensive trades ; to prohibit the raising of a dam, and causing stagnant wa- ter to spread over meadows near inhabited villages, thereby raising noxious exhalations, injurious to health and dangerous to life." 22 Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113 (disinfection of rags) ; Levin v. Burlington, 129 N. C. 184, 39 S. E. 822, 55 L. R. A. 396 (arrest of one exposed to smallpox). 23 Smith V. St. Louis & S. W. R. Co., 181 U. S. 248, 21 Sup. Ct. 603, 45 L. Ed. 847; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 18 Sup. Ct 488, 42 L. Ed. 878 (exclusion . of cattle likely to be diseased). 24 As in cases of compulsory vaccination (see Morris v. City of Columbus, 102 Ga. 792. 30 S. E. 850, 42 L. R. A. 175, 66 Am. St. Rep. 243 ; Commonwealth v. Pear, 183 Mass. 242, 66 N. E. 719, 67 L. R. A. 935; Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765) ; the abatement of a privy vault (Harrington r. Board of Aldermen of City of Providence, 20 R. I. 233, 38 Atl. 1, 38 L. R. A. 305) ; removal of garbage and filth (People 2B See note 25 on following page. 2« See note 26 on following page. 110 GENERAL PRINCIPLES (Ch. 4 its officers acting under proper authority are liable for acts done in their enforcement.^' But this power is not unlimited. "To justify the state in thus inteVposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as dis- tinguished from those of a particular class, require such inter- ference; and, second, that the means are reasonably neces- sary for the' accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily inter- fere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its de- termination as to what is a proper exercise of its police pow- ers is not final or conclusive, but is subject to the supervision of the courts." ^* Thus an act which prohibits the driving of all Texas, Mexican, or Indian cattle into Missouri between certain dates is not a legitimate exercise of the police power, although it would have been otherwise if it had prohibited the entry of diseased cattle.^' Nor may the Legislature oro- V. Gordon, 81 Mich. 306, 45 N. W. 658, 21 Am. St. Rep. 524; Town of Newtown v. Lyons, 11 App. Div. 105, 42 N. Y. Supp. 241) ; and the destruction of damaged grain (Dunbar v. City Council of Au- gusta, 90 Ga. 390, 17 S. E. 907). 25 Prohihiting the keeping of more than certain quantity of gun- powder, eicept in approved magazines, Davenport v. Richmond City, 81 Va. 686, 59 Am. Rep. 694; providing for the destruction of de-. caying buUdings, Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109; regulating the height of bill boards, City of Rochester v. West, 164 N. Y. 510, 58 N. E. 673, 53 L. R. A. 548, 79 Am. St. Rep. 659, affirm- ing 29 App. Div. 125, 51 N. Y. Supp. 482. 26 Ex parte McClain, 134 Cal. 110, 66 Pac. 69, 54 L. R. A. 779, 86 Am. St. Rep. 243. 2 7 Newark & S. O. H.C. Ry. Co. v. Hunt, 50 N. J. Law, 308, 12 Atl. 697, where assistants of the State Board of Health destroyed plaintiff's horse, affected with glanders. And. see cases cited in preceding notes. 28 Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct 499, 38 L. Ed. 385, per Brown, J., holding constitutional a provision for the sum- mary seizure and destruction of fishing nets of slight value, main- tained in violation of statute. 2» Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527. § 36) INHBBENT DEFENSES 111 vide that meats shall not be sold, unless taken from animals which shall have been inspected and certified by local officers twenty-four hours before killing, since this amounts to an ab- solute prohibition of meat importation.'" Illegal Conduct of Plaintiff It is obvious that no one may be permitted to derive ad- vantage from his own illegal act. It matters not that he from whom the injury was received was likewise a wrongdoer, since it is a settled principle that where the parties are in equal fault the condition of the defendant is the better,*^ by which is meant that the law will leave guilty parties where it finds them.'* Coflsequently, if the illegal conduct of the injured i>arty proximately causes, or even concurs in causing, his injury, he will be without redress. This doctrine has been applied where a participator in a charivari party was careless- ly shot by another member while disturbing the peace of a wedding assemblage contrary to the statute;" also where plaintiff, while walking on the grass of a public garden in violation of a city ordinance, fell into a trench.'* No relief will be given to one who is defrauded in the sale of a lottery ticket, where the sale of lottery tickets is prohibited,'* or who seeks to enforce the copyright of a libelous or licentious book "or song,'^ or asks protection against unfair competi- tion, if in transacting the business sought to be protected, he so Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct 862, 34 L. Ed. 455. And see Rockwell v. Nearing, 35 N. T. 302 ; Dunn v. Burleigb, 62 Me. 24; Baldwin v. Smith, 82 lU. 162; Baltimore & O. K. Co. v. Waters, 105 Md. 396, 66 AtL 685, 12 L. R. A. (N. S.) 326; State y. Wittles, 118 Minn. 364, 136 N. W. 883, 41 L. K. A. (N. S.) 456, Ann. Cas. 1913E, 433. »i "In pari delicto potior est conditio defendentls." 82 See infra, p. 237. «3Gilmore v. Fuller, 198 111. 130, 65 N. E. 84, 60 L. R. A. 286. 3* Sheehan v. City of Boston, 171 Mass. 296, 50 N. E. 543. s» Kitchen v. Greenabaum, 61 Mo. 110. 30 See Stockdale v. Ohnwhyn, 5 B. & C. 173, 11 E. C. L. 416, 108 Eng. Kepr. 65, 2 C. & P. 163, 12 E. C. L. 506, 7 D. & R. 625, 4 L. J. K. B. O. S. 122, 29 Rev. Rep. 207. 37 Broder v. Zeno Mauvais Music Co. (C. C.) 88 Fed. 74. 112 GENERAL PRINCIPLES (Ch. 4 is depeiving the public,*" or if such business is inherently il^ legal." Two points, however, must be kept in mind : First, that there was conscious wrongdoing on plaintiff's part; *" and, second, that the illegal conduct is a proximate or concurring cause, for if, as already seen, it merely renders the injury possible, it will be treated as a condition, and will not bar recovery. It has been said that "the test in each case is whether, when all the facts are disclosed, the action appears to be founded in a violation of Isiw ia which the plaintiff has taken part," *^ or, put another way, -whether the plaintiff will be forced to prove the illegal transaction in order to make out his case.^^ Probably this is as definite a state- ment as can be made, where each case must largely be a law vmto itself. Thus, where defendant willfully ran down plaintiff and broke the latter's sleigh, it would constitute no defense that the parties were racing illegally for a purse. Plaintiff did 38 This includes "any material misrepresentation in a label or trade-mark as to the person by whom the article Is manufactured, or as to the place where manufactured, or as to the materials com- posing it." Prince Mfg. Co. v. Prince's Metallic Paint Co., 135 N. Y. 24, 38, 31 N. B. 990, 17 U R. A. 129, per Andrews, J. To the same effect, Connell v. Reed, 128 Mass. 477, 39 Am. Rep. 397; Clinton B. Worden & Co. v. California Pig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 "L. Ed. 282; Memphis Keeley Institute v. Leslie E. Keeley Co., 155 Fed. 964, 84 C. C. A. 112, 16 L. R. A. (N. S.) 921. >» Thus fortune tellers, who by statute are defined to be disor- derly persons, will not be entitled to an Injunction against compet- itors who have adopted unfair business mpthods. Fay v Lam- bourne, 124 App. Div. 245, 108 N. Y. Supp. 874, affirmed 196 N Y 575, 90 N. E. 1158. 40 Recovery may be had for losses sustained in the Jameson raid against the South African Republic, where plaintiff was induced to participate therein by defendant's statements that the service on which he was to be employed was of a lawful nature. Burrows v Rhodes, [1899] 1 Q. B. 816, 63 J. P. 532, 68 L. J. Q. B 545 80 L T Rep. N. S. 591, 15 T. L. R. 286, 48 WUly. Rep. 13. " HaU V. Corcoran, 107 Mass. 251, 253, 9 Am. Rep. 30, per 6ray J 42 Gregg V. Wyman, 4 Cush. (Mass.) 322; Koepke v. Peper 155 Iowa, 687, 136 N. W. 902, 41 L. R. A. (N. S.) 773. § 36) INHERENT DEFENSES 113 not require aid from an illegal transaction in order to recov- er.*' A similar result was reached by the same court in the case of a collision, where plaintiff's cab was facing the side- walk at an angle, contrary to an ordinance which required that vehicles should be drawn up lengthwise with the street. The violation of the ordinance, it is true, was evidence of negligence; but it was not conclusive. It was held, therefore, that the trial court rightly refused to instruct that the plain- tiff could not recover if at the time he was violating an ordi- nance, and so doing an unlawful act, since this ignores the distinction between illegality which is a cause and illegality which is a conditiod.** So, too, if a vessel omit to carry lights or to take' the course prescribed by law, the right of the owner to recover damages for a collision due to the neg- *3 "He had no occasion to show into what stipulations the par- ties had entered, or what were the rules or regulations by which they were to be governed in the race, or whether they were In fact engaged in any such business at all. * * * It was the defend- ant, and not the plaintiff, who had occasion to invoke assistance from proof of the illegal agreement and conduct, in which both par- ties had equally participated. From such sources neither of the parties should have been permitted to derive a benefit. The plain- tiff sought nothing of this kind, and the mutual misconduct of the parties in one particular cannot exempt the defendant from his obligation to respond for the injurious consequences of his own illegal misbehavior in another." WELCH v. WESSON, 6 Gray (JIass.) 505, Chapin Cas. Torts, 58, per Merrick, J. ** "Of course, it [plaintiff's vehicle] 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 Im- pact. The distinction is between that which directly and proxi- mately produces or helps to produce a result as an eflBcient 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 con- nection with ordinary and usual concurring cause, would naturally produce such an accident, that indicates that it contributed to it. But, even in that case, external causes may have been so exclu- sive in their operation, and so free from any relation to the posi- tion, of the vehicle, as to have left that a mere condition, without agency in producing the result." Newcomb v. Boston Protective Department, 146 Mass. 596, 604, 16 N. B. 555, 559, 4 Am. St. Rep. 354, per Knowlton, J. To the same effect, Steele v. Burkhardt, 104 Mass. 59, 6 Am. Kep. 191. Chap.Tobts — 8 114 GENERAL PRINCIPLES (Ch. 4 ligence of the other party depends on whether such omission directly causes or contributes to the injury. The most that can be claimed is that the noncompliance may authorize a presumption, in the absence of evidence to the contrary, that the collision was attributable thereto.*' ' Whether the violation of an act prohibiting travel on Sun- day will be regarded as a contributing cause of an injury, which, although due to the defendant's act or neglect, was nevertheless received by one while so traveling, is a mooted question.*' But in many of the states, whose courts have answered in the affirmative, the Legislature has subsequently provided that a violation of the Sunday law shall not consti- tute a defense to an action for a tort or injury suffered on that day.*' License He who consents can receive no injury.*' "If the defend- ant is guilty of no wrong against the plaintiff, except a wrong invited and procured by the plaintiff for the purpose of mak- ing it the foundation of an action, it would be most uiijust that the procurer of a wrongful act should be permitted to profit by it."*' For this reason, if defamatory matter be 4= Blanchard v. New Jersey Steamboat Co., 59 N. Y. 292. For further illustrations, see Atlanta St. R. Co. v. Walker, 93 Ga. 462, 21 S. B. 48; Klipper v. Coffey, 44 Md. 117; Connolly v. Knicker- bocker Ice Co., 114 N. Y. 104, 21 N. B. 101, 11 Am. St Rep. 617; Clark V. Raleigh & G. R. Co., 63 N. C. 526, note ; Berry v. Borough of Sugar Notch, 191 Pa. 345, 43 Atl. 240; Neanow v. Uttech, 46 Wis. 581, 1 N. W. 221. *« That it is not, see Delaware, L. & W. R. Co. v. Trautwein, 52 N. J. I^aw, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St Rep. 442; Plata V. City of Cohoes, 89 N. Y. 219, 42 Am. Rep. 286 ; Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221; Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534. That it is, see Parker v. Latner, 60 Me. 528, 11 Am. Rep. 210; Lyons v. DesoteUe, 124 Mass. 387; Bosworth v. Swansey, 10 Meta (Mass.) 363, 43 Am Dec. 441. *7 St. Mass. 1884, c. 37, § 1; Bridges v. Bridges, 93 Me. 557. 45 Atl. 827. *s "Volenti non fit injuria." " Howland v. George F. Blake Mfg. Co., 156 Mass. 543, 570, 31 N. E. 656, per Knowlton, J. § 36) INHERENT DEFENSES 115 published at the request of the person defamed, no action Hes."" So where one is arrested in one county, and by his own request is committed to the jail in another, he cannot, in an action for false imprisonment, be heard to complain of the very acts which were done with his approval.°^ Nor does a right of recovery exist in favor of one who assents to the taking of earth frbm his premises,"'' the diversion of wa- ter,"' the obstruction of a ditch,'* or to the entry of sew- age." This principle applies where the defendant pleads that his act was a joke, in which case, it becomes a question for the jury whether the parties had been perpetrating practical jokes on each other to such an extent that defendant had a right to believe that plaintiff would regard the matter in that aspect."* But, though it makes no difference that the consent is re- luctant," it must be voluntary, not induced by fraud or du- ress,^* and given by one who is not divested of his power to refuse by reason of total or partial want of mental faculties."' Still consent, though procured by means of fraudulent con- cealment, is none the less a defense, where there was no duty owing by the other party to disclose the facts.** 5 Howland v. George F. Blake Mfg. Co., supra; King v. Waring, 5 Esp. 13. 01 Ellis V. Cleveland, 54 Vt. 437. s2 Sweetser v. Boston & M. E. Co., 66 Me. 583. 53 Churchill v. Baumann, 104 Cal. 369, 36 Pac. 93, 38 Pac. 43. B4 Illinois Cent. R.Co. v. Allen, 39 111. 205. =5 Searing v. Village of Saratoga Springs, 39 Hun (N. Y.) 307 affirmed 110 N. Y. 643, 17 N. E. 873. For other illustrations, see Toll Bridge Co. v. Betsworth, 30 Conn. 380 ; Linda v. Hudson, 1 Cush. (Mass.) 385 ; Beams v. Pancoast, 111 Pa. 42, 2 Atl. 205. S6 Wartman v. Swindell, 54 K. J. Law, 589, 25 Atl. 356, 18 L. K. A. 44 ; Fitzgerald v. Cavin, 110 Mass. 153. ST Latter v. Braddell, 50 L. J. Q. B. 166, 43 L. T. Rep. N. S. 605, 29 Wkly. Eep. 239, afBrmed 45 J. P. 520, 50 L. J. Q. B. 448, 44 L. T. Rep. N. S. 369, 29 Wkly. Rep. 366. 5 8 Johnson v. Girdwood, 7 Misc. Rep. 651, 28 N. Y. Supp. 151. 5 9McCiie V. Klein, 60 Tex. 168, 48 Am. Rep. 260. 60 Thus, where defendant was charged with Infecting plaintiff with venereal disease, it was held that, as the latter had consented to the commission of an illegal act, defendant's silence as to his condition did not give a cause of action. Hegarty v. Shine, L. R. 4 Ir. 288, 14 Cox, C. C. 145. 116 GENERAL PRINCIPLES (Ch. 4 Again, the consent may have been limited by its very terms, in which case the defendant, if he overstep the bounds, will subject himself to liability. A patient consenting to an op- eration gives a license to a species of battery; but if, for in- stance, hfe agree pnly to an operation upon the left ear, the surgeon may not operate upon the right, unless in the course of the operation conditions not anticipated snould be discov- ered which, if not instantly removed, would endanger the patient's life or health in which case the emergency will jus- tify the physician in. proceeding further.*^ There can furthermore be no consent to the doing of an unlawful act. Hence, if two persons engage voluntarily in combat, each may sue the other, since their prior agreement is absolutely void.*' This applies, also, to assaults inflicted pursuant to the rules of a club of which the injured party was a member.*' - It would appear at first blush inconsistent with the rule just stated that plaintiff's consent to a seduction should bar the cause of action, whether such consenting plaintiff be the par- ent or husband '* or the woman seduced.*^ Seduction may 61 Mohr V. Williams, 95 Mi|nii. 261, 104 N. W. 12, 1 L. E. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Aim. Gas. 303. But see Bennan v. Par- sonnet, 83 N. J. Law, 20, 83 Atl. 948. Permission to conduct an autopsy is not a license to remove any part of the remains. Palmer v. Broder, 78 Wis. 483, 47 N. W. 744. 62 Grotten v. GUdden, 84 Me. 589, 24 Atl. 1008, 30 Am. St. Rep. 413 ; CommonweaJOi v. Collberg, 119 Mass. 350, 20 Am. Rep. 328 ; Barholt v. Wright, 45 Ohio St; 177, 12 N. E. 185, 4 Am. St. Rep. 535 ; White V. Barnes, 112 N. C. 323, 16 S. E. 922. One who is armed with a revolver In violation of statute is liable for an injury caused by its discharge, notwithstanding the person injured was consenting to his being so armed. EVANS v. WAITE, 83 Wis. 286, 53 N. W. 445, Chapin Gas. Torts, 60. 68 Defendants and prosecutrix were members of a benevolent soci- ety known as the "Good Samaritans." In accordance with its rules, the ceremony of expulsion was performed by suspending pros- ecutrix from the wall by means of a cord fastened around her waist. Assent to the rules was not a defense. State v. Williams, 75 N. O. 134. , 64 Rea V. Tucker, 51 111. 110, 99 Am. Dec. 539 ; Vessel v. Cole, 10 Mo. 634, 47 Am. Dec. 136 ; Reddie v. Scoolt, Peake, 240. 6 5 Hamilton v. Lomax, 26 Barb. (N. Y.) 615; Paul v. Frazier, 3 71, 3 Am. Dec. 95; Conlon v. Cassidy, 17 R. I. 518, 23 Atl. § 37) COLLATEEAL DEFENSES 117 be and usually is forbidden by positive law, just as is as- sault. Perhaps the true distinction is that a man cannot consent to do anything which is a breach of public duty. An assault is a breach of the peace. Seduction, however, while it may be punished as a crime, involves personal, rath- ■er than public, duty."* COLLATERAL DEFENSES 37. Of the collateral defenses there 'will be considered — (1) Abatement b]f death? (2) Accord and satisfaction; (3) Release and covenant not to sue; (4) Statutes of limitation. Abatement by Death At common law the death of a sole party to an action be- fore the verdict was rendered worked an abatement,"' and, though in some cases a new actiori might be brought by or on behalf of the personal representative of the deceased, "the truth is that in the earliest times of English law survival of causes of action was a rare exception, non-survival was the rule." "* Indeed, it was observed as late as 1888 that we are left still in the dark as to the exact meaning or soufce of the maxim, "Actio personalis moritur cum persona." " A distinction was made, however, at an early date, between torts to the person and those affecting proprietary rights, and thus we find that actions of trespass for the taking of personal property were by St. 2 Edw. Ill, c. 7, permitted to be main- tained by executors where the taking was in the lifetime of 100. But in some states the seduced woman is permitted to sue. See infra, p. 287. 6 8 Jaggard on Torts, vol. 7, p. 203. 8 7 Evans v. Cleveland, 72 N. Y. 486. 88 Finiay v. Chimey, [1888] I>. A. 20 Q. B. D. 494, 503, per Bowen, L. J. And see Jones v. Barmm,- 217 111. 381, 75 N. E. 505. 89 A personal right of action dies with the person. Finiay t. Chirney, supra. It is suggested by Sir Frederick Pollock that the rule may have come into operation when the processes of the courts were finally putting aside the right of private riedress for wrongs which had prevailed under what may be called customary law'. "A process which is still felt to be a substitute for private war 118 GENERAL PRINCIPLES (Ch. 4 their testator. Another act passed in the fifteenth year of the same reign (chapter 5) gave a like action to administra- tors. The change was exceedingly slow, for it was not until St. 3 and 4 Wm. IV, c. 42, that executors and administrators were enabled to maintain an action for injuries to the real estate of the deceased.'"' But the common-law rule continued to be applied in all strictness to torts of a purely personal na- ture, where "neither the executors of. the plaintiff have re- ceived, nor those of the defendant haVe committed, in their own personal capacity, any manner of wrong or injury."^* Hence, if A. commit an assault upon B.,^^or defame him," or so instigate an action against him that a suit for malicious prosecution will lie,^* or if through A.'s negligence B. re- ceive personal injuries,^° it has been held that the death of either party will abate the cause of action. A similar ruling has been made in cases of false imprisonment '* and breach of promise of marriage.''^ But no universal rule can be laid down which will hold good at the present time, since the leg- islatures of some states have changed the common-law princi- ple with respect to one or more of the causes of action just enumerated, and resort must therefore be had to the statutes. There is, however, an underlying distinction, where the death of the wrongdoer has occurred, between torts by which the offender has acquired no gain to himself at the expense of the sufferer, as by beating, imprisoning, or slandering him, and those whereby property was acquired by the wrongdoer; may seem incapable of being continued on behalf of or against a dead man's estate." Pollock on Torts (6th Ed.) p. 61 ; Bigelow on Torts, p. 65. 70 Zabriski v. Smith, 13 N. X. 322, 333, 64 Am. Dee 551 Ti Bl. Comm. bk. Ill, p. 302. 72 Hadley v. Bryars' Adm'r, 58 Ala. 185. 73 Walters v. Nettleton, 5 Gush. (Mass.) 544. 7* Clark V. Carroll, 59 Md. 180; Conly v. Conly, 121 Mass. 550. 7B Boor V. Lowrey, 103 Ind. 468, 3 N. E. 151, 53 Am. Rep 519 • Baltimore & O. R. Co. v. Ritchie, 31 Md. 191; Curry v. Town of Mannington, 23 W. Va. 14. 7 8 Harker v. Clark, 57 Cal. 245. 7 7 Wade V. Kalbfleisch, 58 N. T. 282, 17 Am. Rep. 250: Finlay v Chirney, [1888] L. R. 20 Q. B. D. 494. § 37) COLLATERAL DEFENSES 119 for in the latter instance a cause of action will generally be held to survive." Furthermore, a right of action will not, by the general statutory rule, be allowed to abate in so far as the wrong affected a property right or interest and thereby dimin- ished the estate of the deceased sufferer. Thus it has been held that, where plaintiff died pending an action to recover for the loss of services and society of his wife and for ex- penses of medical attendance, the cause of action, except in so far as it was for the loss of the comfort of her society, would survive his death. Such a case does not come within a statutory exception to survival which covers "injuries to the person of the plaintiff, or to the person of the testator or ■intestate," though after an amendment which makes it ex- cept "injury to the person either of the plaintiff or of an- other" the cause would abate where either party died.''" Survival has also been allowed where the tort consisted in overflowing land,*" and in obstructing the flow of a stream,*^ or arose out of fraudulent misrepresentations by which a transfer, of property was procured.*^ T8 Vittum V. Gilman, 48 N. H. 416. And see Payne's Appeal, 65 Conn. 397, 32 Atl. 948, 33 L. R. A. 418, 48 Am. St. Rep. 215 ; Petts V. *Ison, 11 Ga. 151, 56 Am. Dec. 419 ; Houghton v. Butler, 166 Mass. 547, 44 N. E. 624; Rabb v. Patterson, 42 S. C. 528, 20 S. E. 540, 46 Am. St. Rep. 743. 7 9 Cregin v. Brooklyn Crosstown B. Co., 75 N. Y. 192, 31 Am. Rep; '459 ; Id., 83 N. Y. 595, 38 Am. Rep. 474 ; Gorlitzer v. Wolffberg, 208 N. Y. 475, 102 N. E. 528, Ann. Gas. 1914D, 357. See Decedent'Estate Law (Consol. Laws N. Y. 1909, c. 13) §§ 118-120, providing for the survival of actions by or against executors, where personal property has been wasted, destroyed, taken, carried away, or converted, or where a trespass has been committed on real estate, also actions "for wrongs done to the property, rights or interests of another for which an action might be maintained against the wrongdoer," except libel, slander, criminal conversation, seduction, malicious prosecu- tion, assault, battery, or false imprisonment, or other actionable in- jury to the person either of the plaintiff or of another. But see Code Civ. Proc. N. Y. § 764, providing that an action commenced by a father to recover damages for the seduction of his minor daughter does not abate by his death, but survives to the mother. 8 Ten Byck v. Runk, 31 N. J. Law, 428. 81 Brown v. Dean, 123 Mass. 254. 82 Billson V. Linderberg, 66 Minn. 66, 68 N. W. 771 ; Byxbie v. Wood, 24 N. Y. 607. 120 GENERAL PRINCIPLES (Ch. i But, even at common law, the death of a party after a ver- dict had been rendered would^ not operate as a discontinuance,, for the judgment may be considered to relate back to the time of the verdict, and may be entered as of a preceding day or term of the court.*' A similar rule has been provided in many states by statute.** Accord and Satisfaction "Accord," says Sir William Blackstone, "is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar to all actions upon this ac- count." *" More specifically, the accord is the preliminary agreement to accept something in liquidation of the existing liability, wJiich remains outstanding until the agreement has been executed and satisfaction made.** At the outset we are therefore met with the question whether an accord has been established; i. e., whether there was any agreement that upon the performance of certain con- ditions the wrongdber should be discharged. A mere offer upon the latter's part to make compensation will be insuffi- cient to defeat recovery, where acceptance by the party wronged is not shown.** ^83 Brown v. Wheeler, 18 Conn. 199; Kelly v. Riley, 106 Mass. 339, 8 Am. Bep. 336 ; Chase v. Hodges, 2 Pa. 48. 84 "After verdict, report or decision in an action to recover dam; ages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives." Code Civ. Peoc. N. X. § 764. But this does not apply to cases of nonsuit directed by the court on trials by jury, since the word "decision" refers only to a determination in actions tried by the court alone. Corbett v. Twen- ty-Third St. R. O)., il4 N. T. 579, 21 N. E. 1033. 85 Commentaries, book III, p. 15. 88 See Rogers v. City of Spokane, 9 Wash. 168, 37 Pac. 300; Kro- mer v. Helm, 75 N. T. 576, 31 Am. Rep. 491. 87 Thus, where a cause of action for obstructing a right of way has accrued, any ofCer on the part of defendant to remove the ob- struction cannot defeat plaintiff's recovery for damages received prior to such offer. McTavish v. Carroll, 13 Md. 429. To the same effect, Hensler v. Sttx, 113 Mo. App. 162, 88 S. W. 108; Gilman v. Noyes, 57 N. H. 627. For offer to return converted property as a defense to an action of trover. See infra, p. 385. -§ 37) COLLATERAL DEFENSES 121 The fact that performance must have taken place should also be emphasized, for an accord executory, without per- formance accepted, is no bar," a fact which was well illus- trated where, in an action against a municipality to recover damages received through the latter's negligence, the defend- ant pleaded that plaintiff had agreed to accept a certain sum in full discharge of his claim, and that the city council had di- rected the issuance of warrants therefor, which were ready for delivery. The plea was insufficient, for the sum had not been paid.*" While an accord and satisfaction usually involves the pay- ment of money or the delivery of property,"" this is not essen- tial. It may, for instance, consist in the discontinuance of an action which the tort-feasor is bringing against the party wronged,"^ or even the publication of an apology.'^ For the purpose of determining whether there was a satis- faction, it is necessary to ascertain exactly what the agreement of the parties was. Thus, as in the cases previously cited, it may have been that the wrongdoer was not to be discharged until the cash was paid, the property delivered, the action dis- continued, the apology published, or the act, whatever it was, performed, in which case nothing short of performance will work a satisfaction. On the other hand, the party wronged tnay have agreed to accept the promise of the wrongdoer in lieu of his claim against the latter, and under such conditions, when the promise is given, the plaintiff's original cause of ac- 8 8 Bacon, Abr. tit. "Accord and Satisfaction," O. 8 8 Rogers v. City of Spokane, 9 Wash. 168, 37 Pac. 300. To tlie same effect, Smith v. Cranford, 84 Hun, 318, 32 N. X. Supp. 375; Gulf, C. & S. F. Ry. Co. v. Gordon, 70 Tex. 80, 7 S. W. 695. »o Curley v. Harris, 11 Allen (Mass.) 112 ; Stockton v. Frey, 4 Gill (Md.) 406, 45 Am. Dec. 138. »i Thus, where A. and B. have suits for false imprisonment pend- ing against each other, an agreement to discontinue their respective suits, followed by an actual discontinuance, will be a good accord and satisfaction. Foster v. Trull, 12 Johns. (N. X.) 456. 8 2 It is a good plea to an action for libel that plaintiff and de- fendant agreed to accept the publication of mutual apologies In satisfaction and discharge of the causes of ^ action, damages, and costs, and that such apologies were published. Boosey v. Wood, 3 H. & C. 484, 11 Jur. N. S. 181, 34 L. J. Exch. 65, 11 L. T. Rep. N. ^. 639, 13 Wkly. Rep. 317. 122 GENERAL PRINOIPLBa (Ch. 4 tion may be gone, and he may be remitted to a suit upon the substituted agreement.** It must appear, moreover, that the payment or other con- sideration was accepted in discharge of the wrongdoer's lia- bility,'* and thus, where such payment is made by or con- sideration moves from a third party, who is not acting as agent of the wrongdoer, nor is a Joint tort-feasor with him, it is generally considered that the intent of the parties was not to destroy the claim, though this, after all, is merely a strong presumption, and may be overthrown by evidence to the contrary." For the same reason the mere fact that the injured party may have been indemnified by insurance will prove no defense to the tort-feasor, either in whole or in part." Jt goes -without saying that the transaction which it was alleged constitutes an accord and satisfaction must have been entered into voluntarily by the party wronged, and not through fraud, mistake, or duress.*' But, if such transaction »» Plaintiff's cattle were killed through the negligence of defenfl- ant, and after a mutual adjustment of damages the latter gave a duebill for the amount. The giving of a duebill will not generally be regarded, as satisfaction, but here It was found that it was so accepted by the plaintiff. Shaw v. Chicago, R. J. & P. Ry. Co., 82 Iowa, 199, 47 N. W. 1004. To ithe same effect, Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534. 0* Voluntary payment of money to an employe injured by the negligence of defendant merely as "wages" during the period of disability does not constitute a satisfaction. Sobieski v. St Paul & D. R. Co., 41 Minn. 169, 42 N. W. 863. To the same effect, Hewitt V. Flint & P. M. B. Co., 67 Mich. 61, 34 N. W. 659 ; Gulf, 0. & S. F. Ry. Co. V. Gordon, 70 Tex. 80, 7 S. W 695. »B Western Tube Co. v. Zang, 85 111. App. 63 ; Atlantic Dock Co. V. Mayor, etc., of City of New York, 53 N. Y. 64 ; Thomas v. Cen- tral R. Co. of New Jersey, 194 Pa. 511, 45 Atl. 344; Sieber v. Amun- son, 78 Wis. 679, 47 N. W. 1126. For discharge of joint wrongdoer by release to a co-tort-feasor, see infra, p. 124. io Western & A. R. R. v. Meigs, 74 Ga. 857; Kellogg v. New York Cent. & H. R. R. Co., 79 N. Y. 72; Missouri, K. & T. R. Co. v. Fuller, 72 Fed. 467, 18 C. C. A. 641, affirmed 168 U. S. 707. 18 Sud Ct. 944, 42 L. Ed. 1215. »7 Bliss v. New York Cent. & H. R. R. Co., 160 Mass. 447 36 N E. 65, 39 Am. St. Rep. 504. § 37) COLLATERAL DEFENSES 123 is voluntary on his part, the mere fact that the amount which he has received may have been inadequate remuneration for his injury will not invalidate it, for the sufferer will be held bound by his own estimate.'* Furthermore, in order that the injured party may attack what is claimed to be an accord and satisfaction, he must restore or offer to restore to the other party whatever has been received, thus putting the latter in statu quo.'' Release and Covenant Not to Sue Where the parties have arrived at a settlement of their dif- ferences, and the tor1*feasor has made satisfaction, it is -usual for the injured party to execute and deliver a formal release from all liability,^"" or a covenant not to sue the wrong- doer.^"^ Though not identical in form, their legal effect is the same when there has been only one tort-feasor. The- oretically a release destroys the claim, while if the sufferer, having given a covenant not to sue, should thereafter bring an action, the wrongdoer could only sue for breach of cove- nant. Yet to avoid circuity of action the covenant will un- der such circumstances be considered a discharge and bar.^"^ 98 Hayes v. East Tennessee, V. & 6. E. Co., 89 Ga. 264, 15 S. E. 361 ; Curley v. Harris, 11 Allen (Mass.) 112." »» Lyons v. Allen, 11 App. D. O. 543; Strodder v. Southern Gran- ite Ck)., 99 Ga. 595, 27 S. E. 174; Levister v. Southern Ry. Co., 56 S. C. 508, 35 S. E. 207. "Any other [rule] would permit a party to prosecute an action without taking any chances and with means furnished by his ad- versary — would enable an unscrupulous plaintiff to obtain as large an amount as possible in settlement of his alleged cause of action through negotiation with the defendant, and with the funds thus obtained seek to secure a larger sum in an action brought upon the same cause of action, and without running any risk of losing what he first obtained." Doyle v. Nev York, O. & W. R. C!o., 66 App. Div. 398, 404, 72 N. Y. Supp. 936, 939, per McLennan, J. loopapke V. G. H. Hammond Co., 192 111. 631, 61 N. B. 910; Spltze V. Baltimore & O. R. Co., 75 Md. 162, 23 Ati. 307, 32 Am. St. Rep. 378; Gibson v. Western New York & P. R. R. Co., 164 Pa. 142, 30 Atl. 308, 44 Am. St. Rep. 586. 101 City of Chicago v. Babcock, 143 111. 358, 82 N. K 271; Ellis V. Esson, 50 Wis. 138, 6 N. W. 518, 36 Am. Rep. 830. 102 City of Chicago v. Babcock, supra; Ellis v. Esson, supra. 124 GENERAL PRINCIPLES (Ch. 4 But where there are several joint tort-feasors, the effect of a release when given to one or more, but not to all, differs from that of a covenant. A release will then operate to dis- charge, all, a rule which seems to be based upon the nature of their liability, which is one and indivisible, and is necessarily destroyed by the discharge of one. Nor will the effect of a release depend upon the validity of the cause of action, and' if the claim is fnade against one, and it is satisfied, all who- may be liable are discharged, whether the one released be in fact liable or not. The plaintiff will be estopped to say that he had no claim against the party who settled, but com- pelled him to buy peace by th? settlement of a claim that was groundless, for this would be an allegation, of his own wrong- ful act.^°' But the covenant not to sue will be given its- strict technical meaning, for the rule which, in the case of a single wrongdoer, permits it to be treated as a release to- avoid burdening the courts with cross-actions, one on the original liability and the other on the covenant, cannot be fairly applied. Consequently a covenant not to sue one of several joint tort-feasors does not operate to discharge the- others from liability.^"* Now we come to a mooted question. Suppose the instru- ment is in terms a release of less than the entire number of joint tort-feasors, but a right to sue the others is either ex- pressly or by implication reserved. Some of the courts have held that such a reservation is void, as it is repugnant to the legal effect and operation of the release, and consequently the other wrongdoers are discharged.^"" But, on the other hand, authorities of equal weight have said that where it is 103 Tompkins v. Clay St. R. Co., 66 Cal. 163, 4 Pac. 1166; Brown. V. City of Cambridge, 3 Allen (Mass.) 474. And see Miller v. Beck, 108 Iowa, 575, 79 N. W. 344. 104 Matlieson v. O'Kane, 211 Mass. 91, 97 N. E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267 ; City of Chicago v. Babcock, 143 111. 358, 32 N. E. 271; Snow v.. Chandler, 10 N. H. 92, 34 Am. Dec. 140. 105 Gunther v. Lee, 45 Md. 60, 24 Am. Rep. 504; McBride v. Scott^ • 132 Mich. 176, 93 N. W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, I Ann. Cas. 61 ; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534 ; Seither V. Philadelphia Traction Co., 125 Pa. 397, 17 Atl. 338, 4 L. R. A. 54, II Am. St. Rep. 905 ; Abb v. Northern Pac. Ry. Co., 28 Wash. 428^ 68 Pac. 954, 58 L. R. A. 293, 92 Am. St. Rep. 864. § 37) COLLATERAL DEFENSES 125 evident that the considersrtion paid to the plaintiff was not intended to be full compensation for his injuries, and the agreement signed by him, although in forni a release, was clearly intended to preserve the liability of those who were not parties to it, effect will be given to that intention by con- struing the agreement as in legal effect a covenant not to sue, and not as a technical release.^"" The release and covenant not to sue, like the accord and satisfaction, must, of course, be executed by a competent party. Hence, if the injured party is at the time insane,"' or in such pain,^"' or under the influence of opiates to such an extent, as to be incapacitated to contract,^ °° the agreement is voidable at his election.^^" So, too, if the transaction was tainted with fraud,^^^ or was entered into' under duress,^^^ or mistake,"' or was procured by undue influence."* But a mere mistake as to the extent of the injuries is not suf- ficient, where defendant has been guilty of no misrepresenta- tion or has used no artifice to prevent the injured party from i»e Edens v. Metcher, 79 Kan. 139, 98 Pac. 784, 19 U R. A. (N. S.) 618 ; GILBERT v. FINCH, 173 N. Y. 455, 66 N. E. 133, 61 h. R. A. 807, 93 Am. St. Rep. 623, Chapin Cas. Torts, 61; Carey v. Bilby, 129 Fed. 203, 63 C. C. A. 361 ; Duck v. Mayew, [1892] 2 Q. B. 511, 57 J. P. 23, 62 Ll J. Q. B. 69, 67 L. T. Rep. N. S. 547, 4 Repts. 38, 41 Wkly. Rep. 56. And see Matheson v. CVKane, 211 Mass. 91, 97 N. E. 638, 39 li. R. A. (N. S.) 475, Ann. Cas. 1913B, 267. 107 Missouri Pac. Ry. Co. r. Brazzil, 72 Tex. 233, 10 S. W. 403. 108 Atchison, T. & S. F. Ry. Co. v. Cunningham, 59 Kan. 722, 54 Pac. 1055 ; Union Pac. Ry. Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843, 39 L,. Ed. 1003. 10 Chicago, R. I. & P. Ry. Co. v. Lewis, 109 111. 120. 110 In an action for personal injuries, in which a release of plain- tifTs claim is pleaded in defense, plaintiff's capacity to execute such release is a question for the jury. Dixon v. Brooklyn City & N. R. Co., 100 N. T. 170, 3 N. E. 65 ; Gibson v. Western New York & P. R. R., 164 Pa. 142, 30 Atl. 308, 44 Am. St. Rep. 586. 111 Illinois Cent. R. Co. v, Welch, 52 111. 183, 4 Am. Rep. 593; Bliss V. New York Cent. & H. R, R. Co., 160 Mass, 447, 36 N. E. 65, 39 Am. St. Rep. 504; Fleming v. Brooklyn Heights R. Co., 95 App. Div. 110, 88 N. Y. Supp. 732. 112 Guilleaiune v. Rowe, 94 N. Y. 268, 46 Am. Rep. 141. lis Bean v. Western N. C. R. Co., 107 N. C. 731, 12 S. E. 600; Lusted V. Chicago & N. W. Ry. Co., 71 Wis. 391, 36 N. W. 857. 11* Stone V. Chicago & W. M. Ry. Co., 66 Mich. 76, 33 N. W. 24. 126 GENERAL PEINCIPLHS (Ch. 4 ascertaining their nature,^^" and it makes no difference that plaintiff has relied upon the opinion of a physician, if hon- estly given.* ^° If plaintiff seeks to defeat the release or covenant, must he offer to restore whatever amount he may have received? The weight of authority appears to be that this is obliga- tory,**' though it has been intimated that he is not required to do so, and may credit the amount paid towards his re- covery.**' But if it appears that the deception was as to the nature of the instrument, as, for instance, that a cause of ac- tion was included in the release contrary to plaintiff's in- tent,**" or that the release was represented to be a receipt for wages,*^" or for a mere gratuity,*^* an offer to return will be unnecessary. Plaintiff "is not attempting to avoid 'a And see Bussian v. Milwaukee, L. S. & W. Ey. Co., 56 "Wis. 325, 14 N. W. 452. iiBHomuth. V. Metropolitan St. Ey. Co., 129 Mo. 629, 31 S. W. 903 ; Kane v. Chester Traction Co., 186 Pa. 145, 40 Atl. 320, 65 Am. St. Eep. 846. But it will be otherwise where defendant fraudulently misrepresents the opinion of the physician. Fleming v. Brooklyn Heights E. Co., 95 App. Div. 110, 88 N. Y. Supp. 732. lie Nason v. Chicago, E. I. & P. Ey. Co., 140 Iowa, 533, 118 N. W. 751. iiT Kelly V. Louisville & N. E. Co., 154 Ala. 573, 45 South. 906; Harley v. Eiverside Mills, 129 Ga. 214, 58 S. E. 711 ; Valley v. Bos- ton & U. E. Co., 103 Me. 106, 68 Atl. 635 ; Drohan v. Lake Shore & M. S. Ey. Co., 162 Mass. 435, 38 N. B. 1116 ; Och v. Missouri, K. & T. Ey. Co., 130 Mo. 27, 31 S. W. 962, 36 L. E. A. 442 ; Shaw v. Dela- ware, L. & "W. E. Co., 126 App. Div. 210, 110 N. ¥. Supp. 362. lis O'Brien v. Chicago, M. & St P. Ey. Co., 89 Iowa, 644, 57 N. W. 425; Missouri Pac. Ey. Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066 ; Jones v. Alabama & V. Ey. Co., 72 Miss. 22, 16 South. 379. 118 Plaintiff here "is not seeking to disaffirm the agreement ac- tually made, but merely objecting to the application of the written evidence of it to a subject which the parties did not- Intend to in- clude in it." Kirchner v. New Home Sewing Mach. Co., 135 N. X 182, 190, 31 N. E. 1104, 1107, per Maynard, J. 120 Herman v. P. H. Mtzgibbons Boiler Co., 136 App. Div. 286, 120 N. T. Supp. 1074; Bjorklund v. Seattle Electric Co., 35 Wash. 4.39. 77 Pac. 727, 1 Ann. Cas. 443. isiEoberts v. Colorado Springs & I. Ey. Co., 45 Colo. 188, 101 Pac. 59; Mullen v. Old Colony E. Co., 127 Mass. 86, 34 Am. Eep. 349; Cleary v. Municipal Electric Light Co., 65 Hun, 621, 19 N X. Supp. 951, affirmed 139 N. Y. 643, 35 N. E. 206. § 37) . COLLATEBAL DEFENSES 127 contract which he has made, but is showing that he did not make the contract which he apparently made." ^"'^ Furthermore, the injured party, upon discovering the fraud or mistake, must disaffirm with reasonable promptness; for otherwise he will be deemed to have elected to abide by the settlements^* Statute of Limitations By the common law there was no stated or fixed period for the bringing of suits. A man might bring his action at any time.^^* "In the progress of society, however, it was soon found necessary to supply this ddiciency by statute, and to compel men to prosecute their rights within a reason- able time, or to abandon them forever. Hence we find from the reign of Henry I a succession of statutes narrowing the latitude of the common law in this respect," "' finally cul- minating in St. 21 James I, c. 16. '>^* Torts were divided into three classes, as follows: "Six years, trespass to lands and goods, conversion, and all other common-law wrongs, including libel, except slander by words 122 Mullen V. Old Colony R. Co., 127 Mass. 90, 34 Am. Rep. 349, per Soule, J. 12S Lawless v. Detroit, G. H. & M. Ry. Co., 65 Mich. 292, 32 N. W. 790 ; Galveston, H. & S. A. Ry. Co. v. Cade, 100 Tex. 37, 94 S. W. 219; Chicago, St. P. & K. C. Ry. Co. v. Pierce, 64 Fed. 293, 12 C. C. A. 110. t24 Blackmore v. Tidderley, 2 Ld. Raym. 1099; People v. Gilbert, 18 Johns. (N. Y.) 227; Cray v. Hartford Fire Ins. Co., Fed. Cas. No. 3,375. 125 Buchanan v. Rowland, 5 N. J. Law, 721, 729, per Kirkpa trick, C. J. 12B "Those statutes previous to this one, having been sometimes temporary, were always contracted as to their field of operation and extremely crude; and they generally run back to some re- markable fixed period, such as the Last Return of King John from Ireland or to the First Coronation of Richard I, whereby the period increased every day, and, in the language of Lord Coke, 'many suits, troubles and inconveniences did arise, and therefore a more direct and commodious course was taken, which was to endure forever, and calculated so to Impose diligence on and vigilance in him that was to bring his action, so that by one constant law certain limita- tions might serve both for the time present and for all time to come.' " Brian v. Tims, 10 Ark. 597, 601, per Scott, J. 128 GENERAL PRINCIPLES (Ch. 4 actionable per se and injuries to the person; four years, in- juries to the person, including imprisonment; two years, slander by words actionable per se.^^^ Persons who, at the time their cause of action accrued, were under the disability of infancy, coverture, insanity, imprisonment, or absence be- yond the seas, were exempted from the bar of the statute, "so as they take the same [action] within such times as are before limited after their coming to or being of full age, dis- covert, of sane memory, at large and returned from beyond the seas, as other persons having no such impediment should have do'ne."'^* A similar provision cover ii;ig cases where the wrongdoer shall have been beyond seas at the time the cause of action accrued was enacted by St. 4 & 5 Anne, c. 3, § 16. While the statute of James has served as a model for American legislation, the latter is by no means uniform, and, since a detailed statement is impossible within the compass of this work, resort must be had to the statutes themselves. ^^' It will be noted that the injured party must be under the disability when his cause of action first accrued. Where he is competent at that time, the fact that subsequeritly he be- comes disabled will not stop the operation of the act, in the absence of special statutory exception. Hence, if he was free from disability at the time when the injury occurred, but 12T Pollock on Torts (8th Ed.) p. 210. 128 St. 21 James I, c. 16, § 7. But imprisonment and absence beyond seas were removed from among the disabilities by the amendatory statute of 19 and 20 Vict c. 97, § 10, and the disability of coverture no longer exists since the Married Woman's Property Act of 1882, 45 and 46 Vict. c. 75. 12 For example, In New York the following periods have been fixed : Six years, injury to property or personal injury, except where otherwise expressly prescribed, and actions to recover a chattel (Code Civ. Proc. § 382, subds. 3 and 4) ; three years, personal Injury resulting from negligence (Id. § 383, subd. 5) ; two years, libel, slan- der, assault, battery, seduction, criminal conversation, false imprison- ment, malicious prosecution, malpractice (Id. § 384, subd. 1). For exemptions for disability, see Id., §§ 396, 401 ; Hyland v. New York cent. & H. K. R. Co., 24 App. Div. 417, 48 N. Y. Supp. 416. §*37) COLLATERAL DEFENSES 129 thereafter became insane,^'" or was iriiprisoned,^'^ the stat- ute, having begun to run at the time of the injury, will not stop.^'* If thfere are several co-existing disabilities in the same person at the time the right of action accrues, he is not required to sue, in order to avoid the operation of the statute, until all are removed. But it is essential that they should co-exist, for a disability subsequently accruing cannot be added to the first, whether the second arose while or after the first was operative,^'' since, "if disability could be added to disability, claims might be protracted to an indefinite ex- tent of time." "* , The statute, as has been seen, starts to run from the time when the cause of action accrues; i. e., from tHe instant that the injured party has a right to apply for relief. Now, keeping in mind what has been already Said concerning the necessity of establishing damage,^'" it becomes evident that a line must be drawn between cases where the cause of action is complete in itself, though it may be impossible to establish the existence of actual damage, there having been an inva- sion of a legal right, and cases where actual damage must have resulted, in order that an action may be maintainable. In the former, the statute begins with the commission of the 'wrongful act, as, for example, assault, and battery,^'* tres- pass to land,^^' and the wrongful seizure of personal prop- lao Calumet Electric St. K^. Co. v. Mabie, 66 111. App. 235; Mc- Cutchen v. Currier, 94 Me. 362, 47 Atl. 923. 131 Kistler V. Hereth, 75 Ind. 177, 39 Am. St. Rep. 131; McDonald V. Hovey, 110 U. S. 619, 4 Sup. Ct. 142, 28 L. Ed. 269. 132 See Code Civ. Proc. N. Y. § 408. 13 3 Scott V. Haddock, 11 Ga. 258; Butler v. Howe, 13 Me. 397; ■ Eager v. Commonwealth, 4 Mass. 182 ; Gaines v. Hammond's Adm'r (C. C.) 6 Fed. 449, 2 McCrary, 432, affirmed 111 U. S. 395, 4 Sup. Ot. 426, 28 L. Ed. 466. And see Code Civ. Proc. N. T. § 409. i34Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 139, 8 Am. Dee. 467, per Kent, Ch. i 135 See supra, p. 69 et seq. 138 See Kansas Pae. Ry. Co. v. Mihlman, 17 Kan. 224, 228. 13 7 Hunter v. Burlington, C. R. & N. Ry. Co., 84 Iowa, 605, 61 N. W. 64 ; Kansas Pac; Ry. Co. v. MlMman, 17 Kan. 224 ; Williams ,v. Pomeroy Coal Co., 37 Ohio St. 583. "The fact that plalntifC only Chap.Tobts — 9 130 GENERAL PEINCIPLES (Ch". 4 erty.^" As an action for malicious prosecution cannot be brought, unless and until the proceedings complained of have terminated, the statute of limitations will begin only upon such, termination;^^ ° But a cause of action for false impris- onment is complete as soon as the imprisonment ceases, as where the plaintiff, having been arrested, gives a bond and is released, though the proceedings on whicfi the arrest was made have not been terminated.^*" When the wrong consists in the unlawful exercise of do- minion over the goods of another, which constitutes the tort conversion, it will be found ^*^ that the cause of actioip is "sometimes not complete until the owner has demanded his property of the person having possession, as where such pos- session was lawfully obtained, and the exercise of dominion consists in its unlawful detention. Under such circumstances the statute will run from the time of the demand and re- fusal.^*'' On the other hand, where demand is not essential, then it will start whenever the right to sue is complete, as where the original taking was unlawful,^*' or there has been a distinct act of dominion, such as the disposal of the prop- erty, though the original taking was lawful.^** We now. come to cases where proof of damage is essential, and here the cause of action will be complete, and the stat- ute will begin to run, only when such damage occurs. ^*° recently discovered who did tlie wrong makes no difference." Gale V. McDaniel, 72 Cal. 334, 13 Pac. 871. 138 Wood V. Currey, 57 Cal. 208; Read v. Markle, 3 Johns. (N. Y.) 623. 139 Games v. Atkins Bros. Co., 123 La. 26, 48 South. 572 ; Printup v. Smith, 74 Ga. 157 , Hackler v. Miller, 79 Neb. 209, 114 N. W. 274. 1*0 Dusenbury v. Keiley, 85 N. T. 383, 61 How. Prac. (N. Y.) 408, affirming 8 Daly (N. Y.) 537, 58 How. Prac. (N. Y.) 286. 1*1 See infra, p. 379. "2 Reizenstein v. Marquardt, 75 Iowa, 294, 39 N. W. 506, 1 L. R. A. 318, 9 Am. St. Rep. 477; Haire v. Miller, 49 Kan. 270, 30 Pae. 482 ; Roberts v. Berdell, 61 Barb. (N. Y.) 37, affirmed 52 N. Y. 644 ; Shuffler v. Turner, 111 N. C. 297, 16 S. E. 417. 1*3 Schroeppel v. Corning, 5 Denio (N. Y.) 236. 14* Bell V. Bank of California, 153 Cal. 234, 94 Pac. 889; Kelsey v. Griswold, 6 Barb. (N. Y.) 436 ; Granger v. George, 5 Bam. & C. 149. 1*5 Bank of Hartford County v. Waterman, 26 Conn. 324; How § 37) COLLATERAL DEFENSES 131 Thus, where mines were worked by one who left insufficient support for the upper soil, by reason of which a house sit- uated over the mines sank some time after the latter had ceased to be worked, it was held that the statute began to run from the sinking of the house, and hot from the time of the working.^*' A similar rule is applied where one exca- vates soil upon his own premises, and thereby removes the natural support of his neighbor's land, so that it falls.^*^ Of this character, also, is the ordinary action for negligence. It matters not how long the omission to exercise the proper de- gree of care may have continued, there is no cause of action until injury is received, and from that time only will the stat- ute run.^** The tort defamation belongs in both classes. Where the charge is of so grave a nature that damage will b,e presumed to have resulted from its publication, the cause of action is complete in itself, and with the publication, the statute will start. If, however, it is of such a character that damage is not inferred, but must be shown, then the cause of action dates from the occurrence of the damage.^*' ard County v. Chicago & A. K. Co., 130 Mo. 652, 32 S. W. 651; Henry v. Ohio Kiver K. Co., 40 W. Va. 234, 21 S. E. 868. 1*8 Backhouse v. Bonoml, 9 H. D. Cas. 503, T Jur. N. S. 809, 34 L. J. Q. B. 181, 4 L. T. Rep. N. S. 754, 9 Wkly. Kep. 769, 11 Bng. Eepr. 825. "7 Ludlow V. Hudsoi^ Kiver R. Co., 6 Lans. (N. Y.) 128. 148 Thus, where a bridge was constructed of unsafe materials and had been maintained for some time prior to the occurrence of plain- ti2's Injury, the statute of limitations will run from the date of the injury, and not from the time the negligence began. Board of Com'rs of Wabash County v. Pearson, 120 Ind. 426, 22 N. E. 134, IB Am. St. Rep. 325. To the same effect, Mayor, etc., of City of Huntsville v. Ewing, 116 Ala. 576, 22 South. 984; Leroy v. City of Springfield, 81 111. 114. The fact that the injured party did not re- cover for some time will not extend the time for bringing the ac- tion. Filler v. Southern Pac. R. Co., 52 Cal. 42. i49 Saunders v. Edwards, 1 Sid. 95. And see opinion of Lord Cranworth in Backhouse v. Bonomi, 9 H. Ii. Cas. 503, 512, 7 Jur. N. S. 809, 34 Ii. J. Q. B. 181, 4 L. T. Rep. N. S. 754, 8 Wkly. Rep. 769, 11 Bng. Repr. 825. 132 GENERAL PRINCIPLES (Ch. 5 CHAPTER V GENERAIi PRINCIPLES (Continued)— PARTIES 38. The Party Wronged. 39. The Wrongdoer — Several Liability — Personal Culpability. 40. Public Officers in General. 41. Judicial and Discretionary Acts. 42. Ministerial Acts. 43. Infants. 44. Insane Persons. 45. Husband and Wife. 46. Servants and Agents, ^ 47. Masters. 48. Assumption of Rislc THE PARTY WRONGED 38. Though the party whose legal right has been invaded will be entitled to redress, his power to transfer his cause of action will depend upon the nature of the injury and is in general restricted to wrongs done to property rights. The Sufferer Assuming that there has been the violation of a legal right andthat the existence of damage has been proven in cases where such proof is required, the law will then, of course, sup- ply a remedy to the injured party. It matters not that the suf- ferer may, for many purposes, labor under a disqualification, as in the case of an infant,^ or an insane person.* He may sue 1 Estate of Cabin, 74 Cal. 52, 15 Pac. 364 ; Bloomlngdale v. Chitten- den, 74 Mich. 698, 42 N. W. 166; Clasen v. Pruhs, 69 Neb. 278, 95 N. W. 640, 5 Ann. Cas. 112 ; Code Civ. Proc. N. T. §§ 468-470. Recov- ery denied for negligence causing injury (Allaire v. St. Luke's Hos- pital, 184 111. 359, 56 N. E. 638, 48 I* E. A. 225, 75 Am. St. Rep. 176), or death (Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242). 2 Reese v. Reese, 89 Ga. 645, 15 S. E. 846 ; Smith v. Smith, 106 N. C. 498, 11 S. E. 188 ; Code Civ. Proc. N. Y. § 2340. § 38) THE PARTY WRONGED 133 through his guardian, next friend, or committee. This as- sumes, of course, that the party has a cause of action. For in- stance, it has been held that a child may not recover damages from a parent for personal injuries inflicted by the latter during the infant's minority, the reason being that "the peace of society and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent." * The common-law status of a feme covert was somewhat peculiar. Husband and wife were one, and it has some- times been observed that that one was the husband. Both were required to be joined as plaintiffs in actions for inju- ries to her person,* and in certam cases of defamation." Actions to recover possession of her real property were subject to this rule,* as were those for injuries to her per- sonal property where the cause of action was complete pri- or to coverture.' On the other hand, since the personal property of the wife vested in the husband, he alone could sue to recover it, or for injuries thereto committed during after birth. Allowed posthumous child for father's death. Nelson v. Galveston, H. & S. A. Ry. Co., 78 Tex. 621, 14 S. W. 1021, 22 Am. St. Rep. 81, 11 L. R. A. 391. Allowed for liquor sold parent of a child then unborn. State v. Soale, 36 Ind. App. 73, 74 N. E. 1111 ; Phair v. IKimond, 99 Neb. 310, 156 N. W. 637. Intimated in Nugent T. Brooklyn Heights R. Co., IM App. Div. 667, 139 N. T. Supp. 367. that action might li^, though recovery denied as relation of carrier and passenger existed only between mother and defendant s Hewlett v. George, 68 Miss. 703, 711, 9 South. 885, 13 L. R. A. 682, per Woods, J. ; McKelvey v. McKelvey, 111 Term. 388, 77 S. W. 664, m li. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Gas. 130. * Long V. Morrison, 14 Ind. 595, 77 Am. Dec. 72 ; Sanford v. Au- gusta, 32 Me. 536; Treusch v. Kainke, 63 Md. 278; Schouler on Domestic Relatlops, § 77. » I. e., where the words were actionable without proof of special damage. Joinder was unnecessary where special damage must be shown. Beach v, Ranney, 2 Hill (N. Y.) 309 ; Gibson v. Gibson, 43 Wis. ^3, 28 Am. Rep. 527. , o Atkinson v. Rittenhouse, 5 Pa. 103 ; Westcott v. Miller, 42 Wis- 454. 7 Milner v. Milnes, 3 T. R. 627. 134 GENERAL PRINCIPLES (Ch. 5 the marriage,' while joinder was optional in actions for in- juries to the wife's realty during coverture.' By reason of their identity each was precluded from maintaining an ac- tion of tort against the other,^° and a subsequent divorce made no difference where the wrong had been committed during coverture.^^ To ascertain the extent to which these rules have been repealed or modified, it will be necessary to examine the various Married Woman's Acts. Generally Speaking it may be said that the feme covert may now sue as if sole,^^ whether the action be to recover for personal injuries,^' for defamation,^* or concerns her separate property.^' While considerable liberality has been displayed, it has been held 8 George v. English, 30 Ala. 582; Gerry v. Gerry, 11 Gray (77 Mass.) 381; McCormlck v. Pennsylvania Cent. R. Co., 49 N. Y. 303. » Tallmadge v. Grannis, 20 Conn. 296. Contra, If the action was for waste. Thacher v. Phinney, 7 Allen (89 Mass.) 146. 10 Abbott V. Abbott, 67 Me. 304, 24 Am. Rep. 27 ; Schultz v. Schultz, 89 N. ¥. 644 ; Phillips v. Barnet, 1 Q. B. D. 436, 45 L. J. Q. B. 277, 34 L,. T. Rep. N. S. 177, 24 Wkly. Rep. 345. 11 Strom V. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387 ; Phillips v. Barnet, 1 Q. B. D. 436, 45 L. J. Q. B. 277, 34 L. T. Rep. N. S. 177, 24 Wkly. Rep. 345. 12 "In an action or special proceeding, a married woman appears, prosecutes or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her sep- arate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife." Code Civ. Proc. N. T. § 450 ; and see Consol. Laws N. Y. 1909, c. 14 (Domestite Relations Laws) §§ 51, 57. IS Chicago, B. & Q. R. Co. v. Dunn, 52 111. 260, 4 Am. Rep. 606; McGovern v. Interurban R. Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 Am. St. Rep. 215 ; Duffee v. Boston El. R. Co., 191 Mass. 563, 77 N. B. 1036 ; . McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. 689 ; Weldon v. Winslow, 13 Q. B. D. 784, 53 L. J. Q. B. 528, 51 L. T. Rep. N. S. 643, 33 Wkly. Rep. 219. 1* Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822 ; Story v. Dow- ney, 62 Vt. 243, 20 Atl. 321. 10 City of Chicago v. McGraw, 75 111. 566; Read v. Earle, 12 Gray (78 Mass.) 423; Van Cleve v. Rook, 40 N. J. Law, 25; Draper v. Stouvenel, 35 N. Y. 507 ; Norfolk & W. R. Co. v. Dougherty, 92 Va. 872, 23 S. E. 777 ; Weldon v. De Bathe, 14 Q. B. D. 339, 54 L. J. Q. B. 113, 53 L. T. Rep. N. S. 520, 33 Wkly. Rep. 328. § 38) THE PARTY WKONQED 135 that a statute giving general capacity to sue and to be sued will not completely destroy the common-law doctrine of identity, and consequently will not confer upon her the power to sue the husband for the latter's torts, in the ab- sence of an express provision to that effect.^' Passing from the individual to the corporation, we find the latter to be upon the same plane. "Corporations, like individuals, constantly maintain actions, the object of which is the recovery of damages for wrongs done to them," ^^ as in cases of trespass,^* libel,^' conspiracy,^" and nuisance.''^ So, too, the United*States as a corporation or body poli- tic is entitled 'to> seek the protection of its property in the state courts or in its own tribunals.^" It may, for instance, sue and recover for trespass upon the public domain and the cutting of timber thereon,^^ for the conversion of its 18 Thus a wife cannot sue her husband for assault and battery. Peters v. Peters, 42 Iowa, 182; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, .6 L. E. A. (ti. S.) 191, 116 Am. St. Bep. 387 ; Abbe v. Abbe, 22 App. Div. 483, 48 N. Y. Supp. 25 ; Lllllenkamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628, L. R. A. 1916B, 881. Contra, Brown v. Brown, 88 Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70; GUman^v. Gilman (N. H. 1915) 95 Atl. 657, L. R. A. 1916B, 907. She may, however, under the New York statute, sue her hus- band to enforce her property rights ; e. g., by an action of ejectment. Wood V. Wood, 83 N. Y. 575. And in Wisconsin the husband has been permitted to sue the wife in replevin. Carney v. Gleissner, 62 Wis. 493, 22 N. W. 735. 17 6 Thompson, Corp. § 7383. 18 Second Congregational Soc. in North Bridgewater v. Waring, 24 Pick. (Mass.) 304. i» Hahnemannian Life Ins. Co. v. Beebe, 48 111. 87, 95 Am. Dec. 519; Trenton Mut Life & Fire Ins. Co. v. Perrine, 23 N. J. Law, 402, 57 Am. Dec. 400; Knickerbocker Life Ins. Co. v. Ecclesine, 34 N. Y. Super. Ct. 76, 11 Abb. Prac. (N. S.) 385, 42 How. Prac. 201. 2 Ilion Bank v. Carver, 31 Barb. (N. Y.) 230. 21 Baltimore & P. R. Co. v. Fifth Baptist Church, 108 V. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739. 22 Cotton V. U. S., 11 How. 229, 13 L. Ed. 675 ; U. S. v. Holmes (C. C.) 105 Fed. 41. 23 Cotton V. U. S., 11 How. 229, 13 L. Ed. 675. 136 GENERAL PEINCIPLBS (Ch. 5 personal property,^* or for money obtained through a fraud- ulent claim,"" and may restrain pasturage upon reserved forest lands.'" A like power exists in the states " and their political subdivisions."* The Assignee ' Hitherto there have been considered cases where .the in- jury had been inflicted upon the individual who is before the court as plaintiff. But the claim may have been assign- ed, though it 'is not every xight of action in tort which is capable of transfer. It has been well said that : "The an- cient doctrine was that a demand arising out of a tort was not assignable, but the modern cases restrict the principle to torts against the person, or to such as' did not survive to the personal representative after death; such, for in- stance, as slander, assault and battery, seduction, and the like. Torts to property, on the other hand, whereby the es- tate of a party is destroyed or diminished, are now held assignable either by the act of the party or by general as- signments by operation of law, and the doctrine ,is recog- nized both in England and America." "* It being the general rule, therefore, that only such causes of action may be assigned as are permitted to survive, what has been said concerning abatement by death " will apply. Thus a right to recover for personal injuries has been held 24 E. E. BoUes Wooden Ware Co. v. TJ. S., 106 V. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230. 25 Pooler V. U. S., 127 Fed. 519, 62 C. C. A. 317. «8 IJ. S. V. Tygh Valley Land & Live Stock Co. (C. C.) 76 Fed. 693. 2!^ Kansas v. Colorado, 185 V. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838; Missouri v. Illinois, 180 U. S. 208, 21 Sup. Ct. 331, 45 L. Ed 497. 28 Kensington Com'rs v. Philadelphia County, 13 Pa. 76 ; City of Milwaukee v. Herman Zoehrlaut Leather Co., 114 Wis 276 90 N W 187. 2» Chicago, St. L. & N. O. R. Co. v. Packwood, 59 Miss. 280, 282, per Chalmers, C. J., and see North Chicago St R. Co. v. Ackley 171 111. 100, 49 N. E. 222, 44 L. B. A. 177. so See supra, p. 117 et seq. § 39) THE WRONGDOER SEVERAL LIABILITY 137 not transferable ; '^ nor is one for false imprisonment,'* nor for defamation." On the other hand, if the wrong consists in an injury to property rights, the chose in action is sub- ject to assignment.'* As has been seen, some causes of ac- tion which did not survive at common law have been made descendible by legislation. But such a statute will not operate by implication to confer assignability.'* THE WRONGDOER— SEVERAL LIABILITY « 39. Legal responsibility for a tort may arise out of — • (a) The personal act or omission of the defendant; or — (b) The act or omission of some third person for whose conduct the defendant is held accountable. Under the first head there will be discussed the liability of— (1) Public officers; (2) Infants; (3) Insane persons; (4) Husband and Wife; (5) Servants and Agents. ' ' Under the second head that of — (6) The state; (7) Corporations; (8) Employers; (9) Partners; (10) Owners. 31 Averill V. Longfellow, 66 Me. 237; Linton v. Hurley, 104 Mass. 353 ; Pulver v. Harris, 52 N. X. 73 ; Waller v. Jersey City, H. & P. St. K. Co., 68 N. J. Eq. 659, 61 Atl. 459, 6 Ann. Cas. 442 ; Boogren V. St. Paul City Ry. Co., 97 Minn. 51, 106 N. W. 104, 3' L. E. A. (N. S.) 379, 114 Am. St. Kep. 691. Contra, Kithcart v. Klthcart,. 145 Iowa, 549, 124 N. W. 305, 30 L. R. A. (N. S.) 106^. 32 Hunt V. Conrad, 47 Minn. 557, 50 N. W. 614, 14 L. R. A. 512. 33 Miller v. Newell, 20 S. C. 123, 47 Am. Rep. 833. a* Whitaker v. Gavit, 18 Conn. 522 ; Fulton Eire Ins. Co. v. Bald- 35 See note 35 on following page. 138 GENERAL PEINCIPLE3 (Ch. 5 PUBLIC OFFICERS— IN GENERAL, 40. Where the defense of "act of state" cannot be interpos- ed successfully, the public officer is in general re- sponsible for acts not judicial in their nature, which constitute the violation of a duty dwing to the individual damnified. If the conduct of a public officer amounts to an act of state, then, as has been seen,'' no personal responsibility can arise therefrom, nor can the state itself, being superior to the law, be held liable in any event, except by its own consent." But for other acts, and subject to what shall hereafter be said, the rule can be laid down that no immu- nity will attach merely by virtue of official position, nor can the inviolability of the state itself be invoked for the protection of the actor. Thus the sergeant at arms of the House of Representatives, who, under a warrant from the Speaker, which the latter lacked authority to issue, had ar- rested a recalcitrant witness summoned before a committee of investigation and caused him to be confined, was held liable in an action for false imprisonment,' ' and the defend- ant's responsibility was likewise declared in an action against the commandant of a United States navy yard who had unlawfully manufactured and used there certain caisson gates in violation of plaintiff's patent rights, though in so doing he had acted under orders." Nor will it be a win, 37 N. Y. 648; Holmes v. Loud, 149 Mich. 410, 112 N. W. 1109; Chicago, St li. & N. O. R. Co. v. Packwood, 59 Miss. 280 ; McArthur V. Green Bay Sf M. Canal Co., 34 Wis. 139. »5 Weller v. Jersey City, H. & P. St. R. Co., 68 N. J. Eq. 659, 61 Atl. 459, 6 Ann. Cas. 442. 38 See supra, p. 107. sJ'See infra, p. 196. as Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377. »» Belknap v. Schild, 161 TJ. S. 10, 16 Sup. Ct. 443, 40 L. Ed. 599. To the same effect. The Flying Pish (Little v. Barreme) 2 Cranch, 170, 2 L. Ed. 243 (seizure of a vessel) ; Bates v. Clark, 95 TJ. S. 204, 24 L. Ed. 471 (seizure of liquors). "No man in this country is so § 40) PUBLIC orncEES — in general 139 defense that he acted under a statute, if the latter is found to be unconstitutional, since, being void, no power or juris- diction could be derived from it. Inability to forecast the ultimate decision as to its constitutionality will not avail him.*" If the statute is valid, the officer is of course pro- tected where he acted within the lines of his duty and in a proper manner.*^ But where his conduct is prima facie un- lawful the burden rests upon him of proving the existence of facts which justify his action. Thus where an act au- thorizes the summary killing of animals having the gland- ers, and the officer causes a healthy horse to be killed under a misapprehension, he will be responsible.*^ Furthermore the duty violated must not have been due high that he is above the law. • • • All the officers of the gov- ernment, from the highest to the lowest, are creatures of the law, and are bound to obey it. • * * Shall it be said in the face of all this, and of the acknowledged right of the judiciary to decide, in proper cases, statutes which have been passed by both branches of Congress and approved by the President to be unconstitutional, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation because the President has ordered it and his ofBcers are in possession. If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor In any other government which has a just claim to well- regulated liberty and the protection of personal rights." U. S. v. Lee, 106 TJ. S. 196, 220, 1 Sup. Ct. 240, 27 L. Ed. 171, per Miller, J. *o Sumner v. Beeler, 50 Ind. 341, 19 Am. Eep. 718 ; Kelly v. Bemis, 4 Gray (70 Mass.) 83, 64 Am. Dec. 50. It is quite conceivable thkt "It may devolve upon the ofiBcer a vast responsibility in some cases." Campbell v. Sherman, 35 Wis. 103, 110. It requires him to decide at his peril; for. If he refuses to act because he believes a valid statute to be unconstitutional, he will likewise be liable to the party aggrieved. Clark v. Miller, 54 N. Y. 528. But the doctrine an- nounced in the text does not appear to have met with universal fa- vor. Henke v. McCord, 55 Iowa, 378, 7 N. W. 623; ShafCord v. Brown, 49 Wash. 307, 95 Pac. 270. 41 Thibodaux v. Town of Thibodaux, 46 La. Ann. 1528, 16 South. 450; Highway Com'rs v. Ely, 54 Mich. 173, 19 N. W. 940; Hager v. Danf orth, 20 Barb. (N. Y.) 16 ; unless the act was done maliciously, Burton v. Fulton, 49 Pa. 151. 42 Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. E. A. 116, 23 Am. St. Rep. 850. 140 GENERAL PRINCIPLES (Ch. 5 solely to the public as such. "The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual and that he has suffered a special and peculiar injury by reason of its nonperformance." ** Hence no action lies by a mort- gagee for the omission of a county treasurer to make taxes assessed against the mortgagor out of personal property, though the indirect effect is that the burdens upon the inortgaged land are increased and the value of the security lessened.** Nor is the failure properly to list property for taxation a wrong to an individual whose own assessments are not shown to be made thereby a larger proportion of the aggregate taxable property than they should have been.*" Assuming, however, that what would ordinarily be re- garded as an actionable wrong has occurred, special immu- nity may be extended from motives of public policy. Free- dom in the. exercise of legislative functions being essential, members of Congress are not to be questioned elsewhere "for any speech or debate in either House" ; *" and a similar provision protecting the local Legislature is generally found in the state Constitutions.*' It was for this reason that, although the sergeant at arms in the Kilbourn Case, already referred to, was held responsible, the members of the inves- tigating committee, who had reported "to the House the' witness' delinquency and voted in favor of the resolution, under which he was committed, were exonerated.*' *s Gage V. Springer, 211 111. 200, 204, 71 N. E. 860, 103 Am. St. Eep. 191, per Scott, J. ** State ex rel. Travelers' Ins. Co. v. Harris, 89 Ind. 363, 46 Am. Rep. 169. *»Moss V. Cummlngs, 44 Mich. 359, 6 N. W. 843. To the same effect, Harrington v. Ward, 9 Mass. 251; Kahl v. Love, 37 N. J. Law, 5 ; Houseman v. Girard Mut. Bldg. & Loan Ass'n, 81 Pa. 256. The principle in its general aspect has already been discussed. See supra, p. 35 et seq. *8 Const. U. S. art. 1, § 6. " See Const. N. T. art. 3, § 12. «8 Kilbourn v. Thompson, 103 V. S. 168, 26 L. Ed. 377. This de- § 40) PUBLIC OFFICEHS — IN GENEKAL 141 Another exemption exists where it is shown -that the public officer has failed to perform or has improperly exer- cised functions which are judicial in their nature. This is not confined to judges, but includes all cases where the of- ficer is called upon to use discretion and judgment in the exercise or withholding of his powers "according to his own view of what is necessary and proper." *" Opposed thereto are ministerial duties, so called, required to be performed by the officer, under given conditions and in a prescribed manner, "Without regard to the exercise of his own judgment upon the propriety of the act being done." '"' Now, in determin- ing official responsibility, it is obvious that an important distinction exists between these two classes. Accountabili- ty for the exercise of discretion is destructive of the discre- tionary power. Impeachment and indictment may follow misconduct or corruption. But, broadly speaking, the abuse of judicial power furnishes no private right of action, a principle which is supported by the strongest considera- tions of public policy."^ No.reason exists, however, for ex- emption in the case of ministerial functions, since the offi- cer's path is marked and defined. Emphasis must be placed upon the nature of the duty rather than upon the title of the office, since the same indi- vidual may perform both judicial and ministerial functions. "Duties which are purely ministerial in their nature are fense becomes important in actions for defamation, and it will be there considered. See infra, p. 326. 4 8 WUson V. City of New York, 1 Denio (N. Y.) 595, 599, 43 Am. Dec. 719, per Beardsley, J. 00 Flournoy v. CJity of Jeffersonville, 17 Ind. 169, 174, 79 Am. Dee. 468, per Perkins, J. "The duty is ministerial when the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judg- ment or discretion. OflSclal action, the result of performing a cer- tain and specific duty arising from fixed and designated facts, is a ministerial act" Grider v. Tally, 77 Ala. 422, 425, 54 Am., Eep. 63, per Clapton, J. SI See Mills v. City of Brooklyn, 32 N. Y. 489. Thus members of a board of aldermen are not responsible to the mayor for passing an ordinance depriving him of his fees and emoluments. Jones t. Lot- nit', o5 Miss. 109, 30 Am. Rep. 508. 142 GENERAL PRINCIPLES (Ch. 5 sometimes cast upon officers whose chief functions are ju- dicial," °^ and vice versa. Thus it has been held that the issuance of a liquor license by a probate judge is minis- terial, where the statute requires him to act upon the appli- cant's compliance with certain requirements."* So, too, is the issuance of an execution °* and the filing of papers on appeal by a justice of the peace.°° Another illustration ap- pears in the habeas corpus acts, which generally require the writ to be issued whenever a prima facie case of unlawful confinement is made out."' JUDICIAL AND DISCRETIONARY ACTS 41. (I) judicial officers. (a) For acts done in the exercise of jurisdiction, the judi- cial officer is not accountable. (b) For acts done wholly without jurisdiction, the judi- cial officer is accountable. (c) For acts done in excess of jurisdiction, the justice of a superior court is not liable, even though his mo- tives were malicious and corrupt; but by the weight of authority, where jurisdiction is exceeded, the justice of an inferior court will be responsible, though some decisions have inade malice and cor- rupt motive the test. (II) Quasi judicial officers. Similar principles govern the liability of quasi judicial ' officers. 62Mmsv. City of Brooklyn, 32 N. Y. 4S9, 497, per Denio, C. J. "When the law assigns to a judicial officer the performance of ministerial acts, he is as responsible for the manner in which he performs them, or for neglecting or refusing to perform them, as if no judicial functions were intrusted to him." Grider t TaUy 77 Ala. 422, 424, 54 Am. Rep. 65, per Clopton, J. Bs Grider v. Tally, supra. B* See Gaylor v. Hunt, 23 Ohio St. 255. =6 Peters v. Land, 5 Blackf. (Ind.) 12 ; Brooks v. St. John, 25 Hun (N. T.) 540. " Code Civ. Proc. N. Y. § 2020. Cf. Xates v. Lansing, 5 Johns. (N. Y.) 282. ■ >=, " o» us.. § 41) JUDICIAL AND DISCRETIONARY ACTS 143 (A) For Acts Done Within Jurisdiction "It is a principle lying at the foundation of all well-order- ed jurisprudence that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehension of consequences." °' "Nor can the exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed." ^* Were it otherwise, "the losing party may always aver that the judge has acted partially or corruptly, and may offer testimony of bystanders or others "to prove it; and these proofs are ad- dressed to the court and jury before whom the judge is called upon to defend himself, and the result is made to de- pend, not upon his original conviction — the conclusion of his own mind, in the decision of the original case — as by the theory of jurisprudence it ought to do, but upon the conclusions of other minds, under the influence of other and different considerations." °° The rule is therefore bas- ed upon the highest considerations of public policy *" and is applicable alike to the superior *^ and the inferior judge.** 57 Pratt V. Gardner, 2 Gush. (Mass.) 63, 68, 48 Am. Dec. 652, per Shaw, C. J. 08 BRADLEY v. FISHER, 13 WaU. 335, 347, 20 L. Ed. 646, Chapin Gas. Torts, 65, per Meld, J. 5 9 Pratt V. Gardner, 2 Gush. (Mass.) 63, 69, 48 Am. Dec. 652, per Shaw, C. J. «o The following reasons have been given by Judge Gooley (Torts [3d Ed.] p. 793): (1) The necessary result of the liability would be to occupy the judge's time and mind with the defense of his own in- terests, when he should be giving them up wholly to his public du- ties. (2) To put him on his defense necessarily lowers the public estimation of his oflBce. (3) GlvU responsibility might invite him to consult public opinion and prejudices, when he should be above them. (4) Each case would be opened to endless controversy, litiga- tion would be multiplied, and an increase in the judicial force neces- sitated. (5) A prosecution at the Instance of the state is much more effectual than a private suit 0' Yates v. Lansing, 5 Johns. (N. Y.) 282; Webb v. ffisher, 109 82 See note 62 on following page. 144 GENERAL PEINCIPLES (Ch. 5 (B) For Acts Wholly Without Jurisdiction Where there is a want of jurisdiction, it is the same as though there were no court." Under such conditions "any authority exercised is a usurped authority, and for the ex- ercise of such authority, when the want of jurisdiction, is known to the judge, no excuse is permissible." '* Thus, should a justice holding court for the trial of civil actions order the head of a bystander to be stricken off, and be obeyed, or a probate judge proceed to try parties for pub- lic oflferises, there could be no question as to the liability incurred."" It has been said: "It is as easy to give a general and comprehensive definition of the word 'jurisdiction' as it is difificult to deterrnine in special cases the precise conditions on which the right to exercise it depends. This right, has reference to the power of the court over the parties, over the subject-matter, over the res or property in contest, and to the authority of the court to render the judgment or de- cree which it assumes to make." ** This presupposes, Tena 701, 72 S. W. 110, 60 Z,. R. A. 791, 97 Am. St. Rep. 863 ; Rudd V. -Darling, 64 Vt. 456, 25 Atl. 479 ; Fray v. Blackburn, 3 Best & S. 576 ; Anderson v. Gorrie (1895) L. R. 1 Q. B. D. 668. 2 Austin V. Vrooman, 128 N. T. 229, 28 N. E. 477, 14 L. R. A. 138; White V. Morse, 139 Mass. 162, 29 N. E. 539 ; Irion v. Lewis, 56 Ala. 190 ; Taylor v. Doremus, 16 N. J. Law, 473 ; Stewart v. Cooley, 23 Minn. 347, 23 Am. Rep. 690 ; Jordan v. Hanson, 49 N. H. 199, 6 Am. Rep. 508 ; Basten v. Carew, 3 Barn. & C. 649. la a few states, however, a con- trary view has been intimated, where malice or corruption appears. Hitch V. Lambright, 66 Ga. 228; Gault v. Wallace, 53 Ga. 675; Knell V. Briscoe, 49 Md. 414 ; Hollon v. Lilly, 100 Ky. 553, 38 S. W. 878. But this is contrary to the established rule. 63 See Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200. 64 BRADLEY V. FISHER, 13 Wall. 335, 352, 20 L. Ed. 646, Chapin Cas. Torts, 65, per Field, J. 65 Lange v. Benedict, 73 N. Y. 12, 26, 29 Am. Rep. 80; BRADLEY V. FISHER, supra. 66 Cooper T. Reynolds, 10 Wall. 308, 316, 19 L. Ed. 931, per Mil- ler, J. § 41) JUDICIAL AND DISCRETION AKY ACTS 145 therefore, that the individual acted upon was in fact before the court by voluntary appearance or constructively so by the service of some process known to the law. Hence a justice of the peace will be liable to one whom he has di- rected to be committed without the previous issuance of a warrant,'^ or without causing him to be brought into court,*' or whose arrest he has caused by means of a war- rant which he had no power to issue, because the deposition on which it was based failed to set forth facts or circum-. stances tending to establish the guilt of the accused^.*" It presupposes, likewise, that the case is one in which he is authorized to act and the process such that he has authori- ty to issue. Thus members of a court, who issued warrants and caused the arrest of a colleague for the purpose o± making up a quorum, were responsible, for there was a to- tal lack of power on their part to take any action in such a case.'"' The same is true of the act of a judge who com- mitted for contempt one who had disobeyed the order of an entirely distinct tribunal, since only the court whose au- thority is defied has power to entertain proceedings to that end;^^ and a justice of the peace will be liable to one im- prisoned under a commitment not based upon a judgment providing therefor.^* (C) For Acts in Excess of Jurisdiction Here a distinction must be drawn between judges of courts having superior or general jurisdiction and judges 87 Glazar v. Hubbard, 102 Ky. 69, 42 S. W. 1114, 39 L. E. A. 210,. 80 Am. St. Rep. 340. 88 Blgelow V. Steariis, 19 Johns. (N. T.) 39, 10 Am. Dec. 189. 89Blodgett V. Race, IS Hun (N. Y.) 132; McKelvey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541 ; Spice v. Steinruck, 14 Ohio St. 213. TO Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336. Ti Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995. 72 Lanpher v. Dewell, 56 Iowa, 153, 9 N. W. 101. Cases showing liability for acts committed without jurisdiction are collected ia Randall v. Brigham, 7 WaU.^531, note 1. Chap.Tokts — 10 146 GENERAL PRINCIPLES (Ch. 5 of inferior courts. The former are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done ma- liciously and corruptly. But the weight of authority ap- pears to be in favor of the doctrine that the latter will be responsible, however honest may have been their motives. The reason commonly assigned for exempting the su- perior judge under such circumstances is that, where gener- al jurisdiction has been conferred, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for determination as any other involved in the case. "And the same principle of exemption from lia- bility which obtains for errors committed in the ordinary prosecution of a suit, where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons." " This doctrine was applied where the judge of a United States Circuit Court had sentenced plain- tiff both to pay a' fine and be imprisoned, although the stat- ute under which the conviction was had provided only for fine or imprisonment. Here there was jurisdiction of the plaintiff, who was regularly before the court, of the cause, and of the proceedings. It was not that the court never had jurisdiction to try and sentence the plaintiff, but that the last act was in excess of jurisdiction.''* A similar con- clusion was reached where the presiding judge at the trial of John A. Surratt for the murder of Abraham Lincoln, having been insulted during recess by one of the attorneys, entered an order striking the latter's name from the rolls. Though in subsequent proceedings brought to test the va- lidity of this act it was held that before a lawyer could be disbarred he was entitled to notice, the judge was neverthe- less under no civil liability.'" Now, on the other hand, the inferior magistrate, being empowered by law to exercise his powers only in a particu- " BRADLEY v. FISHER, 13 Wall. 335, 353, 20 L. Ed. 646, Chapin Cas. Torts, 65, per Field, J. 7 4 Lange v. Benedict, 73 N. Y. 12, 29 km. Rep. 80. rs BRADLEY v. FISHER, 13 Wall. 335, 20 L. Ed. 646, Chapia Cas Torts, 65. § 41) JUDICIAL AND DISCRETIONARY ACTS 147 lar mode and under certain limitations, had best in doubt- ful cases decide against his own jurisdiction. Moreover, though the presumption of law is that the superior tribunal had jurisdiction, "with regard to inferior courts and magis- trates, it is for them, when claiming any right or exemption under their proceedings, to show affirmatively that they acted within the limits of their jurisdiction." '* Honesty of purpose in such a case, while it may mitigate damages, can- not, it has been said, justify a clear usurpation of power.'^ Thus justices of the peace have been held liable where, hav- ing jurisdiction only t,o commit, a penal sentence has been inflicted; '* where, having authority to require bonds to ap- pear at a higher court, sureties to keep the peace have been exacted;'" where an arrest has been caused upon a com- plaint setting forth facts not constituting a crime, but at best merely a trespass ; *° or where it appeared therefrom that a prosecution was barred by the statute of limita- tions.*^ But other courts have intimated that malice is the test where jurisdiction has been exceeded.*^ If, however, the want of jurisdiction is caused by matters of fact, it must be shown that they were known, or ought to have been known', to the judge or magistrate.*^ Thus where, from the complaint laid before him, it appears that a state of facts exists which would confer jurisdiction, and in ignorance 7 6 Piper V. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438; Clark V. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. TTTruesdell v. Combs, 33 OMo St. 186; De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95; Patzack v. Von Gerichten, 10 Mo. App. 424; Piper V. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438. 7 8 Patzack v. Von Gerichten, 10 Mo. App. 424. 7 9 Knowles v. Davis, 2 Allen (Mass.) 61. soTruesdell v. Combs, 33 Ohio St. 186; De Courcey v. Cox, 94 Cal. 665. 30 Pac. 95. 81 Vaughn v. Congdon, 56 Vt 111, 48 Am. Rep. 758. And see, gen- erally, Butherford v. Holmes, 66 N. Y. 368; Von Kettler v. Johnson, 57 111. 109; Morrill v. Thurston, 46 Vt 732; Smith v. Bouchier, 2 Str. 993. 82McCall V. Cohen, 16 S. C. 445, 42 Am. Rep. 641; Bobertson v. Parker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. 889 ; Bell v. Mc- Kinney, 63 Miss. 187. 83 Clark V. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. 148 GENERAL PRINCIPLES (Ch. 5 that the complaint was false the magistrate has proceeded to act, he will not be responsible.'* Many courts have refused to recognize a distinction between the superior and inferior tribunal, and apply to both alike the doctrine of nonliability where jurisdiction is exceeded.*' It has been urged that "in reason, if judges, properly expected to be most learned, can plead official ex- emption for their blunderings in the law, a fortiori those from whoAi less is to be expected and who receive less pay should not be compelled to 'respond in damages to their mistakes honestly made after due carefulness." *' This view has been summarized by the Supreme Court of Maine. "We favor," it was said, "the doctrine towards which, we think, there is a strong tendency in more recent judicial opinion, that where a judge of an inferior court or a mag- istrate is invested by law with jurisdiction over the general subject-matter of an alleged offense — ^that is, has the power to hear and determine cases of the general class to which the proceeding in question belongs — and decides, although erroneously, that he has jurisdiction over the particular of- fense of which complaint is made to him, or that the facts charged in the complaint constitute an offense, and acts accordingly in entire good faith, such erroneous decision is a judicial one, for which he should not be, and is not, liable in damages to a party who has been thereby injured." " 8*Lowtlier v. Earl of Radnor, 8 East, 113; Pike v. .Carter, 10 Moore, 376. He Is not liable for Issuing an attaclunent in an action upon an unmatured note, where the affidavit on which the attach- ment was based stated that the note was due. Connelly v.- Woods, 31 Kan. 359, 2 Pac. 773. «5 "After an exhaustive examination of the cases which make this distinction, we have to say that we do not think that they are founded upon grounds which can be sustained by any logical or rea- ' sonable argument" Thompson v. Jackson, 93 Iowa, 376, 384, 61 N W. 1004, 27 L. R. A. 92, per Rothrock, J. 88 Bishop Non-Contract Law, § 783, quoted as "a coinplete answer to all of the reasons given why such distinction exists," in Calhoun V. Little, 106 Ga. 336, 32 S. B. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254. To the same effect, Cooke v. Bangs (G. C.) 31 Fed. 640 ; Allec V. Reece (C. C.) 39 Fed. 341 ; Robertson v. Parker, 99 Wis. 652 75 JSr. W. 423, 67 Am. St. Rep. 889. 87 RUSH V. BUCKLEY, 100 Me. 322, 331, 61 Atl. 774, 70 L. R. A. § 41) JUDICIAL AND DISCRETIONARY ACTS 149 There is, moreover, authority for the doctrine that no lia- bility attaches, even though a malicious motive may have existed.*^ One point, however, is well recognized. A judge, though inferior, who possesses general jurisdiction over the offense and the offender, while, as has been seen, he may be re- , , sponsible if he acts in the absence of any facts calling for the exercise of his determination,** will be exempt for a mistake concerning the just weight and importance of evi- dence actually presented. Such would be a case where, facts and circumstances having been laid before him, he decides that they constitute reasonable grounds for be- lieving the accused guilty and issues a warrant °'' or an or- der of arrest. ""^ If there is a total want of evidence as to es- sential facts, the process will be declared void, in whatever form the question may arise, and necessarily the judge has acted without authority, and there is a defect of jurisdiction. But if the proof has a legal tendency to make out a proper case in all its parts, though it may be slight and inconclusive, the 464, 4 Ann. Cas. 318, Chapin Gas. Torts, 71, per Wiswell, C. J. Here the justice of the municipal court had tried, convicted, sentenced, and issued a warrant against plaintiff, and had committed him for the violation of a city ordinance, void because it had never been published as required by statute. To the same efCect, Clark v. Spicer, 6 Kan. 440 (facts stated did not bear out charge of willful miscon- duct in oflBce) ; Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137 (justice of the peace holds an unconstitutional ordinance valid and enforces It by imprisonment) ; Booth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013 (warrant issued based on facts show- ing a private and not a public nuisance) ; Grove v. A^an Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412 (under a statute making it an Indictable offense to carry off corn, etc., a complaint embodying a charge of carrying off cornstalks gives colorable jurisdiction) ; Austin v. Vroo- man, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138 (question was whether the justice might proceed with the trial of a statutory of- fense, thus requiring a construction of the statute). 88 Cooke V. Bangs (C. C.) 31 Fed. 640 ; State ex rel. Egan v. Wolei^ ver, 127 Ind. 306, 26 N. E. 762. 8»Blodgett V. Race, 18 Hun (N. Y.) 132; McKelvey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541; Spice v. Steinruck, 14 Ohio St. 213. so Swart V. Rickard, 148 N. Y. 264, 42 N. B. 665; Johnson v. Maxon, 23 Mich. 129, 136. »i Dusy V. Helm, 59 Cal. 188; Gillett v. Thiebold, 9 Kan. 427. 150 GENERAL PRINCIPLES (Ch. 5 process will be valid until set aside, and the court has only -erred in judgment upon a matter properly before it.°^ (II) Quasi Judicial Officers The executive officer may be called upon to perform a duty which, although not in a technical sense a judicial one, since it does not concern the administration of justice be- tween citizens, is yet of a judicial nature, since it requires the same qualities of deliberation and judgment.'^ Such a duty may therefore be termed "quasi judicial." Thus, where a statute requires the letting of certain con- tracts to the "lowest responsible bidder," the determination of responsibility can subject the officer to no liability."* A like result was reached where the Postmaster General had passed upon the validity of assignments or transfers of claims against his department,"" and a tax assessor had fix- ed the value of certain property at what was alleged to be an excessive rate and refused to make a proper exemption."' Additional illustrations are given in the note.°^ Now, assuming that the officer had not transcended the limits of his authority, will he be liable upon proof that he acted from malicious or corrupt motives? It would seem better to extend to him complete immunity, and one state »2 Miller v. Brinkerlioff, 4 Denio (N. Y.) 118, 47 Am. Rep.' 242. 83 Cf. Mills V. City of Brooklyn, 32 N. T. 4S9, 495. »4 East River Gaslight Co. v. Donnelly, 93 N. Y. 557. •»5 Spalding v. Vilas, 166 U. S. 483, 16 Sup. Ct. 631, 40 L. Ed. 780. B« Weaver v. Devendorf, 3 Denio (N. Y.) 117. To the same effect, Steele v. Dunham, 26 Wis. 393; Fawcett v. Dole, 67 N H 168 29' Atl. 693. »7 School directors act judicially in expelling or suspending a pu- pil. McCormick v. Burt, 95 111. 2G3, 35 Am. Rep. 163; Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256. So do township officers in building a causeway across a stream, rather than a bridge, though the flow of water to plaintiff's mill was thereby obstructed, Yealy v. Fink, 43 Pa. 212, 82 Am. Dec. 556; a member of a city council In passing upon the sufficiency of the sureties upon a liquor bond Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823 ; a state auditor In determining whether municipal bonds should be registered, Gar- den City G. & N. R. Co. v. Nation, 83 Kan. 237, 109 fac. 772 ; and a surveyor general in revoking the commission of a deputy survevor Reed v. Conway, 20 Mo. 22. * j , § 42) MINISTERIAL ACTS 151 at least has so held.*' But the weight of authority appears to be to the contrary.'* At all events, if the act, though judicial in its nature, is not done in the exercise of a confer- red jurisdiction, there can be no doubt of the officer's re- sponsibility.'"* MINISTERIAL ACTS 42. "Where the duty imposed on an officer is purely minis- terial, he will be held liable for an injury to another which results from his failure to perform it, or from his performance of it in a negligent or unskill- ful manner." "-"^ An illustration is found in the taking of the acknowledg- ment of a deed or mortgage by an officer possessing notari- al powers. If the certificate is false, he will be responsible to one injured thereby.'** Another arises put of the refusal of election officers to register or receive the vote of a quali- fied elector,'*' though on this point the courts are not in accord.'** A recording officer is liable for an erroneous certificate of title to one who has employed him to examine 8 Weaver v. Devendorf, 3 Denio (N. X.) 117; Mills v. City of Brooklyn, 32 N. T. 489 ; East River Gaslight Co. v. Donnelly, 93 N. Y. 557. To the same effect Spalding v. Vilas, 161 U. S. 483, 498, 16 Sup. Ct. 631, 40 L. Ed. 780. 8 8 McCormick v. Burt, 95 111. 263, 35 Am. Rep. 163; Parkinson v. Parker, 48 Iowa, 667 ; Friend v. HamiU, 34 Md. 298 ; Yealy v. Fink, 43 Pa. 212, 82 Am. Dec. 556. 100 Goetcheus t. Matthewson, 61 N. Y. 420. 101 People, for Use of Munson, v. Bartels, 138 111. 322, 329, 27 N. E. 1091, per Magruder, J. 102 People, for Use of Munson, v. Bartels, supra ; Hatton v. Holmes, 97 Cal. 208, 31 Pac. 1131 ; People ex rel. Curtiss v. Colby, 39 Mich. 456. 103 Lincoln v. Hapgood, 11 Mass. 350; Jeffries v. Ankeny, 11 Ohio St 372 ; Ashby v. White, 2 Ld. Raym. 938, 92 Eng. Rep. 126, 1 Salk. 19, 91 Eng. Rep. 19. 104 For the purpose of determining the qualification of voters, election officers are given judicial powers, and are responsible only when their act Is malicious. Blake v. Brothers, 79 Conn. 676, 66 AtL 501, 11 L. R. A. (N. S.) 501 ; Bevard v. Hoffman, 18 Md. 479, 81 Am. Dec. 618 ; Pike v. Megoun, 44 Mo. 491. 152 GENERAL PRINCIPLES (Ch. 5 the records,*"' as where he omits to note a recorded mort- gage,*" and a clerk of court for negligently filing papers,*"^ or for failing to store them in a fireproof vault provided for the purpose, by reason of which they were burned.*"* As has been seen, the valuation of property for purposes of taxation is judicial, but the collection of the tax when lev- ied is ministerial.*"" Failure to construct a highway,, bridge, or sewer, or to make it of sufficient size, will,. cre- ate no liability; for the duties of determining where it shall be located and its dimensions are in their nature judicial. But where a highway, bridge, or sewer has been determined upon, the duties of constructing it properly and of keeping it in good condition and repair are ministerial. Negligence resulting in damage will give a cause of action.**" The mere fact that the officer is called upon to exercise some judgment in selecting materials to be used and the manner of their use does not change the character of his acts from ministerial to judicial, or quasi judicial; for, were it otherwise, the distinction would be practically abol- ished. Thus, where a deputy sheep inspector was required to dip sheep "in some recognized and reliable dip known to be efficient in the cure of scab," the selection and use of a 10 5 Houseman v. Girard Mut. Bldg. & Loan Ass'n, 81 Pa. 256. io« Smith V. Holmes, 54 Mich. 104, 19 N. W. 707. And see Morange V. Mix, 44 N. T. 315. But there is no liability to third persons, as there is a lack of privity. See Savings Bank v. Ward, 100 U. S. 195, 25 L. Ed. 621 ; Dundee Mtg. & Trust Inv. Co. v. Hughes (O. C.) 20 Fed. 39. Nor where, there being no statutory duty to search and certify, the officer has not claimed to be skilled in searching, and , has in fact used such skill as he possessed. Mallory v. Ferguson, 50 Kan. 685, 32 Pac. 410, 22 L. K. A. 99. 107 Rosenthal v. Davenport, 38 Minn. 548, 38 N. W. 618. 108 Toncray v. Dodge Coilnty, 33 Neb. 802, 51 N. W. 235. 108 Eaynsford v. Phelps, 43 Mich. 342, 5 N. W. 403, 38 Am. Rep. 189; Blanchard v. Dow, 32 Me. 557; Seekins v. Goodale, 61 Me 400 14 Am. Kep. 568. 110 Hover v. Barkhoof, 44 N. Y. 113; Butler v. Ashworth," 102 Cal. 663, 36 Pac. 922 ; McCarthy v. City of Syracuse, 46 N. T. 194. This assumes that he has funds for the purpose or authority to obtain them. Garlinghouse v. Jacobs, 29 N. X. 297 ; Robinson v. Chamber- lain, 34 N. Y. 389, 90 Am. Dec. 713. ■% 42) MINISTERIAL ACTS 153 dip was held to be ministerial.^ ^^ So a superintendent of canal repairs acts ministerially in removing obstructions, though it is true that he was bound to exercise discretion ^ as to the methods and instrumentalities to be employed.^^* A sheriff or constable is held responsible for an unlawful entry, as if he break the outer door of a dwelling for the purpose of levying an execution,^^* though not an inner door,^^* or that of a store or barn disconnected from the ■dwelling house and forming no part of the curtilage.^^^ He is also liable for the seizure of exempt property,^^° for fail- xire to execute ^" or return process,^^* for making a false iiiBAIE V. STRUCK, 29 Mont. 45, 74 Pac. 69, 63 L. R. A. 481, ■Chapin Cast Torts, 76. 112 Hicks V. Dorn, 42 N. T. 47. To the same effect, McCord v. High, 24 Iowa, 336. lis Welsh V. Wilson, 34 Minn. 92, 24 N. W. 327 ; Ilsley v. Nichols, 12 Pick. (Mass.) 270, 22 Am. Dec. 425; B. v. Sheriff of Middlesex, Y. B. 18 Edw. IV, fol. 4, pi. 4 ; Semayne's Case, 5 Coke, 91a. 114 Williams r. Spencer, 5 Johns. (N. Y.) 352 ; Lee v. Gansel, Cowp. 1. Where the building is an apartment house leased in distinct por- ijons to tenants, who have exclusive occupation and controrof their respective tenements, using in common the entry and stairway, an -officer may not break open the door of one of the apartments. Swain v. Mizner, 8 Gray (Mass.) 182, 69 Am. Dec. 244. But it is -otherwise where one or more rooms in a single house are let as lodgings. Here the outer door is the door of the house, and not the door of each lodger's room. Williams v. Spe'ncer, supra; Lee V. Gansel, supra. iioHaggerty v. Wilber, 16 Jo'hns. (N. Y.) 287, 8 Am. Dec. 321; •Clark V. Wilson, 14 R. I. 11 ; Hodder v. Williams, L. R. (1895) 2 Q. B. D. 663. Nor where the writ directs the seizure of specific prop-, erty, as in replevin. Keith v. Johnson, 1 Dana (Ky.) 604, 25 Am. Dee. 167 ; Howe v. Oyer, 50 Hun (N. Y.) 559, 3 N. Y. Supp. 726, 20 N. Y. St Rep. 685; Code Civ. Proc. N. Y. § 1701. Where distinct portions of the same building are used for a store and dwelling, the officer may not force the outer door of that part of the building oc- -cupied for domestic purposes ; 1. e., the inside door which separates the dwelling from the rest of the interior. Stearns v. Vincent, 50 Mich. 209, 15 N. W. 86, 45 Am. Rep. 37. 116 WiUiams v. Miller, 16 Conn. 144 ; Copp v. Williams, 135 Mass. 401 ; Frost v. Mott, 34 N. Y. 253 ; Freeman v. Smith, 30 Pa. 264. 117 Mathis V. Carpenter, 95 Ala. 156, 10 South-. 341, 36 Am. St 118 Wilson V. Young, 58 Ark. 593, 25 S. W. 870; Wehle v. Connor, •63 N. Y. 258. 154 GENERAL PKINCIPLES (Ch. 5 return,^*' for the escape of a prisoner/'"' for unjustifiable refusal to bail,^^^ and, what is perhaps most frequent, for a levy under attachment or execution upon property not be- longing to the individual named in the writ.'^'' In the last case it will be noted that by the process the officer is directed to seize property of one of the parties to the liti- gation, without describing the specific property to be taken. Hence he must at his peril determine the question of own- ership. On the other hand, the writ may contain a direct command to take possession of particular property, leaving him no question of ownership to decide. Such are the writ of replevin, orders of sequestration in chancery, and nearly all the processes of the admiralty court by which the res is brought before it for its action.^^' Here no liability will be incurred, though the property does not in fact belong to the party against whom the mandate was issued.^^* Hitherto it has been aSsumed that the writ itself was not open to attack. The question was therefore whether the officer properly complied with the directions given him, not whether he should have acted at all. But it may be that the writ was improperly issued. In such cases he is not absolutely liable, for protection will be extended him if the .process was "fair on its face/' By this is meant that it has proceeded "from a court, magistrate, or body having authority of law to issue process of that nature, and which is legal in form and on its face contains nothing to notify or fairly apprise the officer that it is issued without authori- Rep. 187 ; Crosson v. Olson, 47 Minn. 27, 49 N. W. 406 ; Steele v. Crabtree, 40 Neb. 420, 58 N. W. 1022. lis Remick v. Wentworth, 89 Me. 392, 36 Atl. 622; Bacon v. Crop- sey, 7 N. Y. 195 ; McMichael v. McKeon, 10 Pa. 143. 120 Wlnborne v. Mitchell, 111 N. 0. 13, 15 S. E. 882. 121 Berrer v. Moorhead, 22 Neb. 687, 36 N. W. 118. i22Boiilware v. Craddock, 30 Cal. 190; Symonds t. Hall, 37 Me. 354, 59 Am. Dec. 53; Farrel v. Colwell, 30 N. J.' Law, 123;' WINT' RIN6HAM V. LAFOT, 7 Cow. (N. Y.) 735, Chapin Cas. Torts, 181; Welsh V. Bell, 32 Pa. 12 ; Hunt v. Lathrop, 7 R. I. 58. 123 Buck V. Oolbath, 3 Wall. 334, 343, 18 L. Ed. 257. i24Haslett V. Rodgers, 107 Ga. 239, 33 S. B. 44; Willard v. Kim- ball, 10 Allen (Mass.) 211, 87 Am. Dec. 632 ; Foster v. Pettlbone, 20 Barb. (N. Y.) 350. A sherifE is, of course, responsible if he levies § 42) MINISTERIAL ACTS 155 ty." *^' No responsibility is therefore incurred where the officer acted under process apparently regular, but in fact based upon a judgment prematurely rendered,^*" or render- ed against one who had not been summoned,^^^ or where the justice before whom it was obtained lacked jurisdiction, because defendant resided in another county.^'*' Nor is he liable for a levy and sale where the execution by virtue of which it was made had been issued after the judgment had been paid,^"' nor for an arrest on a capias based upon con- tempt committed during a trial before a justice, though the punishment was imposed after the trial had terminated, and hence was unauthori^d, under a statute which permitted a justice to take such action only during the pendency of the cause.^"" An officer "cannot be affected," it has been said, "by any irregularity occurring prior to the issue of his precept, nor by the existence of any fact which deprives the court or magistrate of jurisdiction in that particular case, provided the defect be not disclosed by the precept itself,' nor known to the officer. Even if the defect be one which renders the precept void in its operation between the par- ties, or for the transfer of property, yet it will not subject the officer to liability as a trespasser." ^^^ upon property not covered by the writ. Einstein v. Dunn, 61 App. Div. 195, 70 N. Y. Supp. 520, affirmed 171 N. Y. 648, 63 N. E. 1116. 12B Cooley on Torts (3d Ed.) p. 883. "If a mere ministerial officer executes any process upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter or of the person against whom it is directed, such process will afford him no protection for acts done under it. If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of ju- risdiction as to the person or place, the officer who executes process in such suit is no trespasser, unless the want of jurisdiction appears by such process." Savacool v. Boughton, 5 Wend. (N. Y.) 170, 181, 21 Am. Dec. 181, per Marcy, J. 12 8 Wilbur V. Stokes, 117 Ga. 545, 43 S. E. 856. 121 Savacool v. Boughton, 5 Wend. (N. T.) 170, 181, 21 Am. Dec. 181. 12 8 Heath v. Halfhill, 106 Iowa, 131, 76 N. W. 522. 129 Lewis V. Palmer, 6 Wend. (N. Y.) 367; Twitchell v, Shaw, 10 Cush. (Mass.) 46, 57 Am. Dec. 80. ISO Clarke v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470. i»i Chase v. Ingalls, 97 Mass. 524, 529, per Wells, J. For further Illustrations of action under process -fair on its face, see Baker v. 156 GENERAL PRINCIPLES (Ch. 5 From the statement just quoted it would appear that, though the process be fair on its face, the officer would be accountable where he is aware that facts exist which ren- der it void. A later decision from the same state confirms this. Here the constable had arrested a Norwegian subject, master of a Norwegian vessel, in a suit brought by a sea- man for wages. Before serving the writ he had been in- formed that because of a treaty the court lacked jurisdic- tion. This, it was held, rendered him liable for false im- prisonment.*** While this view is not without support,*'* it has not met with general approval.*'* To withhold pro- tection under such circumstances seems to be of dojubtful propriety,**' Where the process is not fair on its face, it furnishes no justification to the officer who has acted under it. Such, it has been held, would be a general warrant to search all sus- pected places, and search and arrest all suspected persons, Sheehan, 29 Minn. 235, 12 N. W. 704; Melcher v. Scruggs, 72 Mo. 406 ; Bergln v. Hayward, 102 Mass. 414 ; PEOPLE v. WARREN, 5 Hill (N. Y.) 440, Chapin Cas. Torts, 80; Hill v. Haynes, 54 N. T. 153; Holz V. Rediske, 116 Wis. 353, 92 N. W. 1105. 132 Tellefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379. 133 Leachman v. Dougherty, 81 111. 324; Grace y. MiteheU, 31 Wis. 533, 11 Am. Rep. 613. 13* Watson V. Watson, 9 Conn. 140, 23 Am. Dee. 324; Heath v. Halfhill, 106 Iowa, 131, 76 N. W. 522; Brainard v. Head, 15 La. Ann. 489 ; Wall v. Trumbull, 16 Mich. 228 ; Webber v. Gay, 24 Wend. (N. Y.) 485 ; PEOPLE v. WARREN, 5 Hill (N. Y.) 440, Chapin Cas. Torts, 80 ; Rice v. Miller, 70 Tex. 613, 8 S. W. 317, 8 Am. St. Rep. 630. 18 6 "To the magistrate is confided the. issuing of writs, and to the sheriff and other executive officers is confided the duty of serving- them. It is easy to see what widespread mischief might result from permitting an executive officer to decide, on his own knowledge, that he ought not' to serve a precept or warrant put into his hands for service, and to consider what justly must follow from such doctrine; that is, that his return of the fact would be a justification for his^ omission. In short, the executive officer must do his duty, which is to obey all legal writs, and must not arrogate to himself the right of disobeying the paramount commands of those to whose mandates^ he by law is subjected." Watson v. Watson, 9 Conn. 140, 146, 2a Am. Dec. 324, per Hosmer, C. J. § 43) INFANTS 157 no place or person being designated;^" an attachment is- sued by one who had been a justice, but whose term of office had expired at the time ; *'' an execution against a judgment debtor whose surname is correctly given, but whose first name, being "unknown to the plaintiff," is stat- ed as the fictitious "John" ; ^'* and a writ of possession is- sued by a justice of the peace, which shows that it was based on a judgment in plaintiff's favor to recover "his title and possession" of land, a justice having no jurisdiction to entertain such a proceeding.^" INFANTS 43. While infants are liable for their torts, yet, not being responsible for their contracts, they cannot be held in an action ex delicto where the cause of action is really ex contractu. For the reason that in an action in tort the law will re- gard the loss or damage of the party suffering rather than the mental attitude of the actor, it has been thoroughly es- tablished that the infant is to be held accountable for his wrongs. "If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice." **" He has been held liable, therefore, for injuries to real ^*^ and personal property,^*'' including its 136 Grumon v. Raymond, 1 Conn. 40, 6 Am. Dee. 200. 13T Smith V. Hilton, 147 Ala. 642, 41 South. 747. 138 Since such a writ does not direct the collection of the judg- ment from the debtor, and the officer might levy upon the property of any individual of the same surname. Goldberg v. Markowitz, 94 App. Div. 237, 87 N. T. Supp. 1045, affirmed 182 N. Y. 540, 75 N. E. 1129. 139 Sartwell v. Sowles, 72 Vt 270. 48 Atl. 11, S2 Am. St Rep. 943. For further illustrations, see State v. McDonald, 14 N. C. 468 ; Har- wood V. Siphers, 70 Me. 464; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151 ; Hussey v. Davis, 58 N. H. 317. 1*0 Jennings v. Eundall, 8 Term R. 335, 337, per Kenyon, O. J. "1 Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457; Huchting v. Bngel, 17 Wis. 230, 84 Am. Dec. 741. 1*2 As where he threw a flrecra.cker, causing the death of plain- tiff's horse. Conklin v. Thompson, 29 Barb. (N. Y.) 218. 158 GENERAL PRINCIPLES (Ch. 5 unlawful taking "' and detention ; "* for assault and bat- tery,"" libel,^*° seduction,"' though under promise of mar- riage,^" and for negligence."* It will constitute no de- fense to a tort that he has acted under the direction of his parent or guardian."" Nor will the parent or guardian be re- sponsible for the acts of the infant merely because of the rela- tionship. Agency must be proved.^"^ As any contract arising out of the relation of master and servant or principal and agent 'is not binding upon the in- fant, he cannot be held responsible for the acts or neglect of another by virtue of the doctrine respondeat superior in 143 siiaw T. Coffin, 58 Me. 254, 4 Ain. Rep. 290. 144 Wheeler & Wilson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236, 21 N. Y. Supp. 1006. 14B Peterson v. Haffner, 59 Ind. 130, 26 Am. Kep. 81 ; Sikes v. Johnson, 16 Mass. 389. 146 Fears v. Riley, 148 Mo. 49, 49 S. W. 836. 14T Fry V. Leslie, 87 Va. 269, 12 S. E. 671. 148 Lee V. Hefley, 21 Ind. 98; Becker v. Mason, 93 Mich. 336, 53 N. W. 361. But he is not liable in an action for breach of promise to marry, though seduction has been induced by means of the prom- ise. Leichtweiss v. Treskow, 21 Hun (N. Y.) 487; Hamilton v. Lo- max, 26 Barb. (N. Y.) 615. 149 As where through careless handling he discharged a gun, Con- way V. Reed, 66 Mo. 346, 27 Am. Rep. 354 ; or while playing threw a ' ball which frightened plaintiff's horse, Neal v. Gillett, 23 Conn. 437 (judgment reversed on another grounds. iBo "Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked In de- fense. No such construction can be given to the command, 'Children obey your parents in the Lord, for this is right' * * • The de- fense is as unsound in its theology as it is baseless in its law." Scott V. Watson, 46 Me. 362, 363, 74 Am. Dec. 457, per Appleton, J. To the same effect, School Dist. No. 1. v. Bragdon, 23 N. H. 507; •Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177. iBiTifCt v. Tifft, 4 Denlo (N. Y.) 175; Smith v. Davenport, 45 Kan. 423, 25 Pac. 851, 11 L. R. A. 429, 23 Am. St. Rep. 737 ; WUson V. Garrard, 59 lU. 51. "There is no such relation existing between father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any other person." Paul v. Hummel, 43 Mo. 119, 122, 97 Am. Dec. 381, per Wagner, J. Where agency is es- tablished the father Is liable. Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922, 58 Am. Rep. 875. § 4:3) INFANTS 159 a case where he has not actually participated in the wrong.^°* Hence he is not liable for the malicious prosecu- tion of a suit during his infancy in his name by his next friend, which was brought without his knowledge or au- thority/^^ nor for the negligence of an agent intrusted with the care of his building, which caused an overflow of water, injuring the property of a tenant.^"* This does not, how- ever, militate against the rule that as owner or occupant of lands the infant is liable to the same extent as an adult for creating or maintaining a nuisance, or for negligent use or management by his servants. He cannot evade the responsi- bility nor delegjite thite duties which ownership entails. ^""^ Now the rule under which infants are held for their torts is not unlimited, but is to be applied with due regard to the settled doctrine that they are not liable on their contracts. "The dominant consideration," it has been said, "is not that of liability for their torts, but of protection from their con- tracts." ^^^ Hence, where the obligation sought to be en- forced is essentially contractual, they cannot be charged merely because the action may have been brought in tort form, since otherwise the rule under which they receive protection from their contracts might be evaded. If, there- fore, the wrong complained of consists merely in the non- performance or improper performance of an agreement, plaintiff will not be permitted to recover by a trick of plead- ing, while, on the other hand, infants are liable for a dis- tinct and independent wrong, though the relation between the parties might have been the- result of contract. The test, it has been said, is whether liability can be made out 152 Burns v. Smith, 29 Ind. App. ISl, 64 N. B. 94, 94 Am. St. Eep. 268. 153 Bumham v. Sea veins, 101 Mass. 360, 100 Am. Dec. 123. 1B4 Robbins v. Mount, 33 How. Prac. (N. X.) 24. 15 6 McCabe v. O'Connor, 4 App. Div. 354, 38 N. T. Supp. 572, af- firmed 162 N. T. 600, 57 N. E. 1116. Injuries caused by fall of de- fective wall. 186 SLATTON V. BARRY, 175 Mass. 513, 515, 56 N. E. 574, 49 L, R. A. 560, 78 Am. St. Rep. 510, Cbapin Cas. Torts, 81. 160 GENERAL PRINCIPLES (Ch. 5 without taking notice of the contract.^"' Thus an infant was held not liable where, having contracted to thresh wheat, he used an engine without a spark arrester and plac- ed it so negligently that fire was communicated to a barn belonging to the owner of the wheat, though it would have been otherwise had his act been willful, in the sense of intentional, and not merely negligent.^"* The determina- tion of this question is difficult and the cases are far from consistent. Usually fraud or the contract:, of bailment is involved. Thus, suppose the infant has obtained goods un- der an agreement of purchase by false representations as to his age or as to other facts, or, being the vendor, has brought about the sale by similar means. May he be held responsible in tort for the deceit? The weight of authority appears to be in the negative. The contract is regarded as fhe basis of the action. The fraud is predicated on the contract.^"' Though it would seem better to hold, as some courts have done, that, the deceit being i-eally the basis of the contract, a tort action will lie.^'" But his false representations and subsequent avoidance of the contract may justify the other party in recovering the property conveyed, on the theory that he has never parted with title.^'^ Whether the infant may under such circumstances be sued for its conversion is in dis- pute.*" 157 Lowery v. Gate, 108 Tenn. 54, 61, 64 S. W. 1068, 57 L. R. A. 673, 91 Am. St. Bep. 744 ; Fitts v. Hall, 9 N. H. 441. 16 s Lowery v. Gate, supra. 16 SLAYTON V. BARKY, 175 Mass. 513, 56 N. E. 574, 49 L. E. A. 560, 78 Am. St. Rep. 510, Chapin Gas. Torts, SI ; Prescott v. NoitIs, 32 N. H. 101 ; Doran v. Smith, 49 Vt. 353 ; Nash v. Jewett, 61 Vt. 601, 18 Atl. 47, 4 L. R. A. 561, 15 Am. St. Rep. 931 ; Johnson v. Pie, 1 Keb. 905, 83 Bng. Repr. 353, 1 Sid. 258, 82 Bng. Repr. 1091. leo Rice v. Boyer, 108 Ind. 472, 9 N. B. 420, 58 Am. Rep. 53; Eck- stein V. Frank, 1 Daly (N. Y.) 334 ; Wallace v. Morss, 5 Hill (N. Y.) 391. There can be no recovery in an action in contract. Studwell v. Shapter, 54 N. Y. 249. The cases are discussed in Ferguson v. Bobo, 54 Miss. 121. 161 Nolan V. Jones, 53 Iowa, 387, 5 N. W. 572 ; Neff v. Landis, HO Pa. 204, 1 Atl. 177 ; Wheeler & WUson Mfg. Co. v. Jacobs, 2 Misc. Rep. 236, 21 N. Y. Supp. 1006; Eckstein v. Frank, 1 Daly (N Y) 334. 182 That he cannot, SLAYTON v. BARRY, 175 Mass. 513, 56 N. B. § 43) INFANTS 161 If the infant, having received personal property as a bail- ee, does any willful and positive act which amounts to an election on his part to disaffirm the contract of bailment, his infanc y will not protect hjm. Thus, if he hires a horse to go to a certain place, but goes beyond, or in a different direction, he will be held for conversion, and liable for any injuries sustained; ^°* or if, knowing that the horse is unfit to jump and after agreeing not to allow it to do so, he permits^ a friend to use it for such a purpose; ^** or if he willfully beats or drives at such an immoderate speed as seriously to endan- ger the animal's life.^'° But a mere failure to exercise proper care, as where the injury resulted from lack of mod- eration in driving, due to want of experience or discretion, there being no willful and intentional injury, is to be deem- ed no more than a violation of his agreernent, for which, as an infant, he is not responsible.^®' So, if he is intrusted with goods to be sold on commis- sion, . with instructions to sell only for cash, his sale on credit will not permit the owner to recover against him. in an action ex delicto.^'' 574, 49 L. E. A. 560, 78 Am. St. Rep. 510, Chapin Cas. Torts, 81; Stone V. Rabinowitz, 45 Misc. Rep. 405, 90 N. Y. Supp. 301 (semble). That he can, Mathews v. Cowan, 59 111. 341 ; Eckstein v. Frank, 1 Daly (N. Y.) 334. 103 Homer v. Thwing, 3 Pick. (Mass.) 492; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340; Churchill v. White, 58 Neb. 22, 78 N. W. 369, 76 Am. St. Rep. 64. So where he drove by a very circuitous route, which nearly doubled the distance. Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85. But slight and immaterial departures from the general course outlined in the contract will not constitute conver- sion. Young V. Muhling, 48 App. Div. 617, 63 N. Y. Supp. 181. i64Bumard v. Haggis, 14 C. B. (N. S.) 45, 9 Jur. N. S. 1325, 32 L. J. C. P. 189, 8 K T. Rep. N. S. 320, 11 Wkly. Rep. 644, 108 E. C. L. 45. 16 5 See Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189. 166 Young V. Muhling, 48 App. Dlv. 617, 63 N. Y. Supp. 181 ; Moore V. Eastman, 1 Hun (N. Y.) 578 ; Eaton v. HUl, 50 N. H. 235, 9 Am. Rep. 189. The principle is discussed in Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561. 16 7 Caswell V. Parker, 96 Me. 39, 51 Atl. 238. Cf. Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207. Chap.Tobts — 11 162 GENERAL PRINCIPLES (Ch. 5 INSANE PERSONS 44. Insane persons are liable for their torts, though the soundness of this rule has been questioned where culpable mental attitude is an essential ingredient. "It is well settled that, though a lunatic is not punishable criminally, he is liable to a civil action for any tort he may commit. However justly this doctrine'may have been orig- inally subject to criticism on the groilnds of reason and principle, it is too firmly supported by the weight of au- thority to be disturbed." ^** This has been, placed upon several grounds. It has been said that, where one of two innocent persons must suffer, he who caused the loss should pay ; also that public policy requires the enforcement of his liability, that his relatives may be under inducement to re- strain him, or lest wrongdoefs should simulate insanity. "The lunatic must bear the loss occasioned by his torts, as he bears his other rnisfortunes, and the burden of such loss may not be put upon others." ^°* Thus insanity has been held no defense in actions for assault and battery,^"* or for burning a barn,^'^ killing an ox,^'^ failing as innkeeper to keep safely the goods of a guest," ^ shooting the plaintiff's wife,^'* and for causing a wrongful arrest while acting as a justice of the peace."^ Like an infant, he is also liable for injuries caused by the defective condition of his real estate, since there is no reason for holding that a lunatic, having the i68McIntyre v. Sholty, 121 lU. 660, 664, 13 N. E. 239, 2 Am. St. Rep. 140, per MSgruder, J. 16 9 WUUams V. Hays, 143 N. T. 442, 447, 38 N. E 449 26 L R. A. 153, 42 Am. St. Rep. 743, per Earl, J. 17 Ward v. Conatser, 4 Baxt. (Term.) 64. 171 Cross V. Kent, 32 Md. 581. 172 Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349. 1" Cross V. Andrews, Cro. Eliz. 622, 78 Eng. Rep. 863. "« Mclntyre v. Sholty, 121 lU. 660, 13 N. B. 239, 2 Am. St Rep. 140. In accord, Jewell v. Colby, 66 N. H. 399, 24 Atl. 902. 178 Krom V. Schoonmaker, 3 Barb. (N. T.) 647. § 4:4) INSANE PERSONS 163 benefits, should be exempt from the responsibilities, of own- ership.^'° In torts where malice is an element, such as malicious prosecution and defamation, it has been thought that there might be no recovery, since "the rules which preclude crim- inal responsibility are strictly applicable here, because there is an absence of the same necessary element." "'' "It would be a monstrous absurdity, for instance," says a learned author, "if one were held entitled to maintain an action for defamation of character for the thoughtless babblings of an insane person to his keepers, or for any wild communica- tion he might send through the mail or post upon the wall." ^^* In two states, at least, insanity has been recog- nized as a defense in an action for defamation.^'' Now, al- though in the case supposed a verdict against the inhabit- ant of a mad house would undoubtedly be absurd, the il- lustration is extreme, and a principle under which one who has been defamed could obtain no compensation if the defamer were a lunatic, though the communication were made to a third party who was ignorant of the insanity, appears open to serious objection. The craftiness of the paranoiac may enable him to conceal his infirmity until an advanced stage has been reached. Up to that time he may be the author of convincing, though utterly baseless, charg- es.^'" It seems better not to place such wrongs in a sepa- rate class, but to apply to them the general tort rule that the insanity of the actor bears only on the quantum of the recovery. "^^^ By eliminating malice »we eliminate also all 176 Morain v. Devlin, 132 Mass. 87, 42 Am. Rep. 423. 17 7 Cooley on Torts (3cl Ed.) p. 177. 178 Id. p. 176. 179 Irvine v. Gibson, 117 Ky. 306, 77 S. W. 1106, 25 Ky. Law Rep. 1418, 111 Am. St. Rep. 251, 4 Ann. Cas. 569; Bryant v. Jackson, 6 Humph. (Tenn.) 199. noTake, for Instance, certain forms of sexual delusions; e. g., that plaintiff had attempted to commit rape upbn the defendant, or that Illicit relations existed between plaintiff and another. 181 Yeates v. Reed, 4 Blackf. (Ind.) 463, 32 Am. Dec. 43 ; McDou- gald V. Coward, 95 N. C. 368. In Dickinson v. Barber, 9 Mass. 225, 228, 6 Am. Dea 58, although the court declined to express an opin- 164 GENERAL PEINCIPLES (Ch. 5 punitive damages and confine the sufferer to compensa- tion/" It has been thought that the person of unsound ^ind is re- sponsible to the same extent as though he were sane ; that is, he is responsible for what in a sane person would be called negligent conduct.^"' But in determining whether negligence has been shown it will be necessary to consider the circum- stances as a whole, since it might under certain conditions be grossly unfair to folate that portion of the defendant's con- duct which dated from the time insanity occurred. Thus, where the captain of a vessel caught in a storm had been on duty almost continuously for three days and nights, finally be- coming temporarily insane, due to exhaustion and the taking of quinine in large doses, it was held that the loss of the ves'sel, owing to his incapacity to care for and navigate it while in that condition, could not properly be attributed to his fault.^'* Drunkenness If insanity is to be regarded as insufficient to constitute a defense, there is certainly no reason why drunkenness ft Ion "how far or to what degree insanity was to be received as an excuse," It was observed that "where the derangement was great and notorious, so that the speaking the words could produce no ef- fect on the hearers, it was manifest no damage would be incurred ; but where the degree of insanity was slight, or not uniforln, the slander might have its effect, and it would be for the jury to judge upon the evidence before them and measure the damages accord- ingly." (18 2 This is the general «iile in cases of insanity. Krom v. Schoon- maker, 3 Barb. (N. Y.) 650; Mclntyre v. Sholty, 121-111. 660, 13 N. E. 239, 2 Am. St. Rep. 140 ; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902. 183 Williams v. Hays, 157 jSf. Y. 541, 52 N. E. 589, 43 U R. A. 253, 68 Am. St. Rep. 797. But see infra, p. 548, as to contributory negli- gence. 184 "What careful and prudent man could do more," It was asked, "than to care for his vessel until overcome by physical and mental exhaustion?" Williams v. Hays, 157 N. Y. 541, 548, 52 N. E. 589, 43 L. R. A. 253, 68 Am. St. Rep. 797; Id., 143 N. Y. 442, 38 N. E. 449, 26 L. R. A. 153, 42 Am. St. Rep. 743. It Is evident that this case does not militate against the general rule governing liability of the insane, since it appears that no negligence was established. § 45) HUSBAND AND WIFE 165 should be favored, since the disability has here been pro- duced by a voluntary act.^*' But evidence that a defamer was at the time in such a condition that no one who heard him would give credence to his charges would be competent as bearing on the amount of damages to be awarded,^** HUSBAND AND WIFE "' 45. At common law both husband and wife were liable for the latter's torts, though if they were committed in the presence of the husband it was presuhied that she had acted under his coercion and that the wrong was his alone. But statutes have generally made them individually responsible, and not one for the other, where joint liability would not other- wise exist. In three cases, the common law held both husband and wife jointly liable for the latter's torts: (1) Where the husband was absent and had no knowledge of the intended act ; ^** (2) where the husband was absent, but the tort was done under his direction and instigation ; ^'° (3) where the husband was present, but the wife acted of her own voli- isBSt Ores V. McGlashen, 74 Cal. 148, 15 Pac. 452; Cassady v. Magher, 85 Ind. 228 ; Barbee v. Keese, 60 Miss. 906. This includes defamation. McKee v. Ingalls, 5 lU. 30; Reed v. Harper, 25 Iowa, 87, 95 Am. Dec. 774. 18 6 See Gates v. Meredith, 7 Ind. 440 (where, however, the view appears to have been taken that intoxication was a complete de- fense) ; Wakelin v. Morris, 2 Fost. & Fin. 26. But while malice may thereby be rebutted, yet if the defendant has repeated the words when sober, his previous intoxication is no reason for abating the damages. Howell v. Howell, 32 N. C. 82. 187 Logically the liability of the husband for the torts of the wife should have been discussed later, under the head of responsibility for another's wrongs. It is now considered, so that repetition may be avoided. 188 Henley v. WUson, 137 Cal. 273, 70 Pac. 21, 58 L. E. A. 941, 92 Am. St. Rep. 160 ; Presnell v. Moore, 120 N. O. 390, 27 S. E. 27 ; Head V. Briscoe, 5 Car. & P. 484. 189 Handy v. Foley, 121 Mass. 259, 23 Am. Rep. 270. 166 GENERAL PRINCIPLES (Ch. 5 tion.^"" In a fourth case, namely, where the tort was com- mitted in the company of the husband and by his direc- tion,"^ he alone was liable.^"'' His physical presence at the time gave rise to the presumption that she had acted sub potestate viri,'-^^ though this was not conclusive, and if it were proven that she had acted of her own motion the liability was then joint."* It will be noted, therefore, that in but one instance did the law permit the wife to escape liability, namely, where both the presence and direction of the husband concurred. A wrong by his direction, but not in his presence, did not exempt her from responsibility; nor did his presence, if unaccompanied by his direction.^"' Where these facts appeared, the husband was the sole offending party. In other cases he must have been joined in the suit.^°* The doctrine arose out of the common-law theory of the wife's loss of identity, by virtue of which her property vested in or became subject to the husband's con- trol. Hence "it would be idle to sue the wife alone; the action would be fruitless." ^®' It is obvious, however, that i»o Cassin v. Delany, 38 N. Y. 178. i»i Brazil v. Moran, 8 Minn. 236 (Gil. 205) 83 Am. Dec. 772. 192 Kosminsky v. Goldberg, 44 Ark. 401, 402, per Smith, J.; Mc- Elroy V. Capron, 24 R. I. 561, 54 Atl. 44. 183 Johnson v. McKeown, 1 McCord (S. O.) 578, 10 Am. Dec. 698; Strouse v. Leipf, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122. And see Carleton v. Haywood, 49 N. H. 314. 104 Marshall v. Oakes, 51 Me. 308; Smith v. Schoene, 67 Mo. App. 604 ; Wagener v. Bill, 19 Barb. (N. X.) 321 ; Wheeler & Wilson Mfg. Co. V. Heil, 115 Pa. 487, 8 Atl. 616, 2 Am. St. Rep. 575 ; McElroy V. Capron, 24 R. I. 561, 54 Atl. 44; Edwards v. Wessinger, 65 S. C 161, 43 S. B. 518, 95 Am. St. Rep. 789. 195 Cassin v. Delany, 38 N. Y. 178; Kosminsky v. Goldberg, 44 Ark. 401 ; Hildreth v. Camp, 41 N. J. Law, 306. 19 s Flesh V. Lindsay, 115 Mo. 1, 21 S. W. 907, 37 Am. St. Rep. 374; Dailey v. Houston, 58 Mo. 361. i9r Capell v. Powell, 17 C. B.N. S. 743, 748, per Erie, C. J. The husband's power over the wife's person was aptly set forth by Pe- truchio ("Taming of the Shrew"): "I will be master of what Is mine own ; She is my goods, my chattels; she is my house, My household stuff, my field, my barn. My horse, my ox, my ass, my anything." § 4:5) HUSBAND AISTD WIFE 167 where the husband has participated in the wrong he would be liable individually, without regard to his responsibility as husband.^"* So he will be held where she acted as his agent, as for false representations made by her while repre- senting him in the sale of a business. ^°° Where the husband is joined "for conformity," as it is termed, if he dies, the action goes on against the wife; if the wife dies, a personal action abates; and if they are di- vorced, joinder of the husband ceases to be necessary.^ "^ , Since the married woman might not at common law bind herself by contract, she could no more be held ex delicto, when this would in substance have amounted to enforcing her liability ex contractu, than could an infant.^"*- Statutory Changes The changes which have been worked by legislation in the several states cannot well be considered in detail. The tendency is to place the wife upon an individual footing and to do away with the responsibility of the husband as such. His liability as in the case of other tort-feasors is therefore generally made to depend upon his own acts, leaving him responsible for a wrong committed by the wife only upon proof of direct instigation or participation.^"'' Whether a 198 See Crow v. Manning, 45 La. Ann. 1221, 14 South. 122; Miller V. Schweitzer, 22 Mich-. 391; Hinds v. Jones, 48 Me. 348; Kowing V. Manly, 49 N. X. 192, 10 Am. Kep. 346 ; Keyworth v. HiU, 3 Barn. & Aid. 685, 106 Eng. Repr. 811: 199 Taylor v. Green, 8 Car. & P. 316. 200 Capell V. Powell, 17 C. B. N. S. 743. Joinder is necessary where they are living separately, but are not divorced. Head v. Briscoe, 5 Car. & P. 484. 201 D. Wolff & Co. v. Lozier, 68 N. J. Law, 103, 52 Atl. 303; Keen V. Coleman, 39 Pa. 299, 80 Am. Dec. 524; Woodward v. Barnes, 46 Vt. 332, 14 Am. Rep. 626 ; Fairhurst v. Liverpool Ass'n, 9 Exch. 422 ; Cooper V. Witham, 1 Lev. 247, 1 Sid. 375. 202 In New York, for example, a married woman "is liable for her wrongful or tortious acts; her husband is not liable for such acts unless they were done by his actual coercion or instigation; and such coercion or instigation shall not be presumed but must be prov- ed." Consol. Laws 1909, c. 14, § 57; Strubing v. Mahar, 46 App. Div. 409, 61 N. Y. Supp. 799. To the same effect, Blabeslee v. Tyler, 55 Conn. 397, 11 Atl. 855 ; McCabe v. Berge, 89 Ind. 225 ; Austin v. Cox, 118 Mass. 58 ; McElroy v. Capron, 24 R. I. 561, 54 Atl. 44. 168 GENERAL PEINCIPLBa (Ch. 5 statute, general in its terms, giving to the wife control over her person and property, is to be construed as abrogating the rule at common law, is disputed. Strict construction has been favored in many cases which hold that the legis- lative intent to make the change must be clearly expressed, failing which, the husband's responsibility remains.^"' But by some of the courts the contrary conclusion has been reached ; i. e., that statutes of this character are destructive of the husband's common-law' liability, since "his legal su- premacy is gone, and the scepter has departed from him." ^°* But though such legislation, if strictly construed, may result in leaving the common law unchanged with re- spect to personal torts, such as defamation, yet, the wife having thereupon been vested with the control and enjoy- ment of her separate property, there would appear no good reason why the husband should continue liable for wrongs arising out of its care and management '"' 208 Henley v. Wilson, 137 Cal. 273, 70 Pac. 21, 58 h. R. A. 941, 92 Am. St. Rep. 160; Taylor v. PuUen, 152 Mo. 434, 53 S. W. 10S6; Holtz V. Dick, 42 Ohio St. 23, 51 Am. Rep. 791 ; Zeliff v. Jennings, 61 Tex. 458; Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. A. (N. S.) 1003. 204 Martin v. Robson, 65 111. 129, 139, 16 Am. Rep. 578, per Thorn- ton, J. To the same effect, Schuler v. Henry, 42 Colo. 367, 94 Pac. 360, 14 D. R. A. (N. S.) 1009; Norrls v. CorkiU, 32 Kan. 409, 4 Pa£. 862, 49 Am. Rep.. 489; Harris v. Webster, 58 N. H. 481; Lane v. Bry- ant, 100 Ky. 138, 37 S. W. 584, 18 Ky. Law Rep. 658, 36 L. R. A. 709; Goken v. Dallugge, 72 Neb. 16, 99 N. W. 818, 101 N. W. 244, 103 N. W. 287, 9 Ann. Gas. 1222 ; Culmer v. Wilson, 13 Utah, 129, 44 Pac. 833, 57 Am. St. Rep. 713. 205 Quilty V. Battle, 135 N. Y. 201, 33 N. E. 47, 17 L. R. A. 521, holding that, under the married woman's act as it then was, a wife was alone liable for injuries inflicted by a vicious dog kept upon premises owned by her. To the same efCect, Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793 ; D. Wolff & Co. v. Lozler, 68 N. J. Law, 103^ 52 Atl. 303; Rowe v. Smith, 45 N. T. 230. C. F. Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907, 37 Am. St. Rep. 374; Strouse v. Leipf, 101 Ala. 433, 14 South. 667, 23 L. R. A. 622, 46 Am. St Rep. 122. 46) SERVANTS AND AGENT3 169 SERVANTS AND AGENTS 46. Servants are responsible to their masters and agents to their principals for their tortious acts and for neg- lect whereby loss has been occasioned. They are in general liable to third parties for malfeasance or for misfeasance in the discharge of their duties, but not, as some courts hold, for mere nonfeasance. Since there is no difference between the individual tort liability of servant or agent, no distinction has been made between them, and the words are here used interchange- ably. First, as to liability to the employer : While it has been said that there is an implied agreement by the servant to- abstain from conduct prejudicial to the employer's interest, it is evident that cases of wrongdoing towards the master, wljich are made the basis of actions in tort, do not depend for their determination upon any rules peculiarly applicable to the relationship, though the opportunity for wrongdoing may have been created thereby.^"" If a servant deliberate- ly assault a master, defame him, or detain his goods,^*" the act is neither more nor less a tort than if committed against a stranger. It is true that in cases of conversion of proper- ty intrusted to the servant, arising out of acts committed contrary to the nature of his possession, the instructions of the master may be of importance ; but so may the terms of any bailment.^"* Such wrongs, therefore, call for no dis- cussion at this time. So the servant will be responsible to- the master for injuries due to negligence upon the princi- ples applicable generally to this tort.^°° The master's right 2 08 See Bixby v. Parsons, 49 Conn. 483, 44 Am. Kep. 246. Here the employer, having been sued for wages, was permitted to recoup damages for the seduction of his daughter by the servant. 207 Greenleaf v. Egan, 30 Minn. 316, 15 N. W. 254. 2 08 See infra, p. 378. 209 V/histen v. Brengal, 16 Misc. Kep. 37, 37 N. Y. Supp. 813; Mo- bile & M. Ry. Co. V. Clanton, 59 Ala. 392, 31 Am. Rep. 15; Gilson v. Collins, 66 111. 136- Zulkee v. Wing, 20 Wis. 408, 91 Am. Dec. 425. 170 GENERAL PRINCIPLES (Ch. 5 to indemnity where he has been forced to compensate third persons for injuries sustained through the servant's acts or neglect will be discussed later. ''^'' Second, concerning responsibility towards third parties, including coservants : For malfeasance, or the doing of an act inherently unlawful, and for misfeasance, or the doing improperly of a lawful act, it is thoroughly established that the servant is liable. Thus one who represents the owner of property, and who is guilty of fraud in bringing about its sale, is responsible to the purchaser ;''^^ the employe of a sewing machine company, who takes from a married wo- man a sewing machine and a sum of money, both belonging to the husband, in exchange for a new machine, is liable to the husband for conversion;''^'' and one injured by a fence unlawfully placed across a public highway may have recov- ery against the manager of a railway who placed it there.^" The direction of a superior will constitute no excuse.^^* There is, however, an exception to the general rule in cases where a servant or agent has in good faith and with no no- tice of an adverse title merely acted as the custodian of property or has transported it; the custody or transport being at the command of one i-n apparent control.^ ^^ Such acts, as will be seen later, do not constitute conversion."' 210 See infra, p. 238. 211 Clark V. Levering, 37 Minn. 120, 33 N. W. 776 ; Warren v. Ban- ning, 67 Hun, 649, 21 N. Y. Supp. 883, affirmed 140 N. Y. 227 35 N E. 428. 212 Rice V. Tecum, 155 Pa. 538, 26 Atl. 698. 213 Blue V. Briggs, 12 Ind. App. 105, 39 N. E. 885. To the same effect, Porter v. Thomas; 23 Ga. 467 ; Englert v. New Orleans Ry & Light Co., 128 La. 473, 54 South. 963; Corliss v. Keown, 207 Mass. 149, 93 N. E. 143; Horner v. Lawrence, 37 N. J. Law, 46; BrufiE v. Mali, 36 N. Y. 200, 34 How. Prac. 388. 214 The command of a captain is no justification for an unlawful assault committed by the mates upon a sailor. Brown v Howard 14 Johns. (N. Y.) 119. To the sftme effect, Bennett v. Ives, 30 Conn' 329; Josselyn v. McAlUster, 22 Mich. 300; Mill v. Hawker L. R 10 Exch. 92. 2iiiBurditt.v. Hunt, 25 Me. 410, 43 Am. Dec. 289; Metcalf v. Mc- Laughlin, 122 Mass. 84. 218 See Infra, p. 377. § 4:6) -SEEVANTS AND AGENTS 171 Whatever doubt may originally have been expressed as to the right of one servant "to maintain an action against another for negligence whilst engaged in their common em- ployment," ^^' it is now generally held that he may recov- er."* It should be emphasized, however, that the employe must have been personally at fault. It is his own conduct which is in question, not the cdnduct of the common em- ployer.''^' But it would be unsafe to state as an established rule that the servant or agent is responsible for his negligence to others than his employer, without calling attention to the distinction which has been drawn between misfeasance and nonfeasance. For the former he is liable; for the latter it has been said he is not. The doctrine appears to have sprung from a remark by Lord Holt in Lane v. Cotton,^'"' and it has been followed by a number of the courts,"^^ 21' Southcote V. Stanley, 1 Hurl. & N. 247, 250. This case con- cerned the right of one visiting an innkeeper to recover for Injuries sustained by reason of the defective condition of the premises. It is not an authority on the present point.' 'Albro v. Jaquith, 4 Gray • (Mass.) 99, 64 Am. Dec. 56, overruled by Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437. And see Burns v. Pethcal, 75 Hun, 437, 27 N. Y. Supp. 499. 218 Hinds V. Harbou, 58 Ind. 121; Hare v. Mclntire, 82 Me. 240, 19 Atl. 453, 17 Am. St Rep. 476, 8 L. E. A. 450 ; Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437; Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801. 210 The servant is not liable merely because the employer has fail- ed to adopt reasonably safe methods for the general conduct of the business. Gustafson v. Chicago, R. I. & P. Ry. Co. (C. C.) 128 Fed. 85. In Atkins v. Fields 89 Me. 281, 36 Atl. 375, 56 Am. St. Rep. 424, where the action was against a fellow servant for negligence in erecting a derrick and in selecting tJie materials therefor, though a verdict for plaintiff was sustained. It was considered that there would have been no liability, had defendant "simply executed the will of a lawful superior as to details of mode and material." 220 12 Mod. 472, 488, 88 Eng. Rep. 1458. "A servant or deputy, quatenus such cannot be charged for neglect, but the principal only 221 Reid V. Humber, 49 Ga. 207; Henshaw v. Noble, 7 Ohio St 226; Labadie v. Hawley, 61 Tex. 177, 48 Am. Rep. 278, and see cases cited in note — concerning the liability of an agent In charge of prop- erty. 172 GENERAL PEINOIPLBS (Ch. 5 though there appears to be an increasing tendency to dis- card it. It rests upon the theory that a third party cannot hold the servant accountable, owing to a lack of privity be- tween them. He is not in a position to insist upon the do- ing of an act, for the servant has obligated |iimself only to the master for its performance. Unfortunately the bound- ary between nonfeasance and misfeasance is frequently ex- ceedingly difficult to determine. The test of liability, it has been said, is whether the duty rested upon the servant in his individual character and was imposed upon him inde- pendently of his employment, for if such is the case he is responsible.'""' Applying it, the court held that a foreman in charge was not liable for his failure to direct a laborer not to work at a particular place, or for not warning him of the danger of working there.^^' In another case from the same state a similar conclusion was reached, where defend- ants had been appointed a committee of the board of direc- tors of a corporation to put certain grounds in condition for a game of football, and plaintiff was injured through' the defective construction of a grand stand erected under their stipervision."* Suc^ Ian application of the doctrine, and inferentially the principle itself, has encountered strong op- position."^ Particularly is this true in cases where the in- jury arose out of the agent's failure to make repairs on property which the principal had intrusted to him for man- agement.^^' shall be charged for It; but for a misfeasance, an action will Ue against a servant or deputy, but not quatenus a deputy or servant, but as a wrongdoer." But here the question was not as to the lia- bility of the servant, but concerned that of the employer — a public officer. 222 Burns v. Pethcal, T5 Hun, 437, 443, 27 N. Y. Supp. 499. 223 Burns v. Pethcal, supra. 224 VAN ANTWERP v. LINTON, 89 Hun, 417, 35 N. Y. Supp. 318, Ohapin Cas. Torts, 83, affirmed 157 N. Y. 716, 53 N. E. 1133. And see Potter v. Gilbert, 130 App. Div. 632, 115 N. Y. Supp. 425 ; Colvin V. Holbrook, 2 N. Y. 126 ; Denny v. Manhattan Co., 2 Denio (N Y ) 115, affirmed 5 Denio (N. Y.) 639. 22 5 Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 South. 620, 28 L. E. A. 433, 53 Am. St.' Rep. 88; ElUs v. Southern R. Co 72 S. O. 465, 52 S. E. 228, 2 L. R. A. (N. S.) 378. 228 ResponsibiUty of the agent upheU in Baird v. Shipman, 132 § 46) SERVANTS AND AGENTS 173 It is quite possible, of course, to assume an instance of nonfeasance for which the agent would not be accountable to a third party. Such would have been the case in Van Antwerp v. Linton, ^^' had the defendants failed to take any steps towards putting the grounds in condition. But they did not remain passive. On the contrary, they active- ly undertook the erection of the grand stand, and the injury arose out of the improper way in which they did it. To say that because thete was a failure to exercise care there was necessarily nonfeasance, and because there was nonfeasance the agents were not liable, seems almost hair-splitting.'^' Take another possible case. Suppose, instead of merely di- recting the defendants to put the grounds in condition, the employer had turned over to them the full possession, man- agement, and control, not merely so far as might be neces- sary for the making of the improvements and repairs, but for all purposes. Would not the acceptance of the power of control have entailed corresponding responsibilities ? Then suppose the defendants had improperly failed to make any repairs at all upon an existing grand stand,, and a spectator or one passing along the public street had been injured by its fall. Surely the obligation of the agents in the last two cases is not strictly contractual. True, no law required 111. 16, 23 N. E. 384, 7 L. K. A. 128, 22 Am. St. Eep. 504, Campbell V. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503, LOUGH v. DAVIS, 30 Wash. 204, 70 Pac. 491, 59 L. K. A. 802, 94 Am. St. Eep. 848, Chapin Cas. Torts, 85, Id. 35 Wash. 449, 77 Pac. 732 ; denied in Dean V. Brock, 11 Ind. App. 507, 38 N. E. 829, Delaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Rep.' 456, Feltus v. Swan, 62 Miss. ,415, Drake V. Hagan, 108 Tenn. 265, 67 S. W. 470. See Lottman v. Barnett, 62 Mo. 159, where there was a want of skill In the erection of a build- ing. So an agent having the entire control of the erection of a build- ing is liable for injuries resulting from an omission to replace a portion of the sidewalk, which had been removed by an employ^ contrary to his orders. Ellis v. McNaughton, 76 Mich. 237, 42 N. W. 1113, 15 Am. St. Rep. 308. To the same effect, where a superior servant ordered an inferior to work in a dangerous place, Jewell v. Kansas City Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515. 227 VAN ANTWERP v. LINTON, supra, note 224, 228 Paralleled, however, In Bell v. Josselyn, 3 Gray (Mass.) 309, 63 Am. Dec. 741. 174 GENERAL PRINCIPLES (Ch. 5 them to take it upon themselves in the first place ; but, hav- ing -done so, must they not proceed with due regard to the rights of others? Is this not an individual obligation plac- ed updn every man, whether he act for himself or for an- other?"' Cases such as these serve to illustrate the dan- ger of testing plaintiff's right of recovery by attempting to classify defendant's wrong as misfeasance or nonfeas- ance."" It would seem more pertinent to inquire whether he has entered upon the performance of'a task of such a character that in the doing thereof injury may reasonably be expected to result to third parties unless proper care should be observed. The task may cover a comparatively short time, such as the building of a house, or it may ex- tend over a longer period, as the management of an estate or a business."^ The inquiry, therefore, would seem to be : First, what is the extent of the task? Second, has he enter- 22»Cf. LOUGH V. DAVIS, supra; Balrd v. Shipman, supra; Ellis V. McNaughton, 76 Mich. 237, 42 N. W. 1113, 15 Am. St. Eep. 308. In Massachusetts, where at one time the doctrine was applied in all its harshness' (Albro v. Jaquith, 4 Gray, 99, 64 Am. Dec. 56; and see Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741), the tenden- cy would now seem to be towards a more liberal view (Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437 ; Breen v. Field, 157 Mass. 277, 31 N. E. 1075; see, however, Brown Paper Co. v. Dean, 123 Mass. 267). 23 "It is often said in the books that an agent is responsible to third persons for misfeasance only, and not for nonfeasance; and it is doubtless true that, if an agent never does anything towards carrying out his contract with his principal, but wholly omits and neglects to do so, the principal is the only person who can maintain an action against him for the nonfeasance. But 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 execut- ing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandon- ing its execution midway and leaving things in a dangerous condi- tion, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance, or doing nothing; but it is misfeasance, doing improperly." Osborne v. Morgan, 130 Mass. 102, 103, 39 Am. Rep. 437. 281 Suppose the general manager of a railroad so carelessly con- ducts its affairs intrusted to him that a wreck results, why should not an injured passenger be permitted to recover against him? § 47) MASTERS 173 ed upon its performance ? Third, has he exercised care com- mensurate with the danger to be apprehended while engag- ed in carrying it out? The question is so broad in scope that it is well nigh, if not quite, impossible to formulate a sufficiently comprehensive rule. MASTERS "» 47. The l*w places upon the master the duty of exercising reasonable care not to expose the servant to un- necessary risk. More specifically, such care must be exercised — (a) To provide safe tools, machinery, and places to work and to keep them safe; (b) To provide a sufficient number of competent fellow servants ; (c) To promulgate rules necessary for the safety of em- ployes and to secure their observance; (d) To warn the inexperienced servant of a danger which he is not likely to appreciate. When Does the Relation Exist? Although the relation of master and servant is contrac- tual in its origin, the law imposes upon the former certain obligations towards the latter, for the nonobservance of which an action lies in tort. These he cannot delegate and thereby escape responsibility.^^* But he is not an insurer of the servant's safety, and reasonable care is the standard by which his conduct is to be measured,^** though as will be seen hereafter, the adoption of certain precautions has in some states been made mandatory by statute. 2S2 For liability of the master to third parties for acts or neglect of the servant, see infra, p. 209 et seq. 233 See infra, pp. 180, 191-193. »»* Fosbnrg v. Phillips Fuel Co., 93 Iowa, 54, 61 N. W. 400 ; O'Dris- coll V. Faxon, 156 Mass. 527, 31 N. E. 685; Michigan Cent R. Co. v. Dolan, 32 Mich. 510; Slater v. Jewett, 85 N. T. 61, 39 Am. Rep. 627; Wannamaker t. Burke, 111 Pa. 423, 2 Atl. 500; Pertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869, 70 L. K. A. 999. 1.76 QBNBEAL PRINCIPLES (Ch. 5 It must be made to appear that the relation of master and servant existed at the time; and since this presupposes an understanding of both parties to that effect, if he who is injured is a mere volunteer, the master's duty toward him is only such as he owes to all strangers.^^" It is not suffi- cient that there was a previous request by one who was in the master's employ, unless it likewise appears that he had authority to make it.^^° Such authority, however, may be implied from the necessity of the case. Exigencies may arise requiring a servant to act in the absence of fiis master and for the immediate protection of- his interests. Such ' acts, though they transcend the servant's general authority, will be deemed to have been authorized. Thus, where the driver of a horse car, finding. his way blocked and being un- able to return to a switch without assistance, called for aid, one who responded was not regarded as a volunteer;"" and a like conclusion was reached where derailment or colli- sion was imminent. '''' One will be none the less .a volunteer, though the parties ' occupied the position of master and servant, if he was not then acting in the course of his employment, as where he acts outside his regular duty in undertaking to make re- pairs,"" to fetch materials,"" to assist another employe,"" 235 Manchester Mfg. Co. v. Polk, 115 Ga. 542, 41 S. E. 1015 ; New Orleans, J. & G. N. E. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356. 286 Authority not shown: Sparks t. East Tennessee, V. & G. Ry. Co., 82 Ga. 156, 8 S. B. 424; Everhart v. Terre Haute & I. R. Co., 78 Ind. 292, 41 Am. Rep. 567; Shea v. Gurney, 163 Mass. 184, 39 N. E. 996, 47 Am. St. Rep. 446; Longa v. Stanley Hod Elevator Co., 69 N. J. Law, 31, 54 Atl. 251. Authority implied: Sloan v. Central Iowa Ry. Co., 62 Iowa, 728, 16 N. E. 331. 237 Marks v. Rochester R. Co., 77 Hun, 77, 26 N. Y. Supp. 314, . reversed because negligence not proven 146 N. Y. 181, 40 N. E. 782! 238 Louisville & N. R. Co. v. Ginley, 100 Tenn. 472, 45 S. w! 34s! 23 9 Mellor V. Merchants' Mfg. Co.. 150 Mass. 362, 23 N. E. 100, 5 L. R. A. 792; Lindstrand v. Delta Lumber Co., 65 Mich. 254, 32 N W. 427. But see Whitehead v. Reader (1901) L. R. 2 K. B 48 65 J P 403, 70 L. J. K. B. 546, 84 L. T. Rep. N. S. 514, 49 Wkly. Rep. 562 2" NefC V. Broom, 70 Ga. 256. i- ^" • 241 Louisville & N. R. Co. v. Pendleton's Adm'r, 126. Ky. 605, lOi S. W. 382, 31 Ky. Law Rep. 1025 ; Parent v. Nashua Mfg. Co 70 N H. 199, 47 Atl. 261. § 47) ^ MASTEBS 177 or otherwise.^** The relation of master and servant is deemed temporarily suspended. The master owes no obli- gation to the servant "to anticipate his deviation from his duty, and the possible danger which may arise to him there- from, and to provide against it. He [the servant] takes things as he finds them, and sufifers all consequences of his own error, and cannot make the master liable therefor." ^*^ It is otherwise, however, if what he did was at the direction of the master or of one authorized to act in the master's place."** It is not determinative that the alleged employe either received no pay at all,'^*" or received none for his time when the injury occurred."*' Nor are the hours fixed for work controlling. True, the employer's duty would not begin with the arrival of an employe who might, for purposes of his own, come an unreasonable time before work was to commence, nor would it continue when work was over, for as long as he chooses to stay."*' On the other hand, liabil- ity neither commences nor ends with the stroke of the 2*2 Allen V. Hixson, 111 Ga. 460, 36 S. E. SiO; Moran v. Rockland, T. & C. St. Ey., 99 Me. 127, 58 Atl. 676 ; Wagen v. Minneapolis & St. L. K. Co., 80 Minn. 92, 82 N. W. 1107; McGill v. Maine & N. H. Granite Co., 70 N. H. 125, 46 Atl. 684, 85 Am. St. Rep. 618. 248 Louisville & N. R. Co. v. Pendleton's Adm'r, 126 Ky. 605, 615, 104 S. W. 382, 31 Ky. Law Rep. 1025; Patterson v. North Carolina Lumber Co., 145 N. C. 42, 44, 58 S. E. 437, citing Thomp. on Negli- gence, § 4677. 24* Broderick v. Detroit Union R. R. Ststtlon & Depot Co., 56 Micli. 261, 22 N. W. 802, 56 Am. Rep. 382 ; Krueger v. Bartholomay Brew- ing Co., 94 App. Div. 58, 87 N. Y. Supp. 1054. 246 As In the case of a minor whose wages are collected by his parent. Tennessee Coal, Iron & R. Co. v. Hayes, 97 Ala. 201, 12 South. 98; Chicago W. & V. Coal Co. v. Moran, 210 111. 9, 71 N. E. 38. 246 A workman who is paid by the hour does not cease to be in the master's employ during the hour allowed to him for lunch, though he receives no pay for that time. Heldmaler v. Cobbs, 195 IlL 172, 62 N. E. 8^3 ; Blovelt v. Sawyer (1894) L. R. 1 K. B. 271, 08 J. P. 110, 73 L. J. K. B. 155, 89 L. T. Rep. N. S. 658, 20 T. L. R. 105, 52 Wkly. Rep. 503. 24T Smith V. South Normanton Colliery Co. (1903) L. R. 1 K. B. 204, 67 J. P. 381, 72 L. J. K. B. ,76, 88 L. T. Rep. N. S. 5, 51 Wkly. Rep. 209. Chap.Tokts^12 178 GENERAL PRINCIPLES (Ch. 5 clock. It seems sufficient to allow to the servant a reason- able time beforehand, whether his early arrival is prompted by a desire to be puncttial, or to prepare himself or his tools for work,''*' and a reasonable time afterward in which to remove the evidences of his toil.^*' Ordinarily he will not be treated as an employe while going to or returning from work,'''"' though it is otherwise where he suffers injury while passing over a portion of the master's premises, used with the latter's permission as a means of access to the scene of his labor,^'*^ or while being conveyed there or thence by the master pursuant to the contract of service,^ ^^ or with the master's acquiescence and by a method of con- veyance furnished by him.^"^ As it is essential to the existence of the relation that there should be a right of control vested in the master, it is evi- dent that, in general, the employer of an independent con- tractor assumes none of the responsibilities to.wards the latter's servants.^ ^* He may, however, render himself re- sponsible if he has undertaken to furnish machinery, appli- ances, labor. Or place to work,^^° or reserved control over 2*8 Walbert v. Trexler, 156 Pa. 112, 27 Atl. 65. 24 8 Helmke v. Thllmany, 107 Wis. 216, S3 N. W. 360. 250 See Baltimore & O. R. Co. v. State, to Use of Trainor, 33 Md. 542. . • 261 Beck V. Southern Ey. Co., 146 N. C. 455, 59 S. a 10l5; Elwald V. Chicago & N. W. Ry. Co., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178. 262 Fitzpatrick v. New Albany & S. R. Co., 7 Ind. 436 ; Gilshannon V. Stony Brook R. Corp., 10 Cush. (Mass.) 228; Vick v. New York Cent. & H. R. R. Co., 95 N. Y. 267, 47 Am. Hep. 36. 263 Birmingham Ry., Light & Power Co. v. Sawyer, 156 Ala. 199, 47 South. 67, 19 L. R. A. (N. S.) 717; Wilson v. Banner Lumber Co., 108 La. 590, 32 South. 460; GUshannon v. Stony Brook R. Corp., supra. 26 4Laffery v. United States Gypsum Co., 83 Ivan. 349, 111 Pac 498, 45 L. R. A. (N. S.) 930, Ann. Cas. 1912A, 590 ; Petrie v. J. Henry Small Realty Co., 141 App. Div. 681, 125 N. Y. Supp. 937. 255 McCall V. Pacific Mail Steamship Co., 123 Cal. 42,. 55 Pac. 706; Mulchey v. Methodist Religious Soc, 125 Mass. 487 ; Lake Superior Iron Co. V. Erickson, 39 Mich. 492, 33 Am. Rep. 423; Coughtry v Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. § 47) MASTEBS 179 the method to be pursued, or in fact assumed control.^"" This will be considered more fully when liability for the default of a contractor is discussed.^ "^ An analogous case is where the servant has been loaned to another master for some special service. This may work a discontinuance of his former relation and the assumption of a new one. The result is accomplished when he no longer continues liable to the direction and control of the master, but becomes subject to the party to whom he is loaned."* It now becomes necessary to consider the master's duties in detail. (a) To Provide Safe Tools, Machinery, and Places to Work The master, not being an insurer, and being bound only to exercise reasonable care, is not bound to provide the best and safest or newest appliances." °* 'He will not be liable merely because better might have been obtained, provided he furnished such as can with reasonable care be used without danger.""" It will be sufficient if he has sup- plied such as are in common use for the same purpose,""^ although a safer device may have been invented, where it has not become generally known as of practical utility.^*" 258 Anderson v. Foley Bros., 110 Minn. 151, 124 N. W. 987; Speed V. Atlantic & P. R. Co., 71 Mo. 303 ; Midgette v. Branning Mfg. Co., 150 N. C. 3.33, 64 S. E. 5. 2 57 See iBfra, p. 214 et seq. 268 Grace & Hyde Co. v. Probst, 208 111. 147, 70 N. E. 12. See Higgins V. Western Union Tel. Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St Eep. 537; Bauer v. Eichter, 103 Wis. 412, 79 N. W. 404. See Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252, 53 L. Ed. 480. 25 « Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N. B. 789 ; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 81, 36 N. E. 813 ; La Pierre v. Chicago & G. T. Ry. Co., 99 Mich. 212, 58 N. W. 60; Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235. 260 Lehigh & Wilkes-Barre Coal Co. v. Hayes, 128 Pa. 294, 18 Atl. 387, 5 L. R. A. 441, 15 Am. St. Rep. 680; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870, 1 L. R. A. 483. 281 Tompkins v. Marine Engine & Mach. Co., 70 N. J. Law, 330, 58 Atl. 393; Leonard V. Herrmann, 195 Pa. 222, 45 Atl. 723^; Innes v, City of Milwaukee, 96 Wis. 170, 70 N. W. 1064. 282 Lorimer v. St. Paul City Ry. Co., 48 Minn. 391, 51 N. W. 125. 180 GENERAL PEINCIPLES (Ch. 5 Indeed, he will be liable if, by introducing an untried novel- ty, he has failed to measure up to 'the standard of reason- able care."'* As the question involved is one of negligence, it is apparent that each case must largely be a law unto itself. Ordinarily it is to be determined by the jury.^°* It will not be enough for the servant to show that the appli- ance was defective. He must go further, and prove that the master knew of the defect, or could have discovered it by reasonable inspection,^*' and the degree of caution must necessarily be proportionate to the danger.^ °° The employer's duty is not fulfilled when he has provided an appliance which was originally safe. He must exercise proper care to see that it so continues;^'' but a failure to repair does not necessarily import negligence unless and until there has been a reasonable opportunity to remedy the defect after discovery.^** Furthermore, although the gener- al rule is that the master cannot delegate the performance of his duties,^ °° there is an exception in the case of ordinary 283 Marshall v. Widdlcomb Furniture Co., 67 Mich. 167, 34 N. W 541, 11 Am. St. Rep. 573. , 2«* See McAlpine V. Laydon, 115 Cal. 68,46 Pac. 865; Union Bridge Co. V. TeeHan, 190 111. 374, 60 N. B. 538; Graham v. Boston & A. R. Co., 156 Mass. 4, 30 N. E. 359; Jacobson v. Johnson, 87 Minn. 185, ■91 N. W. 465 ; Welle v. Celluloid Co., 175 N. T. 401, 67 N. B. 609 ; Winters v. Boll, 204 Pa. 41, 53 Atl. 529. 28oRoughan v. Boston & 'Lockport Block Co., 161 Mass. 24, 36 N. B. 461 ; Painton v. Northern Cent Ry. Co., 83 N. T. 7 ; Hammond Co. V. Johnson, 38 Neb. 244, 56 N. W. 967 ; Westinghouse Electric & Mfg. Co. V, Heimlich, 127 Fed. 92, 62 C. C. A. 92. 28« Welle V. CeUuloid Co.; 175 N. Y. 401, 67 N. E. 609. Thus, an elevator being in many respects a dangerous machine, the employer controlling Its operation is required to use great care and caution Wise V. Ackerman, 76 Md. 375, 25 Atl. 424. 26 7 Rlncicotti V. O'Brien Contracting Co., 77 Conn. 617, 60 Atl. 115, 69 L. R. A. 936; McDonald v. Michigan Cent. R. Co., 108 Mich 1 65 N. W. 597 ; Cole v. Warren Mfg. Co., 63 N. J. Law, 626, 44 Au! 647 ; Bailey v. Rome, W. & O. R. Co., 139 N. Y. 302, 34 N. E 918 • Houston V. Brush, 66 Vt 331, 29 AtL 380 ; Union Pac. Ry Co v' Daniels, 152 U. S. 6S4, 14 Sup. Ct. 756, 38 L. Ed. 597. 268 Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 South. 733. 2«»Mullin V. California Horseshoe Co., 105 Cal. 77, 38 Pac 535- Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574, 4 Am St Rep' 348; Morton v. Detroit, B. C. & A. R. Co., 81 Mich. 423 46 N W § 47) MASTERS 181 repairs to be made by the servant as a detail of his work with materials furnished by the master, where they are within his capacity and their necessity springs from the daily use of the appliance, occurs at different and unknown periods of the service, and is open to his observation in the absence of the master."'" The doctrine is somewhat diffi- cult of application, and it should be emphasized : (a) That the repairs are necessitated merely by ordinary wear and tear; (b) that they do not require skill and knowledge be- yond what is needed in operating the machine ; and (c) the materials necessary for making them are available to the servant."'^ The duty to provide a safe place to work is governed by rules simclar to those which determine liability with respect to supplying tools and machinery. Reasonable care is all that is required, and this necessarily means, not only that the master must be liable where he actually knows of the danger, but also where he should have known of it in the exercise of proper diligence. ^'^ There can be no re- sponsibility merely because the place does not respond to a 111 ; Bailey v. Rome, W. & O. R. Ck)., 139 N. Y. 302, 34 N. B. 918 ; Northern Paa R. Co. v. Herbert, 116 V. S. 642, 6 Sup. Ct 590, 29 L. Ed. 755. 270 Thus the master Is not responsible for damages due to the breaking of a hoisting rope, where he kept on hahd a sufficient num- ber of the most approved kind, which were supplied when called for, and the rope in use was in full view of the employfi, and would dis- close any approaching weakness. Cregan v. Marston, 126 N. X. 568, 27 N. B. 952, 22 Am. St. Rep. 854. To the same effect, Johnson v. Boston Towboat Co., 135 Mass. 209, 46 Am. Rep. 458. 2T1 See Jaques v. Great Falls Mfg. Co., 66 N. H. 482, 22 Atl. 552, 13 L. R. A. 824 ; Webber v. Piper, 109 N. Y. 496, 17 N. E. 216. Thus the master is not liable for injuries due to failure to oil a machine. Qulgley v. Levering, 167 N. Y. 58, 60 N. E. 276, 54 L. R. A. 62. Con- tra, where he failed to provide means for the oiling. Prescott v. Ott- man Lithographing Co., 20 App. Div. 397, .46 N. Y. Supp. 812. 272 Armour v. Golkowska, 202 111. 144, 66 N. B. 1037; Buehner v. Creamery Package Mfg. Co., 124 Iowa, 445, 100 N. W. 345, 104 Am. St Bep. 354 ; Bums v. Delaware & A. Tel. & Tel. Co., 70 N. J. Law, 745, 59 AU. 220, 592, 67 L. R. A. 956 ; McGuire v. Bell Tel. Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437 ; Butterman y. McCUntic- MarshaU Const. Co., 206 Pa. 82, 55 Atl. 839. 182 GENERAL PRINCIPLES (Ch. 5 test which was not to have been anticipated,^" or where the injured servant had himself prepared it, or had under- taken to supervise its condition and remedy defects,*'* or where the injury occurred at a locality where the employe was not required to be for the purposes of his employ- ment."'" (b) To Provide a Sufficient Number of Competent Fellow Servants If the employer knew or could by the exercise of reason- able care have ascertained the unfitness of the fellow serv- ant whose act or neglect brought about the injury, he will be responsible, whether such unfitness arose from unskill- fulness,*'* drunkenness,"^' habitual negligence,"'* or other cause."" The degree of care must be proportionate to the exigencies of the particular service and reasonably com- mensurate with the perils and hazards likely to be encoun- 2 73 Preston v. Chicago & W. M. Ry. Co., 98 Mich. 128, 57 N. W. 31. 2'* McGorty v. Southern New England TeL Co., 69 Conn. 635, 38 Atl. 359, 61 Am. St. Rep. 62 ; Broderick v. St. Paul City Ry. Co., 74 Minn. 163, 77 N. W. 28 ; Armour v. Hahn, 1-11 U. S. 313, 4 Sup. Ct 433, 28 L. Ed. 440. And see Thayer v. Smoky Hollow Coal Co. 121 Iowa, 121, 96 N. W. 718. 2 75 Kennedy v. Chase, 119 Cal. 637, 52 Pac. 33, 63 Am. St. Rep. 153. 27 6 McBUigott V. Randolph, 61 Conn. 157, 22 Atl. 1094, 29 Am. St. Rep. 181 ; Evansvllle & T. H. R. Co. v. Guyton, 115 Ind. 450, 17 N. B. 101, 7 Am. St. Rep. 458; Neilon y. Kansas City, St J. & O. b! Ry. Co., 85 Mo, 599; Mann v. Delaware & H. Canal Co., 91 N. Y. 495; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup Ct 932 27 L. Ed. 605. ' ' 2 77 Chicago & A. R. Co. v. Sullivan, 63 111. 293 ; Oilman v. Eastern R. Co., 13 Allen (Mass.) 433, 90 Am. Dec. 210 ; Hilts v. Chicago & G. T. Ry., 55 Mich. 437, 21 N. W. 878 ; Williams v. Missouri Pac. Rv. Co., 109 Mo. 475, 18 S. W. 1098 ; Laning v. New York Cent. R. Co., 49 N. Y. 521, 10 Am. Rep. 417. 27 8 Coppins V. New York, Cent. & H. R. R. Co., 122 N. Y. 563, 25 N. E. 915, 19 Am. St. Rep. 523 ; Hughes v. Baltimore & O. R. Co., 164 Pa. 178, 30 Atl. 383, 44 Am. St. Rep. 597. " 27 9 Louisville & N. R. Co. v. Davis, 91 Ala. 487, 8 South. 552 (one- armed,brakemen) ; Baird v. New York Cent & H. R. R. Co., 64 App. Div. 14, 71 N. Y. Supp. 734, affirmed 172 N. Y. 637, 65 N.' E. 1113 (epileptic brakeman). § 47) MASTERS 183 tered in the performance of the duty.^'° Beyond this there is no accountability."'^ Thus it has been said that a mas- ter does not owe the same care in finding out bad habits after employment as he did when the servant was first en- gaged;^*" and when notified that he has become careless, the master is not ordinarily bound to discharge him with- out an investigation, unless the notice is accompanied by such evidence as leaves no reasonable doubt of the truth of the charge."'' Usually'the question of due care is for the jury."'* The obligation extends, not only to the quali- ty of the servants, but to their reasonable quantity."" (c) To Promulgate and Secure the Observance of Necessary Rules General rules for the conduct of employes, which will afford them reasonable protection from the dangers inci- 28 Western Stone Co. v. Whalen, 151 111. 472, 38 N. E. 241, 42 Am. St. Rep. 244 ; Hilts v. Chicago & 6. T. Ry. Co., 55 Mich. 437, 21 N. W. 878; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605. The burden is on the injured servant to show the master's negligence. Stafford v. Chicago, B. & Q. R. Co., 114 III. 244, 2 N. E. 185 ; Union Pac. Ry. Co. v. Milliken, 8 Kan. 647 ; Roblin V. Kansas City, St J. & C. B. R. Co., 119 Mo. 476, 24 S. W. 1011. 2 81 In the following cases it was held that there was no proof that the master had failed to exercise proper care. Beaulieu v. Portland Co., 48 Me. 291; McDermott v^ City of Boston, 133 Mass. 349; Pittsburg, Ft W. & C. Ry. Co. v. Devinney, 17 Ohio St 198; Pilkinton v. Gulf, C. & S. F. Ry. Co., 70 Tex. 226, 7 S. W. 805. 282 "Good character and proper qualifications, once possessed, may be presumed to continue; and I see no reason why a principal may not rely upon that presumption as to these personal qualities until he has notice of a change, or knowledge of such facts as would be deemed equivalent to notice, or at least such as would put a reason- able man upon inquiry." Chapman v. Erie Ry. Co., 55 N. Y. 579, 585, per Church, C. J. To the same effect, Blake v. Maine Cent R. Co., 70 Me. 60, 35 Am. Rep. 297. 2SS Lake Shore & M. S. Ry. Co. v. Stupak, 123 Ind. 210, 23 N. B. 246. 2 84 Western Stone Co. v. Whalen, 151 111. 472, 38 N. B. 241, 42 Am. St Rep. 244; Tonnesen v. Ross, 58 Hun, 415, 12 N. Y. Supp. 150, 151 ; Hughes v. Baltimore & O. R. Co., 164 Pa. 178, 30 Atl. 383, 44 Am. St Rep. 597. 28 6 Peterson v. American Grass Twine Co., 90 Minn. 343, 96 N. W. 913 ; Hilton v. Fitchburg R. Co., 73 N. H. 116, 59 Atl. 625, 68 L. It. 184 GENERAL PRINCIPLES (Ch. 5 dent to the performance of their respective duties, must be promulgated ="' and enforced "' by the master. , This does not apply, however, to risks which are obvious to the em- ploye,^'' nor where a uniform custom is a sufficient substi- tute,^" nor where the work is simple and not attended with extra hazards, for it is only when the business is com- plicated, as well as dangerous, that it is the duty of the master to provide rules.' °'' (d) To Warn of Danger l^his applies to latent defects and dangers not obvious, of which the master knew or ought reasonably to have known. Necessarily the experience and capacity of the servant must be considered, for what may be apparent "to a man of long experience and of a high order of intelligence may be unknown to the inexperienced and ignorcint." "'^ A. 428 ; Mike v. Boston & A. R. Co., 53 N. X. 549, 13 Am. Rep. 545 ; Johnson v. Ashland Water Co., 71 "Wis. 553, 37 N. "W. 823, 5 Am. St. Rep. 243. 286 Lake Shore & M. S. Ry. Co. v. Lavalley, 36* Ohio St 221 ; Pittsburg, Ft. W. & C. Ry. Co. v. Powers, 74 111. 341 ; Doing v. New York, O. & W. Ry. Co., 151 N. Y. 579, 45 N. B. 1028 ; Cooper v. Cen- tral R. of Iowa, 44 loya, 134. It Is the master's duty to anticipate and guard against only such accidents and casualties as might rea- sonably be foreseen. Berrigan v. New York, L. B. & W. R. Co., 131 N. Y. 582, 30 N. E. 57. 287 Fay V. Minneapolis & St L. Ry. Co., 30 Minn. 231, 15 N. W. 241 ; Whittaker v. President etc., of Delaware & H. Canal Co., 126 N. Y. 544, 27 N. E. 1042 ; Northern Pac. R. Co. v. Nickels. 1 C. C. A. 625, 50 Fed. 718. 288 voss V. Delaware, L. & W. R. Co., 62 N. J. Law, 59, 41 Atl. 224. Negligence cannot be predicated upon the failure to promulgate a rule that a dangerous machine shall not be started while undergoing repair. Austin v. Fisher Tanning Co., 96 App. Div. 550, 89 N. Y. Supp. 137. But see Devoe v. New York Cent & H. R. R. Co., 174 N. Y. 1, 66 N. B. 568. 289 Rutledge V. Missouri Pac. Ry. Co., 123 Mo. 121, 24 S. W. 1053, 27 S. W. 327 ; Kudik v. Lehigh Val. R. Co., 78 Hun, 492, 29 N. Y. Supp. 533. 2 90 Boyer v. Eastern Ry. Co., 87 Minn. 367, 92 N. W. 326; Wagner V. New York Cent. & St L. R. Co., 76 App. Div. 552, 78 N. Y. Supp. 696 ; Norfolk & W. Ry. Co. v. Graham, 90 Va. 430, 31 S. E. 604'. 291 Bohn Mfg. Co. v. Erlckson, 55 Fed. 943, 946, 5 C. C. A. 341, 344, per Sanborn, J., who added: "Hence, if the youth, inexperience, and I 47) MASTERS 185 Thus the peril from revolving rollers *" or knives may be so obvious, even to a child, that no special warning would be needed.^ ^* The danger in quitting a cinder pit located between the rails is also apparent,'"* or in standing upon ■a. bench likely to tip.^°° In such cases the inexperience of the employe does not alter the situation. If he is experienc- ed, the master is justified in presuming that he is aware of the ordinary dangers of his employment, though they are latent in the sense that one unfamiliar with the work would not have known of them.''' But where, because of youth- fulness or inexperience, the servant is unaware of the hid- den danger, and the inaster must reasonably have known ■of this fact, his duty to give sufficient warning is clear,'?' capacity of a minor who is employed In a hazardous occupation are such that a master of ordinary Intelligence and prudence would know that he is not aware of or does not appreciate the ordinary risks of his employment, it Is his duty to notify him of them and instruct him how to avoid them. This notice and instruction should be grad- uated to the age, intelligence, and experience of the servant. They should be such as a master of ordinary prudence and sagacity would give under like circumstances, for the purpose of enabling the minor not only to know the dangerous nature of his work., but also to un- derstand and appreciate its risks and avoid its dangers. They should be governed, after ajl, more by the experience and capacity of the servant than by Ms age, because the intelligence and experience •of men measure their knowledge and appreciation of the dangers ^bout them far more accurately than their years." 292 McCarthy v. Mulgrew, 107 Iowa, 76, 77 N. W. 527; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178, cf. Buckley v. Gutta Percha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717. 29 3 Unless they created a suction unknown to him. Bohn Mfg. Co. V. Erickson, 55 Fed. 943, 5 C. C. A. 341. 294 Chicago & A. K. Co. v. BeU, 209 111. 25, 70 N. E. 754. 295 Hesse v. National Casket Co., 66 N. J. Law, 652, 52 Atl. 384. 296 Thus an experienced railroad engineer will be presumed to be acquainted with the ordinary peculiarities of the road and engine. Thain v. Old Colony R. Co., 161 Mass. 353, 37 N. E. 309 ; Bellows v. Pennsylvania & N. T. Canal & R. Co., 157 Pa. 51, 27 Atl. 685. To the same efCeet: Kennedy v. Merrimack Pav. Co., 185 Mass. 442, 70 K E. 437 ; Saucier v. New Hampshire Spinning Mills, 72 N. H. 292, 56 Atl. 545; Cincinnati, N. O. & T. P. Ry. Co. v: Mealer, 1 C. C. A. 633, 50 Fed. 725. 2 97 Tagg V. McGeorge, 155 Pa. 36S, 26 Atl. 671, 35 Am. St. Rep. .889 ; Reynolds v. Boston & M. R. Co., 64 Vt. 66, 24 Atl. 134, 33 Am. 186 GENEEAL PRINCIPLES (Ch. 5 and it makes no difference that the peril arises from the wrongdoing of a third party.''** « ASSUMPTION OF RISK BY SERVANT 48. A servant takes upon himself the risks ordinarily inci- dent to his occupation, including such as arise from the negligence of a fellow servant. Known hazards, or such as might have become known in the exercise of reasonable care, are likewise assum- ed, though not properly incident to the service. It is sometimes said to be assumed that the servant, when entering upon his employment, Was aware of the hazard incidental thereto, and "he must be supposed to have con- tracted on the terms that, as between himself and his mas- ter, he would run this risk." ^°* But it is evident that this statement does not meet all cases, for the risk assumed by the servant may be such as he has become acquainted with during the term of employment, though not such as he had in contemplation at the time the service began.'"" Further- more, he takes upon himself, in addition to the ordinary risks incident to the business, such others as are actually known to him, or are obvious to a person possessing ordi- nary powers of observation.^"^ In fact, though the doctrine of the assumption by an employe of the risks of his employ- ment has usually been considered from the point of view St. Rep. 908; Chicago Anderson Pressed Brick Co. v. Reinneiger, 140 111. 334, 29 N. E. 1106, 33 Am. St. Rep. 249 ; Walsh v. Peet Valve Co., 110 Mass. 23 ; Addicks v. Christoph, 62 N. J. Law, 786, 43 Atl. 190, 72 Am. St Rep. 687 ; Glebell v. ColUns Co., 54 W. Va. 518, 46 S. E. 569. 298 Thus, where plaintiff, a carpenter, was employed by defendant to perform labor upon the latter's premises, where he was shot by a third party, the knowledge of defendant that the work would prob- ably be resisted forcibly imposed a duty to warn plaintiff of the haz- ard. Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160. 2»» Hutchinson v. York, N. & B. Ry. Co., 5 Exch. 343, 351, per Al- derson, B. soo Dillenberger v. Weingartner, 64 N. J. Law, 292, 45 Atl. 638. 801 Hanson v. Hammell, 107 Iowa, 171, 77 N. W. 839; Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, 34 N. E. 901 ; McDonald v. Standard Oil Co., 69 N. J. Law, 445, 55 Atl. 289; Johnston v. Ore- § 48) ASSUMPTION OP BISK BY SERVANT 187 of a coirtract, express or implied,""'' yet as applied to ac- tions of tort for negligence brought against an employer it leads up to the broader principle, "Volenti non fit injuria." '"' Even a superficial examination of the cases bearing upon the doctrine of assumed risk is of course impracticable. The principle applies to instrumentalities of employment,'"* to places,"" to rules,'"* and to methods of work.'"^ It should appear either that the risk was appreciated by the servant, or was so patent that, 'in view of his age and ex- perience, he should have appreciated it. His knowledge of the defect is not necessarily tantamount to knowledge of the hazard,'"' a rtfle which is peculiarly applicable to cases where the work was beyond the scope of the original employment.'"' But there can be no assumption of risk where the act of the servant was not voluntary, as in the gon S. L. & U. N. Ky. Co., 23 Or. 94, 31 Paa 283 ; Bemiscli v. Rob- erts, 143 Pa. 1, 21 Atl. 998. 302 Conway v. Furst, 57 N. J. Law, 645, 32 Atl. 380. 303 O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 136, 32 N. E. 1119, 47 L. B. A. 161 ; Knisley v. Pratt, 148 N. Y. 372, 379, 42 N. E. 986, 32 L. K. A. 367. 804 Jenney Electric Light & Power Co. v. Murphy, 115 IndL 566, 18 N. E. 30 ; Kooney v. Sewell & Day Cordage Co., 161 Mass. 153, 36 N. E. 789;. Wheeler v. Berry, 95 Mich. 250, 54 N. W. 876; Crown v. Orr, 140 N. T. 450, 35 N. E. 648; Green & C. St. Pass. By. Co. v. Bresmer, 97 Pa. 103. 305 Bagon V. Toledo, A. A. & N. M. Ry. Co., 97 Mich. 265, 56 N. W. 612, 37 Am. St.. Rep. 336 ; Clark v. St. Paul & S. C, R. Co., 28 Minn. 128, 9 N. W. 581; Baylor v. Delaware, L. & W. R. Co., 40 N. J. Law, 23, 29 Am. Rep. 208 ; Gibson v. Erie Ry. Co., 63 N. Y. 449, 20 Am. Rep. 552 ; KUne v. Abraham, 178 N. Y. 377, 70 N. E. 923 ; Mc- Grath v. Texas & P. Ry. Co., 9 C. C. A. 133, 60 Fed. 555. 3 06 Thus, where recovery was sought for the killing of an employ^ by a switch engine running at an unlawful rate of speed, evidence Is admissible to prove that deceased was aware of a custom to run engines faster than the lawful rate. Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910. To the same effect, there being no rules, but the danger being known, Zebrowski y. Warner Sugar Refining Co., 83 N. J. Law, 558, 83 Atl. 957. 307 Schultz V. Chicago & N. W. Ry. Co., 67 Wis. 616, 31 N. W. 321, 58 Am. Rep. 881. 308 Eussell V. Minneapolis & St. L. Ry. Co., 32 Minn. 230, 20 N. W. 147; Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573. 3 09 Consolidated Coal Co. of St. Louis v. Haennl, 146 111. 614, 35 N. E. 162 ; Ferren v. Old Colony R. Co., 143 Mass. 197, 9 N. E. 608. 188 GENERAL PRINCIPLEa (Ch. 5- case of a sailor, since his disobedience might have been punished,'^" or of a convict, whose movements are con- trolled by a guard.'^^ It may appear -that the servant, on discovering the dan- ger, 'called the master's attention thereto, and the latter promised to remedy the defect. The continuance in serv- ice for a reasonable time thereafter in reliance upon the master's word will not amount to an assumption of risk,, unless the peril is so imminent that one of ordinary pru- dence would have immediately discontinued work.'^^ Fur- thermore, for reasons of public policy and quite apart from, any promise to repair, the servant will not thereby be deemed to have assumed the risk where his immediate discontinuance- would subject the lives of others to danger.^^' Fellow Servants Among the risks of service is that of negligence on the part of a fellow servant. Though the rule is generally up- held on this theory, it has been justified on broader grounds ; for it has been said that, were it otherwise, it "would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which 'diligence and caution, while they protect the master, are a much bet- ter security against any injury the servant may sustain by the negligence of others engaged under the same master than any recourse against his master for damages could 810 Eldridge v. Atlas S. S. Co., 134 N. Y. 187, 32 N. E. 66. 811 Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S. E 1015 812 Taylor v. Pelslng, 164 111. 331, 45 N. E. 161; Greene v. Minne- apolis & St. L. Ey. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep 785 ■ Settle V. St. Louis & S. F. R. Co., 127 Mo. 336, 30 S. W. 125 48 Am' St. Rep. 633; Dowd v. Erie R. Co., 70 N. J. Law, 451. 57 Atl. 248* Curran v. A. H. Stange Co., 98 Wis. 598, 74 N. W. 377. '' 813 Thus an engineer, who discovers that his engine has become defective, but who nevertheless remains in control to the end of his trip, was held not precluded from recovery. Olney v. Boston & M R. R., 71 N. H. 427, 52 Atl. 1097. To the same effect, Campbell v' Chicago, R. I. & P. R. Co., 45 Iowa, 76. •, k c^i . § 48) ASSUMPTION OF KISK BY SEEVANT 189 possibly afford." *^* While the application of the principle has at times led to differing results, it is well settled and authoritatively established by the uniform current of au- thority in this country and in England,'^" except as it has been expressly modified by legislation.'^* The injured party and he whose negligence caused the injury must have had a common master.*^' It will not be sufficient that their masters are engaged in a common un- dertaking,'^' or that one servant is in the employ of a prin- cipal and the other in that of an independent contractor,'^* though, as the right of a single control is the determinative test, they will be regarded as fellow servants where the principal has or exercises the power to direct the employes of his contractor.'"" So, where a servant has been loaned for a special purpose, in the fulfillment of which he acts under the control of the party to whom he is lent, he is deemed, while so acting, to be in the employ of the latter.'"* 814 Priestly v. Fowler, 3 M. & W. 1, 7, per Abinger, C. B. And see Far well t. Boston & W. R. Corp., 4 Mete. (Mass.)' 49, 38 Am. Dec. 339. »i5 Sullivan v. Mississippi M. B. Co., 11 Iowa, 421; Northern Pac. K. Co. V. Herbert, 116 TJ. S. 642, 6 Sup. Ct 590, 29 L. Ed. 755; Hutcbinson v. York, N. & B. By. Co., 5 Excb. 343. And see cases hereafter cited. 818 See infra, p. 194. 817 A switch tender, employed by a railroad company upon a por- tion of its track over which it permits another company to run trains, is not the fellow servant of an engineer employed by the lat- ter. Smith V. New York & H. E. Co., 19 N. Y. 127, 75 Am. Dec. 305. 818 Philadelphia, W. & B. K. Co. v. State, 58 Md. 372; Morgan v. Smith, 159 Mass. 570, 35 N. E. 101; Jansen.v. City of Jersey City, 61 N. J. Law, 243, .39 Atl. 1025 ; Sanford v. Standard Oil Co., 118 N. Y. 571, 24 N. E. 313, 16 Am. St Rep. 787 ; Johnson v. Lindsay [1891] App. Cas. 371. 319 Ward V. New England Fibre Co., 154 Mass. 419, 28 N. E. 299; Norman v. Middlesex & S. Traction Co., 71 N. J. Law, 562, 60 Atl. 936 ; Coughtry v. Globe Woolen Co., 56 N. T. 124, 15 Am. Rep. 387 ; Coates v. Chapman, 195 Pa. 109, 45 AtL 676 ; Otis Steel Co. v. Win- gle, 152 Fed. 914, 82 C. C. A. 62. 320 Johnson v. City of Boston, 118 Mass. Hi', Ewan v. Lippincott, 47 N. J. Law, 192, 54 Am. Rep. 148. »2i Hasty V. Sears, 157 Mass. 123, 31 N. B. 759, 34 Am. St. Rep. 267. 190 GBNEKAL PRINCIPLES (Ch. 5 Mere suggestion as to details or the necessary co-operation, where power to control is lacking, is not enough.^''^ Again, that there is a common master will not necessari- ly make the parties fellow servants, for there may be and usually is a difference in grade and in the character of the work performed by the injured and the negligent servants. "There is probably no subject connected with the law of negligence which has given rise to more variety of opinion than that of fellow service. The authorities are hopeless- ly divided. * * * It is useless to attempt an analysis of the cases, * * * since they are wholly irreconcilable in principle and too numerous to justify citation." ""^ Still the weight of authority is now strongly in favor of the view that mere difference in rank or labor wjU not prevent the 8 22 Coates V. Chapman, 195 Pa. 109, 45 Atl. 676. "It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other for a consideration shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished Is responsible for their negligence in the conduct of the work, because the work is his work and they are for the time his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the \other, it is still in its doing his own work. To determine whether a given case falls within the one class or the other, we must Inquire whose is the work being performed, a quesfton which is usu- ally answered by ascertaining who has the power to control and di- rect the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control and mere suggestion as to details or' the necessary co-operation where the work furnished is part of a lai-ger undertaking." Standard Oil Co. V. Anderson, 212 U. S. 215, 221, 29 Sup. Ct. 252, 53 L. Ed. 480, per Moody, J. 8 23 Northern Pac. R. Co. v. Hambly, 154 U. S. 349, 355, 14 Sup. Ct. 983, 88 L. Ed. 1009, per Brown, J. § 48) ASSUMPTION OF RISK BT SERVANT 191 parties from being regarded as coservants. This is true both in England ^^* and generally in the United States. '^° Eliminating, therefore, this question from consideration, we find, broadly speaking, a difference between the English and American courts, in that the former apply the test of common employment and the latter of vice principalship. Just what is meant by common employment it is difficult to say. Each case must practically rest upon its own facts. The language of Earle, C. J., in Morgan v. Vale of Neath Ry. Co.,^^° would apparently indicate that it is a question of what risks may reasonably be considered as foreseeable by the servant. This test, therefore, fails to take into account whether the master may safely resign control into the hands of other employes without incurring the risk of a denial to the lat- ter of the status of fellow servants of the injured party with respect to functions required for the protection of the em- ploye. That this may be done was settled by Wilson v. Merry,^^^ which in effect held that the employe vested with control is not, because of his exercise of the function 824 "There are many cases where the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, and yet the risk of injury from the negligence of the one is as much a natural and necessary consequence of the employment ^yhich the other accepts that it must be included in the risks which are to be considered in his wages." Morgan v. Vale of Neath Ry. Co., L. R. 1 Q. B. 149, 155, 5 B. & S. 736, 35 L. J. Q. B. 23, 13 L. T. Rep. N. S. 564, 14 Wkly. Rep. 144, 47 E. C. L. 736 ; Lov- ell V. HoweU, L. R. 1 C. P. 161, 45 L. J. C. P. 387, 34 L. T. Rep. N. S. 183, 24 Wkly. Rep. 672. 32 5 For a review of the so-called "departmental doctrine," see Lab- att on Master and Servant, § 500. "To hold the principal liable whenever there are gradations of rank between the person receiv- ing and the person causing the injury, or whenever they are em- ployed in different departments of the same general service, would result in frittering away the whole doctrine of fellow service." Northern Pac. R. Ck). v. Hambly, 154 U. S. 349, 360, 14 Sup. Ct. 983, 38 L. Ed. 1009, per Brown, J. 326 Supra. Here a carpenter in the employ of a railroad, while at work upon a scaffold, was thrown to the ground through the negli- gence of some porters, likewise in the company's service, who shifted an engine so that it struck one of the Scaffold's supports. The com- pany was held not liable. 8 27 L. R. 1 H. L. Sc. App. Cas. 326, 19 L. T. N. S. 30. 192 GENERAL PRINCIPLES (Ch. 5 SO transferred, to be regarded as the representative of the master, for whose acts the employer must answer.'^* Though the English view is not altogether without sup- port in America, the great weight of authority is to the ef- fect that liability depends on "whether the negligent serv- ant, in the act or omission complained of, represented the master in the performance of any duty owed by the master to the servant injured." ^^° It has been seen that the mas- ter personally owes certain obligations to the servant. These he cannot delegate, and thereby escape responsibili- ty. In their discharge the delegate becomes the alter ego or vice principal of the master, and for their breach the latter is liable.^'" Thus a servant to whom has been in- trusted the duty of selecting a safe place to work,^^^ of supplying reasonably safe materials, tools, or appliances,'^^ of giving proper inspection '^' and instruction,^^* and of selecting competent and dismissing incompetent cowork- 828 For a review of this case, and cases based thereon, see Labatt on Master and Servant, § 529. 329 McLaine v. Head & Dowst Co., 71 N. H. 294, 295, 52 Atl. 545, 58 L. R. A. 462, 93 Am. St. Rep. 522, per Parsons, J. To the same effect, Callan v. Bull, 113 Cal. 593, 602, 45 Pac. 1017 ; Beesley v. F. W. Wheeler & Co., 103 Mich. 196, 203, 61 N. W. 659, 27 L. R. A. 268; Burns v. Delaware & A. Tel. & Tel. Co., 70 N. J. Law, 745, 754, 59 Atl. 220, 592, 67 L. R. A. 956; Vogel v. American Bridge Co., 180 N. T. 373, 378, 73 N. E. 1, 70 L. R. A. 725 ; Baltimore & Ohio R. Co. V. Baugh, 149 U. S. 368, 387, 13 Sup. Ct. 914, 37 L. Ed. 772. 330 Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521. 33iSadowsljl V. Michigan Car Co., 84 Mich. 100, 47 N. W. 598- Cook V. St. Paul, M. & M. Ry. Co., 34 Minn. 45, 24 N. W. 311; Pant- zar V. Tilly Foster Iron Min. Co., 99 N. Y. 368, 2 N. E. 24 ; Madigan V. Oceanic Steam Navigation Co., 82 App. Div. 206, 81 N. Y. Supp. 705 ; Cadden v. American Steel Barge Co., 88 Wis. 409, 60 N. W. 80o! 332 Wilson V. Willimantic Linen Co., 50 Conn. 433, 47 Am. Rep 653; Ford v. Fitchburg R. Co., 110 Mass. 240, 14 Am. Rep. 598- Hazzard v. State, 108 App. Div. 119, 95 N. Y. Supp. 1103. 833 RincicotU V. John J. O'Brien Contracting Co., 77 Conn 617 60 Atl. 115, 69 L. R. A. 936; Chicago & B. I. R. Co. v. Kneirlm 152 'ill 458, 39 N. E. 324, 43 Am. St. Rep. 259; Koehler v. New York Steam Co., 183 N. Y. 1, 75 N. E. 538. 884 Brennan v. Gordon, 118 N. Y. 489, 23 N. E. 810. 8 L R A 818 16 Am. St. Rep. 775. ' § 48) ASSUMPTION OF EISK BY SERVANT 193 ers,'*" is not the fellow servant of other employes while acting in the discharge of such functions. But this must be taken subject to the itnportant limitation that where the general work includes the • construction or preparation of the appliances with which they are to work, such as build- ing a scaffold on which they are to stand, for which proper material has been supplied,''" they must be deemed fellow servants in respect to the negligence of one of them as to such construction or preparation.''^ The doctrine of vice principalship will not, however, ex- clude the supplementary test of common employment.'" Illustrative cases will be found in the note."° Recovery will not be refused where the master has been guilty of a 335 Gilman v. Eastern K. Co,, 13 Allen (Mass.) 433, 90 Am. Dec. 210. 338 Arkerson v. Dennison, 117 Mass. 407. ' 337 Sims V. American Steel Barge Co., 56 Minn. 68, 57 N. W. 322, 45 Am. St Eep. 451; Peschel v. Chicago, M. & St. P. Ry. Co., 62 Wis. 338, 21 N. W. 269. And see Filbert v. Delaware & H. Canal Co., 121* N. Y. 207, 23 N. E. 1104. 388 "If the departments of the two servants are so far separated from each other that the possibility of coming in contact, and hence of incurring danger from the negligent performance of the duties of such other department, could not be said to be within the contem- plation of the person injured, the doctrine of fellow service should not apply." Northern Pac. R. Co. v. Hambly, 154 U. S. 349, 357, 14 Sup. Ct. 983, 3S L. Ed. 1009, per Brown, J. 339 The following have been held fellow servants: Employs of de- partment store and elevator boy, Spees v. Boggs, 198 Pa. 112, 47 Atl. 875, 52 L. R. A. 933, 82 Am. St Rep. 792 ; woodcutter and engineer of train used to haul lumber and transport employes, Railey v. Gar- butt, 112 Ga. 288, 37 S. E. 360; stewardess and ship's carpenter, Quebec S. S. Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct 397, 33 L. Ed. 656 ; mate and seaman, Benson v. Goodwin, 147 Mass. 237, 17 N. B. 517; Geoghegan v. Atlas Steamship Co., 6 Misc. Rep. 127, 25 N. Y. Supp. 1116 ; miner and engineer having charge of hoisting en- gine, Trewatha v. Buchanan Gold Min. & Mill. Co., 96 Cal. 494, 28 Pac. 571, 31 Pac. 561 ; McAndrews v. Burns, 39 N. J. Law, 117 ; en- gineer and engine wiper. Streets v. Grand Trunk R. Co., 76 App. Dlv. 480, 78 N. Y. Supp. 729, affirmed 178 N. Y. 553, 70 N. E. 1109 ; engineer of steam roller and flagman, Hanna v. Granger, 18 R. I. 507, 28 Atl. 659. No attempt has been made to state the conflicting conclusions in the ease of railroad employes. See Jaggard on Torts, p. 1038, note. Chap.Toets — 13 194 GENERAL PRINCIPLES (Ch. 5' breach of duty, though the negligence of a fellow servant contributed to the injury.'*" Still it is, of course, required that some fault on the master's p^irt be established. Hence he will not be liable if the coservant selects an improper tool or appliance where a proper one is at hand.**^ Statutory Regulations In many states, legislation has considerably changed the common-law rules. The statutes present such marked dif- ferences that only a most general summary is possible within the compass of this work. Roughly speaking, they are either preventive or compensatory in tenor. By the former the duty of the employer is in many respects made more specific, as by requiring him to furnish proper light and space, to guard dangerous machinery, to make periodi- cal inspections, and to erect fire escapes. These acts break in upon the doctrine of assumption of risk, since it has been held that, where they have been violated, the servant, though working with knowledge of the violation, does not as a matter of law assume the risk of the injury.'*" In some states, under employers' liability acts, the fellow servant doctrine has been abrogated, while in others it has merely been modified, defined, and limited,'*' "compara- tive negligence" has been established in place of the doc- trine which prohibited a recovery where the negligence of the plaintiff contributed to the injury, and the burden of proving contributory negligence has been placed upon the 840 Elmer v. Locke, 135 Mass. 575; Stringham v. Stewart, 100 N.Y. 516, 3 N. E. 575 ; Young v. New Jersey & N. ¥. R. Co. (C. C.) 46 Fed. 160, affirmed New Jersey & N. ¥. Ry. Co. v. Young, 1 G. G. A. 428, 49 Fed. 723; Grand Trunk Ry. Go. v. Gummings, 106 U S 700 1 Sup. Ct. 493, 27 L. Ed. 266. 341 Thyng v. Fitchburg R. Co., 156 Mass. 13, 30 N. E. 169, 32 Am. St. Rep. 425 ; HefEeren v. Northern Pac. R. Co., 45 Minn 471 48 N W. 1, 526. 8*2 Davis V. Mercer Lumber Co., 164 Ind. 413, 73 N. B. 899- Fib- water v. Warren, 206 N. Y. 355, 99 N. E. 1042, 42 L. R. A (N S ) 1229 ; Welch v. Waterbury Co., 206 N. Y. 522, 100 N. E. 426 Con- tra, Marshall v. Norcross, 191 Mass. 568, 77 N. E. 1151. 34 s As in the case of "necessary risks," see Felcin v. Society of New York Hospital, 155 App. Div. 545, 140 N. Y. Supp. 772. § 48) ASSUMPTION OF BISK BY SERVANT 195 defendant, plaintiff being no longer required to establish its nonexistence. "Workmen's compensation acts," as the name indicates, are designed to furnish relief practically irrespective of any culpa- bility on the part of the employer or employe, unless the lat- ter's negligence has been willful, though by some statutes his compensation is then merely reduced. A more or less elaborate schedule is provided, covering death and disability, and usually the rates are fixed by a percentage of wages for a fixed time. Sometimes resort is had to a fund created from premiums paid by the employer.'** These acts are indicative of the present tendency to remove the burden from the em- ploye and place it upon the industry. Their advocates argue that the industry now bears the loss due to the deterioration and destruction of machinery, and that it should likewise add to the cost of production the? loss due to the impairment or destruction of the employe. '** See Bradbury's Workmen's Compensation and State Insurance Law; Boyd on Workmen's Compensation; also a partial collection of statutes in 2 Harvard Law Review, 212. 196 GENERAL PRINCIPLES (Ch. 6 CHAPTER VI GENERAL PKINCIPLBS— PARTIES (Continued) 49. The Wrongdoer (Continued)— Several Liability— Imputed Culpa- bility. 50. The State. 51. Corporations. 52. Employers. 53. Servants and Agents. 54. Independent Contractors. " 55. Partners. 56. Owners. 57. Joint and Several Liability — How Arising, 53. Results. ' IMPUTED CUI.PABILITY 49. The preceding chapter treated of liability as arising from the personal acts or omissions of the wrong- doer. There will now be considered the responsi- bility for another's' wrong. THE STATE 50. The state cannot be sued, except with its own consent. No jurisdiction will be assumed over the sovereign, ambassador, or public property of another nation. To allow a direct suit to be brought against the sover- eign in his own courts withaut his consent is inconsistent with the very idea of supreme executive power.^ But in many instances consent has been given. Thus by the United States Constitution ^ the federal Supreme Court is - It would "endanger the performance of the public duties of the sovereign to subject him to repeated suits as a matter of right at the will of any citizen, and to 'submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the government in war and peace, and the money in his treasury." Briggs v. Light Boat Upper Cedar Point, 11 AUen (Mass.) 157, 162, per Gray, J. 2 Section 2, art. 3. § 50) THE STATE 197 vested with original jurisdiction of "controversies between two or more states," ' and the power to enforce his rights against the United States and some of the commonwealths by proceedings before courts or boards- of claims has been given to the private individual. Whether a liability of the kind sought to be enforced comes within the wording of the act and the time and method of enforcement involves a question of construction,* since the state can be sued only on its own terms. ° By some acts, claims sounding in tort have been excluded;* by others, the state has consented to have its liability determined.'' Frequently statutes are en- acted applicable only to particular claims,' A.S a consequence of the absolute independence of the state, international comity induces each country to respect the dignity of others and to decline to exercise territorial jurisdiction over the person of a foreign sovereign," his am- bassador or minister,^* or the public property of his na- tion." 3 South Dakota v. North Carolina, 192 U. S. 286, 24 Sup. Ct. 269, 48 L. Ed. 448. Inapplicable to suits by individuals (Amend. XI). * Thus the New Xork Court of Claims had no power to pass upon a claim the basis of which was that claimant's intestate, while upon a canal boat passing under a bridge, received injuries resulting in death, through the negligence of the state's agents or servants oper- ating the bridge, where the statute which it was asserted conferred jurisdiction excluded "claims arising from damages resulting from the navigation of the canals." Locke v. State, 140 N. Y. 480, 35 N. E. 1076. 5 Treasurer v. Wygall, 46 Tex. 447, 458. 6 Bigby V. U. S., 188 U. S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519; Schlllinger v. U. S., 155 U. S. 163, 15 Sup. Ct. 85, 39 L. Ed. 108; Hill V. U. S., 149 U. S. 593, 13 Sup. Ct. 1011, 37 L. Ed. 862; Lang- ford V. U. S., 101 U. S. 341, 25 L. Ed. 1010. 7 See Code Civ. Proc. N. Y. § 264 ; Herkimer Lumber Co. v. State, 73 Misc. Rep. 501, 131 N. Y. Supp. 22 ; Litchfield v. Bond, 105 App. Div. 229, 93 N. Y. Supp. 1016. 8 See Bickerdike v. State, 144 Cal. 681, 78 Pae. 270. » The Sultan of Johore, an Independent sovereign, could not against his will be sued in an English court for breach of promise of marriage. MigheU v. Johore, [1894] 1 Q. B. 149, 58 J. P. 224, 63 L. 10 See note 10 on following page. " See note 11 on following page. 198 GENERAL PRINCIPLES (Ch. 6 CORPORATIONS 51. (A) Municipal. A municipal corporation is exempt from liability in the exercise of its governmental functions, but not for wrongs committed in its pri- vate character. (B) Private and charitable. A private corporation or- ganized for charitable purposes is not liable where due care has been exercised in the selection of its employe, though some courts have held this prin- ciple .inapplicable where the injured party was not a beneficiary of the charity. (C) Private and noncharitable. These stand on the same footing as an individual, and their liability depends on the rules applicable to employers. (A) Municipal Corporations The prevailing doctrine has been clearly stated by the New York Court of Appeals. To determine the liability of a municipal corporation, it should be kept in mind that J. Q. B. 593, 70 li. T. Rep. N. S. 84, 9 Reports, 447. And see De Haber v. Portugal, 17 Q. B. 196, 16 Jur. 164, 20 L. J. Q. B. 488, 79 B. C. L. 196; Brunswick v. Hanover, 6 Beav. 1, 8 Jur. 253, 13 L. J. ClL 107, 49 Eng. Rep. 724, affirmed 2 H. L. Cas. 1, 9 Eng. Repr. 998 ; American Banana Co. v. United Fruit Co., 166 Fed. 261, 92 C. C. A. 325, affirmed 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann. Cas. 1047. loHolbrook v. Henderson, 4 Sandf. (N. Y.) 619; Rev. St. U. S, 1878, §§ 4063^065 (U. S. Comp. St. 1913, §§ 7611-7613). This im- munity does not extend to consuls. Wilcox v. Luco, 118 Cal. 639, 4E Pac. 676, 50 Pac. 758, 45 L. R. A. 579, 62 Am. St. Rep. 305. 11 Thus plaintiff's vessel, which had been seized under the author ity of the Emperor of the French and converted into a man-of-war was exempt from the jurisdiction of the United States courts. The Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. An unarmec mall packet belonging to a foreign sovereign, commanded by officen commissioned by him, is exempt from seizure. The Parlement Beige 5 P. D. 197, 4 Aspln. 234, 42 L. T. Rep. N. S. 273, 28 Wkly. Rep. 642 An English court lacks jurisdiction to order the destruction of shells belonging to the Mikado of Japan on the ground that they infrlngec plaintlfE's patent. Vavasseur v. Krupp, 9 Ch. D. 351, 39 L. T. Rep N. S. 437, 27 "Wkly. Rep. 176. § 51) CORPORATIONS 199 it may possess "two kinds of powers — one governmental and public, and to the extent they are held and exercised is clothed with sovereignty; the other private, and to the extent they are held and exercised is a legal individual. The former are given and used for public purposes; the latter, for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter is a corporate, legal indi- vidual." ^* Though the difference between the governmen- tal and private function is clear, it is oftentimes difficult to fix where the line should be drawn. "All that can be done, probably, with safety, 'is to determine as ea^h case arises under which class it falls."^* In any event, it must be evident that liability cannot arise out of the failure to perform a legislative, judicial, or dis- cretionary duty, or by reason of the way in which official discretion has been exercised with respect thereto.^* This finds perhaps its best illustration in the case of streets and sewers. Whether they shall be laid out and constructed, of what size, and at what grade are questions of a judicial 12 Lloyd V. City of New York, 5 N. Y. 369, 374, 55 Am. Dec. 347, per Foot, J. "A town acts in tbe dual capacities of an imperium m imperio, exercising governmental duties, and of a private corpora- tion, enjoying powers and privileges conferred for its own benefit. When such municipal corporations are acting within the purview of their authority, in their ministerial or corporate character, in the management of property for their own benefit, or in the exercise of powers assumed voluntarily for their own advantage, they are im- pliedly liable for damage caused by the negligence of oflBcers or agents subject to their control, although they may be engaged in some work that will inure to the general benefit of the municipality. * * * On the other hand, where a city or town is exercising the judicial, discretionary, or legislative authority conferred by its char- ter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute expressly or by nec- essary implication subjects the corporation to pecuniary responsi- biUty for such negligence." Moffitt v. Asheville, 103 N. 0. 237, 254, 9 S. E. 695, 697, 14 Am. St. Eep. 810, per Avery, J. 13 Lloyd V. City of New York, supra. 1* Cit^ of Anderson v. East, 117 Ind. 126, 19 N. E. 726, 2 L, B. A. 712, 10 Am. St Rep. 35. 200 GENERAL PRINCIPLES (Ch. ( character, and it is generally held that the municipality can not be called to account for the result.^" But the actua work of construction and repair is ministerial, and negli- gence will entail liability.^' A city is not liable for failing to pass ^^ or enforce an ordinance/* or to abate a nuisance on the premises of a third party.^* Among the govern- mental functions are likewise necessarily included the pro- tection of the public safety '"' and health,"^ the furnishing 15 As to streets, see Hoyt v. Danbury, 69 Conn. 341, 37 Atl. 1051 City Council v. Little, 115 Ga. 124, 41 S. E. 238; Shippy v. ViUage of Au Sable, 65 Mich. 494, 32 N. W. 741 ; tTrquhart v. Ogdensburg 91 N. Y. 67, 43 Am. Eep. 91, note. As to sewers and drains, see Wicks V. Town of De Witt, 54 Iowa, 130, 6 N. W. 176 ; Child v. Citj of Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680 ; Harrington v. Town ship of Woodbridge, 70 N. J. Law, 28, 56 Atl. 141 ; Mills v. City oJ Brooklyn, 32 N. X. 489; Johnston v. District of Columbia, 118 U. S 19, 6 Sup. Ct. 923, 30 L. Ed. 75. 16 As, to streets, see Village of Jefferson v. Chapman, 127 111. 438 20 N. E. 33, 11 Am. St. Eep. 136 ; Evans v. Iowa City, 125 Iowa, 202 100 N. W. 1112; Haniford v. City of Kansas, 103 Mo. 172, 15 S, W. 753 ; Hines v. City of Lockport, 50 N. Y. 236. As to sewers anc drains, see Langley v. City Council of Augusta, 118 Ga. 590, 45 S E. 486, 98 Am. St Eep. 133; Merrlfield v. City of Worcester, IIC Mass. 216, 14 Am. Eep. 592; Barton v. City of Syracuse, 36 N. Y. 54, 1 Tr. App. 317 ; AUentown v. Kramer, 73 Pa. 406. 17 Howard v. City of Brooklyn, 30 App. Div. 217, 51 N. Y. Supp. 1058 (riding bicycle on sidewalk) ; Jones v. City of WilUamsburg, 97 Va. 722, 34 S. E. 883, 47 L. E. A. 294. IS Levy V. City of New York, 1 Sandf. (N. Y.) 465 (swine running at large) ; Hines v. City of Charlotte, 72 Mich. 278, 40 N. W. 333 1 L. E. A. 844 (establishing fire Umits) ; City of Lafayette v. Timber lake, 88 Ind. 330 (coasting in streets) ; Pierce v. City of New Bed ford, 129 Mass. 534, 37 Am. Eep. 387 (same) ; Schultz v. City of Mil- waukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Eep. 779 (same). Contra, Taylor v. Mayor, etc., of City of Cumberland, 64 Md. 68, 20 Ati. 1027, 54 Am. Eep. 759. 19 City of Anderson v. East, 117 Ind. 126, 19 N. E. 726, '2 L. E. A 712, 10 Am. St. Eep. 35 ; City of Chattanooga v. Eeid, 103 Tenn. 616 53 S. ^W. 937. , 20 Craig v. City of Charleston, 180 111. 154, 54 N. E. 184 (assault by police officer) ; Calwell v. City of Boone, 51 Iowa, 687, 2 N. W. 614, 33 Am. Eep. 154 (Id.)} EDDY v. VILLAGE OF ELLICOTTVILLB, 35 App. Div. 256, 54 N. Y. Supp. 800, Ohapin Cas. Torts, 91 (pneumo- nia contracted after confinement in unheated jail) ; Western College of Homeopathic Medicine v. City of Cleveland, 12 Ohio St. 375 21 See note 21 on following page. § 51) CORPORATIONS 201 of education,** and the care of dependent and defective classes.^* On the other hand, if a municipality operate a ferry for hire," tow vessels," supply gas " or water," or maintain wharves or docks," it acts in its proprietary or private (failure to suppress a mob). Contra, by statute, Darlington v. Mayor, etc., of City of New York, 31 N. T. 164, 88 Am. Dec. 248. This also covers injuries from negligence of the members of fire departments. Fisher v. Cjty of Boston, 104 Mass. 87, 6 Am. Rep. 196; Bdgerly v. Concord, 62 N. H. 8, 13 Am. Rep. 533 ; Smith v. City of Rochester, 76 N. Y. 506. 21 Ogg V. City of Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Brown V. Inhabitants of Vlnalhaven, 65 Me. 402, 20 Am. Rep. 709 ; removal of ashes, rubbish, and garbage. Love v. City of Atlanta, S5 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64 ; McFadden v. Jewell, 119 Iowa, 321, 93 N. W. 302, 60 L. R. A. 401, 97 Am. St. Rep. 321 ; Condict v. Mayor, etc., of Jersey City, 46 N. J. Law, 157. Contra, Quill v. City of New York, 36 App. Div. 476, 55 N. Y. Supp. 889; sprinkling streets, ConeUy v. City of Nashville, lOO Tenn. 262, 46 S. W. 565. 22 Hill V. City of Boston, 122 Mass. 344, 23 Am. Rep. 332 (defective stairway in schoolhouse) ; Ham v. Mayor, etc., of City of New York, 70 N. Y. 459 (discharge of foul water from schoolhouse) ; Wixon v. City of Newport, 13 R. I. 454, 43 Am. Rep. 35 (defective heating ap- paratus in schoolhouse). 23 Summers v. Daviess County, 103 Ind. 262, 2 N. E. 725, 53 Am. Rep. 512 (selection of physician to attend poor) ; Lefrols v. Monroe County, 162 N. Y. 563, 57 N. E. 185, 50 L. R. A. 206 (sewage from penitentiary and almshouse) ; Hughes v. Monroe County, 147 N. Y. 49, 41 N. B. 407, 39 L. R. A. 33 (employs of insane asylum injured while operating mangle) ; Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160, 20 Am. Rep. 468 (ambulance negligently driven). = *Townsend v. Boston, 187 Mass. 283, 72 N. E. 991. 25 City of Philadelphia v. Gavagnin, 62 Fed. 617, 10 C. C. A. 552. 2 6 Western Saving Fund Society v. City of Philadelphia, 31 Pa. 175, 72 Am. Dee. 730. 27 Stock V. City of Boston, 149 Mass. 410, 21 N. E. 871, 14 Am. St. Rep. 430 ; City of Philadelphia v. Gilmartin, 71 Pa. 140. But see Springfield Fire & Marine Ins. Co. v. Village of Keeseville, 148 N. Y. 46, 42 N. E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667 ; Town of South- east V. New York, 96 App. Div. 598, 89 N. Y. Supp. 630. It does not alter the case that a portion of the water is used for protection against fire and in promoting the public health. Hourigan v. Nor- wich, 77 Conn. 358, 59 Atl. 487. 2 8 City of Pittsburgh v. Grier, 22 Pa. 54, 60 Am. Dec. 65; Mayor, etc., of City of Memphis v. Kimbrough, 12 Heisk. (Tenn.) 133. And 202 GENERAL PRINCIPLES (Ch. 6 character. The power so to do has been conferred upon it not from considerations connected with the government of the state at large, but for the private advantage of the cor- poration as a distinct legal personality. As to such power and as to the propertj^ acquired thereunder it is to be re- garded quoad hoc a private corporation.^* Thus liability may or may not exist with respect to the same building, de- pendent upon the uses to which it has been put. For in- stance, a city will not be responsible for damage caused by snow and ice negligently thrown by its emplbyes upon plaintiff's property while engaged in cleaning the roof of a building used exclusively for municipal purposes;^" but it will be liable for injuries due to a failure to light sufficient- ly the stairway leading to a room in the city hall, which had been let for a public entertainment.^^ For mere failure to pass or enforce an ordinance, it has been seen that the municipality will not be liable ; nor is it liable for omitting to abate a nuisance upon the property of another. A dififerent question is presented where the wrongful act has been expressly licensed or permitted, as in the case of the discharge of fireworks in a congested locali- ty. Though the authorities are in conflict,^ ^ it would seem fair to place the loss arising from this' species of nuisance upon all who are responsible for it.'* see Kennedy v. Mayor, etc.. of City of New YorU, 73 N. T. 365, 20 Am. Rep. 169. 2 9 See Safety Insulated Wire & Cable Co. v. City of Baltimore, 66 Fed. 140, 13 C. C. A. 375. so Kelley v. Boston, 186 Mass. 165, 71 N. E. 299, 6 L. R. A. 429. To same effect, Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763, IS L. R. A. 151. 81 Little V. City of Holyoke, 177 Mass. 114, 58 N. B. 170, 52 L. R. A. 417. To the same effect, Worden v. City of New Bedford, 131 Mass. 23, 41 Am. Rep. 185. 82 That the city Is not responsible. Kerr v. Inhabitants of Brook- line, 208 Mass. 190, 94 N. E. 257, 34 L. R. A. (N. S.) 464; Hill v. Board of Aldermen of City of Charlotte, 72 N. C. 55, 21 Am. Rep. 451 ; Bartlett v. Town of Clarksburg, 45 W. Va. 393, 31 S. B. 918, 43 L. R. A. 295, 72 Am. St. Rep. 817. 83 Landau v. New York, 180 N. Y. 48, 72 N. E. 631, 105 Am. St Rep. 709; Spelr v. City of Brooklyn, 189 N. T. 6, 34 N. E. 727, 21 L. R. A. 641, 36 Am. St Rep. 664. Cf. Cohen v. Mayor, etc., of New § 51) COEPOEATIONS 203 A distinction has been drawn between true municipal corporations, such as cities and incorporated villages, and what are termed quasi municipal corporations, created, without the immediate consent of the inhabitants, to aid the state in the administration of government. In this class are counties, townships, and school and road districts ; also there is the New England town, whose general affairs are administered by the citizens in person at stated meetings and through officers elected by themselves.'* These quasi municipal corporations are subject to a less onerous respon- sibility, in that it has been held in many cases that there should exist an express statute giving a cause of action.'^ This has not, however, passed unchallenged. "We find it not only difficult," said the Supreme Court of South Caro- lina,** "tOv perceive any good reason why a person, who sustains an injury by reason of a defect in a highway just beyond the corporate limits of a city or town, has no right of action against the public authorities charged with the duty of keeping such highway in repair, while such person would have a right of action if the injury he sustained had been received within the corporate limits of such city or town." York, -US N. Y. 532, 21 N. E. 700, 4 t^ R. A. 406, 10 Am. St. Rep. 506; Little v. City of Madison, 42 Wis. 643, 24 Am. Rep. 435. s* See Dillon on Municipal Corporations, §§ 37-42. »5 See Dillon on Municipal Corporations, §§ 1638-1646. For exam- ple, see the following: Counties, Bamett v. Contra Costa Co., 67 Cal, 77, 7 Paa 177 ; White v. Bond County, 58 HI. 297, 11 Am. Rep. 65 Kincald v. Hardin Co., 53 Iowa, 430, 5 N. W. 589, 36 Am. Rep. 236 Pundman v. St Charles County, 110 Mo. 594, 19 S. W. 733 ; town ships. Highway Com'rs of Niles Tp. t. Martin, 4 Mich. 5^7, 69 Am De& 333 ; school districts. Bank v. Brainerd School District, 49 Minn. 106, 51 N. W. 814 ; Finch v. Board of Education of City of Toledo, 30 Ohio St. 37, 27 Am. Rep. 414; towns, Chldsey v. Town of Canton, 17 Conn. 475; Reed v. Inhabitants of Belfast, 20 Me. 246; Mower v. Inhabitants of Leicester, 9 Mass. 247, 6 Am. Dec. 63; £}astman y. Meredith, 36 N. H. 284, 72 Am. Dec. 302. s« Young y. City Council of Charleston, 20 S. C. 116, 119, 47 Am. Rep. 827. 204 GENERAL PRINCIPLES (Ch. 6 (B) Charitable Corporations To hold a corporation organized and conducted as a pub- lic charity liable for the wrongdoing of its servants would be to work a diversion of the trust fund from the purpose for which the donor gave it. This would be against all law and equity, and would be carrying the doctrine of responde- at superior to an , unreasonable and dangerous length, mak- ing it possible to sweep away all public charities. Public policy, therefore, decrees that no liability shall attach to such a corporation,'^ provided, it has been said, that due care has been exercised in the selection of the offending employe.** But it is submitted that any such limitation would destroy the principle itself. "For it can make no difference, so far as the integrity of the fund is concerned, whether it be sought after by one who is injured by the negligence of a. servant or the negligent selection of such servant." "' While the cases have perhaps chiefly been decided with reference to hospitals, yet, as will be noted from the fore- going citations, the doctrine is equally applicable to such public institutions as universities, reform schools, and fire insurance patrols maintained to save life and property, *i Parks V. Northwestern University, 218 111. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Gas. 103 ; Jensen v. Maine Eye & Ear Infirmary, 107 M^. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141; Perry V. House of Refuge, 63 Md. 20, 52 Am. Rep. 495; DOWNJES v. HARPER HOSPITAL, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, Chapin Gas. Torts, 95; Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15, Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745; Abston V. 'Vf aldon Academy, 118 Tenn. 24, 102 S. W. 351,- 11 L. R. A\ (N. S.) 1179. 88 Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am. Rep. 529; Corbett v. St Vincent's Industrial School of Utica, 79 App. Div. 334, 79 N.^ Y. Supp. 369,- affirmed 177 N. Y. 16, 68 N. B. 997; Powers v. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 0. C. A. 122, 65 L. R. A. 372. The Supreme Gourt of Rhode Island has denied any immunity to charitable corporations as such. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675. But hospitals sustained in whole or in part by charitable con- tributions are now made exempt by statute. Gen. Laws 1909, e. 213, §38. 3 9 Adams v. University Hospital, 122 Mo. App. 675, CS6, 99 S. W. 453, 456, per ElUson" J. § 51) CORPORATIONS 205 though as to the last named the courts are not in accord.*" A different result will not be reached because the hospital accepts payment from patients able to afford it,*^ or the university requires its students to pay tuition fees,*'' or the industrial school receives county aid and a small sum from the sale of its surplus products,*^ since it is the character of the institution itself which controls, which is not affected by such incidental additions to its revenues from the trust fund. The selfish motives of the donor will not alter the situa- tion. The true test, as has been seen, is whether the pur- pose of the enterprise is charitable, in that it is not to ac- quire gain. A hospital or medical department maintained by a railroad company,** or supported by the contributions of the employer and its employes,*" is none the less chari- table because the company might have thought that its operation would protect it from excessive claims for dam- ages; ** nor will a steamship company, which exercised due *o Contra: Newcomb v. Boston Protective Department, ]51 Mass. 215, 24 N. B. 39, 6 L. R. A. 778 ; Coleman v. Fire Ins. Patrol of New Orleans, 122 La. €26, 48 South. 130, 21 L. R. A. (N. S.) 810. IS Ann. Cas. 1217. 41 Jensen v. Maine Eye & Ear Infirmary, 107 Me. 408, 78 Atl. 898, 33 L. R. A. (N. S.) 141 ; McDonald v. Massachusetts General Hospi- tal, 120 Mass. 432, 21 Am. Rep. 529 ; DOWNES v. HARPER HOSPI- TAL, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427, Chapin Cas. Torts, 95; Taylor v. Protestant Hospital Ass'n, 85 Ohio St 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427 ; Gable v. Sisters of St Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879. But where the hospital has undertaken to supply a competent nurse for whose services the plaintiff has agreed to pay, an action may be maintained for breach of the contract. Ward v. St. Vincent's Hospital, 39 Apt). Div. 624, 57 N. Y. iSupp. 784. 42 Parks V. Northwestern University, 218 111. 381, 75 N. E. 991, 2 L. R. A. (N. S.) 556, 4 Ann. Cas. 103. 43 Corbett v. St. Vincent's Industrial School, 79 App. Div. 334, 79 N. Y. Supp. 369, affirmed 177 N. Y. 16, 68 N. E. 997. 44 Eighmy v. Union Pac. Ry. Co., 93 Iowa, 538, 61 N. W. 1056, 27 L. R. A. 296. 4 5 Barden v. Atlantic Coast Line Ry. Co., 152 N. C. 318, 67 S. E. 971, 49 L. R. A. (N. S.) 801; Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 89 Pac. 95. 46 Union Pac. Ry. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581. And see Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Kep. 745. • 206 GENERAL PKINCIPLES (Ch. 6 care in the selection of a ship's surgeon, be held accounta- ble for the latter's negligence.*' It has been asserted, However, that the true basis of the general doctrine of nonliability is not to be found in the necessity of preserving a trust fund intact, but rather in an acquiescence therein by all persons who accept the bene- fits,*' thus spelling out a waiver by such persons of any responsibility of the institution for the torts of its servants, though this reasoning has not gone unquestioned.** It has therefore been held, that, as no such acquiescence can be at- tributed to an outsider, a recovery may be allowed in his fa- vor.°° The application of the general doctrine to a corporation akin to, but not among, those already enumerated, may be a matter of some difficulty, since, though there may be no division of profits, it may not be purely charitable. A cor- poration organized partly for social purposes,"^ and a cem- etery association,"^ have been held to be not within the ex- empted class. " Laubheim v. De Koninglyke N. S. Co., 107 N. Y. 228, 13 N. E. 781, 1 Am. St. Rep. 815. And see O'Brien v. Cunard Steamship Com- pany, 154 Mass. 272, 28 N. E. 266, 13 L. R. A. 329 ; Allan v. State Steamship Co., 132 N. X. 91, 30 N. E. 482, 15 L. R. A. 166, 28 Am. St. Rep. 556. *8 Powers V. Massachusetts Homeopathic Hospital, 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372. *» Kellogg V. Church Charity Foundation, 128 App. Div. 214, 218, 112 N. Y. Supp. 566. Cf. Schloendorff v. Society of the N. ¥. Hospi- tal, 211 N. Y. 125, 105 N. B. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581. eo Hordem v. Salvation Army, 199 N. T. 233, 92 N". E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St Rep. 889 (plaintifE injured while making repairs; court refused to express any view as to the status of per- sons visiting charity patients) ; Kellogg v. Church Charity Founda- tion of Long Island, 203 N. T. 191, 96 N. E. 406, 38 L. R. A (N. S.) 481, Ann. Cas. 1913A, 883 (pedestrian injured by negligent driving of ambulance; judgment for plaintiff reversed on other grounds); Bruce v. Central M. E. Church, 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150. 61 Chapin v. Holyoke Y. M. C. A., 165 Mass. 280, 42 N. E. 1130. 02 Donnelly v. Boston CathoUc Cemetery Ass'n, 146 Mass. 163, 15 N. E. 505. § 51) CORPORATIONS 207 (C) Private and Noncharitable It was supposed at one time that an action for a tort would not lie against corporations, at least in cases such as malicious prosecution, where wrongful motive was involv- ed.'* This doctrine is thoroughly exploded. The same rule now applies to them as to individuals."* "The interests of the community and the policy of the law demand. that cor- porations should be divested of every feature of a fictitious character which shall exempt them from the ordinary lia- bilities of natural persons for acts and injuries committed by them and for them. Their immunities for wrongs are no greater than cah be claimed by others." ®° Nor will the corporation escape merely because the act complained of was ultra vires. It will be liable, "however foreign to its nature or beyond its granted powers the wrongful transac- ts Owsley V. Montgomery & W. P. R. Co., 37 Ala. 560. And see Childs v. Bank of Missouri, 17 Mo. 213. 5* Baltimore & Potomac R. Co. t. Fifth Baptist Church, 108 U. S. 317, 330, 2 Sup. Ct. 719, 27 L. Ed. 739. BBGoodspeed v. East Haddam Bank, 22 Conn. 530, 543, 58 Am. Dec. 439, per Church, C. J. See the following, where the corpora- tion was held responsible : Assault and battery, Moore v. Pitchburg R. Corp., 70 Mass. (4 Gray) 465, 64 Am. Dec. 83; Denver & Rio Grande Ry. v. Harris, 122 U. S. 597, 7 Sup. Ct 1286, 30 L. Ed. 1146; conspiracy, Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. T. 669, 12 N. B. 826 ; false imprisonment. Lynch v. Metropolitan Ei. R. Co., 90 N. Y. 77, 43 Am. Rep. 141 ; fraud, Scofleld Rolling Mill Co. v. State, 54 Ga. 635; Cragie v. Hadley, 99 N. T. 131, 1 N. B. 537, 52 Am. Rep. 9 ; Erie City Iron Works v. Barber & Co., 106 Pa. 125, 51 Am. Rep. 508; libel, Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672 ; Id., 47 Cal. 207 ; Fogg v. Boston & Lowell R. Corp., 148 Mass. 513, 20 N. B. 109, 12 Am. St. Rep. 583; malicious prosecution, Boogher v. Life Ass'n of America, 75 Mo. 319, 42 Am. Rep. 413; negligence, Consolidated Ice Machine Co. v. Keifer, 134 lU. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St Rep. 688 ; Hickey v. Merchants' & Miners' Transp. Co., 152 Mass. 39, 24 N. E. 860; nuisance, Schenectady First Baptist Church v. Scheneotady & T. R. Cow 5 Barb. (N. X.) 79; trespass, Merrills v. Tariff Mfg. Co., 10 Conn. 384, 27 Am. Dec. 682. As to slander authorities are conflict- ing, but there seems no good reason for doubting liability. Roemer V. Jacob Schmidt Brewing Co. (Minn. 1916) 157 N. W. 640; Kharas V. Collier, Inc., 171 App. Div. 388, 157 N. T. Supp. 410. 208 GENERAL PRINCIPLES , (Ch. 6 tion or act may be." "' It would be a strange condition ol the law which would permit the company to shield itseM from liability by resort to a literal constructi9n of charter powers which it had itself extended.*' Thus, where an edu- cational corporation was sued for injuries sustained through the negligence of its ferryman, it was no defense that the maintenance of the ferry was ultra vires ; "* and the same is true where a bank, without charter authority, but with the knowledge of the directors, takes special deposits, which are lost through gross negligence. °° Further illustrations are given in the note.*" As corporations can necessarily act only through their agents and servants, further consid- eration of their responsibility must be taken up when the liability of the employer is discussed.** EMPLOYERS 52. The liability of employers will be considered as follows : (A) For the wrong of a servant or agent. (B) For the wrong of an independent contractor. Be New York & N. H. R. Co. v. Schuyler, 34 N. Y. 30, 49, per Da- vis, J. 7 See Noyes v. Rutland & B. R. Co., 27 Vt. 110, 113. 08 Nims V. Mt. Hermon Boys' School, 160 Mass. 177, 35 N. E. 776, 22 L. R. A. 364, 39 Am. St. Rep. 467. 09 First Nat. Bank v. Graham, 100 U. S. 699, 25 L. Ed. 750. Though in fact the receipt of special deposits was here found not ultra vires. «o Central Railroad & Banking Co. v. Smith, 76 Ala. 572, 52 Am. Rep. 353; German Nat Bank v. Meadowcroft, 95 111. 124, 35 Am. Rep. 137; Alexander v. Relfe, 74 Mo. 495; New York, L. B. & W. R. Co. V. Haring, 47 N. J. Law, 137, 54 Am. Rep. 123; Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 60 N. E. 597, 52 L. R. A. 429 ; Burke v. State, 64 Misc. Rep. 558, 119 N. Y. Supp. 1089 ; Zinc Car- bonate Co. V. First NaL Bank, 103 Wis. 125, 79 N. W. 229, 74 Am St. Rep. 845. 81 See "Employers." 53) SEBVAHT OB AGENT 209 FOR THE WRONG OF A SERVANT OR AGENT 53. Omitting any question of participation or ratification, the master or principal will be responsible — (1) Where the servant or agent, in committing the wrong, acted within the course of his employment with a view to the master's business; and — (2) Where the act or neglect constituted a violation of a duty resting upon the employer. A master or principal will be responsible for the wrong- ful acts of the servant or agent in which he participated or which he subsequently ratified. But this does not depend upon rules peculiarly applicable to these relationships, and hence will be discussed when the liability of joint wrong- doers is considered. At present we are concerned only with the responsibility of the employer as such towards third persons who have been injured by the employe in cas- es where participation or ratification is lacking. Viewed from this standpoint, the employer will be responsible (1) where the employe has acted within the course of his em- ployment; (2) where the act or neglect of the employe was a violation of duty resting upon the employer. (1) Acts Within Course of Employment It is difficult to explain the basis for the rule, except up- on grounds of public utility. A master is answerable be- cause it is on the whole better that he should suffer from defaults in the conduct of his business than that innocent third persons should bear the losses that such defaults cast upon them.°^ It is, of course, essential that the relation of master and servant or principal and agent exist, in order that the doc- trine of respondeat superior apply. It has already been in- timated that no such result follows where there is a lack of control over the delinquent individual, for which reason, as will be seen later, the principal will not generally be re- •2 See HuffcTit on Agency, 194 ; PoUock on Torts, 72-74. Chap.Tokts — 14 210 GENERAL PRINCIPLES (Ch. 6 garded as liable for the acts or neglect of a contractor." This presupposes, also, a freedom of selection; and hence, if one is compelled to accept the services of another, it would be unfair to place it in the latter's power to bring about a situation which would result to the former's disad- vantage. This is illustrated where by statute the shipown- er is obliged to receive a licensed pilot, who is negligent in the discharge of his official duty,"* and a mine operator is required to employ a licensed foreman;'" Assuming, however, that the relation exists, the princi- ple to be applied, as stated by the New York Court of Ap- peals, is that "for the acts of the servant within the general scope of his employment, while engaged in the master's business and done with a view to the furtherance of that ' business and the master's interest, the master will be re- sponsible, whether the act be done negligently, wantonly, or even willfully." *° It will be observed that the phrase "scope of employment" is here used, though "course of em- ployment" is to be preferred,*' since it matters not that the servant in fact exceeded the powers conferred upon him, or did an act which the master was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the service of the master, attempted to perform a duty per- taining, or which h? believed to pertain, to that service."* 3 See infra, p. 214 et seq. 84 Homer Eamsdell Transp. Co. v. La Compagnie G6nerale Trans- atlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155 ; General Steam Nav. Co. v. British & Colonial Steam Nav. Co., L. R. 3 Exeh. 330. But the contrary has been held by the United States Supreme Court in admiralty on the principle of maritime law that the vessel, In whosoever hands she may be, is herself considered as the wrong- doer. The China, 7 Wall. 53, 19 L. Ed. 67 ; Ealli v. Troop, 157 TJ S. 386, 402, 15 Sup. Ct. 657, 39 L. Ed. 742. 85 Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237, 29 L. R. A. 808, 50 Am. St. Rep. 801, holding unconstitutional a statute mak- ing the operator liable for the foreman's negligence. 86 Mott V. Consumers' Ice Co., 73 N. Y. 543, 547, per Allen, J. 87 See Mallach v. Ridley, 24 Abb. N. C. 183, note, 47 Hun, 638, 9 N. T. Supp. 922. «8 Lynch v. MetropoUtan El. R. Co., 90 N. X. 77, 43 Am. Rep. 141. An extended discussion will be found in note to Ritchie v. Waller, 27 L. R. A. 161. § 53) SERVANT OE AGENT 211 Necessarily the doctrine cannot be stated with any great degree of definiteness, and each case must be determined with reference to the particular circumstances. The decisions in Palmeri v. Manhattan R. Co.^" and Mulligan v. New York & R. B. R. Co.''" well illustrate what is meant by "course of employment" and "view to master's interest." In the first, the company was held liable for the act of its tick- et agent, who followed a passenger to the platform and, upon her refusal to give him other money in place of that already paid, falsely charged her with passing counterfeit coin, called her a prostitute, and detained her while attempt- ing to procure an officer. In the second, the ticket agent, after receiving from plaintiff a five dollar bill and giving him change, caused his arrest, believing him to be one of three individuals described as counterfeiters in a circular previously left with the agent by a detective not in defend- ant's employ. For this the company wis not liable. In the first case, what the agent did was in the endeavor to protect and recover his employer's property. In the sec- ond, he acted as a good citizen desiring to assist the police. As an agent he should have refused to accept what he be- lieved to be a counterfeit bill. In taking it, he went beyond the line of his duty, for his object was to entrap the sup- posed criminal. At times, the doctrine becomes very difficult to apply. Where a servant exclusively for his own private purposes uses the master's vehicle, clearly the master is not liable to one injured by the servant's negligence.''^ But suppose,, while driving on an errand of the master, he goes out of his way on an errand of his own? Seemingly this must de- pend upon the extent of the deviation.'^ 69 PAI/MERI V. MANHATTAN R. CO., 13.3 N. Y. 261, 30 N. E. 1001, 16 I/. K. A. 136, 28 Am. St. Rep. 632, Chapin Cas. Tofts, 99. 7 129 N. T. 506, 29 N. E. 952, 14 L. R. A. 791, 26 Am. St. Rep. 539. 71 Clark V. Buckmobile Co., 107 App. Div. 120, 94 N. Y. Supp. 771. And see Quigley v. Thompson, 211 Pa. 107, 60 Atl. 506; Chicago, St. P., M. & O. Ry. V. Bryant, 65 Fed. 969, 13 C. C. ^. 249. 72 "In snch cases It is and must usually remain a question de- pending upon the degree of deviation and aU the attendant circum- stances. In eases where the deviation is slight, and not unusual, 212 GENEEAL PRINCIPLES (Ch. 6 • Now, it is evident that the actual authority of the serv- ant is not in issue, since the master, may be responsible, though he may have expressly forbidden the act. Nor is it necessary that he should have derived any benefit from the wrongdoing; indeed, he may have suffered separate and independent damage. Nor is the method of accom- plishment the test, for the injury may have been due to negligence, or to a wanton or reckless purpose to accom- plish the master's business in an unlawful manner. Where a positive duty not to be delegated is not involved, it is simply a question whether or not the servant has stepped aside from his employment to effect some object of his own and thereby committed an independent tort,' For in- stance, plaintiff purchases from and pays defendant for a stove, which is delivered to him, but through an error is marked "C. O. D." Defendant's driver is under bond, and is personally responsible -if neither merchandise so marked nor the price is returned. Plaintiff refuses to redeliver the stove or to pay the price, whereupon the driver procures his arrest. Was this done for the purpose of protecting the master's property, or that the servant himself njight escape loss? It is properly a question of fact for the jury,'* as is generally the case,'* though, where neither the the court may, and often will, as matter of law determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at atl, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the Jury or other trier of such questions." Ritchie v. Waller, 63 Conn. 155, 161, 28 Atl. 29, 27 L. K. A. 161, 38 Am. SL Rep. 361, per Tor- rance J. (defendant liable, deviation apparently slight) ; Loomis v. HoUister, 75 Conn. 718, 55 Atl. 561 (same); Whatman v. Pearson, L. R. 3 C. P. 422 (defendant liable, deviatiod one-quarter of a mile)! Contra: McCarthy v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St Rep. 490 (not liable, though deviation apparently slight). For an act done in the course of a 15-mile deviation, master held liable in Smith v. Spitz, 156 Mass. 319, 31 N. B. 5. 73 Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169. 7 4 Ritchie V. Waller, 63 Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361; Young v. South Boston Ice Cto., 150 Mass. 527, 23 N. E. 326; Rounds v. Delaware, L. & W. R. Co., 64 N. Y. 129, 21 § 53) SERVANT OE AGENT 213 facts nor the inference to be drawn from them is in doubt, it may be passed upon by the court.^^ Illustrative cases will be found in the note/' The liability of the principal for the torts of his agent is governed by the test already laid down, namely, course of employment." (3) Acts Done in Violation of a Duty Where the master owes a duty to third persons, and he commits its performance to an agent, the master cannot escape responsibility if the servant fails to perform, wheth- er such failure be accidental or willful, or be the result of negligence or malice.*' Under this rule defendant, who Am. Rep. 597 ; Brennan v. Merchant & Co., 205 Pa. 258, 54 Atl. 891 ; Burns v. Poulson L. R. 8 C. P. 563. TB Walton V. New York Cent Sleeping Car Co., 139 Mass. 556, 2 N. E. 101; Aycrlgg's Ex'rs v. New York & Erie R. Co., 30 N. J. Law, 460; Guille v. Campbell, 200 Pa. 119, 49 Atl. 938, 55 li R. A. Ill, 86 Am. St Rep. 705 ; Dells v. Stollenwerk, 78 Wis. 339, 47 N. W. 431. T8 Master liable. Phelon v. Stiles, 43 Conn. 426 ; Andrews v. Ma- son City & Ft D. R. Co., 77 Iowa, 669, 42 N. W. 513; George v. Gobey, 128 Mass. 289, 35 Am. Rep. 376 ; Evans v. Davidson, 53 Md. 245, 36 Am. Rep. 400; Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405 ; Lannen,v. Albany Gaslight Co., 44 N. Y. 459 ; McClung v. Dearborne, 134 Pa. 396, 19 Atl. 698, 8 L. R. A. 204, 19 Am. St Rep. 708; The Polaria (D. C.) 25 Fed. 735. Master not liable. Gillian V. South & N. A. R. Co., 70 Ala. 268 ; Stephenson v. Southern Pac. Co., 93 CaL 558, 29 Pac. 234, 15 L. R. A. 475, 27 Am. St Rep. 223 ; Brown v. Boston Ice Co., 178 Mass. 108, 59 N. E. 644, 86 Am. St. Rep. 469 ; Keating v. Michigan Cent R. Co., 97 Mich. 154, 56 N. W. 346, 37 Am. St. Rep. 328; Snyder v. Hannibal & St J. R. Co., 60 Mo. 413; Evers v. Krouse, 70 N. J. Law, 653, 58 Atl. 181, 66 L. R. A. 592; Flower v. Pennsylvania R. Co., 69 Pa. 210, 8 Am. Rep. 251. '7 Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N. S.) 653; Howe Mach. Co. v. Souder, 58 Ga. 64; Callahan v. Hyland, 59 111. App. 347; Stimpson v. Aehorn, 158 Mass. 342, 33 N. E. 518; Larson v. Fidelity Mut. Life Ass'n, 71 Minn. 101, 73 N. W. 711; Wilmerding v. Postal Telegraph Cable Co., 118 App. Div. 685, 103 N. Y. Supp. 594, affirmed 192 N. Y. 580, 85 N. E. 1118; Huntley v. Mathias, 90 N. C. 101, 47 Am. Rep. 516; Markely v. Snow, 207 Pa. 447, 56 Atl. 999, 64 Lw R. A. 685 ; Pressley v. Mobile & G. R. Co. (C. C.) 15 Fed. 199. IS See Mechem on Agency, § 740, quoted in STRANAHAN BROS. 214 GENERAL PRINCIPLES (Ch. 6 was under contract with plaintiff to supply pure milk, was held liable for damage caused by the act of a servant who without his knowledge delivered adulterated milk, though the servant did so for the purpose of gratifying malice to- wards ihis employer.'" Its most frequent application, how- ever, is probably found in the case of carriers. Thus it is the latter's duty to 'extend courteous treatment to those whom it conveys, and a railroad will therefore be responsi- ble to a passenger kissed by its conductor, though the lat- ter was certainly not acting within the course of his em- ployment, but in his own private interest.*" A similar result was reached in other -cases of malicious assault by the servants of carriers ; *^ and it appears logical to apply the rule to innkeepers, though the courts are not in ac- cord.*'' FOR THE WRONG OF AN INDEPENDENT CONTRACTOR 54. The employer is not liable for the act or neglect of an independent contractor, unless — (1) The work is wrongful in itself, or involves the doing of a wrong; or — , (2) According to common knowledge arid experience it is in its nature dangerous to others ; or— i CATERING CO. v. COIT, 55 Ohio St. 398, 45 N. B. 634, 4 L. K. A. (N. S.) 506, Chapln Cas. Torts, 102. ■>» STRANAHAN BROS. CATERING CO. v. COIT, supra. 80 Craker v. Chicago & N. W. R. Co., 36 Wis. 657, 17 Am. Ren 504. 81 Haver v. Central R. Co. of New Jersey, 62 N. J. Law, 282, 41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647 ; DwineUe v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224 17 Am. St. Rep. 611; Williams v. Gill, 122 N. C. 967, 29 S. E. 879. ?2 Innkeeper liable. Overstreet v. Moser, 88 Mo. App. 72; Clancy T. Barker, 71 Neb. 83, 98 N. W. 440, 103 N. W. 446, 69 L. R. A (N. S.) 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682 (contract). And se^De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R A (N S ) 860, 127 Am. St. Rep. 969. Contra: Rahmel v. Lehndorff, 142 Cal. 681, 76 Pac. 659, 65 h. R. A. 88, 100 Am. St. Rep. 154; Clancy v Barker, 131 Fed. 161, 66 C. 0. A. 469, 69 L. R. A. 653. § 54) INDEPENDENT CONTEACTOB ' 215 (3) The wrong constitutes the violation of a duty im- posed upon or assumed by the employer ; or — (4) (a) The employer retains the right to direct or control the method of executing the work, or (b) interferes and assumes control, and the injury is the result of such interference; or — (5) The employer ratifies the wrong; or — (6) The contractor is incompetent, and reasonable care was not exercised in his selection.*' An independent contractor has been defined as "one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work." " To this relation the doctrine of re- spondeat superior will not in general apply, since it would be unjust to impose liability on that score for another's wrong where there has been no control over the actions of the wrongdoer.*" But this rule is subject to several excep- tions.** (1) Wrongful Work. If an unlawful act is done pursuant to a common design, all who are parties to the understanding will be responsible as joint tort-feasors, and it makes no difference whose was the brain that planned and whose the hand' that executed. 83 This statement is taken with some modification from Civ. Code Ga. 1895, § 3819. See Louisville & N. R. Co. v. Hughes, 134 Ga. 75, 67 S. E. 542. 84 Powell V. Virginia Const. Co., 88 Tenn. 692, 697, 18 S. W. 691, 17 Am. St. Rep. 925, per Lurton, J.; Humpton v. Unterkircher, 97 Iowa, 509, 514, 66 N. W. 776. 85 ATLANTA & F. R. CO. v. KIMBERLY, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231, Chapin Cas. Torts, 106 ; Kelleher v. Sehmitt & Henry Mfg. Co., 122 Iowa, 635, 98 N. W. 482 ; Forsyth v. Hooper, 11 Allen (Mass.) 419 ; De Forrest v. Wright, 2 Mich. 368 ; Uppington T. City of New Xork, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; Hexamer v. Webb, 101 N. Y. 377, 4 N. B. 755, 54 Am. Rep. 703; Smith V. Simmons, 103 Pa. 32, 49 Am. Rep. 113. 86 See Berg v. Parsons, 156 N. Y. 109, 115, 50 N. E. 957, 41 L. ^. A. 391, 66 Am. St. Rep. 542 ; ATLA'NTA & F. R. CO. v, KIMBERLY, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231, Chapin Cas. Torts, 106. , 216 GENERAL PRINCIPLES (Ch. & This will be considered more fully later on.*' The present exception is based upon this doctrine. Hence, if one with- out excuse undertakes to obstruct a public street, he be- comes liable for injuries due to the nuisance, though the work was in fact done by his contractor.'' So, too, the contract may necessarily involve the doing of an illegal act, though the primary object be iiot unlawful, as where the employer intrusts to a contractor the erection of a building or improvements on property held by the former, under plans which erroneously require a trespass to be made on adjoining premises,*' or are insufficient to secure a safe con- struction.'" (2) Dangerous Work This exception has been stated in various ways. In one form, it is that the work must be "intrinsically dangerous" in order that the employer may be liable ; '^ ip another, that the contract must have required an act to be performed which would probably be injurious to third persons if rea- sonable care was omitted in the course of its performance."'' ST See infra, p. 229 et seq. 88 Skelton v. Larkin, 82 Hun, 388, 31 N. T. Supp. 234, affirmed 146 N. Y. 365, 41 N. E. 90; EUls v. Sheffield Gas Consumers Co., 2 C. L. R. 249, 2 E. & B. 767, 18 Jur. 146, 23 L. J. Q. B. 42, 2 Wkly. Rep. 19, 75 E. C. L. 767. 83 See Mamer v. Lussem, 65 111. 484; American Car & Foundry Co. V. Spears, 146 Ky. 736, 143 S. W. 377. »» Lancaster v. Connecticut Mut. Life Ins. Co., 92 Mo. 460, 5 S. W. 23, 1 Am. St. Rep. 739 ; Church of Holy Communion v. Paterson Exten.sion R. Co., 68 N. J. Law, 3'J9, 53 Atl. 449, 1079. Aliter where the plans are prepared by an architect selected with due care. See Burke v. Ireland, 26 App. Div. 487, 50 N. Y. Supp. 369. 91 City of Joliet v. Harwood, 86 111. 110, 29 Am. Rep. 17; Laffery V. U. S. Gypsum Co., 83 Kan. 349, 111 Pac. 498, 45 L. R. A. (N. S.) 930, Ann. Cas. 1912A, 590 ; Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052, 33 Am. St. Rep. 692. 92 Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32; Woodman v. Metropolitan R. Co., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427 ; , Davis v. Summerfleld, 133 N. C. 325, 45 S. E. 654, 63 L. R. A. 492 ; Covington & C. Bridge Co. V. Steinbrock, 61 Ohio St. 215, 55 N. E. 618, 76 Am. St Rep. 375 • Bower v. Peate, 1 Q. B. D. 321, 45 L. J. Q. B. 446, 35 L. T. Ren' N. S. 321. , ■ , .. ' ^^- ■§ 54) INDEPENDENT CONTBAOTOB 217 That there is a substantial diflference between these two methods of expression appears in cases where the act may be safely done in the exercise of due care, although in the absence thereof injurious consequences to third persons would be likely to result. It may not, for instance, be in- trinsically dangerous to remove a wall, and yet danger may be apprehended if the work is done carelessly or unskillful- ly; *' and the same is true of blasting within a short dis- tance of adjoining property.** Indeed, irrespective of dif- ferences in form, we find the cases in hopeless confusion upon many points^ such as blasting,*" excavating,** and the burning of brush. *^ It has sometimes been said that the negligence of the •contractor is directly involved in the work, where the work is in its nature dangerous to others, however carefully per- formed, and the danger is not merely collateral to it.** 83 Thus in New York, where the "intrinsically dangerous" rule is in force, the employer was held not to be responsible. Engel v. Eureka Club, supra. Contra, Covington & C. Bridge Co. v. Stein- brock, supra. 9* French v. Vix, 143 N. Y. 90, 37 N. E. 612 (employer not liable). Contra, Wetherbee v. Partridge, 175 Mass. 185, 55 N. E. 894, 78 Am; St. Rep. 486. 86 As to blasting on streets, see City of Joliet v. Harwood, 86 111. 110, 29 Am. Rep. 17; Murphy v. City of Lowell, 124 Mass. 564; contra, Blumb v. City of Kansas City, 84 JIo. 112, 54 Am. Rep. 87; Kelly V. Mayor, etc., of City of New York, 11 N. Y. 432; Murphy V. City of New York, 128 App. Div. 463, 112 N. Y. Supp. S07. Blast- ing on premises of employer. City of Tiffin v. McCormack, 34 Ohio St 638, 32 Am. Rep. 408 ; contra, CufE v. Newark & N. Y. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 205; McCafCerty v. Spuyten Duyvil & P, M. R. Co., 61 N. Y. 178, 19 Am. Rep. 267. 98 Bonaparte t. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L. R. A. 482 ; Davis V. Summerfield, 133 N. C. 325, 45 S. E. 654, 63 L. R. A. 492 ; Murphy v. Perlstein, 73 App. Div. 256, 76 N. Y. Supp. 657; Bower T. Peate, 1 L. R. Q. B. D. 321, 45 L. J. Q. B. 446, 33 L. T. Rep. N. S. 321 ; contra, Myer v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719 ; Kep- perly v. Ramsden, 83 111. 354. ST Cameron v. Oberlin, 19 Ind. App. 142, 48 N. E. 386; contra, Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544. 9 8 Chicago City Ry. Co. v. Hennessy, 16 111. App. 153; St. Paul Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485; Hole v. Sitting- bourne & S. Ry. Co., 6 H. & N. 488. 218 GENERAL PRINCIPLES (Ch. 6 This does not lessen the difficulty of application in such instances as have been considered. There is, however, a substantial agreement on some points. Thus it has been generally held that where the contract, though lawful in itself, provides for interference with the public right of passage in a street, the employer must take the risk of the contractor's negligence, since the latter is directly involv- ed," or, put another way, the thing to be done would, if done in the ordinary manner, result in a nuisance.^"" This would include such cases as the laying of tracks,^"^ the dig- ging of trenches for water pipes,^'"' sewers and drains,^"^ and for access to adjoining property.^"* On the other hand, the erection or repair of a structure on the employer's prem- ises ordinarily involves no danger, and negligence consist- ing in- the dropping of material,^"" nailing cleats on a stair- 99 Robbins v. Chicago, 4 WaU. 657, 18 L. Ed. 427. 100 Baumelster v. Markham, 101 Ky. 122, 39 S. W. 844, 41 S. W. 816, 19 Ky. Law Eep. 308, 72 Am. St. Rep. 397. And see Cuff v. Newark & N. Y. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 205. 101 Woodman v. Metropolitan R. Co., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427. Contra, Fulton County St R. Co. V. McConnell, 87 Ga. 756, 13 S. B. 828. And see Deming V. Terminal Ry. Co. of Buffalo, 169 N. Y. 1, 61 N. B. 983, 88 Am. St. Rep. 521, where liability was based, not upon the negligence of the contractor, but upon a breach of duty to the public to keep the highway in safe condition. 102 Colgrove v. Smith, 102 Cal. 220, 36 Pac. 411, 27 L. R. A. 590; Thomas v. Harrington, 72 N. H. 45, 54 Atl. 285, 65 L. B. A. 742. 103 Railroad Co. v. Morey, 47 Ohio St 207, 24 N. E. 269,7 L. R. A. 701 ; Gray v. PuUen, 5 B. & S. 970, 32 L. J. Q. B. 169, 34 L. J. Q. B. 205, explained in Bower v. Peate, 1 Q. B. D. 321, 328, 45 L. J. Q. B. 446, 35 L. T. Rep. N. S. 321. 104 Wiggin V. City of St Louis, 135 Mo. 558, 37 S. W. 528. lOB Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703; Emmerson v. Fay, 94 Va. 60, 26 S. E. 386; Boomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004, 53 L. R, A. 172. Here the contract was to repair certain chimneys on defendant's buildings which ad- joined the highway. There was held to be no UabiUty for falling brick, and the distinction between danger directly and collaterally involved was clearly pointed out. For instance, if it had been neces- sary "to topple the chimney over into the street, or to remove the bricks by letting them fall into it, or the contract had contemplated such action," the employer would have been responsible. § 54) INDEPENDENT CONTEACTOB 219 way/"' depositing materials in the highway,^" leaving a plank walkway extending upon the sidewalk after night,^"* or in failing to barricade or place warning lights on ob- structions deposited by him in front of the premises,^"' would be in a mere detail of the work. So where an inde- pendent contractor, employed to unload coal, places a run or bridge across a street to assist him in his work,^^" or, having undertaken to transport lumber, piles it too near a railroad track.^^^ Nor does the construction of a railroad on its own right of way necessarily involve the creation of a nuisance.^^^ (3) Violation of a ifuty One can no more escape liability for failure to fulfill a duty by turning its performance over to a contractor than by intrusting it to a servant. The act or neglect of the dele- gate will be that of his principal. Thus, where a city is under duty to keep its streets in a safe condition for public travel, it is bound to exercise rea- sonable diligence to accomplish that end. When it causes an excavation to be made, it is bound to see that it is care- fully guarded, so as to be reasonably free from danger to travelers, and by the weight of authority is not absolved from its duty and responsibility because it emp*loys a con- tractor for the purpose.^ ^* This obligation rests also upon 108 Ix>athaii V. Hewes, 138 Cal. 116, 70 Pac. 1065. 107 HUliard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743. 108 Richmond v. Sitterding, 101 Va. 354, 43 S. E. 562, 65 L. R. A. 445, 99 Am. St Rep. 879. 108 Green v. Soule, 145 Cal. 96, 78 Pac. 337; Hoff v. Shockley, 122 Iowa, 720, 98 N. W. 573, 64 I* R. A. 538, 101 Am. St. Rep. 289. 110 Davie v. Levy, 39 I^a. Ann. 551, 2 South. 395, 4 Am. St. Rep. 225. 111 Wright V. Big Rapids Door & Blind Mfg. Co., 124 Mich. 91, 82 N. W. 829, 50 D. R. A. 495. 112 ATLANTA & F. R, CO. v. KIMBERLY, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231, Chapin Cas. Torts, 106; Cuff v. Newark & N. T. R. Co., 35 N. J. Law, 17, 10 Am. Rep. 205. lis Mayor, etc., of Birmingham v. McCary, 84 Ala. 469, 4 South. 630; Brusso v. City of Buffalo, 90 N. Y. 679; Storrs v. City of Utica, 17 N. Y. 104, 72 Am. Dec. 437; Watson v. Tripp, 11 R. I. 98, 33 Am. Rep. 420; WUson v. City of WheeUng, 19 W. Va. 323, 42 220 GENERAL PEINCIPLE3 (Ch. 6- one who by statute, municipal permission, or otherwise is giyen dominion over the highway, and who, having accepted the privileges and benefits conferred thereby, necessarily assumes corresponding liabilities.^^* Thus the owner of an icehouse, who obtains a license from the city to incum- ber the street while receiving ice, cannot shield himself from responsibility for injuries caused by an obstruction negligently created, under the plea that the act was that of his contractor. ^^^ The duty may be placed formally and expressly upon the employer by statute or municipal ordinance,^^' but it need not necessarily owe its origin to such a source. "If it be a duty imposed by law, the principle is the same." ^" Thus there is an obligation not to maintain a nuisance,*^' and one must exercise reasonable care to make safe the prem- ises on which he has invited others to go,^^* for ejcample,. Am. Kep. 780. And see Mayor, etc., of Baltimore v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395 ; Robbins v. Chicago, 4 Wall. 657, 18 U Ed. 427. . ii*Tlius a railroad authorized pursuant to statute to carry a public highway over its tracks will be liable for injuries due to- the negligence of an independent contractor employed for the. pur- pose, in failiBg properly to grade an embankment. Deming v. Termi- nal Ry. of BufEalo, 169 N. Y, 1, 61 N.- E. 983, 88 Am. St. Rep. 521. To the same effect, North Chicago St R. Co. v. Dudgeon, 184 111. 477, 56 N. E. 796. iiBDarmstaetter v. Moynahan, 27 Mich. 188. ' lie Ordinance requiring owner of materials forming obstruction. In street to place lights, Wilson v. White, 71 Ga. 506, 51 Am. Rep. 269; ordinance requiring erection of roofed passageway over side- walk after completion of first story. Smith v. Milwaukee Builders' & Tradlrs' Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912. But see Koch v. Fox, 71 App. Div. 288, 75 N Y. Supp. 913. 117 Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 224 55 N. E. 618, 76 Am. St. Rep. 375. lis Defendant was the occupant of a house from the front of which a heavy lamp projected over a public way. Through decay- In the fastening the lamp became dangerous to travelers; hence a nuisance. Defendant was liable, though he had previously em- ployed a contractor to put it in repair,, and the latter had failed to do so. Tarry v. Ashton, 1 L. R. Q. B. D. 314, 45 I*. J. Q. B 260 34 L. T. Rep. N. S. 97, 24 Wkly. Rep. 581. "» Curtis V. Kiley, 153 Alass. 123, 26 N. E. 421. § 54) INDEPENDENT CONTBAOTOB 221 to witAess a show or exhibition which he is conducting. In the latter case it is immaterial that the performer through whose negligence the injury was caused was an independent contractor.^*" So the owner of a structure leased for entertainments impliedly warrants to the public that it is reasonably safe. He will not be exempt because the work of construction was intrusted to an architect and builder, or the invitation to the injured party was extended directly by the lessee.^*^ The nondelegable duty may also have been expressly as- sumed by contract, as where defendant agreed to supply a water tank, and sublet the job tq one who furnished a tank which leaked.'*^ (4) Reservation or Exercise of Control It has already been seen that "independence of control in employing workmen and in selecting the means of doing the: work is the test usually applied by courts to determine whether the contractor is independent or not." ^"^ Actual interference and control by the principal is not essential. It is "the right to interfere which makes the difference be- tween an independent contractor and a servant or agenr." ^** Hence whether the principal did in fact exercise the right given to him is not determinative. Thus, where a contract to take down a building provided that the work was to be done carefully "and under the direction" of de- 12 "Defendant, the proprietor of a pleasure resort, advertised as one of its attractions an exhibition of markmanshlp by an arm- less man; liable. Thompson v. Lowell, L. & H. St. Ry. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323. To the same effect, Richmond & M. Ry. Co. v. Moore, 94 Va. 493, 27 S. B. 70, 37 L. B. A. 258 (balloon ascension). 121 Fox V. Buffalo Park, 21 App. Div. 321, 47 N. Y. Supp. 788. 122 Butts V. J. C. Mackey Co., 72 Hun, 562, 25 N. Y. Supp. 531. And see St Paul Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485, where a water company, which undertook to lay pipes in a street, agreed to "protect all persons against damages by reason of exca- vations, * » • and to become responsible for all damages which may occur by reason of the neglect of their employes." 123 Uppington v. City of New York, 165 N. Y. 222, 233, 59 N. B. 91, 53 L. R. A. 550, per Vann, J. i24Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 525, 28 Atl. 32. 222 GENERAL PRINCIPLES (Ch. 6 fendants, the latter became liable for injuries occasioned by the contractor's negligence.^^^ On the other hand, if the contract gives the employer merely a right to reject or approve the work, it will not bring about this result ; for such a provision does not take from the contractor his own initiative, but merely requires him to produce the result contemplated by his agreement.'"' Nor is it enough that there is a right to change, inspect, and supervise to the extent necessary to produce such result, as was held where a municipality had let the construction of a sewer under a contract which declared that the city engineer was to "have the right to regulate the excavation," and "to vary, extend, or diminish the quantity of work dur- ing its progress, without vitiating the contract," and also that "all explanations and directions necessary to carrying out and completing satisfactorily the different descriptions of the work contemplated and provided for tinder this con- tract will be given by said engineer." ^" Such provisions izoLinnehan v. KoUlns, 137 Mass. 123, 50 Am. Rep. 2S7. To the same effect, Parrott v. Chicago Great Western Ry. Co., 127 Iowa, 419, 103 N. W. 352 ; Faren v. Sellers, 39 La. Ann. 1011, 3 South. 363, 4 Am. St. Rep. 256 ; Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct 175, 33 L. Ed. 440 ; Railroad Co. v. Banning, 16 "Wall. 649, 21 L. Ed. 220. 126 So held with respect to the following clauses: "Subject to the inspection and approval of the said engineer * * • in charge of said work." Casement v. Brown, 148 U. S. 615, 13 Sup. Ct 672, 37 L. Ed. 582. "All work to be done to the satisfaction of," etc. Eldred V. Mackie, 178 Mass. 1, 59 N. E. 673. See, also, Alabama Midland R. Co. V. Martin, lOO Ala. 511, 14 South. 401 ; Thomas v. Altoona & L. V. Electric Ry. Co., 191 Pa. 361, 43 Atl. 215. Authorities are re- viewed in Larsen v. Home Telephone Co., 164 Mich. 295, 129 N. W. 894. "It seems to be settled law that, wjiere one person lets a con- tract to another to do a particular work, reserving to .himself no control over the manner in which the work shall be performed, ex- cept that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let." Vin- cmnes Water Supply Co. v. White, 124 Ind. 376, 379, 24 N. B. 747, 748. 127 TJppington v. City of New York, 165 N. T. 222, 59 N. B. 91, 53 L. R. A. 550. To the same effect: Callan v. Bull. 113 Cal. 593, 45 § 54) INDEPENDENT CONTRACTOR 223 do not authorize any interference with the manner in which the work is to be done.^"* Nor is it enough that there is a stipulation embodied in the contract requiring the con- tractor to discharge a workman who should disobey any directions of the principal as to workmanship or ma- terial."» If a reservation of the right to control the means of do- ing the work will establish the relation of master and serv- ant, and cause the doctrine of respondeat superior to apply, then a fortiori such must be the case where the employer has interfered and the injury is the result of such interfer- ence.^*" " • (6) Ratification Although originally not responsible, the principal may subject himself to liability by ratifying the wrohgful act of the contractor, as if an encroachment should have been made on adjoining property and the principal should there- after take and hold possession of the encroaching struc- ture.^^^ But, as this is governed by the general rules ap- Pac. 1017 (engineer to have power to prescribe order in which mate- rials are to be placed and work to be done and materials furnished as directed by him) ; Lenderink v. Rockford, 135 Mich. 531, 98 N. W. 4 (sewer construction ; engineer was to see that tile was laid to prop- er depth and in proper manner after trench was dug) ; Vosbeck v. Kellogg, 78 Minn. 176, 80 N. W. 957 ("all said work to be performed and material to be furnished under the supervision and subject to the approval," etc.). And see Harrison v. Kiser, 79 Ga. 588, 4 S. E. 320 ; Fitzpatrick v. Chicago & W. I. R. Co., 31 111. App. 640 ; Hump- ton V. TJnterkircher, 97 Iowa, 509, 66 N. W. 776 ; Johnson v. Carolina, C. & O. R. Co., 157 N. C. 382, 72 S. E. 1057 ; Hughes v. Cincinnati & S. Ry. Co., 39 Ohio St. 461; Smith v. Milwaukee Builders' & Traders' Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912. 128 See Pack v. Mayor, etc., of City of New York, 8 N. Y. 222. i29Blumb V. Kansas City, 84 Mo. 112, 54 Am. Rep. 87. And see Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550 ; Hobbit v. London & N. W. Ry. Co., 4 Exeh, 254. 13 Eaton V. European & N. A. Ry. Co., 59 Me. 520, 8 Am. Rep. 430 ; Appel v. Eaton & Prince Co., 97 Mo. App. 428, 71 S. W. 741 ; Baldwin v. Abraham, 57 App. Div. 67, 67 N. Y. Supp. 1079, affirmed 171 N. Y. 677, 64 N. E. 1118 ; Ardesco Oil Co. v. Gilson, 63 Pa. 146. 131 Eaton V. European & N. A. Ry. Co., 59 Me. 520, 8 Am. Rep. 430. 224 6ENEBAL PRINCIPLES (Qh. 6 plicable to the adoption of wrongs actually committed by another, it will not be discussed here.^''' It has sometimes been said that on this theory, if the contractee resume pos- session of work imperfectly constructed or in a dangerous condition, when he knew or should have known of the de- fect or danger, he will be liable for all damages thereafter accruing.^*' It is submitted, however, that the doctrine of ratification is not the true basis of these decisions cover- ing the acceptance of defectively done work. By his accept- ance, the employer does .not make himself a party to a pre- ceding act or neglect of the contractor. His liability is prospective only,-and is for the maintenance of the danger- ous structure or other nuisance with knojvledge, actual or presumed, of its dangerous qualities. It cannot be stretch- ed to cover injuries received prior to the time the accept- ance or resumption of control took place, as would be the case were there 'a true ratification involved. Necessarily, however, the case must be one where the work contracted for did not involve the creation of a nuisance,^^* for then _ there was original participation. The question, therefore, really is as to the general duty imposed upon all owners of property to keep in safe condition the premises under their dominion.^*' Indeed, this has been carried to the extent iB2 See infra,, p. 234 et seq. "8 Sipe V. Pennsylvania K. Co., 222 Pa. 400, 71 Atl. 847, and see Bast V. Leonard, 15 Minn. 304 (Gil. 235) ; Read v. East Providence Fire Dist, 20 R. I. 574, 40 Atl. 760. Semble that liability would arise after acceptance, irrespective of sucli knowledge, actual or pre- sumed. Mulchey v. Methodist Religious Society, 125 Mass. 487 ; Gor- ham V. Gross, 125 Mass. 232, 28 Am. Rep. 224. 134 Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 405, 41 N. W. 490. ' 13 B See Khron v. Brock, 144 Mass. 516, 519, 11 N. E. 748, 751, where the instructions evidently were that the principal was only to be held responsible for the unsafe condition of the building itself, and not? for any carelessness of the contractor in actually performing the work. "It cannot be contended," said the court, "that if the work was completed the o-^^ner would not be responsible for injuries resulting from the imperfect construction or dangerous condition in which it was perrmtted ty Mm to remain." But see Togel v. City of New York, 92 N. Y. 10, 19, 44 Am. ReJ>. 349, where it was ob- § 55) PAETNERS 225 of holding that liability arises where the contractor fails to finish the work by the time set and the employer neglects to assume control and complete it.^'» (6) Lack of Care in Selecting Competent Contractor A further exception which has received support, though chiefly by dicta, is where the employer either knew the in- competency of the contractor or failed to exercise reasona- ble care in his selection."' It has .been said, however, that this applies only to exceptional cases when the work is necessarily intrinsically hazardous."' What limitations, if any, are to be placed upon this doctrine — indeed, its very existence — cannot be regarded as settled, owing to a lack of authority.^' • PARTNERS 55. "Where by any wrongful act or omission of any part- ner acting in the ordinary course of the business of the firm, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act," ^*» served that liability is "for the creation of the nuisance, upon a principle very similar to that which makes a principal responsible for unauthorized wrongs committed by an agent by ratifying them." 186 Vogel V. Caty of New York, 92 N. T. 10, 44 Am. Rep. 349. This was a very aggravated case. The contractor had undertakeh to grade one of defendant's streets, under an agreement which gave the city the right to finish the work, if not completed. Excavations were made, which diverted water on plaintiff's premised The work was delayed and practically abandoned for about 14 years. 137 Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451. 138 Schip V. Pabst Brewing Co., 64 Minn. 22, 66' N. W. 3. , 139 In New York it is apparently denied. See Berg v. Parsons, 156 N. y. 109, 50 N. B. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542 ; Hawke v. Brown, 28 App. Div. 37, 50 N. Y. Supp. 1032 ; Fox v. Ire- land, 46 App. Div. 541, 61 N. Y. Supp. 1061 ; Id., 60 App. Div. 629, 70 N. Y. Supp. 1139. 140 Taken from the English Partnership Act, 53 and 54 Vict C. 39, J 10. Chap.Tobts — 15 226 GENERAL. PRINCIPLES (Ch. 6 There can be no question of liability where prior express authorization or subsequent ratification is shown. Hence there are here considered only cases where the firm is sought to be held merely because the wrongdoer was a member. A partner is viewed as an agent of his partnership while acting within the course of its business, and consequently the rules under which the principal may be liable would here apply. There is some sanction for the view that there can be no implied authority to commit an illegal act,^*^ but this does not generally prevail, nor can it be siipported on reason.'^*" Thus the fellow partners of the wrongdoer have been held liable for the latter's conversion,^*^ fraud,^** negligence,^*" defamation,^*' and violation of the revenue laws.^*^ Such wrongs were found to have been committed within the course of the partnership business, and this is the true test; for it makes no difference that the act was illegal or willful. On the other haijd, the placing of a libel- ous placard in the store window is not within the scope of a business consisting of the sale of furniture and draper- ies,^*° and, since giving away goods is not properly within the operations of a firm of apothecaries, one member will 1*1 Marks v. Hastings, 101 Ala. 165, 13 South. 297 (malicious pros- ecution) ; Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089 ; Graham v. Mey- er, Fed. Gas. No. 5,673, 4 Blatchf. 129 (usury). 142 "Surely it is more reasonable that the copartners who have held out this one as a fit and proper person to act in protecting the firm's interests should suffer for his defects of temper and errors of judgment rather than those who have reposed no confidence in him and made no representations as to his fitness." Burdick on Partner- ship, 217. 143 Gilchrist v. Brande, 58 Wis. 184, 15 N. W. 817. 144 Wolf V. Mills, 56 111. 360 ; Stanhope v. SwafEord, 80 Iowa, 45, 45 N. W. 403; Locke v. Stearns, 1 Mete. (Mass.) 560, 35 Am. Dec. 382 ; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550. 140 Linton v. Hurley, 14 Gray (Mass.) 191 ; Dudley v. Love, 60 Mo. App. 420 ; Livingston v. Cox, 6 Pa. 360. i48Lothrop V. Adams, 133 Mass. 471, 43 Am. Rep. 528; Haney Mfg. Co. V. Perkins, 78 Mich. 1, 43 N. W. 1073. " 147 Stockwell V. U. S., 13 Wall. 531, 20 L. Ed. 491. 1*8 Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387. § 56) OWNERS 227 not be liable for the act of the other in making a present of what was supposed to be extract of dandelion, but which proved to be belladonna.^** OWNERS "• 56. The responsibility which the owner of property may incur because of the acts or neglect of others will here be treated in cases where the relationship arose out of— (A) Lease; * ' (B) License; and— (C) Bailment. The lessee or tenant, the licensee, and the bailee are not to be regarded as agents of lessor or landlord, licensor, or bailor, merely because of the position which they occupy towards the latter. The doctrine of respondeat superior will not therefore apply,^^^ unless agency be affirmatively estab- lished, as where the tenant has been authorized to make re- pairs, and he does it inefficiently, so that third persons are injured.^*^ , But where the element of participation is shown, responsi- bility will exist. For instance, the fact that premises are in the "sGwynn v. Duffield, 66 Iowa, 708, 24 N. W. 523, 55. Am. Eep. 286. See, further, Schwabacker v. Riddle, 84 111. 517 ; LAnn v. Ross, 16 N. J. Law, 55. 150 For dnty of occupant of real property, see infra, p. 503 et seq. iBi Lessor. Allen v. Smith, 76 Me. 335; Caldwell v. Slade, 156 Mass. 84, 30 N. E. 87; Sargent v. Stark, 12 N. H. 332; Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566, 5 L. R. A. 794. Bailor. Herlihy V. Smith, 116 Mass. 265 ; Braverman v. Hart (Sup.) 105 N. X. Supp. 107 ; McCoUigan v. Pennsylvania R. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739. 102 See White v. Montgomery, 58 Ga. 204. The landlord is liable If he assumed the performance of a duty the violation of which has produced injury, as if he has agreed to keep the demised premises in repair. City of Peoria v. Simpson, 110 111. 294, 51 Am. Rep. 683; Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391. Though here re- sponsibility is predicated on his personal wrong. 228 GENERAL PRINCIPLES (Ch. 6 lessee's possession will not constitute 'a defense, where the in- jury was caused by the very use for which they were demised, and the landlord knew or should have known that such use might reasonably be expected to produce that result. "Whoever for his own advantage authorizes his property to be used by an- other in such manner as to endanger and injure unnecessarily the property or rights of others is ariswerable for the conse- quences." "" Accordingly one who leases a mill having an overshot wheel, which when in motion is likely to frighten horses,^"* or a kiln, whose use is dangerous to an adjoining Ijouse,^"* will be responsible for the damage.^"' But knowl- edge, actual or presumed, that the letting was for a purpose likely to prove injurious must be established!^"^ Participation is likewise shown where rent is received for the nuisance with knowledge thereof.^"* The rule is the same as to licensors. IBS Boston Beef Packing Co. v. Stevens (C. O.) 12 Fed. 279, 280, 20 Blatchf. 443, per Wallace, O. J. Here an unsafe building had been leased, for storage purposes. 15* House V. Metcalf, 27 Conn. 631. 160 Helwig V, Jordan, 53 Ind. 21, 21 Aiii. Rep. 189. 1B6 "It has been said that the owner is responsible: (1) If he cre- ates a nuisance and maintains it (2) If he creates a nuisance and then demises the land with the nuisance thereon. (3) If the nui- sance was erected on the land by a prior owner or by a stranger and he knowingly maintains It (4) If he has demised premises and cov- enanted to keep them in repair, and omits to repair and thus they become a nuisance. (5) If he demises premises to be used as a nui- sance or for a business or in a way so that they vrtll necessarily be;- come a nuisance. Ahern v. Steele, 115 N. T. 203, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St Rep. 778. See, also, Riley v. Simpson, 83 Cal. 217, 23 Pac. 293, 7 L. R. A. 622 ; Kalis v. Shattuck, 69 Cal. 593, 11 Pac. 346, 58 Am. Rep. 568. It is evident that in the second and fifth classes, particularly in the latter, the landlord's liability will extend to injuries which are actually the result of the tenant's misfeasance or nonfeasance, although made possible by the antecedent act of the lessor. In the other classes, the landlord is held accountable because his own act or omission has directly produced the Injury." 38 Cyc. 482, note 84. iBT Fish V. Dodge, 4 Denio (N. Y.) 311, 47 Am. Dec. 254. IBS Board of Health of New Rochelle v. Valentine, 57 Hun, 591, 11 N. T. Supp. 112; Roswell v. Prior, 1 Ld. Raym. 713, 91 Eng. Repr. 1375. § 57) JOINT AND SEVERAL LIABILITY — HOW ARISING 229 who are liable if they knowingly permit the licensee to maintain the dangerous condition. '^" Participation by bailors would appear where dangerous articles are intrusted to those who are known or should have been known to be unable to appreciate the peril or to exercise proper care. Necessarily there is bound to be some difficulty in fitting this rule to given circumstances. It would, for instance, apply where a loaded gun had been in- trusted to a young child.^'" Though the principle seems clear, direct authority appears to be lacking. JOINT AND SEVERAL LIABILITY— HOW ARISING 57. The responsibility of two or more individuals for a single tort may arise out of — (A) Connivcuice; (B) Concert of action ; (C) Production of a single injury; (D) Relationship; (E) Ratification. In General Hitherto the subject has been viewed as though there were but a single wrongdoer. But a tort may have been committed under such circumstances that two or more may be held for the resulting injury. It is therefore the method of accomplishment which is determinative, and not the inherent nature of the specific wrong; for it is conceiva- ble that every tort may be made thp subject of a joint ac- tion. It has been thought that slander is essentially single, since, though the same words are uttered by two or more. 15 » Inhabitants of Kockport v. Eockport Granite Co., 177 Mass. 246, 58 N. E. 1017, 51 L. B. A. 779. 160 Dixon V. Bell, 5 M. & S. 198, 105 Eng. Repr. 1023, 1 Stark. 287, 2 B. 0. L. 114, 17 Rev. Rep. 308. And see Salisbury v. Erie R. Co, 66 N. J. liEW, 233, 50 AtL 117, 88 Am. St Rep. 480, tbougb tbe deci- sion was not upon tbe point stated in the text. 230 GENERAL PRINCIPLES (Ch. 6 "the words of one are not the words of the other" ; *'^ but this is not true, since there may be a union of mind and thought in the utterance.^"^ True, the repetition of defama- tory words is no part of the original slander. But it may well be that the two slanders were uttered pursuant to a common agreement.^*' (A) Connivance He who commands, directs, advises, or procures the com- mission of a tort by another is responsible as if he had done it with his own hands.^°* Thus, where one sold a mill standing on the lot of a neighbor and appointed a day for the purchaser to take it away, promising to aid him if as- sistance was necessary, and the mill was subsequently re- moved by the purchaser it was held that the purported vender was liable in an action of trespass, though there was no proof that he was present at the removal.^'' But there exists no legal duty to disclose to another that a wrong is being or will be perpetrated against him. Mere silent ob- servation is not sufficient.^'" Nor is mere acquiescence. Thus one who simply permits a tort to be committed is not a joint tort-feasor,^"' as where the owner of land in the possession of a tenant gave leave to bury a horse there.^°' Nor is one who was physically present when the wrong was 181 Chamberlalne v. Willmore, Palm. 313, 81 Eng. Repr. 1099 ; Chamberlaine v. Goodwin, Cro. Jac. 647, 79. Eng. Kepr. 558. 182 Patten v. Gurney, 17 Mass. 182, 9 Am. Dec. 141. 188 Green v. Davies, 182 N. Y. 499, 75 N. B. 536, 3 Ann. Cas. 310; Chesebro v. Powers, 78 Mich. 472, 44 N. W. 290 (slander of title). 184 Graham v. Dahlonega Gold Mining Co., 71 Ga. 296; Moir v. Hopkins, 16 lU. 313, 63 Am. Dec. 312 ; Judson v. Cook, 11 Barb. (N. Y.) 642. For conspiracy, see Infra, p. 580 et seq. 16B Wall V. Osborn, 12 Wend. (N. Y.) 39. To the same effect, Reed V. Peck, 163 Mo. 333, 63 S. W. 734; Daingerfleld v. Thompson, 74 Va. 136, 36 Am. Rep. 783. 188 Brannock v. Bouldin, 26 N. C. 61. Here defendants were aware that a third party, though then married and insolvent, was, endeav- oring to procure plaintiff's consent to a marriage with his daughter and to become surety on a note, but gave no warning. 187 Robinson v. Vaughton, 8 C. & P. 252. issFitzwater v. Passett, 199 Pa. 442, 49 Atl. 310. § 57) JOINT AND SEVEBAL LIABILITY — HOW ARISING 231 committed,"" though it is evident that encouragement or incitement by words, gestures, or otherwise will turn the scale,^" and proof" that the defendant was present, without disapproving or opposijng it, is evidence from which, in con- nection with other circumstances, the jury may infer con- nivance or participation.^'^ (B) Concert of Action This arises where the parties are engaged in an unlawful enterprise. Their common design will render each respon- sible for all acts done by the others pursuant thereto. For instance, where two are unlawfully racing, and a third per- son is injured through the negligence of one, both are lia- ble ; "^ so where there was a common intent to commit an assault, which was in fact done by one.^'^ Cases of concert are usually treated as conspiracy. ' * (C) Production of Single Injury Connivance and concert may be lacking, and still the par- ties be considered joint tort-feasors, if their separate and in- dependent acts or neglects have produced a single injury. The following are illustrative : A passenger was injured by a collision, due to the combined negligence of his carrier and a third party; ^'* through the negligence of one contractor water flowed from the roof, through that of another it flow- 169 HUmes v. Stroebel, 59 Wis. 74, 17 N. W. 5-39. 170 Keed v. Peck, 163 Mo. 333, 63 S. W. 734. And see Grinnell v. Weston, 95 App. Div. 454, 88 N. Y. Supp. 781. 171 Brown v. Perkins, 1 Allen (Mass.) 89 ; Willi v. Lucas, 110 Mo. 219, 19 S. W. 726, 33 Am. St. Rep. 436. i72Hanrahan v. Cochran, 12 App. Div. 91, 42 N. Y. Supp. 1031. And see Banfield v. Whipple, 10 Allen (Mass.) 27, 87 Am. Dec. 618. ITS See Smithwick v. Ward, 52 N. C. 64, 75' Am. Dec. 453; Kirk- wood V. Miller, 37 Tenn. (5 Sneed) 455,'' 73 Am. Dec. 134. See, fur- ther, Gunder v. Tibbits, 153 Ind. 591, 35 N. E. 762; Price v. Price, 91 Iowa, 693, 60 N. W. 202, 29 L. R. A. 150, 51 Am. St Rep. 360; White V. Turner, 40 Ky. (1 B. Mon.) 130 ; Bath v. Metcalf, 145 Mass. 274, 14 N. E. 133, 1 Am. St. Rep. 4^5 ; Clay v. Waters, 161 Fed. 815, 88 C. C. A. 633. 1T4 Cuddy V. Horn, 46 Mich. 596, 10 N. W. 32, 41 Am. Rep. 178; Flaherty v. Minneapolis & St. Louis Ry. Co., 39 Minn. 328, 40 N. W. 160, 1 L. R. A. 680, 12 Am. St. Rep. 654 ; Barrett v. Third Ave. Ry. Co., 45 N. Y. 628. 232 , GENERAL PRINCIPLES (Cfa. 6 ed from the street, and both bodies of water joined in the cellar, forming one, which found its way into an adjacent building; "'^ an electric street railway and a telephone com- pany each maintained a wire which was likely to fall across the other and cause injury, and the wire of the telephone company broke and, falling across the trolley wire, became charged with electricity, resulting in the death of plaintiflf's horse, which had come in contact therewith.^'* In cases coming under this rule it will make no difference that it is impossible to determine what portion of the injury was caused by each,^'' or that the act or neglect of each alone might not have produced the result.^'* There must have been a single injury, not separate and distinct injuries, each caused by one of the wrongdoers; for in the latter event the liability is Several only. The dif- ficulty of separating effects will not make the tort joint. Hence where animals, each -of which is separately owned, do damage together, as' the wrong is individual, each owner is responsible only for the damage done by his animal.^'° Nor can torts, several when committed, give rise to a joint 176 SLATER V. MBRSEREAU, 64 X Y. 138, Chapin Cas. Torts, 111. 176 McKay v. Southern Bell Telegraph & Telephone Co., Ill Ala. 337, 19 South. 695, 31 L. R. A. 589, 56 Am. St. Rep. 59. For further Illustrations, see Kansas City v. Slangsfrom, 53 Kan. 431, 36 Pac. 706; Newman v. Fowler, 37 N. J. Law, 89; Simmons v. Everson, 124 N. X. 319, 26 N. E. 911, 21 Am. St. Rep. 676; "Walton, Witten & Graham v. Miller's Adm'x, 109 Va. 210, 63 S. E. 458, 132 Am. St Rep. 908 ; Brown v. Coxe Bros. & Co. (C. C.) 75 Fed. 689. 1" Allison V. Hobbs, 96 Me. 26, 51 Atl. 245; Corey v. Havener, 182 Mass. 250, 65 N. E. 69 ; Boston & A. R. Co. v. Shanly, 107 Mass. 568. 1" Nordhaus v. Vandalia R. Co., 242 111. 166, 89 N. E. 974. 179 Nierenberg v. Wood, 59 N. J. Law, 112, 35 Atl. d54; Auchmuty V. Ham, 1 Denio (N. T.) 495; Van Steenburgh v. Tobias, 17 Wend. (N. Y.) 562, 31 Am. Dec. 310. Contra, Nelson v. Nugent, 106 Wis. 477, 82 N. W. 287, 80 Am. St. Rep. 51. For further illustrations, see Millard v. Miller, 39 Colo. 103, 88 Pac. 845 ; Wert v. Potts, 76 Iowa 612, 41 N. W. 374, 14 Am. St. Rep. 252 ; Mooney v. Third Ave. r! Co., 2 City Ct. R. (N. Y.) 366. § 57) JOINT AND SEVERAL LIABIUTT — HOW AKISING 233 action merely because of a combination of their conse- quences.^^" (D') Relationship Though the original enterprise was not unlawful, and though there has been no connivance or concert of action with respect to the wrong suffered, yet there may be joint liability, because the relationship of the parties has made one responsible for a wrong done by the other. When this responsibility will arise has.already been discussed. Hence it is generally held that a single action may be brought against master and servant,^*^ principal and agent,^'^ partner and partndr,^'' lessor and lessee,^** and co-owners.^" 180 Thus, where plaintiff's dam became filled by deposits of coal dirt from mines, some of which were worked by defendants and oth- ers by third parties, as the tort consisted in throwing the dirt Inta the stream, it was necessarily single, and the deposit being but a con- sequence, the fact that it united with others did not make the de- fendants responsible for the entire results. LITTLE SCHUYLKILL NAVIGATION K. & C50AL CO. v. RICHARDS' ADM'R, 57 Pa. 142, 98 Am. Dec. 209, Chapin Gas. Torts, 113. And see Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566 (pollution of stream) ; Harley v. Mer- rill Brick Co., 83 Iowa, 73, 48 N. W. 1000 (nuisances separately main- tained) ; Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992 (slander). 181 Wright V. Compton, 53 Ind. 337 ; Whalen v. Pennsylvania R. Co., 73 N. J. Law, 192, 63 Atl. 993; Montfort v. Hughes, 3 B. D. Smith (N. Y.) 591 ; Hough v. Southern R. Co., 144 N. C. 692, 57 S. B. 469. By the Massachusetts courts a distinction is drawn between actions in trespass and in case. Where case alone lies, as where the servant's negligence is the gravamen, a joint action will not lie. Mulchey v. Methodist Religious Society, 125 Mass. 487; Hewett v. Swift, 3 AUen (Mass.) 420. The federal courts have refused to per- mit joint actions where the master Is not guilty of contributing fault. Mclntyre v. Southern Ry. Co. (C. C.) 131 Fed. 985 ; Shaffer V. Union Brick Co. (C. C.) 128 Fed. 97 ; Helms v. Northern Pac. Ry. Co. (C. C.) 120 Fed. 389. 182 Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 1& South. 620, 28 L. R. A. 433, 53 Am. St. Rep. 88; Phelps v. Wait, 30 N. y. 78. 183 Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550; Moreton V. Hardern, 4 B. & C. 223, 6 D. & R. 275, 10 E. C. L. 553, 107 Eng. Repr. 1042. 18* West Chicago St R. Co. v. Home, 197 111. 250, 64 N, E. 331. 18S Oakes v. Spaulding, 40 Vt. 347, 94 Am. Dee. 404. 234 GENERAL PRINCIPLES (Ql 6 (E) Ratification If a tort has been committed on another's behalf, though primarily the latter may not be liable, he may become so by ratifying it with full knowledge of all ' material facts. Though the logic of this has been questioned,"' the princi- ple is settled."' Thus, if a sheriff sell the goods of a stranger, and the judgment creditor, knowing the facts, re- ceive the proceeds, he will be answerable to the real own- er.^" So the principal may ratify the wrong of an inde- pendent contractor.'** Analyzing the rule as stated, the following points become clear: First. Mere knowledge, acquiescence, approval, or satis- faction will be insufficient, in the absence of an intent, ex- pressly declared or shown from circumstances, to adopt the wrong,"" though there is possibly an exception where the act has been done simply in excess of authority conferred by the party sought to be charged, in which case mere ap- 186 Thus, where one not a servant of defendant delivered a load of coal to plaintiff, and through careless driving broke a window, it was held that defendant, by presenting a bill for the coal with knowledge of this fact, had established the relation of master and servant ab initio. It was observed that, "if we were contriving a new code to-day, we might hesitate to say that a man could make himself a party to a bare tort in any case merely by assenting to it after it had been committed. But we are not at liberty to refuse to carry out to its consequences any principle which we believe to have been part of the common law, simply because the grounds of policy on which it must be justified seem to us to be hard to find and probably to have belonged to a different state of sodety." DEMPSBY V. CHAMBERS, 154 Mass. 330, 331, 28 N. E. 279, 13 t. R. A. 219, 26 Am. St. Rep.- 249, Chapin Oas. Torts, 116, per Holmes, J. 187 Street v. Sinclair, 71 Ala. 110; Avakian v. Noble, 121 Cal. 216, 53 Pac. 559 ; Judd v. Walker, 114 Mo. App. 128, 89 S. W. 558 ; Forbes V. Hagman, 75 Va. 168. 188 Brainerd v. Dunning, 30 N. Y. 211. And see Stuart v. Chap- man, 104 Me. 17, 70 Atl. 1069 ; Cook v. Hopper, 23 Mich. 511. 180 ATLANTA & F. R. CO. v. KIMBERIjT, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231, Chapin Cas. Torts, 106, though held that the facts did not show ratification. 190 Tucker v. Jerris, 75 Me. 184; Adams v. Freeman, 9 Johns. (N. Y.) 117; Hyde v. Cooper, 26 Vt 552; Hubbard v. Hunt, 41 Vt 376. § 57) JOINT AND SEVERAL LIABILITY HOW AEISINQ 235 proval may be sufficient.^°^ But a principal will not be re- sponsible for an act which was no part of the transaction which he ratified.^*^ Second. The act must have been done for the benefit of the alleged adopter, or have been of a nature to benefit him. As put by Lord Coke : "He that agreeth to a trespass after it is done is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subse- quent amounteth to a commandment." ^" Thus, where a father gave to an agent a sum of money for the purpose of paying certain debts owed by his son, and the agent hand- ed a portion to the'son, so that he might abscond, the mere fact that, in a settlement between father and agent, the for- mer allowed the latter's bill for the money thus applied, does not work a ratification, and make the father responsi- ble in an action for removing a debtor.^'* Third. There must have been full knowledge of the facts constituting the wrong, or a purpose to assume the conse- quences in any event.^'" Thus a landlord, who had author- ized bailiffs to distrain for rent, directing them not to take anything except on the demised premises, will not be liable for property taken elsewhere, the proceeds of which were received by him, unless he knew of the irregularity, or chose without inquiry to take the risk upon himself.^"* 181 Brown v. Webster City, 115 Iowa, 511, 88 N. W. 1070. 182 Manning v. Keenan, 73 N. X. 45. 183 4 Inst 317. And see Russo v. Maresca, 72 Conn. 51, 43 Atl. 552 ; Reed v. Rich, 49 111. App. 262 ; Wamsganz v. Wolff, 86 Mo. App. 205 ; Hamlin v. Sears, 82 N. Y. 327. 184 Moore v. Rogers, 51 N. C. 297. ISO Herring v. Skaggs, 73 Ala. 446; Tucker v. Jerris, 75 Me. 184; Buttrick v. City of LoweU, 1 Allen (Mass.) 172, 79 Am. Dec. 721; Holliday v. Jackson, 30 Mo. App. 263 ; Adams v. Freeman, 9 Jolms. (N. Y.) 118; Eastern Counties R. Co. v. Broom, 6 Exch. 314. 186 Lewis V. Read, 14 L. J. Exch. 295, 13 M. & W. 834. 236 general' principles (Ch. 6 JOINT AND SEVERAL LIABILITY— RESULTS 58. Where liability is joint and several, the party wronged may sue one, any, or all the wrongdoers. Gener- ally, none of the latter can enforce indemnity or contribution as against the others. All the tort-feasors are equally responsible. The amount of culpability, extent of participation or degree of negli- gence of each cannot be compared and measured.^" Mere- ly because one is exempt from suit, on grounds of public policy, will not result in freeing the others.^'* The injured party is at liberty to elect against whom he shall proceed. He may sue one, any, or all the joint tort-feasors, and the separate actions may be brought simultaneously or succes- sively."-"' In a single action, a verdict or judgment may be rendered for or against any or all ; ^"^ but the damages must be as- sessed in a single sum. The jury cannot apportion them among the defendants, for the sole inquiry is what loss has 197 ConsoUdated Ice Maeli. Go. v. Keifer, 134. 111. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688 ; Sternfels v. Metropolitan St. R. Co., 73 App. Div. 494, 77 N. Y. Supp. 309, affirmed 174 N. Y. 512, 66 N. B. 1117; Clark v. Patapsco Guano Co., 144 N. G. 64, 56 S. E. 858, 119 Am. St Rep. 931; Bunting v. Hogsett, 139 Pa. 363, 21 Atl. 31, 33, 34, 12 I,. R. A. 268, 23 Am. St Rep. 192; Brown v. Coxe Bros. & Co. (C. C.) 75 Fed. 689. 198 Thus one who suborns a witness to swear falsely to defama- tory statements is liable, though the witness Is protected. Rice v. Coolidge, 121 Mass. 393, 23 Am. Rep. 279. 19 9 Sparrow v. Bromage, 83 Conn. 27, 74 Atl. 1070, 27 L. R. A. (N. S.) 209, 19 Ann. Gas. 796 ; Nordhaus v. VandaUa R. Co., 242 111. 166, 89 N. E. 974; Allison v. Hobbs, 96 Me. 26, 51 Atl. 245; Corey v. Havener, 182 Mass. 250, 63 N. E. 69; Newman v. Fowler, 37 N. J. Law, 89 ; Roberts v. Johnson, 58 N. Y. 613. 200 Sparrow v. Bromage, 83 Conn. 27, 74 Atl. 1070, 27 L. R. A. (N. S.) 209, 19 Ann. Gas. 796; HoUingsworth v. Howard, 113 Ga. 1099, 39 S. E. 465 ; Kirby v. President, etc., of Delaware & H. Canal Go., 90 Hun, 588, 35 N. Y. Supp. 975. But in Pennsylvania it has been held that, where a joint tort is alleged, it must be proved joint Goodman v. Coal Tp., 206 Pa. 621, 56 Atl. 65; Wiest v. Electric Traction Co., 200 Pa. 148, 49 Atl. 891, 58 L. R. A. 666. § 58) JOINT AND SEVEKAIi LIABILITY — RESULTS 237 been sustained, not how it should be paid.'"^ If different amounts are assessed, plaintiff may take judgment against all de melioribtis damnis.'""' While punitive damages may be included in a single verdict against several joint wrong- doers where all are shown to have been actuated by malice, this will not be permitted where some of the defendants are only liable for compensatory damages.^"' If plaintiff has exercised his right to bring separate suits and has recovered judgments, though he may elect which he will enforce,^"* yet, as he can receive only a single compensation, the sat- isfaction of one will discharge the others, except as to the costs, which he may collect by separate executions.*"' But the satisfaction must be entire. If partial, a suit against a co-tort-feasor will not be barred. ^''^ Now, assuming that one joint tort-feasor has been forced to pay, the question arises whether he may obtain contribu- tion or complete indemnity from the others. Subject to the limitations hereafter stated, it is the settled policy of the law to attempt no adjustment of the equities of wrongdo- ers. "In pari delicto potior est conditio defendentis." '"'' Neither is in a position to ask the court's assistance to re- lieve him from a situation which was the result of his own 201 Marriott v. Williams, 152 Cal. 705, 93 Pac. 875, 125 Am. St Rep. 87; Washington Market Co. v. Clagett, 19 App. Cas. (D. OJ 12; Halsey v. Woodruff, 9 Pick. (Mass.) 555; O'Shea v. Kirker, 4 Bosw. (N. Y.) 120; Id., 8 Abb. Prac. (N. Y.) 69. • 202 Halsey v. Woodruff, 9 Pick. (Mass.) 555. 203 Krug V. Pitass, 162 N. Y. 154, 56 N. B. 526, 76 Am. St. Eep. 317 ; Hoxsie v. Nodine, 123 Fed. 379, 61 0. C. A. 223. Contra, Rel- zenstein v. Clark, 104 Iowa, 287, 73 N. W. 588. 204 Elliott V. Hayden, 104 Mass. 180; Livingston v. Bishop, 1 Johns. (N. Y.) 290, 3 Am. Dec. 330. A contrary doctrine appears to be established in England. Brown v. Wooton, Cro. Jac. 73, Yelv. 67; Brinsmead v. Harrison, L. R. 6 C. P. 584. 205Ayer v. Ashmead, 31 Conn. 447, 83 Am. Eep. 154; First Nat. Bank of Indianapolis v. Indianapolis Piano Mfg. Co., 45 Ind. 5. And see Lord v. Tiffany, 98 N. Y. 412, 50 Am. Rep. 689. 206 Boyles v. Knight, 123 Ala. 289, 26 South. 939; McVey v. Man- att, 80 Iowa, 132, 45 N. W. 548. 207 "Where the parties are in equal fault, the condition of the de- fendant is the better." 238 GENERAL PRINCIPLES (Ch. 6 wrongdoing.^"* But the maxim implies a consciousness of wrongdoing on the part of the individual against whom it is invoked. He must actually or presumably have been aware that the act was unlawful. Exceptions therefore ob- tain in two instances: First, where the party seeking in- demnity or contribution has not. been guilty of any fault, except technically or constructively; second, where both parties have been in fault, but not in the same fault, to- wards the party injured, and the fault of him against whom relief is sought was the primary and efficient cause of the injury.^"' An example of the first is found where one of two inno- cent masters is compelled to pay damages by reason of a servant's negligence. He may have contribution from the other, and both may recover indemnity of the servant.^^" So contribution may be obtained where two creditors, act- ing together, have attached goods sold by their debtor to another, in the honest belief that the sale was void.^^^ Fur- ther illustrations will be found in the note.^^^ An example of the second class is where recovery has been had against a municipality for an obstruction to the highway caused by a private person. "The fault of the lat- 208 Churchill v. Holt, 131 Mass. 67, 41 Am. Rep. 191; Andrews V. Murray, 33 Barb. (N. Y.) 854; Boyer v. Bolender, 129 Pa. 324, 18 Atl. 127, 15 Am. St. Rep. 723 ; Union Stockyards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217, 25 Sup. Ct. 226, 49 L. Bd. 453, 2 Ann. Cas. 525 ; Merryweather v. Nixan, 8 T. R. 186, 101 Eng. Kepr. 1337. 208 TRUSTEES OF GENEVA v. BRUSH. ELECTRIC CO., 50 Hun, 581, 584, 3 N. Y. Supp. 595, Chapin Cas. Torts, 119. 210 Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, 160. To the same effect, Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647 ; Georgia S. & F. Ry. Co. v. Jossey, 105 Ga. 271, 31 S. B. 179. 211 Vandiver v. Pollak, 97 Ala. 467, 12 South. 473, 19 L. R. A. 628; FarweU v. Becker, 129 111. 261, 21 N. E. 792, 6 L. R. A. 400, 16 Am. St. R^p. 267. 212 Moore v. Appleton, 26 Ala. 633 ; Jacobs v. Pollard, 10 Gush. (Mass.) 287, 57 Am. Dee. 105; Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320; Oceanic Steam Nav. Co., Limited, v. Compania Trans- atlantic Espanola, 134 N. Y. 461, 31 N. E. 987, 30 Am. St Rep. 685 ; Armstrong County v. Clarion County, 66 Pa. 218, 5 Am. Rep. 368; Culmer v. Wilson, 13 Utah, 129, 44 Pac. 8.33, 57 Am. St. Rep. 713. § 58) JOINT AND SEVERAL LIABILITY — KESXILT3 239 ter is the creation of the nuisance ; that of the former, the failure to remove it in the exercise of its duty to care for the safe condition of the public streets. The first was a positive tort, and the efficient cause of the injury complain- ed of ; the latter the negative tort of neglect to act upon no- tice, express or implied." *^* 213 TRUSTEES OF GENEVA v. BRUSH ELECTRIC CO., 50 Hun, 581, 585, 3 N. Y. Supp. 595, Chapin Gas. Torts, 119, per Dwigbt, J. To the same effect, Waterbury v. Waterbury Traction Co., 74 Conn. 152, 50 Atl. 3; Chesapeake & O. Canal Co. v. Allegany County Com'rs, 57 Md. 201, 40 Am. Rep. 430 ; Inhabitants of Lowell t. Boston & L. R. Corp., 23 PJck. (Mass.) 24, 34 Am. Dec. 33; Trustees of VUlage of Canandaigua v. Foster, 81 Hun, 147, 30 N. Y. Supp. 686, affirmed on other grounds 156 N. Y. 354, 50 N. E. 971, 41 I.. R. A. 554, 66 Ain. St Rep. 575. 240 GENERAL PRINCIPLES (Ch. 7 CHAPTER VII GB5NBEAL PRINCIPLES (Concluded)— CONFLICT OF lAWS 59. Local and Transitory Torts Distinguished. 60. Transitory Torts — Governing Rules. TORTS GENERALLY TRANSITORY— LOCAL TORTS 59. Redress is in general not confined to the courts of the state in which the cause arose, though there are a few exceptions where the action is regarded as purely local. Redress is usually sought in the courts of the very state in which the wrong was committed. The injured party may, however, desire to bring his action elsewhere, and when he will be permitted to do so and under what limita- tions are now to be considered. Local and Transitory Actions At the outset, a division must be made into local and transitory action's. In the former, the action could have arisen in one place only and redress must be sought there, and there alone. The latter is founded upon a transac- tion which might have taken place anywhere and, subject to exceptions hereafter laid down, recovery may be had in a foreign tribunal.^ Actions for trespass or other injuries to real property,^ including such torts as waste,* the ob- 1 "The distinction taken is that actions are deemed transitory where the transaction on which they are founded might have taken place anywhere, but are local where their cause is in its nature necessarily' local." Livingston v. Jefferson, 1 Brock. 203, 209, Fed. Cas. No. 8,411, per Marshall, C. J. 2 Allln V. Connecticut River Lumber Co., 150 Mass. 560, 23 N, E. 581, 6 L. R. A. 416; Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703 ; Niles V. Howe, 57 Vt. 388 ; Bettys v. Milwaukee & St. P. R, Co., 37 8 Cragin v. LoveU, 88 N. Y. 258. § 59) TORTS GEKSSALLT TKANSITOEY — ^LOCAL TOKTS 241 struction of highways,* the diversion of water courses," and the flooding of lands " are necessarily local. Nor does there seem, on principle, to be any distinction between le- gal and equitable forms of action, since a £Ourt of equity, acting in personam, can compel only the doing of an act within its own jurisdiction.'' On the other hand, as- sault and battery,* false imprisonment," and other injuries to the person,^" libel and slander,^^ malicious prosecu- tion,^^ conversion,^* and trespass and injuries to personal property ^* are transitory in their character. Wis. 323; British South Africa Co. v. Companhia de Mocambique (1893) A. C. 602, 63 L. J. Q. B. 70, 69 L. T. Rep. (N. S.) 604. Contra, Little V. Chicago, St. P., M.- & O. R. Co., 65 Minn. 48, 67 N. W. 846, 33 li. R. A. 423, 60 Am. St. Riep. 421. Code Civ. Proc. N. Y. § 982a, provides that "an action may be maintained in the courts of this state to recover damages for injuries to real estate situate without the state • * * whenever such an action could be maintained in relation to personal property without the state." * Crook V. Pitcher, 61 Md. 510. 5 Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 484, affirmed 6 Hili; 82. Eachus V. Trustees of Illinois & M. Canal, 17 111. 534. T Thus an action in equity to procure an injunction restraining prospective injuries to real property is local. Ophir Silver Mining Co. V. Superior Court of City and County of San Francisco, 147 Cal. 467, 82 Pac. 70, 3 Ann. Cas. 340; Leland v. Hathorn, 42 N. T. 547; Northern Indiana R. Co. v. Michigan Cent. B. Co. 15 How. 233, 14 L. Ed. 674. 8 Pullman Palace Car Co. v. Lawrence; 74 Miss. 782, 22 South. 53; Smith V. Bull, 17 Wend. (N. Y.) 323; Mostyn v. Fabrigas, Cowp. 161, 98 Eng. Repr. 1021. « Henry v. Sargeant, 13 N. H. 321, 40 Am. Dec. 146; Rafael v. Verelest, W. Bl. 1055, 96 Eng. Repr. 621. 1* Roberts v. Dunsmuir, 75 Cal. 203, 16 Pac. 782; Ackerson v. Erie By. Co., 31 N. J. Law. 309 ; Etngajtner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. 11 Crashley v. Press Pub. Co., 179 N: Y. 27, 71 N. E. 258, 1 Ann. Cas. 196;' Lister v. Wright, 2 Hill (N. Y.) 320; Machado v. Fontes (1897) 2 Q. B. 231, 66 L. J. Q. B. 542, 76 L. T. Rep. (N. S.) 588, 45 MTily. Rep. 565. 12 Shaver v. White, 6 Munf. (Va.) 110, 8 Am. Dec. 730. 13 Whldden v. Seelye, 40 Me. 247, 63 Am. Dec. 661 ; Tyson v. Mc- Guineas, 25 Wis. 656. 1* Mason v. Warner, 31 Mo. 508 ; Laird v. Connecticut & P. B. R. Co., 62 N. H. 254, 13 Am. St. Rep. 564 ; Hale v. Lawrence, 21 N. J. Chap.Tobts — 16 242 • GENERAL PRINCIPLES (Ch. 7 It has been said that the test is to be found in the sub- ject of the injury, as differing from the means whereby and the mere place at which the injury was inflicted. If such subject be real -estate or an easement, as a right of way, obviously the action must be local. On the other hand, if it be an individual, then an injury to his person, or if it be personal property, an injury to the property right, no matter by what means occasioned or where inflicted, is essentially transitory, since the subject has not a fixed, sta- tionary, immovable location. To illustrate: Defendant obstructs a highway. If the action involves the plaintiff's right of user, so that such asserted right becomes the sub- ject of the injury, then the cause of action would be local. But suppose plaintiff has fallen over the obstruction and received injuries, for which he seeks damages. There be- ing no issue here as to his right of user, the cause is not refnoved from the transitory class merely because the in- jury was received on a highway through the instrumen- tality of an obstruction.^" Again, trespass to land being local, but conversion trans- itory, some difficulty has been experienced where there has been an unlawful severance and appropriation of timber, ore, products of the soil, or the soil itself. The answer must here depend upon the construction to be placed upon the pleadings. Is the gravamen of the action the injury to the realty, or does the plaintiff seek the value of what was removed from the land? Thus in Ellenwood v. Mari- etta Chair Co.^® it was held by the Supreme Court of the United States that the Circuit Court of Ohio had no ju- risdiction of an action for damages for cutting timber from lands in West Virginia, uporv the theory that the principal ground of the action wa^ the trespass to the land, the al- leged value of the timber being a mere incident.^^ Upon Law, 714, 47 Am. Dec. 190; McKeima v. Fisk, 1 How. (U. S.) 241, 11 L. Ed. 117. 15 Gunther v. Dranbauer, 86 Md. 1, 38 Atl. 33. IS ELLENWOOD v. MARIETTA CHAIR CO., 158 V. S. 105, 15 Sup. Ct 771, 39 L. Ed. 913, Chapin Cas. Torts, 122. 17 To the same effect, Ophir Silver Mining Co. v. Superior Court of § 59) TOETS GENEEALLT TRANSITORY LOCAL TORTS 243 this ground it was distinguished in the later case of Stone V. U. S.,^' where it was held that an "action could be maintained in the courts of the state of Washington for the value of timber cut by a trespasser from public lands in Idaho, since the gravamen of the action was here the conversion of the timber after its severance from the land.^' Where the severance has been accomplished by a third party, the action for a subsequent conversion by defend- ant is, of course, transitory.'"' Suppose an act is done which causes injury to real property situated in an adjoining state, as where an ex- plosion damages a bfiilding across the border. As the sub- ject of the injury is realty, it would seem that, under the test already laid down, the action can be brought only in the state where the land is situated. But here some courts have ingrafted an exception upon the general rule, and have laid down what miay seemingly be regarded as an arbitrary doctrine, analogous to that of the criminal law, namely, that suit may be brought in either jurisdic- tion." City and County of San. Francisco, 147 Cal. 467, 82 Pac. 70, 3 Ann. Cas. 340; American Union Tel. Co. v. Middleton, 80 N. Y. 408. 18 167 U. S. 178, 17 Snp. Ct. 778, 42 L. Ed. 127. 19 To the same effect, McGonlgle v. Atchison, 33 Kan. 726, 7 Pac. 550; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Radway v. Duffy, 79 App. Div. 116, 80 N. T. Supp. 334 ; Tyson v. McGulneas, 25 Wis. 656. 20 Makely v. A. Boothe Co., 129 N. C. 11, 39 S. E. 582. 21 Smith V. Southern K. Co., 136 Ky. 162, 123 S. W. 678, 26 L. R. •A. (N. S.) 927; MannvlUe Co. v. City of Worcester, 138 Mass. 89, 52 Am. Eep. 261 ; Armendiaz v. Stlllman, 54 Tex. 623 ; Stillman v. White Rock Mfg. Co., 23 Fed. Cas. No. 13,446, 3 Woodb. & M. 539. 244 GENERAL PRINCIPLES (Ch. 7 TRANSITORY TORTS— GOVERNING RULES 60. If a wrong committed in state A is transitory, and suit has been brought in state B, four different situa- tions may arise. It may be found that for an act or omission of such a character when occurring within its own territorial limits and tested by its own laws — (1) Neither state would give redress. (2) Both states would give redress. (3) State A would give redress, but not state B. (4) State B would give redress, but not state A. The first case requires no discussion. Of the second it may be observed that a difference in the remedy will not preclude recovery. Thus, where a cause of action has been created by statute in both states, e. g., for death caused by wrongful act or neglect, it is not required that the two stat- utes be identical in their terms or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes."^ Though redress can ordinarily be obtained only in accordance with the procedure of the forum,^^ which will determine the form of action,"* the conduct of the trial, and the rules applicable to the admission and weight of evi- dence,"" and, so at least one court has held, the amount of the recovery,"" yet in the case of statutory torts the party aggrieved cannot take the benefit of the act without the lim- 22 Leonard v. C!olumbia Steam Navigation Co., 84 N. Y. 48, 38 Am. Rep. 491. AUter, where they are dissimilar. Slater v. Mexican Nat. R. Co., 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900. 23 Mexican Cent. Ry. Co. v. Gehr, 66 111. App. 173. 2* Whether trespass or case. Henry v. Sargeant, 13 N. H. 321, 40 Am. Dee. 146. 2= Johnson v. Chicago & N. W. Ry. Co., 91 Iowa, 248, 59 N. W. 66; Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106; Mngartner v. Illinois Steel Co., 94 Wis. 70, 68 N. Wl 664, 34 L. R. A. 503, 59 Am. St. Riep. 859. 28 Dorr Cattle Co. v. Des Moines Nat Bank, 127 Iowa, 153, 98 N. W. 918, 102 N. W. 836, 4 Ann. Cas. 519. Contra, Pullman Palace Car §60) TBANSITOKT TORTS — GOVERNING RtTLKS 245 itations which the Legislature has seen fit to impose upon the right which it has created. Thus, where the statute of the state where the death occurred gives a cause of action to the widow as such, whereas by the law of the^orum suit must be instituted by the administratrix of the deceased, or vice versa, the former will govern,^' and a similar prin- ciple applies to the quantum -* and distribution of the dam- ages,*' since the law of the place of the act must determine, not only the existence and extent of the obligation, but also the corresponding right. For the same reason, while the period of limitations is generally regarded as pertaining solely to the remedy, and as such is to be determined by the lex fori,^" yet it is otherwise where the creative statute Co. V. Lawrence, 74 Miss. 782, 22 South. 53. And see Wharton on Conflict of Laws (3d Ed.) p. 1108. " Western & A. »R. Co. v. Strong, 52 Ga. 461; Wooden v. Western New York & P. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. K. A. 458, 22 Am. St Rep. 803; Usher v. West Jersey R. Co., 126 Pa. 206, 17 AU. 597, 4 L. R. A, 261, 12 Am. St. Rep. 863 ; Boston & M. R. Co. v. McDuffey, 79 Fed. 934, 25 C. C. A. 247. 28 LouisTille & N. R. Co. v. Graham's Adm'r, 98 Ky. 688, 34 S. W. 229, 17 Ky. Law Rep. 1229; PoweU v. Great Northern R. Co:, 102 Minn. 448, 113 N. W. 1017 ; Slater v. Mexican Nat. R. Co., 194 U. S. 120, 24 Sup. Ct 581, 48 L. Ed. 900. Contra (semWe) Wooden v. West- em New York.& P. R. Co.. 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St Rep. 803. Here defendant was a New York corpora- tion, and, while the point was not decided, it was observed that "the same reasoning which would exi)ose such a [foreign] corporation to the law of its own jurisdiction would serve equally to justify the right of the domestic corporation to be protected by the remedial limitations of its jurisdiction." But see Kiefer v. Grand Trunk R. Co., 12 App. Div. 28, 42 N. Y. Supp. 171, affirmed 153 N. Y. 688, 48 X. E. 1105, holding that section 1904, Code Civ. Proc, providing for the recovery of interest upon the damages awarded, was not ap- plicable where the death occurred in Canada, there being no such provision in the Canadian statute. 28 In re Coe, 130 Iowa, 307, 106 N. W. 743, 4 L. R. A. (N. SO 814, 114 Am. St Rep. 416, 8 Ann. Cas. 14S ; Dennick v. Central R. Co. of New Jersey, 103 U. S. 11, 26 Ll Ed. 439. 30 O'Shields v. Georgia Pac. Ry. Co., 83 Ga. 621, 10 S. E. 268, 6 L. R. A. 152; Arp v. Allis-Chalmers Co., 130 Wis. 454, 110 N. W. 386, 8 L. Ri. A. (N. S.) 997, 118 Am. St Rep. 1036; Munos v. South- em Pac. R. Co., 51 Fed. 188, 2 C. C. A. 163. And see Michigan Ins. Bank v. Eadred, 130 U. S. 693, 9 Sup. Ct. 690, 32 L. Ed. 1080. 24G GENERAL PRINCIPLES (Ch. 7 makes the commencement of a suit within a prescribed time a condition upon which the existence of a cause of action shall depend.*^ or, whether the tort be of statutory or com- mon-law origin, the act can he construed not merely as a decla- ration that stale claims should not be enforced, but as a posi- tive extinguishment of the invaded right.*^ Two exceptions should here be noted to the doctrine that, where the action is traiisitory, redress is not confined to the place where the wrong occurred. The first covers caus- es based upon, penal statutes. The latter are designed to impose a punishment for an offense against the state, and cannot be given extra-territorial effect. Now, a statute is none the less penal in character because it may provide a money penalty rather than imprisonment, or because the action may be brought by a private person, or because the penalty is to be paid either in whole or in part to a given individual rather than to the state. It is. the effect and not the form that is to be considered.^^ Is the offender mulcted as a punishrhent for his disobedience? If so, the statute is penal. Is he required to make compensation to the injured party for the loss sustained? If so, it is remedial. To illustrate: A statute of state X provides that the relatives of one killed by the wrongful act or neglect of another may recover from the latter $5,000, irrespective of* the damages they may have sustained. This is penal.'* A statute of 31 E. g., death due to negligence or wrongful act. Negaubauer v. Great Northern Ky. Co., 92 Minn. 184, 99 N. Wt 620, 104 Am. St. Kep. 674, 2 Ann. Cas. 150; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358 ; International Nav. Co. v. Lindstrom, 123 Fed. 475, 60 C. C. A. 649; Boyd v. Clark (C. C.) 8 Fed. 849. 32 As where hostile possession of property for the specified period operates to vest title in the possessor. Howell v. Hair, 15 Ala. 194 ; Fears v. Sykes, 35 Miss. 633 ; Waters v. Barton, 1 Cold. (Tenn.) 450. And see Pitt v. Dacre, L. R. 3 Ch. Div. 295, 45 L. J. Ch. (N. S.) 796, 24 Wkly. Rep. 943; Beckford v. Wade, 17 Ves. Jr. 87, 11 Rev. Rep. 20. 8S Diversey v. Smith, 103 HI. 378, 42 Am. Rep. 14. 3* Ralsor v. Chicago & A. Ry. Co., 215 111. 47, 74 N. E. 69, 106 Am. St. Rep. 153, 2 Ann. Cas. 802; Casey v. St. Louis Transit Co., 116 Mo. App. 235, 91 S. W. 419; O'Rieilly v. New York & N. B. R. Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. R. A. 364, 6 L. R. A. 719 ; Adams v. Pitchburg R. Co., 67 Vt. 76, 30 Atl. 687, 48 Am. St. § 60) TBANSITORY TOKTS — GOVERNING RULES 247 State Y gives a cause of action to the relatives, but measures the recovery by the loss sustained. This is remedial,'" even though recovery cannot be had beyond a specified amount.'* So, too, a statute is penal which allows double damages where cattle are killed by a railroad," or treble damages for unfair discrimination by a common carrier,'' or fifty dollars in addition to actual damages where a telegram is negligently delayed.'* A statute may even come within both classes, as if it permits the loser to recover money lost at gaming, should he sue within a given time, and, where he has failed to do so, allows any third party to sue 'for three times the amount. This- is remedial as to the loser, but penal as to the third party.** The second exception is found where neither party is a resident of the state where the suit is brought and the cause of action did not arise there. Here, while jurisdiction is conceded, assuming that the parties are regularly before the court, it has been held in New York, at least, that it will not be exercised, unless under special circumstances.*^ The weight of authority, however, is against this view, and Kep. 800; MarshaU v. Wabash R. Co. (C. C.) 46 Fed. 269. Contra, Boston & M. R. Co. V. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. R. A. 193. 35 Burns v. Grand Rapids & I. R. Co., 113 Ind. 169, 15 N. B. 230 ; Stewart v. Baltimore & O. R. Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 Li. Ed. 537. 38 Nelson v. Chesapeake & O. R. Co., 88 Va. 971, 14 S. E. 838, 15 I* R. A. 583. 37 Bettys V. MUwaukee & St. P. Ry. Co., 37 Wis. 323. ss.Langdon v. New York, L. E. & W. R, Co., 58 Hun, 122, 11 N. Y. Snpp. 514. * 39 Taylor, Farr & Co. v. Western Union Tel. Co., 95 Iowa, 740, 64 N. W. 660. *o Cole V. Groves, 134 Mass. 471. ♦1 Gardner v. Thomas, 14 Johns. (N. Y.) 134, 7 Am. Dec. 445 ; CoUard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619; Ferguson V. Neilson, 58 Hun, 604, 11 N. Y. Supp. 524. And see Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, 19 N. B. 625, 2 L. R. A. 636. Though the court may refuse to entertain the action or may dismiss on its own motion yet the laches of defendant may operate as a waiver of his right to Insist upon the objection. Burdlck v. Free- man, 120 N. Y. 420, 24 N. E. 949. And see Morrlsette v. Canadian Pac. R. Co., 76 Vt. 267, 56 Atl. 1102. 248 GENERAL PRINCIPLES (Ch. T indeed "on the whole" it appears "consonant to natural right and justice that the courts of every civilized country- should be open to hear the causes of all," though the par- ties are only temporarily within the limits of the jurisdic- tion." Acts Wrongful by hex Loci, But Not by Lex Fori The English courts have laid down the rule that redress- will hot be given unless the injury was of such a character that it would have been actionable if suffered in England.*' Thus cognizance was not taken of a liability created by the law of Belgium for a collision occurring in that country,, caused by the act of a pilot whom the shipowner was com- pelled to employ, since by English law the pilot was not regarded as the servant of the owner.** ^ A more liberal view haS been generally adopted in Amer- ica, where it has frequently been asserted that a right of action arising under the law of one state will be enforced in another, though the latter would not permit recovery, had *2 Roberts v. Knights, 7 Allen (Mass.) 449, 452 ; Pullman Palace- Car Co. V. Lawrence, 74 Miss. 782, 22 South. 53; (semble) Knight V. West Jersey R. Co., 108 Pa. 250, 56 Am. Rep. 200; Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. For admiralty rule, see Panama R. Co. v. Napier Ship- ping Co., 166 TJ. S. 280, 17 Sup. Ct. 572, 41 L. Ed. 1004, where it was said: "Had both parties to the libel been foreigners, it might have been within the discretion of the court to decline jurisdiction of the case, though the better opinion is that, even under those circum- stances, the court will take cognizance of torts to which both parties- are foreigners, at least in the absence of a protest from a foreign consul." The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152. 43 Carr v. Times, [1902] A. C. 176, 71 L. J. K. B. 361, 85 L. T. Rep.. (N. S.) 144, 17 T. li. R. 657, 50 Wkly. Rep. 257 ; Chartered Mercan- tile Bank v. Netherlands India Steam Nav. Co., 10 Q. B. D. 521, 536, 5 Aspin. 65, 47 J. P. 260, 52 L. J. Q. B. 220, 48 L. T. Rep. (N. S.) 546, 81 Wkly. Rep. 445; Phillips v. Eyre, L. R. 6 Q. B. 1, 10 B. & S. 1004, 40 li. J. Q. B. 28, 22 L. T. Rep. (N. S.) 869: The M. Moxham,. 1 P. D. 107, 46 L. J. P. D. & Adm. 17, 34 L. T. Rep. (N. S.) 559, 24 Wkly. Rep. 650. *4 The Halley, L. R. 2 P. C. 193, 37 L. J. Adm. 33, 18 L. T. Rep. (N. S.) 879, 5 Moore P. C. (N. S.) 263, 16 Wkly. Rep. 998, 16 Eng. Repr. 514. • § 60) TRANSITORY TORTS — GOVERNING RULES 249 the cause arisen there, with an exception, rather vaguely worded, in cases where the recognition of such a right would be contrary to the policy of the forum.*" What would amount to a difference in policy cannot be determined by any satisfactory test. It should certainly be funda- mental,** for even a considerable variance between the stat- utory or common law of the two states would not warrant a refusal to exercise jurisdiction.*' Contrasted with the English doctrine, the prevailing American view seems q fairer application of the principle of comity. It is submit- ted that the limitation apparently adopted by a few of the courts that^an action for injuries causing death is not main- tainable, unless there is a substantially similar statute in the state where the action is brought,** is unsound. Acts Wrongful by Lex Fori, But Not by hex Loci It. has been well said that "if the acts of the parties im- pose Jio obligations on the one hand, and confer no rights *ii "Against good morals, or natural justice, or • * * preju- dicial to the general interests of our own citizens." Chicago & E. I. R. Co. V. Rouse, 178 111. 132, 52 N. E. 951, 44 L. R. A. 410 ; Rick V. Saginaw Bay Towing Co., 132 Mich. 237, 93 N. W. 632, 102 Am. St. Rep. 422; Powell v. Great Northern R. Co., 102 Minn. 448, 113 N. W. 1017; Northern Pac. R. Co. -v. Babcock, 154 U. S. 190, 14 Sup. Ct 978, 38 Ii. Ed. 958. "Contrary to the known policy or prejudicial to the interests of the state in which the suit is brought." Nelson V. Chesapeake & O. R. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583. "Contrary to pure morals or abstract justice, or unless the enforce- ment would be of an evil example and harmful to its own people, and therefore inconsistent with the dignity of the government whose au- thority is invoked." Morrisette v. Canadian Pac. R. Co., 76 Vt. 267, 56 Atl. 1102. 46 Walsh V. New York & N. E. R. Co., 160 Mass. 571, 36 N. E. 584, 39 Am. St. Rep. 514. *T So held where the states differed as to the fellow servant rule (Chicago & E. I. R, Co. v. Rouse, supra: Rick v. Saginaw Bay Tow- ing Co., supra) and the effect of contributory negligence (Morrisette V. Canadian Pac. R. Co., supra). *8 Wooden v. Western New York & P. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Cincinnati, H. & D. R. Co. V. McMullen, 117 Ind. 439, 20 N. K 287, 10 Am. St. Rep. 67; CReilly v. New York & N. B. R. Co., 16 R. I. 388, 17 Atl. 171, 906, 19 Atl. 244, 5 L. Rt A. 364, 6 L. R. A. 719; Knight v. West Jersey R. Co., 108 Pa. 250, 56 Am. Rep. 200. 250 GENERAL PRINCIPLES (Ch. 7 on the other, where they occur, no good reason is apparent why they should spring into active existence the moment the parties pass into another jurisdiction, where, if they had occurred therein, such relative rights and obligations would have resulted. An act should be judged by the law of the jurisdiction where it was committed; the party acting or omitting to act must be presumed to have been guided by the law in force at the time and place, and to which he owed obedience; if his conduct according to that law violated no right of another, no cause oi action arose, for actions at law are provided to redress violated rights." ** It is there- fore thoroughly established that the act or omission must have given rise to a cause of action at the place where it occurred,"" or, as the English* courts have phrased it, must not be "justifiable there." "^ The significance of this ex- 40 Alexander v. Pennsylvania Co., 48 Ohio St. 623, 636, 80 N. B. 69, per Bradbury, J. 00 Louisville & N. B, Co. v. Williams, 113 Ala. 402, 21 South. 938; Selma, R. & D. R. Co. v. Lacy, 43 Ga. 461 ; Turner v. St. Clair Tun- nel Co., Ill Mich. 578, 70 N. W. 146, 36 L. R. A. 134, 66 Am. St. Rep. 397; State to Use of Allen v. Pittsburgh & C. R. Co., 45 Md. 41; Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491 ; McDonald v. Mallory, 77 N. T. 546, 33 Am. Rep. 664. An action can- not be maintained in Massachusetts for injuries inflicted by defend- ant's dog if plaintiff fails to prove scienter as required in New Hamp- shire the place of occurrence, although in Massachusetts the doc- trine of scienter had been abolished by statute. LE FOREST v. TOLMAN, 117 Mass. 109, 19 Am. Riep. 400, Chaptu Cas. Torts, 123. Bi "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. * * * Seo- ,ondly, the act must not have been justifiable by the law of the place where it was done." Phillips v. Eyre, L. R. 6 Q. B. 1 28 10 B & S 1004, 40 L. J. Q. B. 28, 22 L. T. Rep. (N. S.) 869 (quoted in ckrr v! Times [1902] A. C. 176, 177, 71 L. J. K. B. 361, 85 L. T. Rep N S 144, 17 T. L. R. 657, 50 WJily. Rep. 257, where it was held that the seizure by a British naval officer of British goods on a British ship in the waters of a foreign sovereign, effected under the authority and by the direction of that sovereign, cannot be made the subject of le- gal proceedings in England ; Machado v. Fontes, [1897] 2 Q B 231 233, 66 L. J. Q. B. 542, 76 L. T. Rep. (N. S.) 588, 45 Wkly.'Reo' 565i per Willes, J. § 60) TRANSITORY TORTS — GOVERNING RULES 251 pression is shown in Machado v. Fontes,"- where an adtion in tort for a libel published in Brazil was sustained in Eng- land, although by Brazilian law libel was not a tort, but a crime. "Justifiable," said the court, was to be regarded as synonymous with "innocent." This seems open to se- rious objection, since it fails to recognize the distinction between purely moral and legal obligations. It is certainly contrary to the recognized rule that the right to recover for a death occurring beyond the limits of the forum is determined and measured by the redress afforded by the law of the place of occurrence,'* and which refuses extra territorial effect to a statute penal in its nature.'* Since the question of tort or no tort is therefore to%e answered by referring to the lex loci, it follows that all de- fenses which go to the existence or extent of the right or obligation sought to be enforced must be similarly tested. Stepping over a state line cannot give the plaintiff a cause of action, or enlarge the one he already has. Thus in the leading case of Phillips v. Eyre '' it was held that no re- covery could be had in England for acts committed in Jamaica while defendant was its Governor, where such acts had been made lawful and confirmed by a law of the island. So it is a good defense to an action brought in New ■Hampshire for injuries sustained in Maine while traveling on Sunday that such travel was in violation of a Maine statute." Further illustrations are given in the note."' 62 [1897] 2 Q. B. 231, 66 L. J. Q. B. 542, 76 L. T. Rep. (N. S.) 588, 45 Wkly. Hep. 565. In accord, Scott v. Seymour, 1 H. & C. 219, 9 Jut. (N. S.) 522, 32 L. J. Exch. 61, 8 L. T. Rep. (N. S.) 511, 11 Wkly. Kep. 169. B3 See Wharton on Conflict of. Laws (3d Ed.) 1096. Machado v. Fontes would appear an Instance of a hard case making bad law. Minor on Conflict of Laws, § 191, note. 5* See Davis v. New York & N. E. R. Co., 143 Mass. 301, 9 N. E. 815, 58 Am. Rep. 138. S6 L. R. 6 Q. B. 1, 10 B. & S. 1004, 40 L. J. Q. B. 28, 22 L. T. Rep. (N. S.) 869. 50 Beacham v. Proprietors of Portsmouth Bridge, 68 N. H. 382, 40 AU. 1066, 73 Am. St. Rep. 607. B7 Baltimore & O. R. Co. v. Reed, 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am St. Rep. 293 ; Voshefskey v. Hillside Coal & Iron 252 GENERAL PRINCIPLES (Ch. 7 As has already been seen, however, defenses involving questions of procedure and the propriety of assuming juris- diction are determined by the law of the forum, though even here, where the right is created by statute, a mode of redress may be prescribed by which alone the wrong is to be redressed, thus causing the right to be so conditioned that what is ordinarily matter of form becomes matter of substance, as where actions for death wrongfully caused are directed to be brought by specified individuals and within a given time. Ck)., 21 App. Dlv. 168, 47 N. T. Supp. 386; Knowlton v. Erie Ry. C|^ 19 Ohio St 260, 2 Am. Rep. 395 ; Bridger v. Asheville & S. E. Co., 27 S. C. 456, 3 S. E. 860, 13 Am. St. Rep. 653; Railway Co. v. Lewis, 89 Temi. 235, 14 S. W, 603; Chicago, R. I. & P. Ry. Co. v. Thompson, 100 Tex. 185, 97 S. W. 459, 7 L. R. A. (N. S.) 191, 123 Am. St Rep. 798. Ch. 8) INFRINGEMENT OF PERSONAL SECURITY 253 PART II SPECIFIC TORTS CHAPTER VIII INFRINGEMENT OF PERSONAXi SECURITY 6:^. Assault. 62. Battery. 63. Assault and Battery — Defenses. 64. False Imprisomnent. 65. Defenses. 66. Seduction. ASSAULT 61. "An assault is any attempt or offer with force or vio- lence to do a corporal hurt to another, whether from malice or wantonness, with (under) such cir- cumstances as denote at the time an intention to do it, coupled with a present ability to carry such intention into effect." ^ This tort constitutes a disturbance of the sense of per- sonal security, an invasion of the right to peace of mind, by causing apprehensions of bodily peril. Being purely men- tal in its operation, it differs from a battery, where there is a physical injury. Or, put another way, an assault is an inchoate battery — a battery, a consummated assault. In common parlance and in penal statutes, this difference is frequently not observed, and the term "assault" is used to include both. 1 Tarver v. State, 43 Ala. 354, 356, per Peck, C. J. 254 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 "Any Attempt or Offer with Force or Violence to Do a Cor- poral Hurf "There must be some movement towards actual vio- lence," " such as aiming with a hatchet,' raising a stick,* presenting a firearm," shaking one's fist in another's face," or riding after him, so as to compel him to run for shel- ter.^ Nor need the display of force be so greJat as in the instances mentioned. Putting a hand on a sword,* clench- ing a fist, the arm being bent at the elbow, but not drawn back,' and advancing in a threatening manner ^° constitute assaults, though in the last case the advancing party is stopped before he comes within striking • distance,*^ or the threatened party escapes without injury.^* But mere words, unaccompanied by any act indicating an intent to carry out an apparent purpose to inflict violence, are in- sufficient," and a fortiori if uttered over the telephone.^* 2 Cutler V. State, 59 Ind. 300, 302. 3 I. De S. and Wife v. W. De S., Y. B. Lib. Ass. fol. 99, pi. 60 (1348 or 1349). 4 State V. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. E. A. 607. 5 People V. Morehouse, 6 N. Y. Supp. 763, 25 N. Y. St. Rep. 294; ' United States v. Kierman, 3 Cranch, C. C. 4-35, Fed. Gas. No. 15,529 ; Osbom V. Veitch, 1 F. & F. 317. 6 Mitchell V. Mitchell, 45 Minn. 50, 47 N. W. 308. 7 Morton v. Shoppee, 3 C. & P. 373, 14 B. C. ti. 616. 8 TUBERVILLB v. SAVAGE, 1 Mod. 3, Chapin Gas. Torts, 126, though held no assault, since the accompanying language qualified' the act-. » State v. Hampton, 63 N. C. 13. Here the accompanying words were, "I have a good mind to strike you." But see Brown v. State, 95 Ga. 481, 20 S. B. 495, where defendant picked up a stone, but made no attempt to cast it at one who was about twenty steps dis- tant, and it was held no assault, but merely preparation therefor. To the same effect, State v. Milsaps, 82 N. C. 549. 10 Read v. Coker, 13 G. B. 850. ' 11 State V. Vannoy, 65 N. C. 532 ; Stephens v. Myers, 4 G. & P. 349. 12 People v. Yslas, 27 Gal. 630. 13 Penny v. State, 114 Ga. 77, 39 S. E. 871. Verbal solicitation of a woman for sexual intercourse does not constitute an assault. State V. White, 52 Mo. App. 285 ; Prince v. Ridge, 32 Misc. Rep. 666, 66 N. Y. Supp. 454. 14 Kramer v. Ricksmeier, 159 Iowa, 48, 139 N. W. 1091, 45 L. R. A. IN. S.) 928. § 61) ASSAULT 255 Even though there be an act, the latter may be too slight to justify apprehension,^'' and it must indicate an intent to do bodily injury.^' "Whether from Malice or Wantonness" These words call attention to the distinction, already pointed out,^^ between fright or mental suiifering when caused by negligence and when resulting from a willful act." It will be remembered that for the first, when stand- ing alone, many of the courts deny recovery, though if the act be willful a contrary result is reached.^* Hence plaintiff, if an assauljt is proved, is at least' entitled to nom- inal damages for the injury to his peace of mind, and in aggravated cases the jury may add exemplary damages.^" Under Circumstances Denoting an Intention and Present Abil- ity to Do Violence If the accompanying circumstances show that physical hurt is not to be apprehended, there is no assault. While mere words are not of themselves sufficient, the language uttered may be considered for the purpose of explaining 15 Where the complaint alleged that defendant's conductor had assaulted plaintiff "by grasping her by the arm and shoulders, by winking and smUlng at her," held that the winking alone did not constitute an assault. Birmingham Ry., Light & Power Co. v. Par- ker, 161 Alal 248, 50 South. 55. le Thus no assault is established where a landlord, upon his ten- ant's refusal to quit, burst open an inner door, removed doors and windows, brought a bloodhound into the house, made a great noise for several days, and refused to permit any food to be furnished to the tenant from the outside. Stearns v. Sampson, 59 Me. 568, 8 Am. Rep. 442. Though, where removal was prevented by iUness, it might constitute a trespass. Preiser v. Wielandt, 48 App. Div. 569, 62 N. ¥. Supp. 890. 17 See supra, p. 86. IS See note to Huston v. Freemansburg, 3 Jj. B.. A. (N. S.) 49; and to Chittiek v. Philadelphia Rapid Transit Co., 22 h. E. A. (N. S.) 1073. 18 Prince v. Ridge, 32 Misc. Rep. 666, 66 N. Y. Supp. 454; Preiser V. Wielandt, 48 App. Dlv. 569, 62 N. Y. Supp. 890 ; Watson v. DUts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St Rep. 239 ; Wilkinson v. Downton, [1S97J 2 Q. B. 57. 2» BEACH V. HANCOCK, 27 N. H. 223, 59 Am. Dec. 373, Chapin Cas. Torts, 125. 256 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 or qualifying the threatening act. Thus no sense of fear was excited where defendant, though laying his hand on a sword, ,yet said, "If it were not assize time, I would not take such language," ^^ or while raising a whip and shak- ing it said, "Were you not an old man, I would knock you down." "" So, the violence must be offered "within such a distance as that harm might ensue if the party was not prevented." *' Thus a gun or pistol must be presented^ within shooting distance."* It is not required, however, that there be an actual ability to inflict violence. It will be sufficient that it be reasonably apparent, since the ap- prehension of damage may be the same in both cases. Pointing an unloaded firearm at one who does not know it to be unloaded impairs the latter's sense of security quite as much as though the weapon had a cartridge in the breach," ° and although some courts have held this not to be criminal, though admittedly a civil assault,"' the distinction seems questionable. "It is not the secret intent of the assaulting party, nor the undisclosed fact of his ability or inability to commit a battery, that is materialj but what his conduct and the attending circumstances de- note at the time to the party assaulted." "' 21 TTJBERVILLE v. SAVAGE, 1 Mod. 3, 86 Eng. Repr. 684, Chapin Cas. Torts, 126. 22 State V. Crow, 23 N. C. 375. To the same effect, Blake v. Bar- nard, 9 C. & P. 626, 38 B. G. L. 363. 2 3 People V. Lilley, 43 Mich. 521, 525, 5 N. W. 982. 2* Tarver v. State, 43 Ala. 354', 356. ^ 25 BEACH V. HANCOCK, 27 N. H. 223, 59 Am. Dec. 373, Chapin Cas. Torts,' 125. ^« Chapman v. State, 78 Ala. 463, 56 Am. Eep. 42 ; State v. God- frey, 17 Or. 300, 20 Pac. 625, 11 Am. St. Rep. 830. 27 Commonwealth v. White, 110 Mass. 407, 409, per Wells, J. To the same efCect, State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Humph. (Tenn.) 457 ; and see supra, p. 6. , 62) BATTEBT 257 BATTERY 62. "Battery is an unlawful touching the person of an- other by the aggressor himself or any other sub- stance put in motion by him." " A battery is a consummated assault. Though the force be but slight, the tort may be none the less complete,^' since it may have constituted a gross indignity.'" Still, where the physical ^impact is very slight, motive may be introduced. Therefore it is no battery to touch another in discourse,^^ or merely to attract attention,*'' or to per- suade." The term "person'' has received a liberal interpretation, and includes articles which at the time are in reasonably close association with the body itself. Thus, snatching a paper from another's hands is a battery;'* so is striking a horse hitched to a carriage in which plaintiff is riding,'" 2 8 Klrland v. State, 43 Ind. 146, 153, 13 Am. Rep. 386, per Bus- kirk, J. 29 "A battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person." Svyeeden v. State, 19 Ark. 205, 213. 30 B. g., spitting in the face. Alcorn v. Mitchell, 63 111. 553 (ver- dict for $1,000 sustained) ; Draper v. Baker, 61 Wis. 450, 21 N. W- 527," 50 Am. Eep. 143 (verdict for $1,200 sustained). 31 TUBBRVILLE v. SAVAGE, 1 Mod. 3, Chapin Cas. Torts, 126. 82 Coward v. feaddeley, 4 H. & N. 478, 5 Jur. (N. S.) 414, 28 D. J. Exch. 260, 7 Wkly. Kep. 466. 33 State V. Hemphill, 162 N. C. 632, 78 S. E. 167, 45 L. R. A. (N. S.) 455. And see Cole v. Turner, 6 Mod. 149, where Holt, 0. J., said: : "Mrst, that the least touching of another in anger is a battery. Sec- ondly, 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 oth- _ er to force his way in a rude, inordinate manner, it will be a bat- tery; or any struggle about the passage to that degree as may do hurt will be a Ijattery." 34Dyk V. De Xoung, 35 111. App. I3SI 35 Clark V. Downing, 65 Vt. 259, 45 Am. Rep. 612. And see De MarentiUe v. Oliver, 2 N. J. Law, 379. Chap.Toets — 17 258 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 driving against a vehicle occupied by plaintiff,'' or striking a rail against which he is leaning.'^ Going a step further, it is unnecessary that there should be a physical touching by the aggressor's person, since the wrong may be accom- plished by means of an agency put in motion by him, as where an object is thrown at,'' or a liquid poured over, plaintiff,'" or he is run down by a bicycle.*" Nor need the effect be coincident with the act, since it is a battery if one delivers to another to be eaten an article which he is aware contains a concealed foreign substance which upon .being innocently swallowed causes injury.*^ Deception is here equivalent to force.*^ DEFENSES 63. Among the defenses which may be interposed to an assault or battery are — (a) Defense of person. (b) Defense of property. (c) Recaption of property. (d) Enforcement of discipline, regulations, and order. (a) Defense of Person Attacked Since the loss or damage of the party suffering was deemed the primary subject of consideration, the early common law refused to recognize a plea of self-defense to an action brought by the aggressor.*' For the crirtie a 38 Hopper V. Reeve, 1 Moore, C. P. 407, 7 Taunt. 698, 2 E. O. I* 554. 3 7 Kendall v. Drake, 67 N. H. 592, 30 Atl. 524. 3 8 Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81; Bullock v. Babcock, 3 Wend. (N. Y.) 391. 3» Murdock v. State, 65 Ala. 520. *o Mercer v. Oorbin, 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221, 10 Am. St. Rep. 76. Or by an automobile. Schneider v. State, 181 Ind. 218, 104 N. E. 69. 41 Com. V. Stratton, 114 Mass. 303, 19 Am. Rep. 350. Cf. Carr v. State, 135 Ind. 1,, 34 N. E. 533, 20 L. R. A. 863, 41 Am. St. Rep. 408. *2 Cooley on Torts (3d Ed.) 284. 43 Anon. Y. B. 21 & 22 Edw. I, 586 ; Anon., Y. B. 12 Edw. II, fol, 381. § 63) DEFENSES 259 pardon might be issued by the king under the statute of Gloucester,** but this did not affect a civil action. Such an absurdity could not endure, and in 1400 we find the right of self-defense admitted.*" It is now thoroughly establish- ed that a belief which a reasonable man would entertain of impending bodily harm will justify the employment of that degree of force which is apparently required for pur- poses of protection. Upon analyzing this statement, the following points appear. First. It is sufficient that there is an actual belief of danger. Its existence need not be shown. If, for instance, one presents a revolver at another under circumstances in- dicating an intent immediately to shoot, he cannot require the latter, before taking measures to protect himself, to determine at his peril whether the weapon w^as loaded or unloaded, or whether it was presented in jest or earnest.*' Second. The belief must be one which a reasonable man would have entertained under similar circumstances. For, though the defendant must in fact have supposed that the peril existed, the justification for his belief must be tested by the ordinary standard, and not by that of the over- cautious or the over-bold.*' Third. The harm must be impending. One cannot wait until the danger has passed, and the necessity for self- defense is over, and then proceed to take revenge.** Nor since force is permitted for purposes of protection, and not for punishment, will the law consider opprobrious words a justification.*" Still they should logically be ad- ** G Edw. I, ch. 9. *5 Chapleyn of Greye's Inn v. , Y. B. 2 Henry IV, fol. 8, pi. 40. 46 See New Orleans & N. E. B. Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919. *7 Courvoisier v. Kaymond, 23 Colo. 113, 47 Pac. 284; Zell v. Duna- way, 115 Md. 1, 80 Atl. 215 ; Beck v. Minneapolis Union Ry. Co., 95 Minn. 73, 103 N. W. 746; Palmer v. Smith, 147 Wis. 70, 132 N. W. 614. 48 0gden V. Claycomb, 52 111. 365; Hetrick v. Ci(Oueli, 141 Mich. 649, 105 N. W. 131. *»Norris v. Casel, 90 Ind. 143; Murray v. Boyne, 42 Mo. 473; 260 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 mitted in evidence as a part of the attendant circumstances for the purpose of affecting damages "" exemplary in character, but not to reduce compensatory damages."^ Nor can threats previously made and not communicated to defendant be considered, since they did not influence his conduct,'* though they may be looked to in connection with present demonstrations as grounds of apprehension."' But the rule that danger must be impending does not require that one should wait until a blow is struck, "for," as was quaintly observed in an early case, "perhaps it will come too late afterwards." °* Were it otherwise, "the right of self-defense would be of but little value." " So, where one is attacked by several, he may act- with more prompt- ness and resort to more forcible means to protect him- self than where assailed by a single person."* Can force be employed if a way of retreat is left open to the party assailed? Here we must differentiate between cases (1) where the aggressor has been killed, and (2) where his injuries have not resulted in ^eath. In the first, a plea of self-defense is not available, where the party as- sailed could have retreated without increasing his appar- ent hazard. Under such circumstances, out of regard for human life, the law says that he shall run rather than Keyea v. Devlin, 3 E. D. Smith (N. Y.) 518. Contra, by statute, in ■ cases of criminal assault, Brown v. State, 74 Ala. 42; Murphy v. State, 92 Ga. 75, 17 S. E. 845; Behllng v. State, 110 Ga. 754, 36 S. B. 85. "soKeyes v. Devlin, supra; Haman v. Omaha Horse Ry. Co., 35 Neb. 74, 52 N. W. 830. 61 Donnelly v. Harris; 41 111. 12Qs Corcoran v. Harran, 55 Wis. 120, 12 N. W. 468. 82 Sorgenfrei v. Schroeder, 75 111. 397. 53 See Rippy v. State, 2 Head (Tenn.) 217. 5* Chapleyn of Greye's Inn v. , Y. B. 2 Hen. IV, fol. 8, pi. 40. BO State V. McDonald, 67 Mo. 13, 19. "A person about to be at- tacked is riot bound to wait until his adversary gets the drop on him." State v. Matthews, 148 Mo. 185, 193, 49 S. W. 1085, 71 Am. St. Rep. 594. B6 Thorton v. Taylor, 21 Ky. Law Rep. 1082, 54 S. W. 16; Higgins V. Minaghan, 78 Wis. 602, 47 N. W. 941, 11 L. R. A. 138, 23 Am. St. Rep. 428. § 63) DEFENSES 261 slay, or, as it has sometimes been put, shall "retreat to the wall" — and this whether the homicide occurred at the be- ginning or during the continuance of the affray, since it is the situation at the time of the killing which is to be con- sidered.'^ But if the party assailed is at the time in his own dwelling, he is under no obligation to retreat further, since he is regarded as already "at the wall." °* In the second class of cases — i. e., where injury and not death has resulted — it is generally held that one may stand and repel force with such force as may reasonably seem necessary."' Fourth. The defending party cannot employ a degree of force beyond what is apparently demanded for purposes of protection without rendering himself liable for the excess.'* Should he do so, two wrongs will in fact have been com- mitted — one by the assailant in beginning the attack, and the other by the assailed in using excessive force in resist- ing it.'^ Furthermore, the means employed must be ap- propriate. To justify the use of deadly weapons, the dan- ger must seemingly be greater than where resort has been had to natural methods of defense."^ 5T state V. Jones, 89 Iowa, 182, 56 N. W. 427; People v. Constan- tino, 153 N. Y. 24, 47 N. R 37; State v. Gentry, 125 N. C. 733, 34 S. E. 706 ; aark v. Com., 90 Va. 360, 18 S. E. 440 ; State v. Zeigler, 40 W. Va. 593, 21 S. E. 763. While the foregoing cases give the rule of the criminal law, it is submitted that an identical principle prevails in civil actions. See THOMASON v. GKAT, 82 Ala. 291, 293, 3 South. 38, Chapin Cas. Torts, 126. How far the obligation to fly exists, or how long it continues before homicide can be regarded as excusable, depends on the suddenness and violence of the attack, the imminence of the danger, and the age, strength, and sex of the parties. People v. Garretson, 2 Wheeler, Cr. Cas. (N. Y.) 347. 53 State V. Dixon, 75 N. C. 275; State v. Gentry, 125 N. C. 733, 736, 34 S. E. 706 ; State v. Middleham, 62 Iowa, 150, 17 N. W. 446 ; State V. Martin, 30 Wis. 216, 11 Am. Rep. 567. 9 State V. Sherman, 16 R. I. 631, 18 Atl. 1040. so THOMASON v. GRAY, 82 Ala. 291, 3 South. 38, Chapin Cas. Torts, 126 ; Trogden v. Henn, 85 111. 237 ; Brown v. Gordon, 1 Gray (Mass.) 182 ; Nichols v. Brabazon, 94 Wis. 549, 69 N. W. 342. 61 Dole V. Brskine, 35 N. H. 503. But see Elliott v. Brown, 2 Wend. (N. Y.) 497, 20 Am. Dec. 644, holding that, if the party as- 62 People V. Rodrigo, 69 Cal. 601, 11 Pac. 481 ; Floyd v. State, 36 Ga. 91, 91 Am. Dec. 760 ; State v. Ferguson, 26 Mo. App. 8. 262 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 Defense of Another Whatever may have been the early common-law rule,"* it is now thoroughly settled that one may defend, not only himself, but also a member of his family," a master,"* or a servant."" In fact, it would seem permissible to pro- tect any third party, since "one may do for another what- ever the other may do for himself — a rule to which, if there are any exceptions, they are few." "' It must appear, how- ever, that the party sought to be protected was free from fault,"" and the limitations upon the right of self-defense, already considered apply here with equal force. (b) Defense of Property Force is likewise excusable when employed in defense of property, real or personal. But it must not exceed what is apparently required, under the circumstances, for pur- poses of protection,"' as is shown by the plea which de- fendant interposes that "he laid his hands gently" upon the sailed uses excessive force, he loses all right of recovery from his assailant. Cf. Deagan v. Weeks, 67 App. Div. 410, 73 N. T. Supp. 641 ; Murphy v. McQuade, 20 Misc. Rep. 671, 46 N. T. Supp. .382. 63 See V. Fakenham, Y. B. 9 Edw. IV, fol. 48, pi. 4, where It was thought that a battery by a servant in defense of his master was excusable, though the master might not do as much for the servant. But in Seaman v. Cuppledick, Owen, 150, the right of de- fense was considered reciprocal. e*. Sloan V. Pierce; 74 Kan. 65, 85 Pac. 812 ; Flint v. Bruce, 68 Me. 183 ; Comm. v. Malone, 114 Mass. 295 ; Tompkins v. Knut (C. G.) 94 Fed. 956. 65 See V. Fakenham, supra. 68 See Fortune v. Jones, 30 111. App. 116, reversed on other grounds 128 111. 518. 21 N. B. 523. 6 7 Bishop's New Criminal Law, § 877; State v. Totman, 80 Mo. App. 125. See Penal Law N. Y. (Consol. Laws, c. 40) § 246, subd. 3, declaring the use of or attempt to use force not unlawful "either by the party about to be injured or by another person in his aid or de- ■ fense in preventing or attempting to prevent an offense against his person, • * * if the force or violence used is not more than suf- Ucient to prevent such offense." 68 Morris v. McClellan, 154 Ala. 639, 45 South. 641, 16 Ann. Cas. 305. eoAbt V. Burgheim, 80 111. 92; HANNABALSON v. SESSIONS, 116 Iowa, 457, 90 N. W. 93, 93 Am. St. Rep. 250, Chapin Cas. lorts, 180; O'Donnell v. Mclntyre, 118 N. Y. 156, 23 N. B. 455; SCRIBNBR § 63) DEFENSES 263 aggressor/" Furthermore, the force must be appropriate to the end designed.'^ This general rule must, however be taken with some modifications. For instance, one in pos- session of land may remove a trespasser, yet, as a resort to force is not to be encouraged, a distinction is here made between cases of forcible and peaceful entry. It has there- fore been said that, "if a person enters another's house with force and violence, the owner of the house may justify turning him out, using no more force than is necessary, without a previous request to depart; but if the person enters quietly, the other party cannot justify turning him out without a previous request to depart." '^ Again, it has frequently been asserted that the owner of property is not justified in resisting an attack upon his rights to the ex- tent of killing his adversary,'^ unless, as already intimated, he is within his own dwelling, when the measures adopted to repel the assailant or to prevent his forcible entry may extend even to the taking of life.'* But, while true as a general proposition, it cannot be laid down that the owner is invariably responsible when death ensues. He is, of course, liable if the killing is intentionally done while he is under no apprehension of personal harm, and an intent may be found to exist where he has deliberately made use of V. BEACH, 4 Denio (N. Y.) 448, 47 Am. Dec. 265, Chapia Cas. Torts, 12S; Lichtenwallner v. Laubach, 105 Pa. 366. "> "MolUter manus imposuit." 71 SlappiBg the face of a trespasser is not a proper method of re- moving him from the premises. Com. v. Clark, 2 Mete. (Mass.) 23. To the same effect, Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392 ; Collins V. Renison, Say. 138, 96 Eng. Repr. 830. 72 TuUay V. Reed, 1 C. & P. 6, per Park, J. To the same effect. State V. Woodward, 50 N. H. 527. 73 Oliver V. State, 17 Ala. 587; Crawford v. State, 90 Ga. 701, 17 S. E. 628, 35 Am. St. Rep. 242 ; Davison v. People, 90 lU. 221 ; State V. Kennedy, 20 Iowa, 569; State v. McDonald, 49 N. C. 19; State V. Clark, 51 W. Va. 457, 41 S. E. 204. 74 Pond V. People, 8 Mich. 150; Smith v. State, 106 Ga. 673, 32 S. B. 851, 71 Am. St. Rep. 286 ; Hayner v. People, 213 111. 142, 72 N. B. 792. So held as to an office, Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508 ; and a storehouse. Sparks v. Com., 89 Ky. 644, 20 S. W. 167. 264 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 a deadly weapon; '° but he should not be held accountable where, having resorted only to a means of defense not nec- essarily deadly in character, and employing only an ap- parently necessary degree of force, he kills by accident," nor where the combat has progressed to such a point that he acts, not in defense of property, but of his own life." It is submitted that the right to use spring guns or traps 'is to be tested largely by the rules already laid down. The mere act of setting them on one's premises is not unlawful, though if the public are subjected to danger they might con- stitute a nuisance ; ^^ nor does it seem reasonable that the owner should be held liable to an injured trespasser if they were set with the honest purpose of protection from the ag- gressions of wild animals and in places where the presence of man could not reasonably be anticipated. If placed, however, for the purpose of guarding against trespassers, one of whom is injured, the owner may be held liable, since the force may be excessive and the method of its ap- plication improper. What one cannot do directly he can- not do indirectly, and there is no difference between shoot- ing a trespasser by means of a gun held in the hand and causing him unknowingly to shoot himself." TB Davison v. People, 90 111. 221 ; State v. Gllman, 69 Me. 163, 31 Am. Eep. 257; State v. Shlppey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70; State v. Forsythe,_89 Mo. 667, 1 S. W. 834. 78 Bishop's New Grim. Law, vol. 1, § 861. TT "So it is clear that if one man deliberately kills tmother to pre- vent a mere trespass on his property — whether that trespass could or could not be otherwise prevented — he is guilty of murder. If, indeed, he had at first used moderate force, and this had been re- turned with such violence that his own life was endangered, and then he killed from necessity, it would have been excusable homi- cide, not because he could take life to save his property, but he might take the life of the assailant to save his own." State v. Mor- gan, 25 N. 0. 186, 193, 38 Am. Dec. 714, per Gaston, J. Ts State V. Moore, 31 Conn. 479, 83 Am. Dec. 159. 79 Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1 ; Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18; State v. Marfaudille, 48 Wash. 117, 92 Pac. 939, 14 L. R. A. (N. S.) 346, 15 Ann. Gas. 584 ; Bird v. Hol- brook, 4 Bing. 628, 13 E. C. L. 667. § C3) DEFENSES 265 Recaption It is well to emphasize the difference between defense of property and recaption. If A. wrongfully attempts to take a chattel from B.'s possession, the latter in resisting the attack is preventing the commission of a tort. But if A. succeeds, and B. retakes the chattel, B. has only done for him- self what the law would have done for him. Here he is re- dressing a wrong already accomplished.'" Now, while a resort to "the strong right arm" is some- times permitted, it is not to be encouraged. The courts are open to the party aggrieved, and he should seek their aid — not engage in a private war. Still to force the aggrieved party in every case to suffer the delay incident to an action might on occasion work grave injustice. We therefore find that this right may arise where the circumstances are ex- ceptional, though the courts are not fully in accord as to its extent. In Massachusetts, where a liberal view has been taken, it is held that "a man may defend or regain his momentarily interrupted possession by the use of reason- able force short of wounding or the employment of a dan- gerous weapon." '^ This appears a reasonable doctrine.'* Stress should be laid on the phrase "momentarily inter- so Logically, recaption should be considered under the head of "redress." It is taken up at this point, as it is thought that this right may be better understood if immediately contrasted with de- fense of property. Tliis Is also true of re-entry. 81 COM. V. DONAHUE, 148 Mass. 529, 531, 20 N. E. 171, 2 L. K. A. 623, 12 Am. St. Rep. 591, Chapin Cas. Torts, 131. In accord, Hemin- way V. Heminway, 58 Conn. 443, 19 Atl. 766. 82 Though the language of the learned court is possibly open to the objection that no distinction , with regard to the means and the degree of force is apparently made between defense and recaption. The latter right being much more limited, there should be greater strictness. There seems on principle no reason why one should not defend by means of a dangerous weapon, though he may be respon- sible for its use. But it ha^s been held that resort cannot be had to such a method for purposes of recaption. State v. Dooley, 121 Mo. 591, 26 S. W. 558 ; State v. Morgan, 25 N. C. (3 Ired.) 186, 38 Am. Dec. 714. It is submitted that in any event, if the unlawful taker turns upon the owner, the latter, to protect himself, may then ex- ceed the limits prescribed for recaption. Here it becomes a ques- tion of self-defense. 266 ' INFRINGEMENT OF PERSONAL SECURITY (Gh. 8 rupted possession." Recaption, though essentially a meth- od of redress, is to be recognized only when the circum- stances are such that the case was practically one of defense. It will not be sufficient merely that the party as- sailed was in possession of property belonging to the" as- sailant. True, one may reclaim and retake his goods wher- ever he finds them, provided he can do so peaceably ; but to permit him to use force without regard to the time which may have elapsed after their taking would only encourage violence. It is therefore best to limit it to instances where the taking and recovery are substantially one transaction, or, as it has sometimes been put, to cases of "fresh pur- suit." Here the owner is really resisting attack, rather than seeking to regain a possession with' which he has pre- viously parted. Authorities will be found in the note.'' It would certainly be absurd to say that he may use force only so long as he retains the article within his grasp, but that if it is snatched from him he must permit the taker peaceably to depart, and although some courts have de- nied generally that the right of forcible recaption exists,'* it would appear doubtful whether the policy of peace at any price would be carried to such an extreme.'' The original taking must have been unlawful." Where the property has been delivered by or with the consent of the owner, no fraud having been practiced, he cannot for- " 88 In the following the property had not been removed from the owner's premises: Winter v. Atkinson, 92 111. App. 162 ; Hamilton v. Arnold, 116 Mich. 684, 75 N. W. 133 ; .Gyre v. Culver, 47 Barb. (N. y.) 592. In the following recaption was effected at a distance from the place of taking: State v. Dooley, 121 Mo. 591, 2G S. W. 558 (distance not given, but force improper) ; State v. Elliot, 11 N. H. 540 (about 100 rods) ; Hodgeden v. Hubbard, 18 Vt 504, 46 Am. Dec. 167 (two miles). 8* Hendrix v. State, 50 Ala. 148 (apparently no fresh pursuit) ; Bobb V. Bosworth, Litt. Sel. Gas. (Ky.) 81, 12 Am, Dec. 273 (appar- ently no fresh pursuit) ; Sabre v. Mott (O. C.) 88 Fed. 780 (posses- sion peaceably acquired). SB See Harris v. Marco, 16 S. C. 575. 8« Gates V. Lounsbury, 20 Johns. (N. Y.) 427 ; Bowman v. Brown, 55 Vt. 184. § 63) DEFENSES 267 cibly regain possession/^ if, as one court has said, the taker under an honest, though unjustifiable, claim of right refuses to return,*' though this qualification seems open to criticism.'^ He has been permitted to do so, however, where his consent was fraudulently obtained, since there was really no consent at all,°° which would seem fairly to include a case where the article was handed over for the purpose of immediate examination. and return."^ To per- mit the use of force when the property has come into the possession of a third party, who has received it innocently, would, it is thoughj:, be an unwarrantable extension of the privilege, though in England this appears to be allowed." Up to this point, the right of recovery has been discussed only with reference to personal property. Do the same 87 Watson V. Rinderknecht, 82 Minn. 235, 84 N. W. 798. 88 Kirby v. Foster, 17 R. I. 437, 22 Atl. 1111, 14 L. R. A. 317. 8» It Is submitted that consent, once fairly obtained, bars the right of forcible recaption, whether the detaining was prompted by an honest or dishonest motive. By consenting, the owner has himself assisted in bringing about the situation, and, though the courts may aid lum, there would seem no reason for allowing him an extraju- dicial remedy of a dangerous character, recognized only because of its necessity. How can his right be made to depend on the state of mind of the detainer? On the other hand, if consent is lacking, and there has been fresh pursuit, is recaption from the taker to be re- fused because the latter may himself believe that he has a right to detain? Cf. Madden v. Brown, 8 App. Div. 454, 40 N. Y. Supp. 714, where it was said (8 App. Div. 456, 40 N. Y. Supp. 715) : "As to the property which had been feloniously or wrongfully taken from the defendant's possession, he had the right to use sufficient force to retake it from the dwelling of the wrongdoer, provided he entered peaceably, did not commit a breach of the peace, or use un- necessary force. As to the property which had been placed in the plaintiff's possession by the defendant's consent, the latter had the right to take it from the dwelling and was not a trespasser in so doing, provided he entered peaceably, did not use force, or commit a breach of the peace." 90 Anderson v. State, 6 Baxt. (Tenn.) 608; Hodgeden v. Hubbard, 18 Vt. 504, 46 Am. Dec. 167. •1 Baldwin v. Hayden, 6 Conn. 453. And see Com. v. Lynn, 123 Mass. 218. »2 See Pollock on Torts (7th Ed.) 380, note C ; Burdldi on Torts (3d Ed.) 223. 268 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 rules apply to land? It is elementary that the true owner, wrongfully held out of possession, "may watch his oppor- tunity, and, if he can regain possession peaceably, may maintain it and lawfully resist an attempt by the former occupant to retake possession." °* By the early common law it would seem that he might use force to regain as well as to retain,'* though this is by no means clear.*^ At all events, any dpubts that might have existed were settled by a succession of statutes. °° By the pioneer act of 5 Richard II it is declared "that none from henceforth make any entry into any lands and tenements but in case where entry is given by law; and in such case, not with strong hand nor with multitude of people, but only in peaceable and easy manner." This and possibly its suc- cessors have become a part of the common law of the states,'' though in many of them the subject has been reg- ulated by legislation.'* As these statutes ■ differ in terms, it will be impossible to consider forcible entry and detainer at any length. Though the statute -of Richard II created a crime, it was held to create no cause of action in the party dispossessed. If an assault was committed, the action was for assault, and defendant was not excused under a plea of defense of property, since his entry was unlawful. On the other hand, when the cause of action was simply the eviction, no damages could be recovered." This is not universal- ly true at the present time. In many states "the main ob- ject still is to preserve the public peace and prevent par- ties from asserting their rights by force or violence, though »3 Bliss V. Johnson, 73 N. Y. 529, 534. 94 Cooley on Torts (3d Ed.) 663 ; Burdick on Torts (3d Ed.) 221. »5 Bishop's New Criminal Law, § 490 et seq. ; Cruiser v. State, 18 N. J. Law, 206 ; State v. Morgan, 59 N. H. 322. "'5 Elc. II, c. 8; 15 Elc. II, c. 2; 8 Hen. VI, c. 9; 31 Eliz. c. 11; 21 Jac. I, c. 15. For a review of these statutes, see Bishop's New Orim. Law, § 492 et seq. »' Harding's Case, 1 Greenl. (1 Me.) 22. es See Code Civ. Proc. N. Y. § 2233 ; Penal Law N. Y. (Consol. Laws, c. 40) § 2034. Note resemblance to statute of Richard II. »» Beddall v. Maltland, L. E. 17 Ch. D. 174. § 63) DEFENSES 269 by gradual additions the remedy has become in effect a private as ^well as a public one." ^'"' Consequently the for- cible entrant will not only be compelled to restore the property and be forced to make compensation for injuries to the person of the occupant, but in addition will be held in damages for the entry itself or the detainer.^"^ Although an assault or battery may and frequently does occur, it is not necessary that either should be proven. It will be sufficient to make the entry unlawful that there has been such a display of force as is calculated to intimidate or tend to a breach of the peace.^"^ To make out a case of forcible entry, the entrant must have gone upon premises which were in the actual pos- session of another. As has been seen, a mere trespasser may be removed. He "cannot by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can, without delay, reinstate himself in his former posses^ sion." ^"^ Hence, actual possession being required, in or- der that the statute may apply, a master may remove his servant, or a principal his agent, using proper force. "The 100 Wood V. PhilUps, 43 N. Y. 152, 157, per Folger, J. loiKlmmer v. Blasingame, 94 Cal. 139, 29 Pac. 857; Carlisle v. CaUahan, 78 Ga. 320, 2 S. E. 751; Lane v. Ruhl, 103 Mich. 38, 61 N. W. 347; Bach v. New, 23 App. Div. 548, 48 N. Y. Supp. 777 (entry not forcible). Contra, Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272. 102 Lewis V. State, 99 Ga. 692, 26 S. B. 496, 59 Am. St. Rep. 255 ; State V. Davis, 109 N. C. 809, 13 S. E. 883, 14 U R. A. 206 ; Milner v. Mac- lean, 2 C. & P. 17. Defendant, breathing curses and threats of ven- geance and death, rushed towards a dwelling in which a number of people were assembled. The latter fled panic stricken, first fasten- ing the door. Defendant "kicked down the door, entered the house, and fell over something, by which his leg was unfortunately broken, instead of his neck." Held to be forcible entry. State v. Jacobs, 94 N. C. 950. , 103 Brown v. Dawson, 12 Adol. & El. 624, 628, per Lord Denman, C. J. To the same effect, Taylor v. Adams, 58 Mich. 187, 24 N. W. 864. A "scrambling" possession, such as either contestant might gain from time to time in the course of a struggle over unimproved lands, cannot be made the basis of an action of forcible entry. Voll V. Butler, 49 CaL 74. 270 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 occupation of servants is not suo jure, but as servants and representing their master, and therefore it is the occupation oi the proprietor himself." ^°* It should be emphasized that, unless there is a statutory provision to the contrary, title cannot be put in issue. Though the ejector is the true owner, he may none the less be accountable for his foijcible entry. He cannot make himself judge in his own cause. It is sufficient that another was in fact in actual possession of the premises.^"" Enforcement of Discipline, Regulations, and Order Under this general head may be grouped certain cases where authority to employ force is given by the law. Here, as in the instances already considered, the force must be reasonable in degree and appropriate to the purpose. Thus the father,^"" mother,^"' or a person to whom either has i»4 State y. Curtis, 20 N. C. (4 Dev. & B.) 363, per Euffin, C. J. To the same effect, Kerrains v. People, 60 N. Y. 221, 19 Am. Kep. 158. Cf. Beddall v. Maitland, L. E. 17 Ch. P. 174. PlalntifE was minister, and defendants trustees,, of a church. It appeared that "an unfortunate controversy arose in the church and congregation, and that there was a want of that generous Christian spirit which should characterize the action of religious societies." Defendants ejected plaintiff from the parsonage. By the rules of the church, ministers were assigned and removed only by the "conference" or general governing body, no power being given to the congregations or trustees. Hence, held that the plaintiff was not in possession as a servant of the congregation, and could not forcibly be removed by the latter's representatives, the defendant trustees. BRISTOR v. BURR, 120 N. X. 427, 24 N. E. 937, 8 L. R. A. 710, Chapin Cas. Torts, 134. looi-iannmond v. Doty, 184 111. 246, 56 N. E. 371; Mercereau v. Bergen, 15 N. J. Law, 244, 29 Am. Dec. 684 ; N. Y. City Baptist Mis- sion Soc. V. Potter, 20 Misc. Rep. 191, 44 N. Y. Supp. 1051 ; Dustin v. Cowdry, 23 Vt. 631 ; Iron Mountain & H. R. Co. y. Johnson, 119 U. S. 608, 7 Sup. Ct. 339, 30 L. Ed. 504. i»e State v. Jones, 95 N. C. 588, 59 Am. Rep. 282, note. A step- father is in loco parentis of his wife's children by a former husband, so long as they are supported and maintained by him, Gorman v. State, 42 Tex. 221 ; also one who lives with the mother as husband, although unmarried. State v. Alford, 68 N. C. 322. 107 Rowe V. Rugg, 117 Iowa, 606, 91 N. W. 903, 94 Am. St. Rep. 318. § 63) DEFENSES . 271 delegated authority,^"' may inflict chastisement upon the child as a disciplinary measure. As already seen, the minor child can maintain no action in tort against the parent.^"" Should the chastisement be excessive, however, the latter may be held criminally accountable, though the courts are not disposed to go closely into this question, since a large margin must be left to the judgment of the parent."" A school master may likewise punish his pupil,^^^ though his right is more limited than that of a parent,"" and its abuse may constitute ground, not only for a criminal prose- cution,"^ but also for an action in tort.^^^ While the vessel is on its voyage, the master possesses a similar power over the crew for the purpose of enforcing obedience and preserving order. "Such an authority is 108 Eowe V. Rugg, supra; Harris v. State, 115 Ga. 578, 41 S. E. 983. 109 See supra, p. 133. iioNeal V. State, 54 Ga. 281; People v. Green, 155 Mich. 524, 119 N. W. 1087, 21 L. R. A, (N. S.) 216. See State v. Jones, 95 N. O. 588, 59 Am. Rep. 282, note. 111 SHBEHAN V. STURGES, 53 Conn. 481, 2 Atl. 841, Chapin Gas. Torts, 137 ; Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156. 112 "The books commonly assume that a teacher has the same right to chastise his pupil that a parent has to thus punish his chiia. But that is only true in a limited sense. The teacher has no general right of chastisement for all offenses, as has the parent. The teach- er's right in that respect is restricted to the limits of his jurisdic- tion and responsibility as a teacher. But within those limits a teacher may exact a compliance with all reasonable commands, and may in a kind and reasonable spirit inflict corporal punishment up- on a pupil for disobedience. This punishment should not be either cruel or excessive, and ought always to be apportioned to the grav- ity of the offense and within the bounds of moderation. But plain- ly, when complaint is made, the calm and honest ju4gment of the teacher as to what the situation required should have weight, as in the case of a parent under similar circumstances ; and where no im- proper weapon has been employed, the presumption will be, until the contrary is made to appear, that what was done was rightly done." Vanvactor v. State, 113 Ind. 276, 279, 15 N. E. 341, 3 Am. St. Rep. 645. 113 Boyd V. State, 88 Ala. 169, 7 South. 268, 16 Am. St. Rep. 31; State V. Mizner, 50 Iowa, 145, 32 Am. Rep. 128; Com. v. Randall, 4 Gray (Mass.) 36. 11* Patterson v. Nutter. 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. 272 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 absolutely necessary to the safety of the ship and of the lives of the persons on board," ^^^ and extends, though to a more limited extent, over the passengers, who must obey all reasonable orders and in an emergency may be compelled to work the ship.*^* No such necessity can ex- ist where carriage is by land, though for the failure to ob- serve a reasonable regulation the passenger may be eject- ed.^^' An innkeeper may under like circumstances remove a guest.^^' In many states the willful disturbance of any assembly or meeting not unlawful in its character is made a criminal offense ;^^° but, | even in the absence of such a statute, there can be no doubt that the disturber may be ejected.^*" 115 Brown v. Howard, 14 Johns. (N. Y.) 119, 123; The Stacey Clarke (D. C.) 54 Fed. 533 ; Michaelson v. Denison, Fed. Gas. No. 9,- 523; Roberts v. Eldridge, Fed. Cas. No. 11,901, 1 Sprague, 54. Since this is based upon necessity, he will be liable for an assault committed while in port, where there is no emergency. Padmore v. Piltz (D. C.) 44 Fed. 104 ii's See King v. Franklin, 1 F. & F. 360. 1" B. g. failure to pay fare, Chicago, R. I. & P. Ry. Co. v. Herring, 57 111. 59 ; Stone v. C. & N. W. R. Co., 47 Iowa, 82, 29 Am. Rep. 458 ; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343, 80 Am. Dec. 286 ; en- dangering the safety or interfering with the reasonable comfort and convenience of other passengers, Putnam v. Broadway & Seventh Ave. R. Co., 55 N. Y. 108, 14 Am. Rep. 190. lis See McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. "If a man comes into a public house and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out. * * To do this, the landlord may lay hands on him ; and in so doing the landlord Is not guilty of any breach of the peace. But if the per- son resists, and lays hands on the landlord, that is unjustifiable as- sault upon the landlord." Howell v. Jackson, 6 C. & P. 723, 725, 25 E. C. I/. 657, per Parke, B. 119 See Penal Law N. Y. (Consol. Laws, c. 40) § 1470. 120 Wall V. Lee, 34 N. Y. 141; Furr v. Moss, 52 N. C. 525; Collier v. Hicks, 2 B. & Ad. 663, 9 L. J. K. B. (O. S.) 300, 9 L. J. m". C. (O. S.) 138, 22 E. C. L. 278, 109 Eng. Bepr. 1290 ; Bradlaugh v. Erskine, 47 L. T. Rep. (N. S.) 618, 31 Wkly. Rep. 365. Of. Cooper v. McKenna, 124 Mass. 284, 26 Am. Rep. 667. § 64) FALSE IMPRISONMENT 273 FALSE IMPRISONMENT 64. "False imprisonment consists in the unlawful detention of the person of another for any length of time, whereby he is deprived of his personal liberty." ^" The detention need not be within a room. "Every con- finement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets." ^"^ Thus, restraining a passenger at the gate 6f a station until he pays his fare may constitute imprisonment.^'* It makes no difference how short the time may be, though this may bear on the amount of damages.^"* "Nor is it necessary that the act be under color of any legal or judicial proceed- ing." ^^° Nor is it essential that there should be detention at a fixed place. One is imprisoned whose powers of locomo- tion are so controlled that he is forced to move or stay as directed by another. Were it otherwise, a party arrested would be deemed to have no. cause of action for this tort unless and until he had actually been lodged in jail.^'° , But the restraint must be total, not partial. There is no (imprisonment where a way is left open, as where one is merely prevented from proceeding in a given direction, but is permitted to retrace his steps. Imprisonment is not to be. 121 Civ. CJode Ga. 1S95, g 3851, quoted in Thorpe v. Wray, 68 Ga. 359, 367. 1223 Bl. Comm. 127. 12 3 Lynch V. Metropolitan EI. Ry. Co., 90 N. X. 77, 43 Am. Rep. 141. 12* Cf. Bridgett v. Coyney, 1 M. & R. 211, 6 L. J. M. C. (O. S.) 42, 31 Rev. Rep. 316, 17 E. C. L. 661; SIMPSON v. HILIi, iTEsp. N. P. 431, Chapin Cas. Torts, 1,39, where it was said: "If the constable, in consequence of the defendant's charge, had for one moment taken possession of the plaintiff's person, it would be in point of law an imprisonment." 1 12 6 Comer v. Knowles, 17 Kan. 436, 440, per Valentine, J. 128 See Johnson v. Tompkins, Fed. Cas. No. 7,416 ; Fotheringham V. Adams Express Co. (C. C.) 36 Fed. 252, 1 L. R. A.. 474 Chap.Toets — 18 274 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 confounded with mere loss of freedom to go whithersoever one pleases. "A prison may have its boundary, large or narrow, visible and tangible, or, though real, still in the conception only; it may itself be movable or fixed, but a boundary it must have, and that boundary the party impris- oned must be prevented from passing. He must be pre- vented from leaving that place within the ambit of which the party imprisoning would confine him, except by prison breach." ^" This must nepessarily assume that no hazard will be incurred in departing along the open way.^''* This wrong is akin to assault and battery, but the state- ment, sometimes made, that all imprisonments necessarily involve or presuppose the commission of an assault or bat- tery, is not ?orrect.^^° It is not required that there be a touching of the body, or an attempt to inflict violence. It will, of course, be imprisonment if I detain one or compel him to accompany me by a manual seizure of his person,^'" or by keeping him covered with a revolver,'*^ but it will likewise be imprisonment if he submits under a reasonable apprehension that otherwise force will be employed.^'" One is not required to resist in order to preserve his rights, and 127 BIRD V. JONES, 7 Q. B. 742, 743, 9 Jur. 870, 15 L. J. Q. B. 82, 53 E. C. L. 742, Chapin Cas. Torts, 141, per Coleridge, J. 128 It may be no Imprisonment to be locked in a room which is on a level with the ground and in which there is an open unbarred win- dow extending to the floor. It would be quite another question if the room were on the fourth floor, though one might retreat by a fire escape ladder. But see Bigelow on Torts (8th Ed.) 341. 12 8 Bmmett v. Lyne, 1 Bos. & P. N. R. 255. 130 People V. Wheeler, 73 Cal. 252, 14 Pac. 796. 131 McNay v. Stratton, 9 lU. App. 215; Hildebrand v. McCrum, 101 Ind. 61. • 132 New York, P. & N. R, Co. v. Waldron, 116 Md. 441, 82 AtL 709, 39 L. R. A. (N. S.) 502 ; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000; Ahern v. Collins, 39 Mo. 145; Callahan v. Searles, 78 Hun, 238, 28 N. X. Supp. 904; Wood, v. Lane, 6 C. & P. 774, 25 E. 0. L. 683. "If the bailiff, who has a process against one, says to him, while he is on horseback or in a coach, 'You are my prisoner, I have a writ against you,' upon which he submits, turns back, or goes with him, though the bailiff never touched him, yet it is an arrest, because he submitted to the process." Horner v. Battyn, Buller's N. P. 62. § C4) FALSE IMPRISONMENT 275 thereby incur the risk of personal violence and insult.^" Threats of force need not be expressed in words. They may be implied from acts, gestures, or the like,^** as where an officer, after inquiring about stolen property, showed his shield and told plaintiff to accompany him to a specified place, which plaintiff did.^*" Nor need physical control be actually present during the entire period.^''® But there must be coercion, for if one of his own free choice remains where he is, though at liberty to depart if he pleases, he is not imprisoned at all.^*' Actual power to enforce com- pliance is not required. It is enough that it is apparent. If submission is made because one thinks a paper shown him to be a writ, it is imprisonment, though it be no writ at all. A pretended legal authority will be sufficient.^*^ But if the means employed fall short of physical force, used or threat- ened, there can be no action for false imprisonment. For example, it is not enough that one has been induced to go to and remain in another city by misrepresentations and threats of a criminal prosecution. Here the submission would, it seems, be considered as voluntary.*^* "» PIKE v. HANSON, 9 K. H. 491, Chapin Cas. Torts, 139. 134 Maner v. State, 8 Tex. App. 361. 135 Callahsm v. Searles, 78 Hun, 238, 2S N. Y. Supp. 904. To the same effect, Stevens v. OXeill, 51 App. Div. 364, 64 N. X. Supp. 663, affirmed 169 N. Y. 375, 62 N. E. 424. 136 See Searles v. Viets. 2 Thomp. & C. (X. Y.) 224. Here a con- stable informed plaintiff, while the latter was passing by, that he had a warrant for his arrest, saying, "Yon can go home, and get your horses put up, and take your tea, and oome down." Plaintiff did so, and the constable said, "You move on, and I will overtake you." The constable overtook plaintiff at the border of the justice's plantation, and they entered the house together. The matter was adjourned, no bail being required, and on the adjourned day plain- tiff was discharged. Held an imprisonment. But see Berry v. Adamson, 6 B. & Q. 528, 13 E. C. L. 245. "TKirk & Son v. Garrett, 84 Md. 383, 35 AU. 1089; Spoor v. Spooner, 12 Mete (53 Mass.) 281. 138 Goodell V. Tower, 77 Vt. 61, 58 Atl. 790, 107 Am. St Rep. 745. "It makes no difference whether the restraint of the person is caused without process or under color of process wholly illegal." Ahem v. i3»Payson v. Macomber, 3 Allen (Mass.) 69. Cf. State v. Luns- ford, 81 N. C. 528. 276 INFRINGEMENT OF PERSONAL SBCUKITT (Ch. 8 It is an interesting question whether the requirement of force or threats operates to destroy the possibility of an im- prisonment by nonfeasance. The Supreme Court of Maine has recently answered in the negative.^*" Plaintiff had gone voluntarily on a yacht controlled by defendant, and was obliged to remain there, owing to the latter's refusal to provide her with a boat for passage to the shore. This was likened to the case where one should turn a key in a door, thereby preventing a person in the room from leav- ing. "The boat," said the court, "is the key. By refusing the boat he turns the key." At about the same time it was held on appeal in the King's Bench, th9ugh by a divided court, that a refusal to haul defendant's employe, a miner, to the surface, did not constitute imprisonment, although the miner was forced thereby to remain for a short time at the bottom of the shaft.^*^ It is submitted that the reason- ing of the Maine Supreme Court is sound. It is to be noted, however, that under such circumstances the action, being based on nonfeasance, should be in case, and not in tres- pass. Suppose there has been no possession of the person. Then there can be no arrest.^" Bare words are not enough. Thus in a much-cited case ^*' it appeared that Collins, 39 Mo. 145, 150. Cf. Brldgett v. Coyney, 1 M. & E. 211, 6 Jj. J. M. C. (O. S.) 42, 31 Rev. Rep. 316, 17 E. C. L. 661. 140 Whittaker v. Sanford, 110 Me. 77, 85 Atl. 399, Ann. Cas. 1914B, 1202. 1*1 Herd v. Weardale, S. C. & C. Co. (1913) 3 L. R. K. B. 771. Vaughan Williams, j2 J., dissenting, uses the analogy of the key, and says: "I shall be very much surprised if I hear that to detain a man by not allowing him to go out of a room, or any other place, is not false imprisonment, unless the detention can in some way or other be justified." Buckley and Hamilton, L. JJ., held that any rights plaintiff might have arose solely out of his contract of em- ployment. Denying that, "if one man decliaes to give another facili- ties for leaving a place which he desires to leave, he Imprisons him," • the former observed: "He imprisons him if he prevents liim from leaving; but he does not imprison him because he does not assist him to come out. The two propositions are perfectly different, the one from the other." 1" SIMPSON V. HIIX, 1 Esp. N. P. 431, Chapin Cas. Torts, 139. i*» Genner V. Sparks, 1 Salk. 79. f 65) DEFENSES — ENFOKCEMENT OF DISCIPLINE 277 one Genner, a bailiff, had a warrant against Sparks, and went to him in his yard, told him of the warrant, and said, "I arrest you." Sparks had a fork in his hand, and kept Genner from touching him. There was here no arrest; but, said the court, "if the bailiff had touched him, that had been an arrest." So if there had been a submission, though no touching. The same result was reached where the ofHcer merely said to one seated in a tavern, "I want you," to which the other replied, "Wait for me outside the door and I will come to you." The officer went out to wait, and waited fruitlessly.^** The party detained must be conscious of his restraint.^*"^ DEFENSES— ARREST UNDER AND WITHOUT PROCESS— ENFORCEMENT OF . DISCIPLINE, ETC. 65. Valid process constitutes a complete defense, but void or irregular process, though it will protect an offi- cer if fair on its face, will not justify or excuse a party or his attorney, who participated in its issu- ance or service. If it be merely erroneous, there can be no responsibility. For reasons of public policy, detention without process is permitted in, certain cases for the purpose of preventing the commission of crime or of appre- hending the offender, or to protect the party de- tained or enforce discipline. Arrest under Process An arrest, properly made, under valid legal process, can- not constitute false imprisonment, though the process be 1** Russen v. Lucas, 1 C. & P. 153. lisj iaintiff, an infailt, had been placed by his mother In a schooL The schoolmaster refused to surrender him unless an amount claimed to be due was paid. It did not appear that plaintiff was aware that he could not depart. No recovery. Herring v. Boyle, 1 Cromp. M. & R. 377, 6 C. & P. 496, 3 L. J. Exch. 344, 4 Tyrw. SOI, 25 E. C. L. 543. 278 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 issued maliciously and without probable cause.^*' It may, however, furnish ground for an action for malicious pros- ecution.^*' If the process is invalid, the liability of the officer making the arrest differs from that of the private individual who caused its issuance or service. The officer, it has been seen, is protected where the writ is fair on its face ; ^*' but the private individual may be held without re- gard to the appearance of the process. Now "processes good on their face may," it has been said, "be absolutely void for want of jurisdiction in the court or magistrate that issue? them, or they may be voidable for error, or they may be voidable for irregularity in obtaining them." ^*° There are thus three classes to be considered : Void, irregular, and erroneous process. Though the last two are frequently considered under the head of voidable process, which they certainly, are, it seems better to em- phasize their essential differences by a dividing line strong- ly drawn. Where the process is void,^^" liability attaches when the wrong is committed, and no preliminary proceed- ing is necessary to vacate it or set it aside as a condition to the maintenance of an action. If process is irregular, as where a ca. sa. is issued before the return of a H. fa.,"^^^ the 1*6 Marks v. Townsend, 97 N. Y. 590; Hobbs v. Ray, 18 R. I. 84, 25 Atl. 694 ; Murphy v. Martin, 58 Wis. 276, 16 N. W. 603. 1*1 See Infra, p. 477. 1*8 See supra, p. 154 et seq. Ressler v. Peats, 86 111. 275; Hann V. Lloyd, 50 N. J. Law, 1, 11 Atl. 346 ; PEOPLE v. WARREN, 5 Hill (N. Y.) 440, Chapin Cas. Torts, 80. The keeper of a workhouse can- not be held for false imprisonment, if in good faith he detains a prisoner for a term exceeding the sentence actually Imposed, because o£ an error in what purported to be a copy of the mittimus. Martin V. Collins, 165 Mass. 256, 43 N. E. 91. i4» Everett v. Henderson, 146 Mass'. 89, 92, 14 N. E. 932, 4 Am. St. Rep. 284, per Knowlton, J. 150 Green v. Morse, 5 Greenl. (5 Me.) 291; Emery y. Hapgood, 7 Gray (Mass.) 55, 66 Am. Dec. 459; Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 426, 56 N. W. 9, 21 L. R. A. 278; Hewitt v. New- burger, 141 N. T. 538, 36 N. B. 593 ; Guilleaume v. Rowe, 94 N. Y. 268, 46 Am. Rep. 141 ; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411. 101 Chapman v. Dyett, 11 Wend. (N. Y.) 31, 25 Am. Dec. 598. Or an affidavit required to be "filed" with the magistrate issuing the § 65) DErENSES ENFORCEMENT OF DISCIPLINE 279 instigating party or attorney ^'^ is likewise responsible since one "is bound to see to it before he sets the law in motion that the process he obtains is regular and valid." "^ But this must first be vacated or annulled before an action for false imprisonment will lie.^°* Erroneous process differs from the others, in that the court or magistrate had jurisdiction to issue it and all the required forms have been observed. It is subject, however, to be set aside because the power was exercised under a mistake, which was not as to the method of its issuance. To illustrate: If no facts whatever have been laid before the court, the defect is jurisdictional. But it is otherwise if evidence has been presented, and the court has reached the conclusion that its "just weight and importance" requires that a writ issue, even though this conclusion is subsequent- ly declared erroneous.^"" Nor is a commitment for con- tempt either void or irregular, where its validity depended upon a finding that the disobedience had "defeated, im- paired, impeded, or prejudiced" a right or remedy of one of the parties to the cause within the meaning of a stat- ute.^"' So a writ is likewise within this third class where it writ was merely slipped under the door. Whitcomb v. Cook, 39 Vt. 585. i52Deyo v. Van A^alkenburgh, 5 Hill (N. Y.) 242; Codrington v. Lloyd, 8 Adol. & El. 449. 153 Gassier v. Fales, 139 Mass. 461, 462, 1 N. E. 922, per Mor- ton, C. J. 15* Fischer v. Langbein, 103 N. Y. 84, 8 N. E. 251 ; Winchester v. Everett, 80 Me. 535, 15 Atl. 596, 1 L. E. A. 425, 6 Am. St. Rep. 228. 155 Dusy V. Helm, 59 Cal. 188. 1B6 Here it was well said that "when a court is called upon to ad- judicate upon doubtful questions of law, or determine as to infer- ences to be drawn from circumstances reasonably susceptible of dif- ferent interpretations or meanings, and calling for the exercise of the judicial function in their determination, its decision thereon does not render an order or process based upon it, although after- wards vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflicted." Fischer V. Langbein, 103 N. T. 84, 94, 8 N. E. 251, per Ruger, C. J. To the same effect, Johnson v. Morton, 94 Mich. 1, 53 N. W. 816; Hallock V. Dominy, 69 N. Y. 238. 280 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 is set aside because an order of arrest had already been issued and served in an action for the same cause.^"' Where, therefore, the process is merely erroneous, nei- ther party nor attorney incur responsibility for false im- prisonment, a doctrine which "is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their . rights and the remedy of their grievances, without the risk of undue punishment for their own ignorance of the law or for the errors of courts arid judicial officers. The remedy of the party unjustly arrested or imprisoned is by the recovery of costs- which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution in case the prosecution against him has been from unworthy motives and without probable cause." ^"^^ Even where the process is void or irregular, one cannot be held for false imprisonment, unless he has actively par- ticipated in the detention,^" either personally or through others for whose acts he was responsible. It will not, for instance, be sufficient that he has fairly laid facts before a magistrate, and that the latter in the exercise of his judg- ment has issued the warrant.^'* Nor will he be responsible merely because he has made a formal charge or signed the complaint. In so doing "he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed betwee^i the charge and the imprisonment." "^ It is a rule of policy that there 16 7 Marks v. Townsend, 97 N. X. 590. For further illustrations, see Winchester v. Everett, 80 Me. 535, 15 Atl. 596, 1 L. E. A. 425, 6 Am. St. Rep. 228 ; Everett v. Henderson, 146 Mass. 89, 14 N. E. 932, 4 Am. St. Eep. 284 ; WUliams v. Smith, 14 C. B. (N. S.) 596, 108 E. C. L. 596. 10 8 Marks v. Townsend, 97 N. Y. 590, 597, per Earl, J. i6» Beveling v. Sheldon, 83 111. 390 ; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223, 10 Am. St. Rep. 322; Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593. 16 Nowak V. WaUer, 56 Hun, 647, 10 N. Y. Supp. 199, affirmed 132 N. Y. 590, 30 N. B. 868. 161 Austin V. Dowllng, U R. 5 C. P. 534, 540, per WUles, J. To the same effect, Mcintosh v. Bullard, 95 Ark. 227, 129 S. W. 85; § 65) DEFENSES — ENFOBOEMENT OF DISCIPLINE 281 should be no presumption of personal interference by pri- 1 vate persons in criminal proceedings.^"* The same principle prevails where process has been issued in a civil action. Participation in the detention is not established merely by showing that one originated or was a party to the suit.^" ^'It ought not to depend on the general intendment of the !aw that every writ or process is purchased by the party in whose favor it issues.".^** Where an attorney, servant, or agent has acted, the liability of the client, master, or principal must, as in other cases, be determined by the ex- tent of the actual or implied authority, and by ascertaining whether there has been a ratification.^"" Suppose an officer, while making an arrest, calls for as- sistance, as at common law,^"" and usually under statute, he is permitted to do. Will one who responds to what he be- lieves to be the call of duty become responsible if the war- rant is found to be invalid ? It is certainly harsh to require him to decide, perhaps during the struggle between officer and prisoner, with the possibility of a criminal prosecution confronting him if he refuses, and of an action for false im- prisonment if he obeys. Furthermore, it has been urged that to permit him to withhold aid while he conducts an inquiry into the legality of the proceedings would be to de- feat the object of the law and render it nugatory in many cases. These considerations have led some courts to accord protection, at least where the party making the arrest is known to be aii officer, ^"^ though it has been refused where Langford v. Boston & A. K. Co., 144 Mass. 431, 11 N. E. 697 ; Mur- phy v. Walters, 34 Mich. 180; Gifford v. Wiggins, 50 Minn. 401, 52 N. W. 904, 18 Ii. R. A. 356 ; Booth v. Kurrus, 55 N. J. Law, 370, 26 AtL 1013. 182 Murphy y. Walters, 34 Mich. 180. 103 Outlaw V. Davis, 27 111. 467; Carratt v. Morley, 1 Adol. & El. 18. le^BisseU v. Gold, 1 Wend. (N. T.) 210, 216, 19 Am. Dec. 480, -quoting Percival v. Jones, 2 Johns. Cas. 51. 18 5 See supra, p. 209 et seq. ; Gearon v. Bank for Savings, 50 N. Y. Super. Ct 264, 6 Civ. Proc. R. 207. 186 McMahan v. Green, 34 Vt. 69, 80 Am. Dec. 665. i»7 Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266 ; Taylor v. Alexander, 6 Ohio, 145 ; McMahan v. Green, 34 Vt. 69, 80 Am. Dec. 665. 282 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 he only assumes to act by special appointment.^*' On the other hand, if there is hardship in holding the assisting citi- zen, it must be remembered that the arrested party has suffered a grievous wrong. But such considerations can scarcely be regarded as controlling. Logically it would seem that an officer has no power to command the doing of an unlawful act, and therefore, if he is a trespasser, all who act with him must be trespassers. They must stand or fall together.^^" Still this manifestly cannot apply to a case where the officer has become a trespasser ab initio by failing to return the writ, or by subsequent^ abuse of authority in which the stranger has not participated.V Arrest without Warrant Under certain conditions the common law sanctioned, nay enjoined, an arrest. and detention, though process was lacking. The duty to act need not be discussed here,^^^ since we are only concerned with the question of defenses to an action brought by the party detained. As will be shown, officers and private persons are regarded differently, and to determine the validity of their acts it will be neces- sary to ascertain whether the arrest was made — (1) For a misdemeanor"^ committed or attempted (a) in the presence or (b) out of the presence of the one making the arrest. (2) For a felony "' committed or attempted (a) in the presence or (b) out of the presence of the one making the arrest. losDietrichs v. Schaw, 43 Ind. 175. i«9 MitcheU v. State, 12 Ark. 50, 54 Am. Dee. 253; VintOn v. Wea- ver, 41 Me. 430; Elder v. Morrison, 10 Wend. (N. Y.) 128 ^5 Am Dec. 548. iToDehm v. HInman, 56 Conn. 320, 15 Atl. 741, 1 L. R. A. 374. See Oystead v. Shed, 12 Mass. 506. iTi See Bishop's New Criminal Procedure, § 164 et seq. 1^2 A crime less than a felony. Bishop's New Grim. Law, § 623. I'sAt common law a felony was an ofCense which occasioned a total forfeiture of lands or goods, or both, to which capital or other punishment might have been superadded. 4 Bl. Comm. 94. As for- feiture does not now prevail, this test can no longer be applied, but generally what was felony at common law is felony to-day. Bishop's § 65) DEFENSES ENFORCEMENT OF DISCIPLINE 283 (1) Misdemeanors Either a private person *'* or an officer "' may arrest for a breach of the peace while it is being committed in his presence. The former cannot wait until it is over, unless there is reasonable ground for expecting that it is likely to be renewed or repeated.^^* An officer, however, it is said, may act within a reasonable time after the breach has ceased,^" as well as where there is danger of its immediate commission.^"' As to misdemeanors other than breaches of the peace, it would seem that neither the private individ- ual,^"' nor the officer,^*" may act. Still, on principle, it would appear that a private person who sees another com- mitting a crime, though of lower grade, should be permitted to interfere, at least where the act is malum in j«/*^ though the cases do not appear to have gone to this extent, and stronger reasons demand that this authority should be given to the offi- New Grim. Law, § 617. In many states it is defined by statute. See Penal Law K. Y. (Consol. Laws, c. 40) § 2. ir* Price v. Seeley, 10 CI. & Fin. 28, 8 Bug. Repr. 651; Webster v. Watts, 11 Q. B. 311, 116 Eng. Hepr. 492. 176 People V. Bounds, 67 Mich. 482, 35 N. W. 77; State v. Dier- berger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. Bep. 380; Douglass v. Barber, 18 B. I. 459, 28 Atl..805. I" Phillips V. Trull, 11 Johns. (N. T.) 486; State v. Campbell, 107 N. 0. 948, 12 S. E. 441 ; Baynes v. Brewster, 2 Q. B. 375, 114 Eng. Bepr. 149 ; Price v. Seeley, 10 CI. & Fin. 28, 8 Eng. Eepr. 651. 177 "That Is, the oflScer must immediately set about the arrest, and follow up the effort until the arrest is made. There must be a con- tinued pursuit and no cessation of acts tending towards the arrest from the time of the commission of the offense until the apprehen- sion of the offender." YATES v. STATE, 127 6a. 813, 818, 56 S. E. 1017, 9 Ann. Gas. 620, Chapin Gas. Torts, 145. Cf. People v. Bartz, 53 Mich. 493, 19 N. W. 161 ; Harway v. Boultbee, 4 C. & P. 350, 1 M. & B. 15, 19 E. C. L. 549. ITS Hayes v. Mitchell, 80 Ala. 183 ; Quinn v. Heisel, 40 Mich. 576. ITS Cf. Palmer v. Maine Cent B. Co., 92 Me. 399, 42 AU. 800, 44 L. B. A. 673, 69 Am. St. Bep. 513; Butolph v. Blust, 5 Lans. (N. Y.) 84. 180 Cf. Cook V. Hastings, 150 Mich. 289, 114 N. W- Tl, 14 L. B. A. (N. S.) 1123, 13 Ann. Gas. 194. Except an arrest of a suspicious night walker as provided by the statute of Winchester. Westberry V. Glanton, 136 Ga. 79^ 72 S. E. 238 ; Miles v. Weston, 60 lU. 361. 181 See Bishop's NewJ Cr. Proc § 171. 284 INFRINGEMENT OF PERSONAL SECURITY (Ch. 8 cer.^'* The rule is now largely statutory.^'* At all events the general rule is established that neither officer nor private individual may arrest for a crime not a felony, if committed without the presence of the person making the arrest.^** (2) Felonies Both an officer and a private person may arrest for a felony committed or attempted in their presence.^'" If the arrest has been made for a felony not committed in the officer's presence, he will be excused if he has reasonable ground to believe that a felony has been committed and that the party arrested committed it.^*' But if a private individual has made the arrest under such circumstances, he must, in addition to proving his belief in the party's guilt and reasonable grounds therefor, also establish that a felony has in fact been committed.^*^ Some states have changed these rtiles by statute.^** 182 Cf. O'Connor v. Bucklin, 59 N. H. 589 ; HIgby v. Pennsylvania R. Ck)., 209 Pa. 452, 58 Atl. 858. 183 See Code N. Y. Or. Proa § 177, permitting an arrest by an offi- cer without warrant "for a crime committed or attempted in bis presence." Like power is given to a private person by section 183. 184 Shanley v. Wells, 71 111. 78; Matter of Kellam, 55 Kan. 700, 41 Pac. 960; Scott v. Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R. A. 379; Ross v. Leggett, 61 Mich. 445, 28 N. W. 695, 1 Am. St. Rep. 609; Reisler v. Interborough R'. T. Co., 79 Misc. Rep. 91, 139 N. Y. Supp. 335 ; Muscoe v. Com., 86 Va. 443, 10 S. B. 534. i8BMcMahon v. People, 189 lU. 222, 59 N. E. 584; Kennedy v. State, 107 Ind. 144, 6 N. B. 305, 57 Am. Rep. 99; Rex v. Hunt, 1 Moody, 93. And see cases cited in two succeeding notes. iseDoering v. State, 49 Ind. 56, 19 Am. Rep. 669; White v. Mc- Queen, 96 Mich. 249, 55 N. W. 843 ; McCarthy v. De Armlt, 99 Pa. 63 ; BECKWITH v. PHILBT, 6 B. & C. 635, Chapin Cas. Torts, 147. 18T CaiT V. State, 43 Ark. 99; MORLBY v. CHASE, 143 Mass. 396, 9 N. E. 767, Chapin Cas. Torts, 149 ; Malinleml v. Gronlund, 92 Mich. 222, 52 N. W. 627, 31 Am. St. Rep. 576; Reuck v. McGregor, 32 N. J. Law, 70; HoUey v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702; Allen v. Wright, 8 C. & P. 522, 34 B. a L. 870. 188 See Code Cr. Proc. N. Y. §§ 177 and 183, changing the common- law rule In cases where the crime is committed out of the presence of the party arresting. The officer may act where a felony has in fact been committed ; but, If the arrest was by a private individu- al, he must establish that the person arrested was guilty of its com- mission. Steams v. Titus, 193 N. Y. 272, 85(11. E. 1077; Hawkins v. § 65) DEFENSES — ENFORCEMENT OF DISCIPLINE 285 In all cases, whether the arrest be for a felony or for a breach of the peace, the party arrested must be taken before a magistrate "« without delay. Enforcetnent of Discipline, etc. Under this head may be grouped several instances where a right of detention is recognized. -Thus, for disciplinary purposes, a parent or one deputed by him may impose re- straint upon his child, a guardian of the person upon his ward, and probably a master upon his apprentice.^*" So may a schoolmaster upon his pupil,* '^ and a ship's captain on passengers and crew during the voyage.**^ The com- mon law supposed the principal to be in custody of his bail, and the bail may take him when he pl&ses, either per- sonally or by an authorized agent, since if it were not so he "might often be exposed to great and unnecessary haz- ard." *"* As it has been forcibly put, "the bail have their principal always upon a string, and may pull the string whenever they please, and render him in their own dis- charge." *'* Another illustration is found in the case of one of unsound mind, who may be restrained either by an officer or private person, but only if he is dangerous to Kuhne, 153 App. Div. 216, 137 N. T. Supp. 1090, affirmed 208 N. Y. 555, 101 N. B. 1104. isQiinnen v. Banfield, 114 Mich. 93, 72 N. W. 1; Tobin v. Bell, 73 App. Div. 41, 76 N. T. Supp. 425. i»o Cooley on Torts (3d Ed.) 299. And see Penal Law N. Y. (Con- sol. Laws, c. 40) § 246, subd. 4. 191 See Fertich v. Michener, 111 Ind. 472, 11 N. E. 605, 14 N. B. 68, 60 Am. St. Rep. 709, holding that detention after school hours "has none of the elements of false Imprisonment about it, unless im- posed from wanton, willful, and malicious motives." 192 "The inquiry, then, is whether it was proper for the support of discipline and subordination on board the ship to resort to this meas- ure." Gardner v. Bibbens, Fed. Oas. No. 5,222, 1 Blatchf. & H. 356. To the same effect. Brown v. Howard, 14 Johns. (N. T.) 120 ; King v. Franklin, 1 F. & F. 360. 193 Parker v. Bidwell, 3 Conn. 84, 86, per Hosmer, C. J. To the same effect, Comm. v. Brickett, 8 Pick. (Mass.) 138 ; Nicolls v. Inger- soll, 7 Johns. (N. Y.) 145. And see Code Civ. Proc. N. Y. § 593 ; Code Cr. Proc. N. Y. § 591. i»« Anonymous, 6 Mod. 231; Read v. Case, 4 Conn. 166, 171, 10 Am. Dec. 110. 286 INFRINGEMENT OP PERSONAL SECURITY (Ch. 8 himself or others,^*" and he cannot be detained indefinitely, or until he becomes harmless, but must be delivered to his friends, or to the proper authorities. *°' A carrier may not restrain a passenger for the purpose of compelling him to pay fare,^°' though he may do so for a reasonable time in order to inquire into tl^e circumstances of the case.^°* 191! Look V. Dean, 108 Mass. 116, 11 Am. Rep. 323 ; Keleher v. Put- nam, 60 N. a 30, 49 Am. Rep. 304; Emmerlcli v, Thorley, 35 App. Dlv. 452, 54 N. Y. Supp. 791 ; Fletcher v. Fletcher, 28 L. J. Q. B. 134. i»8 Colby V. Jackson, 12 N. H. 562. And see Penal Law N. Y. (Consol. Laws, c. 40) § 246, subd. 6. 197 Lynch v. Metropolitan El. R. Co., 90 N. Y. 77, 43 Am. Rep. 141. 198 Standish v. Narragansett S. S. Co., Ill Mass. 512, 15 Am. Rep. 66. / 66) SEDUCTION 287 SEDUCTION 66. Seduction is "the wrong of inducing a female to con- sent to unlawful sexual intercourse, by enticements and persuasions overcoming her reluctance and scruples." ""* Logically the woman cannot sue, be- cause she has consented. Volenti non fit injuria.'^'"' In some states, however, she is given a statutory cause of action.^"^ The right of the husband, par- ent, and master to recover against the seducer is elsewhere discussed.""" i»» Abb. L. Diet, quoted in Hood v. Sudderth, 111 N. C. 215, 220, 16 S. E. 397. 200 Welsund v. Schueller, 98 Minn. 475, 108 N. W. 483, 8 Ann.-Cas. 1115 ; Robinson v. Mnsser, 78 Mo. 153 ; Hamilton v. Lomax, 26 Barb. (N. T.) 615. Cf. Graham v. Wallace, 50 App. Div. 101, ^ N..Y. Supp. 372, sustaining an action by a ward against ber guardian. Where adultery and fornication are crimes, the woman is particeps crim- inis, and hence cannot be heard to complain of a wrong which she helped to produce. Paul v. Frazier, 3 Mass. 71, 3 Am. Dec. 95; Oberlin v. Upson, 84 Ohio St. Ill, 95 N. E. 511. But see Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397 (female over 21). Cf. Scarlett V. Norwood, 115 N. C. 284, 20^S. B. 459. 201 Code Civ. Proc. Cal. § 374 (if unmarried) ; Marshall v. Taylor, 98 Cal. 55, 32 Pac. 867, 35 Am. St. Rep. 144; Burns' Ann. St. Ind. 1914, § 264 (if unmarried); McCoy v. Trucks, 121 Ind. 292, 23 N. E. 93; St. Mich. (How. Ann. St. [2d Ed.] 1912) § 13132; Greenman v. O'RUey, 144 Mich. 534, 108 N. W. 421, 115 Am. St. Rep. 466. Proof of her unchastity at the time of the alleged seduction is a bar to re- covery, though chastity, once lost, may be regained by repentance and reformation. See Robinson v. Powers, 129 Ind. 480, 28 N. B. 1112 ; Greenman v. O'Riley, 144 Mich. 534, 108 N. W. 421, 115 Am. St Rep. 466. 202 See Infra, pp. 459, 468, 473. 288 THE BIGHT OP PBIVAOY (Ch. 9 CHAPTER IX THE RIGHT OF PRIVACY 67. Whether and to what extent the law will recognize the existence of a so-called "right of privacy" is not clear. The decisions hereafter considered have dealt almost entirely with the use of picture or name> for commercial purposes and are in con- flict. In its widest sense, "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, with- out having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others or his eccentricities commented upon ei- ther in hand bills, circulars, catalogues, periodicals, or newspapers, and necessarily that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise." ^ It is evident that such a claim cannot be sanctioned. But up to a certain point one may well assert "the right to be let alone,"^ though how far this extends has not been determined. Cases have largely dealt with the use of plaintiff's picture or name for advertising or trade purposes. This question was not squarely present- ed ^ until in 1902, when the New York Court of Appeals 1 Roberson v. Rochester Folding Box Co., 171 N. T. 538, 544, 64 N. E. 442, 59 L. R. A. 478', 89 Am. St. Rep. 828, per Parker, C. J. 2 See "The Right of Privacy," 4 Harvard L. R. 193, 195 (Dec 1890), where the theory that such a right existed was probably first advanced. s While the right of privacy had tentatively been presented to the courts, the decisions had been based upon other grounds, e. g., a violation of property rights, Albert v. Strange, 2 De G..& Sm. 652, 13 Jur. 507, 64 Eng. Repr. 293 ; Gee v. Pritchard, 2 Swanst 402, 19 Rev. Rep. 87, 36 Eng. Repr. 670; lack of personal interest, Schuyler v. Curtis, 147 N. T. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671 ; Atkinson v. John B. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507 ; public character of the subject, Corliss V, B. W. Walker Co. (C. O.) 64 Fed. 280, 31 L. R. A. 283. § 67) ' THE BIGHT OP PKIVACT 289 refused an injunction and damages, this conclusion being based, it would seem, largely upon the argument ab inconveni- enti and because of a lack of precedent.* Three years later, the Supreme Court of Georgia took a different and, it is sub- mitted, a better view," asserting in broad language that such a right existed. Ranged with Georgia will be found Ken- tucky,* Missouri,^ and New Jersey.* Some of these decisions treat the right of privacy as a property right. On the other hand, in Rhode Island the reasoning of the New York Court of Appeals has been approved.* « Koberson v. Rochester Folding Box Co., supra. It. was said (171 N. T. 544, 64 N. :e. 443, 59 L. R. A. 478, 89 Am. St. Rep. 828) : "If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amoimt Qf litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be con- fined to the restraint of the publication of a Ukeness, but must nec- essarily embrace as well the publication of a word picture, a com- ment upon one's looks, conduct, domestic relations, or habits." Sub- sequent to this decision a statute gave a cause of action for the unauthorized use of the name or picture of any person for advertis- ing purposes or for the purposes of trade. Consol. Laws N. Y. c. 6, art 5, amended by Laws 1911, c. 226, held constitutional in Sperry cSi: Hutchinson Co. v. Rhodes, 220 U. S. 502, 31 Sup. Ct. 490, 55 L. Ed. 561. For construction of this statute, see Binns v. Vitograph Co. of America, 210 N. Y. 51, 103 N. B. 1108, L. R. A. 1915C, 839, Ann. Cas. 1915B, 1024 ; Colyer v. Richard K. Fox Pub. Co., 162 App. Div. 297, 146 N. Y. Supp. 999; D'Altomonte v. New York Herald Co., 154 App. Div. 453, 139 N. Y. Supp. 200. 5 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas. 561. 8 Foster-Mllburn Co. v. Chinn, 134 Ky. 424, 120 S. W. 364, 34 L. R. A. (N. S.) 1137, 135 Am. St. Rep. 417. T Jiunden v. Harris, 153 Mo. App. 652, at page 660, 134 S. W. 1076, at page 1079, where it was concluded "that one has an exclusive right to his picture on the score of its being a property right of material profit," also "a property right of value, in that It is one of the modes of securing to a person the enjoyment of life and the ezerdse of liberty." » Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 67 AU. » Henry v. Cherry, 30 R. I. 13, 73 Atl. 97, 24 L. R. A. (N. S.) 991, 136 Am. St. Rep. 928, 18 Ann. Cas. 1006. Chap.Tobts — 19 290 THE EIGHT OF PRIVACT (Ch. 9 In the foregoing cases there was a commercial use of the picture or name. Suppose the purpose was noncom- mercial, as where the publication was in connection with an item of news, or perhaps a better illustration, as where plaintiff's admirers erect a statue in his honor.. Now if a violation of privacy is per se an infringement of property, there seems no reason why any distinction should be drawn. But to carry the prevailing doctrine to its ex- treme would, as the New York Court of Appeals has shown, work an absurdity. Regard should be had to the nature of the publication and the celebrity or notoriety of the subject. Each case must be determined largely by its pe- culiar facts. On the ground that the subject was a "public character" relief has been denied.^" But, though one who has attained a position of prominence cannot well complain if his personality and affairs are discussed to some extent, provided he is not defamed, for he "may not claim the same immunity from publicity" that others may ^^ it sure- ly cannot be said that his mere celebrity will justify the display of his name or picture no matter what the purpose may be. Is there no limit to the kind of publicity which he must expect — ^no difference between a biographical sketch and a cigar band ? Furthermore, whether the individual be a "public character" or not, there would seem, to be a dif- ference between an article directly concerning him and an irrelevant reference made. in the course of an article con- cerning some third party, at least where its general tenor is disparaging, though only to the latter. Yet it has been held that, where one has publicly been accused of crime, there is no cause of action in favor of an innocent relative, whose picture is displayed, apparently for the mere purpose of arousing interest.^* » 392, where the court considered that the peculiar east of one's fea- tures is a property right. to CorUss V. E. W. Walker Co. (C. C.) 64 Fed. 280, 31 L. R. A. 283. And see Vassar College v. Loose-Wiles Biscuit Co. (D. C.) 197 Fed. 982 ; Von Thodorovich V. Franz Josef Beneficial Ass'n (C. C ) 154 Fed. 911. 11 Edison V. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 142 67 Atl. 392. 12 Hillman v. Star Publishing Co., 64 Wash. 691, 117 Pac 594, 35 § 67) THE RIGHT OF PEIVACY 291 Another question arises where the picture has been placed in a so-called "Rogues' Gallery," or collection of photographs of criminals kept by the police. In Louisiana it has been held that taking the picture of one accused of crime shoul'd be .postponed until his conviction, unless it is evident that it is necessary to do so for purposes of identification or for the detection of the crime.^' This would appear to be a reasonable rule,^* affording proper protection to the individual, while not impeding officers of the law in their efforts to detect and punish crime. ^hether an author's nom de plume may be used commer- cially or otherwise must be determined by the same principles which governs the right to use his real name.^^ Whatever shape the law may finally assume with regard to the right of privacy, it seems likely that it will always be considered to be a purely personal right, as such not to be enforced, except by the party himself. It would be carrying the doctrine too far, were a relative or friend per- mitted to recover for the wounding of his own feelings." In conclusion, it should be observed that cases involving the right of privacy must be distinguished from those wherein it has been held that a photographer may not make copies of a customer's photograph without the latter's con- sent. They rest on different principles.^' Ju. R. A. (N. S.) 595. Cf. Moser v. Press Publishing Co., 59 Misc. Kep. 78, 109 N. T. Supp. 963. 13 Eef erring to the right to take and expose the picture of an un- willing person, it was said: "We do not know that it has afforded any ground for litigation when not exaggerated to the point of im- peaching character. Here the purpose goes much further. The picture is to remain as evidence of a damning nature." Schulman V. Whitaker, 117 La. 704, 706, 42 South. 227, 7 L. R. A. (N. S.) 274, 8 Ann. Cas. 1174 ; Itzkovitch v. Whitaker, 117 La. 708, 42 South. 228, 116 Am. St. Rep. 215. 14 See Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746, 16 Ann. Cas. 1123. 15 Clemens v. Belford, Clark & Co. (C. C.) 14 Fed. 729; EUis v. Hurst, 66 Misc. Rep. 235, 121 N. X. Supp. 438. IS Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St Rep. 507 ; Schuyler v. Curtis, 147 N. X. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671. " See Douglas v. Stokes, 149 Ky. 506, 149 S. W. 849, 42 L. R. A. (N. S.) 386, Ann. Cas. 1914B, 374. 292 INJURIES TO REPUTATION DEFAMATION (Ch. 10 CHAPTER X INJURIES TO BEPXJTATION— DEFAMATION 68. Definition. 69. Publication. 70. Slander— When Damage Presumed. 71. lilbel— When Damage Presumed. 72. Defamation with Special Damage. \ 73. Complete Defenses. 74. Partial Defenses. % DEFINITION 68. "By defamation is understood a false publication cal- culated to bring one into disrepute." ^ Roughly put, if communicated through the sense of hear- ing, it is termed slander; if through the sense of sight, it is libel. This tort arises out of the invasion of the right, which every man possesses, to have reputation remain unimpair- ed. As has been noted above, it may be committed in two ways, thus giving rise to the distinction between slander and libel. The former is sometimes defined in such a man- ner as to indicate that there must be spoken words ; * but this is not accurate, for there is no doubt that slander may be committed by singing, by clicking in the Morse code in the hearing of one who understands, or even, it is sub- mitted, by whistling.* So libel, being an appeal to the 1 Cooley on Torts (3d Ed.) vol. 1, p. 266, quoted in Hollenbeck v. Hall, 103 Iowa, 214, 216, 72 N. W. 518, 39 L. R. A. 734, 64 Am. St Rep. 175. 2 "Slander Is defamation without legal excuse published orally by words spoken, being the subject of the sense of hearing." Newell on Slander and Libel, p. 33, quoted in Fredrickson v. Johnson, 60 Minn. 337, 340, 62 N. W. 388. a Suppose an officer of a credit association, having charge of the compilation of a list of traders who were financially worthless, should § 68) DEFINITION 293 eye, need not be by writing, print, or picture. Thus, it would be libel to place a lamp in front of another's dwell- ing, and keep it lighted in the daytime, if it were custom- ary to designate brothels in such a manner,* to hang or bum him in effigy," or to fix a gallows against his door." It may be that gestures and signs — for example, movements of the lips of dumb people — are equivalent to spoken words, and hence might be slander, but not libel.'' If so, it must be put down as an exception to the general rule of dif- ference. On the other hand, where defamatory matter is communicated by §ound, for the purpose of being reduced to writing, which is actually done, such communication may, it would seem, be considered libel, as where a letter is dictated to a stenographer, or a message transmitted over the telegraph by one operator to another.* The distinction between the two forms of defamation will be found important. Libel is both a tort and a crime ; slander, in the absence of a statute to the contrary, only a tort. The former is deemed much more mischievous, and is considered a crime chiefly because of its natural tendency to provoke a breach of the peace by the party defamed. But there may be a libel which is criminal, though not civil, as where it is calculated to bring about corruption of the public morals, or discontent with the gov- ernment, or violations of the criminal law.' It will be no defense, though punitive damages may thereby be eliminated, that the defamation was the result be asked on an unprivileged oaasidn whether the name of a certain merchant appeared therein, and should say nothing, but should whis- tle the tune o£ "I've got 'em on the Ust" from Gilbert and Sullivan's "Mikado" to one who was acquainted therewith? » Jeffries V. Duncombe, 2 Campb. 3, 11 East, 226, 103 Eng. Repr. 991, though the case apparently went on the ground of nuisance. ' B Johnson v. Com., 22 Wkly. Notes Cas. (Pa.) 68 ; Eyre v. Garlick, 42 J. P. 68. Cf. Monson v. Tussauds (1894) 1 Q. B. 671, 58 J. P. 524, 63 L. J. Q. B. 454, 70 L. T. Rep. N. ^. 335. « Case de Libellis Famosis, 5 Coke, 125 a, 77 Eng. Repr. 250. T Jaggard on Torts, voL 1, p. 477 ; Pollock on Torts, pp. 204, 205. 8 Peterson v. West Union Tel. Co., 72 Minn. 41, 74 N. W. 1022, 40 li. R. A. 661, 71 Am. St. Rep. 461. ■ See Bishop's New Criminal Law, vol. 2, §§ 909-912. 294 INJURIES TO REPUTATION DEFAMATION (Ch. 10 of the defamer's mistake. Reputation is none the less af- fected.^" Defaming a Class Two or more persons may, of course, be affected by the same defamatory matter, so that each may have his ac- tion.^ ^ Thus, where the charge is against A. and his son,^" or A. and his friend,^' the son or friend may 'sue as well as A.^* So may two sisters, who are stated to be illegiti- mate,^" and an officer, who is held up to ridicule in a cari- cature of the members of a court-ma"rtial.^* A different question arises when the publication is of and concerning a class. Is each member deemed to suffer individual def- amation? The difficulty of formulating a governing ' prin- ciple is apparent. The class might be so large in num- bers and the abuse so general in tenor that it is evident that no private injury could have resulted; "Thus, if a man wrote that all lawyers were thieves, no particular law- yer could sue him, unless there is something to point to the particular individual.'' ^' And the same result might well be reached where there was an attack upon the mem- i» As where "cultured gentleman" in a dispatch was changed in transmission to "colored gentleman." Upton v. Times-Democrat Pub. Co., 104 La. 141, 28 South. 970. For mistaken identity, see Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392 ; Sweet v. Post Pub. Co., 215 Mass. 450, 102 N. E. 660, 47 L. R. A. (N. S.) 240, Ann. Cas. 1914D, 533; Griebel v. Rochester Printing Co., 60 Hun, 319, 1^ N. Y. Supp. 848. Cf. Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462, 20 L. R. A. 856. 11 Cf. Hoey V. New York Times Co., 138 App. Div. 149, 122 N. Y. Supp. 978. 12 Constitution Pub. Co. v. Way, 94 Ga. 120, 21 S. E. 139. 13 Clark V. Creitzburgh, 4 McCord (S. C.) 491. 14 "If plaintiff's name was annexed to the publication, so as to make the alleged libel applicable to him, it is immaterial that other names were also annexed to the libelous words, even though one of them was connected by the copulative 'and' with the ijame of plain- tiff." Robinett v. McDonald, 65 Cal. 611, 4 Pac. 651. 10 Shelby v. Sun Printing & Pub. Ass'n, 38 Hun (N. Y.) 474, af- firmed 109 N. Y. 611, 15 N. E. 895. 16 ElUs V. Kimball, 16 Pick. (Mass.) 132. 1' Eastwood V. Hohnes, 1 F. & F. 347, 349, per Willes, J. § 68) DEFINiriON 295 bers of a regiment,*' or the officers thereof.** On the other hand, a charge that . an election board were drunk while on duty, and were totally unfit to receive names for reg- istry, "points the finger of condemnation at every mem- ber thereof, though none are named, and every member of the board may maintain an action therefor." "" So does an article denouncing the verdict of a certain jury as in- famous and concluding, "We cannot express the contempt which should be felt for th'ese twelve men who have thus not only offended* public opinion but have done inju *ice to their own oaths." ^* Now it is evident that an action cannot be based upon mere invective against mankind in general, or against a particular order of men. It must descend to particulars and individuals,'* or, in other words, the nature of the defamatory matter must be such that a personal applica- tion may reasonably be inferred.'* In other words, is^ the defamation so localized that the hearer or seer might fairly conclude that it was leveled at the individual seeking re- dress in the sense that he, though in common with others, may be deemed to have suffered injury to his reputa- tion?''* Each case must necessarily be determined largely with reference to the particular facts involved." But, 18 Story V. Jones, 52 lU. App. 112. 10 Sumner v. Buel, 12 Johns. (N. Y.) 475. But see Eyckman v. Delavan, 25 Wend. (N. Y.)«186. 20 Rellly V. Curtiss, 83 N. J. Law, 77, 84 'Atl. 199. Cf. Levert v. Dally States Pub. Co., 123 La. 594, 49 South. 206, 23 L. E. A. (N. S.) 726, 131 Am. St. Kep. 356. 21 Byers v. Martin, 2 Colo. 605, 25 Am. Rep. 755. 22 King V. Alme, 3 Salt. 224, 1 Ld. Raym. 486. 28 See Eyckman v. Delavan, 25 Wend. (N. Y.) 186. 2* See Wofford v. Meeks, 129 Ala. 349, 30 South. 625, 55 L. E. A. 214, 87 Am. St Eep. 66; Hardy v. WUliamson, 86 Ga. 551, 12 S. E. 874, 22 Am. St. Eep. 479 ; Weston v. Commercial Advertiser Ass'n, 184 N. Y. 479, 77 N. E. 660 ; Arnold v. Ingram, 151 Wis. 438, 138 N. W. Ill, Ann. Cas. 1914C, 976 ; International Text-Book Co. v. Leader Printing Co. (O. C.) 189 Fed. 86. 2 Recovery allowed in the following : Goldsborough v. Orem & Johnson, 103 Md. 671, 64 Atl. 36 (charge that the vestry of a certain church had relentlessly turned "their back upon legal and moral 296 INJURIES TO REPUTATION DEFAMATION (Ch. 10 though a libel concerning a class as such may give rise to no cause of action in favor of an individual, it will subject the offender to a criminal prosecution, since it tends to cause a breach of the peace.'* PUBLICATION 69. It is essential that the defamatory matter shall have • been communicated to third gersons, who com- prehend its defamatory nature. This is known in law as "publication." Since defamation is actionable because the reputation of the party defamed is affected, it is necessary that the mat- obligation to the detriment of a rector, * * * who suffered him- self to become debilitated while plodding along the path of duty to his congregation," etc. ; plaintiff was a member of the vestry and had voted in favor of a resolution requesting the rector's resigna- tion); Gidney v. Blake, 11 Johns. (N. T.) 54 ("your children are thieves, and I can prove it;" plaintiff was one of the children); Cook V. Rlef, 52 N. Y. Super. Ct. 302 (charge that a house of assigna- tion was kept by "those people up stairs" ; plaintiff was one of "those people") ; Fenstermaker v. Tribune Piib. Co., 12 Utah, 439, 43 Pac. 112, 35 L. E. A. 611 (charge that a named family described as living at a certain ranch had cruelly treated a child ; plaintiff as husband was head of the family) ; Foxcroft v. Lacy, Hob. 89 (charge that seventeen defendants in an action "helped to murder Henry Farrer"; plaintiff was one of the defendants). Contra: Comes v. Cruce, 85 Ark. 79, 107 S. W. 185, 14 Ann. Cas.i327 (article stated that a murder near a river "was the result of the wine joints that are now in operation there," that the trouble leading to the kilUng occurred there, that "the decoction sold as wine so inflamed the pas- sion of the negroes that they were in the right condition to commit any crime or go any length to resent or revenge any imaginary grievance," and that it is the general opinion that the wine "is adulterated and much of ii. possibly never saw a grape" ; plaintiff was a grape grower and maker and seller of wine) ; Watson v. De ■ trolt Journal Co., 143 Mich. 430, 107 N. W. 81, 5 L. R. A. (N. S.) 480. 8 Ann. Cas. 131 (plaintiff sold trading stamps ; article referred gen- erally to trading stamp concerns of a city, describing the business as a "get-rich-quick industry," etc.). 26 Palmer v. City of Concord, 48 N. H. 211, 97 Am. Dec. 605; Rex V. Williams, 5 Barn. & Aid. 32C. Cf. State v. Brady, 44 Kan. 435, 24 Pac. 948, 9 L. R. A. 606, 21 Am. St. Rep. 296. § 69) PUBLICATION 297 ter be heard or seen by others, who must comprehend its defamatory nature, though to sustain an indictment it will be enough that the libel be laid before the one affected, since this may be sufficient to induce him to break the peace.-' If only the party concerned hear the slander,"' or see the libel,=" or if the third party who heard or saw did not comprehend, as if he were too young,'" or if the words were in a foreign language not understood by him,'^ no action is maintainable. Hence it will not be sufficient that the writer has sent or mailed a letter directly to the individual defame^,'' and even though the contents have in fact been seen by others, publication is not considered to have taken place, where the sender had no reason to suppose that the letter would be opened and read by an- other than the addressee.'* But publication may occur be- fore as well as after the mailing, as where the contents are dictated to a stenographer, or the letter copied by a •clerk or office boy,'* though in New York it has been con- 27 Warnock v. Mitchell (C. C.) 43 Fed. 428 ; Clutterbuck v. Chaf- fers, 1 Start. 471. For criminal libel, see State v. Avery, 7 Conn. 266, 18 Am. Dec. 105 ; Penal Law N. Y. (Consol. Laws, c. 40) § 1343. Cf. Hodges V. State, 5 Humph. (Tenn.) 112. 28 Economopoulos v. A. G. Pollard Co., 218 Mass. 294, 105 N. H. 896; SHEFFILL v. VAN DEUSEN, 13 Gray (Mass.) 304, 74 Am. Dec. 632, Chapin Cas. Torts, 152. It will be sufficient that it be alleged that the words were spoken in the presence of others, without stating that it was in their hearing. Hall v. Hennesley, Cro. Eliz. 486. 28 YoDsling V. Dare, 122 Iowa, 539, 98 N. W. 371; Fry v. MeCord Bros., 95 Tenn. 678, 33 S. W. 568 ; Clutterbuck v. Chaffers, 1 Stark. 471. 30 Sullivan v. Sullivan, 48 111. App. 435. 31 Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41; Economopoulos V. A. G. Pollard Co., 218 Mass. 294, 105 N. E. 896 ; Wormouth v. Cramer, 3 Wend. (N. Y.) 394. 32 Spaits V. Poundstone, 87 Ind. 522, 44 Am. Rep. 773 ; Yousling v. Dare, 122 Iowa, 539, 98 N. W. 371; Sylvis v. Miller, 96 Tenn. 94, 33 S. W. 921 ; Wilcox v. Moon, 64 Vt. 450, 24 Atl. 244, 15 L. R. A. 760, 33 Am. St. Rep. 936. 83 Roberts v. English Mfg. Co., 155 Ala. 414, 46 South. 752 ; Rura- ney v. Worthley, 186 Mass. 144, 71 N. E. 316, 1 Ann. Cas. 189 ; Dela- croix V. Thevenot, 2 Stark. 63. 3iFerdon v. Dickens, 161 Ala. 181, 49 Soufh. 888; Gambrill v. 298 INJURIES TO REPUTATION DEFAMATION (Ch. 10 sidered otherwise, where both composer and stenographer were in the employ of the defendant corporation in connec- tion with whose business the letter was sent. Being se'rv- ants of a common master, there was held to be but a sin- gle act of the corporation. The stenographer could not be regarded as a third person.*" There is publication when a postal card," or an envelope,'^ on which libelous words, appear, is deposited in the mail, when a telegram is handed to a clerk in the telegraph office,'^ or transmitted by one operator to another,*' unless the defamatory character of the words is both latent and in fact uncomprehended by all parties engaged in the work of conveying or transmit- ting. Recovery will not be denied merely because the persbn to whom the imputation is published knows that it is false." That the wrong consists in the publication is illustrated by cases ^where the defamatory matter has been repeated* Schooley, 93 Md. 48, 48 Atl. 730, 52 L. R. A. 88, 86 Am. St. Rep. 414 ; Pullman v. Walter Hill & Co. (1891) 1 Q. B. 524. See Sun Life Assurance Co. of Canada v. Bailey, 101 Va. 443, 44 S. E. 692. 86 OWEN V. OGILVIE PUBLISHING CO., 32 App. Div. 465, 53 N. Y. Supp. 1033, Chapin Cas. Torts, 153. ss Sadgrove v. Hole, [1901] 2 K. B. 1, 70 L. J. K. B. 455, 84 L. T. Rep. N. S. 647, 49 Wkly. Rep. 473. ST Muetze v. Tuteur, 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86, 20 Am. St. Rep. 115. 88 Monson v. Lathrop, 96 Wis. 386, 71 N. W. 596, 65 Am. St. Rep. 54 ; Williamson v. Freer, L. R. 9 C. P. 393, 43 L. J. C. P. 161. 39 Peterson v. West. Union Tel. Co., 65 Minn. 18, 67 N. W. 646, 33 L. R. A. 302. 40 As where the sole auditor is a woman with whom plaintiff Is said to have committed adultery. Marble v. Chapin, 132 Mass. 225. Here it was observed : "No one can say with certainty that the charge may not have had the effect on the mind of [the hearer] to Injure the plaintiff, though she knew it was untrue In its details, so far as it charged her with being an accomplice. Besides, the injury to the character of the plaintiff is not the sole element of damage. The jury have the right to consider the mental suffering of the plaintiff up to the time of the trial, caused by the publication of these slanderous words." The same rule prevails "with respect to special damage caused by the act of third parties. See infra, p. 318. § 69) PUBLICATION • 299 or republished by another. As has been seen,** this usu- ally is not deemed a proximate result of the original defa- mation, so as to subject the first defamer to liability there- for,*^ although it may be found that under the circumstanc- es he should have foreseen it,*^ and certainly he will be responsible where it was authorized or procured by him.** Manifestly there can be no cause of action where the pub- lication is by the party defamed or through his procure- ment,*" as where he requests it.** To the general rule that each person who commits an act of publication will, incur responsibility, there is an excep- tion in the case of venders of newspapers, books, or maga- zines, who, although they may in fact have disseminated the libel, did so innocently ; their ignorance not being due to negligence. "A newspaper," it is said, "is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury." " The rule has *i See supra, p. 86. 42 Elmer v. Fessenden, 151 Mass. 359, 24 N. B. 208, 5 L. R. A. 724 ; Schoepflln v. Coffey, 162 N. Y. 12, 56 N. E. 502 ; Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265 ; Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 579 ; Ward v. Weeks, 7 Bing. 211, 131 Eng. Repr. 81. 43 Davis V. Starrett, 97 Me. 568, 55, Atl. 516; Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862, 53 Am. Rep. 9 ; Merchants' Ins. Co. y. Buck- ner, 98 Fed. 222, 39 C. C. A. 19. And see supra, p. 88. 44 See Schoepflln v. Coffey, 162 N. Y. 12, 56 N. E. 502 ; Union Associated Press v. Heath, 49 App. Div. 247, 63 N. Y. Supp. 96." In Bassell V. Elmore, 48 N. Y. 561, 564, it was also said that "if the slander be repeated under such circumstances as to be justifiable and innocent, and not to give a cause of action against the one re- I)eating the same, then the first publisher thereof is generally re- sponsible for the damage caused by such repetition." 45 Konkle v. Haven, 140 Mich. 472,- 103 N. W. 850; Sylvis v. Miller, 96 Tenn. m, 33 S. W. 921 ; Wilcox v. Moon, 64 Vt 450, 24 AU. 244, 15 U R. A. 760, 33 Am. St. Rep. 936. IB Howland v. Blake Mfg. Co., 156 Mass. 543, 31 N. E. 656; Shingle- meyer v. Wright, 124 Mich. 230, 82 N. W. 887, 50 L. R. A. 129. 41 Emmons v. Pottle, L. R. 16 Q. B. D. 354, 358, per Bbwen, L. J, To the same effect, Weldon v. Times Book Co., Ltd., 28 T. L. R. 143 ; Vizetelly v. Mudie's Select Library, Ltd., [1900] 2 Q. B. 170, 69 L. J. Q. B. 645 (circulating library). Cf. Smith v. Ashley, 11 Mete. (Mass.) 367, 45 Am. Dec. 216. 300 INJURIES TO REPUTATION DEFAMATION (Ch. 10 been applied to telegraph companies,** and to one who merely transported the libel as a porter.** Construction of Language — Latent Defamation It was at one tinie held that the language used was to be construed in mitiori sensu.^" This led to absurd results,'^ and the maxim is thoroughly exploded, so that words are now "to be taken in tlieir natural meaning and according to common acceptation." °^ Thus, where Horace Greeley, commenting up- pn an action brought by James Fenimore Cooper, the novelist, wrote, "He will not like to bring it in New York, for we are known here, nor in' Otsego, for he is known there," the lan- guage was considered to bear out an inference that Cooper had a bad reputation in Otsego."' Either party may show that the hearers or readers did in fact give to the words a mean- ing different from that which they ordinarily bear. Hence language may be defamatory, though it assume the form of a question,"* or insinuation,"' or because it be ironical,"* or con- tain a covert or hidden meaning.^' So the defendant may es- *8 The question here Is whether the message is on its face sus- celptible of a libelous meaning. Peterson v. Western Union Tel. Co., 65 Minn. 18, 67 N. W. 646, 33 L. K. A. 302. 49 Day V. Bream, 2 Moo. & Eob. 55. Contra, if the delivery was by one aware of the contents. Arnold v. Ingram, 151 Wis. 438, 138 N. W. Ill, Ann. Cas. 1914C, 976. BO In the mUder sense. 0.1 As in Holland v. Stoner, Cro. Jac. 315, where the words were, "Thou didst set upon me by the highway and take my purse from me," and the court was of opinion that this did not charge a felonious tating of the purse, for "it may be he took it away in jest or for sonle other cause." 62 Carroll v. White, 33 Barb? (N. Y.) 615, 618, per Bockes, J. To the same effect, Tuttle v. Bishop, 30 Conn. 80 ; Little v. Barlow, 26 Ga. 423, 71 Am. Dec. 219 ; Buckley v. O'Niel, 113 Mass. 193, 18 Am. Rep. 466; More v. Bennett, 48 N. Y. 472; Quist v. Kiichll, 92 Mifm. 160, 99 N. W. 642. 83 Cooper V. Greeley, 1 Denio (N. Y.) 347. «* State V. Norton, 89 Me. 290, 36 Atl. 394 ; Goodrich v. Davis, 11 Mete. (52 Mass.) 473 ; Gorham v. Ives, 2 Wend. (N. Y.) 534. Adams v. Lawson, 17 Grat. (Va.) 250, 94 Am. Dec. 455. 08BDCKSTAFF v. VIALL, 84 Wis. 129, 54 N. W. Ill, Chapin Cas. Torts, 164 ; Boydell v. Jones, 4 M. & W. 446. OT Hanchett v. Chlatovich, 101 Fed. 742, 41 C. C. A. 648. § 69) PUBLICATION 301 tablish that reference is understood to have been made to a transaction innocent in itself, or which does not constitute the crime apparently imputed,"' though the burden will be on him to do so.°' It may therefore be that on its face the charge will ap- pear to be both defamatory and to be directed against the plaintiff. On the other hand, its applicability or defama- tory, nature may be latent, and then extrinsic facts must be pleaded and proven, showing how and in what sense the matter was understood. Thus, where the article re- ferred to a "celebrated surgeon of whisky memory" or a "noted steam doctor," plaintiff was denied recovery, where his complaint lacked allegations of facts which would es- tablish identity in the minds of readers."" The same rule applies where the latency is as to the defamatory nature of the charge. Thus, a complaint is demurrable which merely sets forth a letter accusing plaintiif of having writ- ten anonymous letters. Non constat but that the letters were entirely innocent. If they were not, this fact should have been pleaded.'^ Hence there must be set forth an averment or in- ducement, in which there is narrated "the extrinsic circum- stances which, coupled with the language published, affects its construction and renders it actionable, where, standing alpne, and not thus explained, the language would appear either not to concern the plaintiff, or, if concerning him, not to affect him injuriously." Then in the colloquium the plaintiff avers that the language published was concerning him, or concerning him and his affairs, or concerning him and the facts alleged as inducement. The innuendo follows, the office of which is to "ssAyers v. Grider, 15 111. 37; Fawsett v. Clark, 48 Md. 494, 30 Am. Rep. 481; Van Rensselaer v. Dole, 1 Johns. Cas. (N. Y.) 279; Brown v. Myers, 40 Ohio St. 99. 09 See Line v. Spies, 139 Mich. 484, 102 N. W. 993; Hayes v. Ball, 72 N. Y. 418 ; Hankinson v. Bilby, 2 C. & K. 440. 8 Miller v. Maxwell, 16 Wend. (N. Y.) 9. «i McNamara v. Goldan, 194 N. Y. 315, 87 N. E. 440. To the same effect, Outcault v. New York Herald Co., 117 App. Div. 534, 102 N. Y. Supp. 685; Russell v. Barroa, 111 App. Div. 382, 97 N. Y. Supp. 1061. 302 INJURIES TO REPUTATION DEFAMATION (Ch. 1 aver a meaning of the language published."^ This is well i lustrated in Barham v.* Nethersal.*^ The words were, "Bai ham did burn my barn." Burning a barn, unless it had cor in it, was not a felony, so that, in order that this might ha\ been considered a charge of committing felony, plaintiff, b( sides setting forth the words, should have alleged by way c inducement or averment that the defendant had a barn- whic was burned when it was full of corn. Then in- the colloquiui he should have stated that the words were uttered in a cor versation relating to that barn. Then in his innuendo he woul explain that thereby the defendant had meant to charge th plaintiff with burning a barn full of corn belonging to the d< fendant.** Further illustrations of latent defamation will b found in the note."" Now, as the purpose of an innuendo is to explain the mear ing of the language used and to point out the defamatory sens in which it was understood, it is obvious that "it cannot b used to introduce new matter, or to enlarge the natural mear ing of the words, and thereby give to the language a construe 82Townshend on Slander and Libel, §§ 308, 323, 335, quoted i Squires v. State, 39 Tex. Or. R. 96, 105, 45 S. W. 147, 73 Am. St. Re] 904. 8^ 2 Coke, 314. 6* See Van Veehten v. Hopkins, 5 Johns. (N. T.) 211, 4 Am. D© 339. 65 To say of an unmarried woman that "she was in the habit c entertaining gentlemen callers at all hours of the night" was hel not actionable. She might have done so for a proper purpose, an there was no allegation showing that this statement was understoo as meaning that the plaintiff was unchaste. Hemmens v. Nelson, 13 N. Y. 517, 34 N. E. 342, 20 L. R. A. 440. To the same effect, Sne V. Snow, 13 Mete. (Mass.) 278, 46 Am. Dec. 730, where the wore were "she is a bad girl." See, also, StitzeU v. Reynolds, 57 Pa. 4S (plaintiff "had her hogs in your corn and carried corn away" ; in putation of a mere trespass, not larceny) ; Hansbrough v. Stiimet 25 Grat. (Va.) 495 (plaintiff "killed my beef" ; no felony imputed] Stewart v. Minnesota Tribune Co., 41 Minn. 71, 42 N. W. 787 ("ta title shark") ; Crashley v. Press Publishing Co., 179 N. Y. 27, 71 1 E. 258, 1 Ann. Cas. 196 (charge of taking part in a revolt in Brazil no allegation that this constituted a treasonable offense under Bri zilian law; charge that plaintiff was "an Englishman of more ( less indifferent repute" requires explanation). § 69) PUBLICATION 303 tion which it will not bear. It is the duty of the court in all cases to determine whether the language used in the objec- tionable article could fairly and reasonably be construed to have the meaning imputed in the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff, and do not sustain the innuendo, the case should not be sent to the jury." ** But, since language plainly defamatory re- quires no averment of extrinsic facts,"^ the plaintiff will not be prevented from recovering merely because he has assigned an unwarranted or nondef amatory meaning, for the averment of a defamatory meaning by innuendo is then surplusage.'* Under the elabofate rules of common-law pleading, the declaration in an action for defamation was necessarily so artificial and prolix that justice was often "smothered in her own robes." '* Important statutory changes have therefore been made in many states, which have established the rule that it is not necessary to allege extrinsic facts for the purpose of showing the application of the defamatory matter to plaintiff, who may state generally that it was published or spoken concerning him, and if that allegation is controverted he must establish it on the trial.'" 8» Naulty T. BnUetiii Co., 206 Pa. 128, 134, 55 AtL 862, per Mestre- zat, J. To the same effect, Gaither v. Advertiser Co., 102 Ala. 458, 14 South. 788; WaUace v. Homestead Co., 117 Iowa, 348, 90 N. W. 835 ; Kilgour v. Evening Star Newspaper Co., 96 Md. 16, 53 Atl. 716 ; Adams V. Stone, 131 Mass. 433; Fleischmann v. Bennett, 87 N. Y. 231 ; Hofflund v. Journal Co., 88 Wis. 369, 60 N. W. 263. «T Rhodes V. Naglee, 66 Cal. 677, 6 Pae. 863 ; More v. Bennett, 48 N. Y. 472 ; Benton v. State, 59 N. J. Law, 551, 36 AtL 1041 ; Langton V. Hagerty, 35 Wis. 150. BsCnrley v. Feeney, 62 N. J. Law, 70, 40 Atl. 678; Morrison t. Smith, 177 N. Y. 366, 69 N. E. 725 ; Adams v. Lawson, 17 Grat. (Va.) 250, 94 Am. Dec. 455. «» Harris v. Zanone, 93 Cal. 59, 28 Pac. 845, per Harrison, J. TO Code Civ. Proc. N. Y. § 535. But, although the complaint con- tains a general allegation that the defamatory matter was published of and concerning plaintiff, the section will not aid him, where this general averment is contradicted and rendered nugatory by other allegations. Thus, where plaintiff alleged that her name was Kate Corr, that she was 26 years of age, a school-teacher, and had always borne a good character and reputation, a demurrer was sustained, where the article described an abandoned woman of 35 named Kittle 304 INJURIES TO REPUTATION DEFAMATION (Ch. 10 SLANDER— WHEN DAMAGE PRESUMED 70. In general, averment and proof of damage is essential to the maintenance of an action for defamation. But the charge may be of so grave a character that damage will be presumed. Slander per se exists where the matter: (1) Imputes the com- mission of a crime ; (2) imputes the existence of a contagious or infectious disease; (3) tends to prejudii:e the party defamed in his office or call- ing. By statute in many states there has been added: (4) Imputations of unchastity/'^ 1. Charging Crime There is great diversity of opinion as to the test to be applied to determine whether the language comes under Carr, the daughter of a detective. It was held that it was apparent on the face of the complaint that the libelous words did not relate to the plaintiff. Oorr v. Sun Printing & Publishing Ass'n, 177 N. T. 131, 69 N. E. 288. To the same effect, Fleischmann v. Bennett, 87 N. Y. 231 ; Pagan v. New Tork Evening Journal Pub. Co., 129 App. Div. 28, 113 N. T. Supp. 62. Cf. Slobodln v. Sun Printing & Pub- lishing Ass'n, 135 App. Div. 359, 120 N. Y. Supp. 386. But where the article is not defamatory on its face, and becomes such only by, reason of extrinsic facts and circumstances, the plaintiff Is not re- lieved from pleading and proving the latter. Van Heusen v. Argen- teau, 194 N. Y. 309, 87 N. E. 437. For statutory rule in other states, see Harris v. Zanone, 93 Cal. 59, 28 Pac. 845 ; Doan v. KeUey, 121 Ind. 413, 23 N. E. 266 ; Petsch v. Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034. 71 Statutory provisions in some states have broadened the scope of defamation per se. See Civ. Code Ga. 1895, § 3837, making it action- able to charge one orally with "being guilty of some debasing act which may exclude him from society." Cf. Lewis v. Hudson, 44 Ga. 568. Civ. Code La. art. 2315, provides that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Hence its courts "are not bound by the technical distinctions of the common law as to words actionable per se and not actionable per se." Spotorno v. Fourichon, 40 La. Ann. 423, 424, 4 South. 71, per Penner, J.; Pellman v. Dreyfous, 47 La. Ann. 907, 17 South. 422. In Mississippi (Code 1906, § 10 ; cf. Craw- ford V. Mellton, 12 Smedes & M. [Miss.] 328), Virginia (Code 1904, § § 70) SLANDER — WHEN DAMAGE PRESUMED 305 this head.''* After considerable fluctuation, the rule was finally announced in England that it was slander per se to say that plaintiff "has done something for which he can be made to suffer corporally." " American courts have stated the prin- ciple in varying phraseology. In a leading New York case it was said that "in case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude or subject him to an infamous punishment, then the words will be in themselves actionable." '* At common law 2897; cf. Mosele.v v. Moss, 6 Grat [Va.] 534), and West Virginia (Code 1913, § 4406), words are made actionable which from their usual construction and common acceptation are considered as insults and tend to a breach of the peace. 72 In BEOOKER V. COFFIN, 5 Johns. (N. T.) 188, 192, 4 Am. Dec. 337, Chapin Cas. Torts, 157, speaking of imputations of crime, Spen- cer, J., observed : "There is not, perhaps, so much uncertainty in the law upon any subject." T3 WEBB V. BEAVAN, 11 Q. B. D. 609, Chapin Cas. Torts, 156. It has frequently been asserted on the authority of WEBB v. BEAV- AK that words imputing that plaintiff has been guilty of a crime punishable with imprisonment are actionable without proof of spe- cial damage. Burdict on Torts (3d Ed.) 352 ; NeweU on Slander & Libel (3d Ed.) Ill ; Odgers on Libel & Slander (4th Ed.) 37. Here the words were: "I will lock you up in Gloucester gaol nest week, I know enough to put you there." Pollock, B., who used the language quoted in the text, prefaced It with the remark that "the distinction seems a natural one, that words imputing that the plaintiff has rendered himself liable to the mere infliction of a fine are not slan- derous" ; and Lopes, J., who announced himself as of the same opinion, called attention to the fact that "a great number of offenses which were dealt with by indictment twenty years ago are now dis- posed of summarily," but he added, "The effect cannot be to alter the law with respect to actions for slander." It is difficult to understand how the error could have crept in. Surely, if I state that A. has committed a deliberate and premieditated murder, he will be under no necessity of proving special damage, though the punishment be death, and not imprisonment, unless the detention between the time of sentence and execution be regarded as such, which it certainly is not, being no part of the punishment, but merely incidental thereto. So, also, if I charge him with an offense for which he may be whip- ped. Cf. Hellwig V. Mitchell, [1910] L. R. 1 K. B. 609. T* BROOKER V. COFFIN, 5 Johns. (N. T.) 188, 191, 4 Am. Dec. 337, Chapin Cas. Torts, 157; Toung v. MiUer, 3 HiU (N. Y.) 21; Anonymous, 60 N. Y. 262, 19 Am. Rep. 174, followed iu Berdeaux v. Davis, 58 Ala. 611 (semble) ; Ludlum v. McCuen, 17 N. J. Law, 12 ; Chap.Toets — 20 306 INJURIES TO REPUTATION — DEFAMATION (Ch. 10 the term "infamous" was applied to certain crimes, said to be treason, felony, and the crimen falsi, upon conviction of which a person became incompetent to testify as a witness, since he was deemed so depraved as to be altogether insensible to the obligation .of an oath.''" But as applied to slander per se the word is not to be taken in its technical, but in its popular, senseJ* In such a case "importance is attached to the inher- ent nature of the indictable act, and also to the punishment which the law assigns to it, upon the principle that social degradation may result from either." ^' Other courts have thought that there should be an imputation of an indictable offense punishable corporally,'* of a crime involving moral turpitude or subjecting the offender to an infamous punish- ment,'" of a crime involving moral turpitude and subjecting the offender to corporal punishment,*" of an indictable offense punishable by an infamous or corporal punishment, or which involves moral turpitude,*^ of an offense subjecting the offender to a punishment involving disgrace, though not necessarily an ignominious punishment,*^ of an indictaible offense punish- Johnson v. Shields, 25 N. J. Law, 116 ; Davis v. Carey, 141 Pa. 314, 21 Atl. 633 ; Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308. In Wildrig V. Oyer, 13 Jolms. (N. X.) 124, counsel tried to Induce the court to change "or" Into "and," but without success. 7 5 United States v. Block, 4 Sawy. 211, 212, E^d. Cas. No. 14,609. 76 "There is a variety of misdemeanors, to the commission of which not even the shadow of disgrace is attached by the world, and to be accused of which would not be likely to induce the vexation of a prosecution if the accused were Innocent, and if guilty he ought not to complain. I think it unreasonable that a charge of having com- mitted a nuisance, assault and battery, and the like, should be held actionable." Andres v. Koppenheafer, 3 Serg. & E. (Pa.) 255, 258, 8 Am. Dec. 647, per Gibson, J. 77 Davis V. Carey, 141 Pa. 314,. 326, 21 Atl. 633, per Clark, J. 78 Griffin v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171, 30 Am. Rep. 456 ; Birch v. Benton, 26 Mo. 153. 78 Yakavicze v. Valentukevicious, 84 Conn. 350, 80 AtL 94, Ann. Cas. 1912C, 1264 ; Shepherd v. Piper, 98 Me. 3Si, 57 Atl. 84 ; Geary V. Bennett, 53 Wis. 444, 10 N. W. 602. «o Redway v. Gray, 31 Vt. 292. 81 Wooten V. Martin, 140 Ky. 781, 131 S. W. 783, Ann. Cas. 1912B, 407. saMiUer v. Parish, 8 Pick. (Mass.) 384; Brown v. Nickerson, 5 Gray (Mass.) 1. § 70) STANDEE — WHEN DAMAGE PRESUMED 307 able corporally, or by a disgraceful, though not necessarUy ignominious, punishment,^* or of an infamous offense where- of the conviction and punishment involves moral turpitude and social degradation." Though the terms "moral turpitude" and "infamous" have been criticized as being of indefinite im- port, since "men may differ as to the quality of an act accord- ing to their own standard of morality," ^° it is submitted that their inclusion has promoted substantial ju^ice and that their application may safely be left to the common sense of the courts. It is not slander per se to say that one intends or is about to commit a crime. The language must relate to his conduct or character, past or present — ^that is, something which is actual, instead of merely imaginary or conjectural." But to say that one has attempted to commit a crime may be action- able where such attempt is itself made criminal,*' and since the obloquy remains, it will be slander per se to assert that a crime was ccwnmitted, though the words import that punish- ment was suffered therefor,** or a pardon issued,*' or prose- cution is barred by the statute of limitations. '" It has been seen that, although the imputation is prima facie defamatory, the defendant may show that it was un- derstood in a nondefamatory sense. A fortiori there can be no slander per se when the accompan)ang language shows that no criminal act was charged, as if the words were "You are a thief; you have stolen my land," for land cannot be the subject of larceny.'^ ss Blake v. Smith, 19 R. I. 476, 34 AU. 995. 84 McKee v. Wilson, S7 N. C. 300. 86 Birch V. Benton, 26 Mo. 153, 159. 88 FAISTNING T. CHACE, 17 R. I. 388, 22 AU. 275, 13 L. R. A. 134, 33 Am. St. Rep. 878, ChaRjn Cas. Torts, 158; Mitchell v. Sharon (C C.) 51 Fed. 424. s" Berdeaux v. Davis, 58 Ala. 611; FUber v. Dautermann, 26 Wis. 51& 88 Fowler v. Dowdney, 2 Moo. & R. 119 ("he is a returned con- vict") ; Krebs v. Oliver, 12 Gray (Mass.) 239 (he "was imprisoned many years in a penitentiary in Germany lor larceny"). 8» Boston V. Tatom, Cro. Jac. 623. 80 See Van Ankin v. Westfall, 14 Johns. (N. Y.) 233. »i See Ogden v. RUey, 14 N. J. Iaw, 186, 25 Am. Dec. 513 ("you are a thief ; you have stolen my marie"). To the same effect, Norton 308 INJUKIES TO REPUTATION DEFAMATION (Ch. 10 8. Charging Disease Though it is sometimes broadly stated that it is slander per se to charge one with having a contagious or infectious disease which would tend to exclude him from society, yet "the only examples which adjudged cases furnish are of the plague, leprosy, and venereal disorders." "" The imputation must be that one is suffering from these diseases at the present time — ^not that he^has previously suffered; "for it is avcttding him for fear of contagion and refusing to keep him com- pany' that is the legal notion of damage, and when he is cured those inconveniences will not attend him." °' 3. Prejudice to Calling — Unfitness to Hold Office The third class includes cases where the words have a natural tendency to injure the party in his profession, trade, or calling.** Thus it will be actionable, though special damage be not averred or proved, to say of a physician that he is no good, only a butcher, and that the speaker would not have him for a dog,''" to call a lawyer a cheat,°° to as- sert that a school-teacher dismissed the boys, kept the girls V. Ladd, 5 N. H. 203, 20 Am. Dec. 573 ; Dexter v. Taber, 12 Johns. (N. Y.) 239; Barnes v. Crawford, 115 N. C. 76, 20 S. E. 386; Jack- son V. Adams, 2 Blng. N. C. 402 ; Lemon v. Simmons, 57 L. J. Q. B. 260. 92 COUNT JOANNES v. BURT, 6 Allen (Mass.) 236, 83 Am. Dec. 625, Chapin Cas. Torts, 160, per Hoar, J., holding that an oral Im- putation of Insanity was not slander per se. See, further, McDonald V. Nugent, 122 Iowa, 651, 98 N. W. 506 (venereal disease) ; Williams V. Holdredge, 22 Barb. (N. Y.) 396 (venereal disease) ; Smith v. Hob- son, Style, 112 (venereal disease) ; Taylor v. Perkins, Cro. Jac. 144 (leprosy). 8 3 Taylor v. Hall, 2 Str. 1189. To the same effect, Bruce v. Soule, 69 Me. 562. . , 9* Blumhardt v. Eohr, 70 Md. 328, 17 AU. 266; Ostrom v. Calkins, 5 Wend. (N. X.) 263; Hayner v. Cowden, 27 Ohio St. 292, 22 Am. Eep. 303 ; Singer v. Bender, 64 Wis. 169, 24 N. W. 903. 98 Cruikshank v. Gordon, 118 N. Y. 178, ^3 N. B. 457. To the same effect, Johnson v. Robertson, 8 Port. (Ala.) 486; De Pew v. Rob- inson, 95 Ind. 109; SEOOR v. HARRIS, 18 Barb. (N. Y.) 425, Chapin Cas. Torts, 161. , 9« Rush V. Cavenaugh, 2 Pa. 187. To the same effect, Mains v. Whiting, 87 Mich. 172, 49 N. W. 559. § 70) SLANDER — WHEN DAMAGE PRESUMED 309 in, gave them candy, and courted them,»^ to charge with insolvency one whose business requires that he be given financial credit and accommodation,'* or in fact to impute to any one fraud or want of integrity,"' or of capacity in his calling,^"" or misconduct therein.^'^ This is likewise true of words spoken of the holder of an office which impute to him misconduct therein or lack of capacity therefor. Thus it .is slander per se to charge that a sheriff used his official position to protect a certain disorderly house in his coun- ty,^°=' or that the chief engineer of a fire department was drunk at a fire.^"* It is difficult to perceive why there s^iould be any distihction between offices of honor and of profit, though it has been said that, unless the imputed un- fitness for the former be of such a character as to justify removaf, the charge will not be deemed slander per se}"* But 9T Spears v. McCoy, 155 Ky. 1, 159 S. "W. 610, 49 L. R. A. (N. S.) 1033. To the same effect. Bray v. Calliliaii, 155 Mo. 43, 55 ,S. W. 865; Fitzgerald v. Young, 89 Neb. 693, 132 N. W. 127; Darling v. Clement, 69 Vt. 292, 37 Atl. 779. »8 Lewis V. Hawley, 2 Day (Conn.) 495, 2 Am. Dec. 121; Fred v. Traylor, 115 Ky. 94, 72 S. W. 768; Sewall v. Catlin, 3 Wend. (N. Y.) 291; PMUips V. Hoefer, 1 Pa. 62, 44 Am. Dec 111; Jones v. Littler, 7 Mees. & W. 423. » 9 Nelson v. Borchenius, 52 111. 236; Noeninger v. Vogt, 88 Mo. 589; Joralemon v. Pomeroy, 22 N. J. Law, 271; Fowles v. Bowen, 30 N. Y. 20. 10 De Pew v. Robinson, 95 Ind. 109; Fitzgerald v. Bedfleld, 51 Barb. (N. Y.) 484; Id., 36 How. Prac. (N. Y.) 97; Hellstem v. Kat- zer, 103 Wis. 391, 79 N. W. 429. The general rule is that words are not actionable in themselves which merely charge ignorance or mis- mSiagement with reference to a particular case. Camp v. Martin, 23 Conn. 86. It is otherwise when they fairly imply general want of skUl or knowledge, though one instance only be cited. Sumner v! Utley, 7 Conn. 257 ; Jones v. Diver, 22 Ind. 184; SECOR v. HARRIS, 18 Barb. (N. Y.) 425, Chapin Cas. Torts, 161. 101 Ritchie v. Widdemer, 59 N. J. Law, 290, 35 Atl. 825 ; Burtch V. Nickerson, 17 Johns. (N. Y.) 217, 8 Am. Dee. 390; Gross Coal Co. V. Rose, 126 Wis. 24, 105 N. W. 225, 2 L. R. A. (N. S.) 741, 110 Am. St. Rep. 894, 5 Ann. Cas. 549. 102 Heller v. Duff, 62 N. J. Law, 101, 40 Atl. 691. 103 Gottbehuet V. Hubachek, 36 Wis. 515. To the same effect, Craig V. Brown, 5 Blackf. (Ind.) 44; Hook v. Hackney, 16 Serg. & R. (Pa.) 385 ; Spiering v. Andrae, 45 Wis. 330, 30 Am. Rep. 744. 104 "It is quite clear that, as regards a man's business or profes- 310 INJURIES TO REPUTATION DEFAMATION (Ch. 10 whether the ground of the action be that the party is (Ks- graced or injured in his profession, trade, or office, or exposed to the hazard of losing, the latter in consequence of the slan- derous "words, it is evident that, his general reputation and standing in the community not being involved, it must appear that when the slander was uttered he was engaged in such employment or that his term of office had not expired.^"" It is at times difficult to determine whether the words do in fact touch upon one in his profession, trade, or office, that is, whether they have such close reference thereto that they can be said to constitute an imputation upon him in that character rather than upon him as an individual, for it must be noted that it is not essential that the defendant should • sion or office, If it be an office of profit, the mere imputatloli of want of ability to discbarge the duties of that office is sufficient. to sup- port an action. It Is not necessary that there should be imputation of immoral or disgraceful conduct. * * * ;Et must be either some- thing said of him in his office or business which may damage him in . that office or business, or it must relate to some quality which would show that he is a man, who by reason of his want of ability or hon- esty is unfit to hold the office. So much with regard to offices of profit; the reason bein^ that in all those cases the court wUl pre- sume, or perhaps I should say the law presumes, such a probability of pecuniary loss from such imputation in that office or "employment, or profession, that it will not require special damage to be shown. * * * But when you come to offices that are not offices of profit, the loss of which, therefore, would not involve necessarily a pecuni- ary loss, the law has been differently laid down, and it is quite clear that the mere imputation of want of ability or capacity, which would be actionable if made in the case of a person holding an office of profit, is not actionable in the case of a person holding an (fcce which has been called an office of credit or an office of honor. •* * * Where the imputation is an imputation, not of misconduct in an office, but of unfitness for an office, and the oflice for which the person is said to be unfit is not an office of profit, but one merely of what has been called honor or credit, the action wUl not lie, un- less the conduct charged be such as would enable him to be removed from or deprived of that office." Alexander v. Jenkins (1892) K R. 1 Q. B. 797, 800, per Herschell, L. C'. Cf. Booth v. Arnold (1895) L. R. 1 Q. B. 571, 576. 106 Harris v. Burley, 8 N. H. 216; Forward v. Adams, 7 Wend. (N. T.) 204 ; Cassavoy v. Pattison, 93 App. Div. 370, 87 N. Y. Supp. 658 ; McKee v. Wilson, 87 N. C. 300; Gibbs v., Price, Style, 231. But contra if written, see infra, p. Sl6. §'70) SLANDER — WHEN DAMAGE PRESUMED 311 expressly have named the office or calling. It is sufficient that plaintiff's professional, trade, or official reputation must necessarily be aflfected.*"' Some of the cases have gone very far in denying a cause of action. Thus it was consid- ered that the statement that a clerk was unfit to hold his -situation because of lascivious conduct was not aftionable, owing to lack of damage, because it "does not imply the want of any of those qualities which a clerk ought to pos- sess, and becajise the imputation has no reference to his con- duct as clerk." *°' Now it is evident that the same words may be slander per se when spoken of the members of one calling, but not when applied to others. Charges of in- solvency, illiteracy, or cowardice, for instance, might or might not be actionable in themselves, depending upon whether the subject was a trader, teacher, or ^oldier.^'* General imputations of intemperance and sexual immorality surely have a natural tendency to injure clergymen, physi- cians, and teachers,^'' but whether this can be held to apply to other callings, and, if so, to what extent, is in doubt. On the one hand, it can be urged that evil habits are prop- erly regarded as entailing a lack of efficiency to a greater or less degree in every employment; ^^' on the other, that 108 See Fred v. Traylor, 115 Ky. 94, 97, 72 S. W. 768. 107 Lumby v. Allday, 1 Comp. & J. 301. Here the words were: "You are a fellow, a disgrace to the- town, unfit to hold your situa- tion for your conduct with whores. I will have you in the 'Argus.' Xou have bought up all the copies of the 'Argus,' knowing you have been exposed. You may drown yourself, for you are not fit to live and are a disgrace to the situation you hold." loswinsette v. Hunt (Ky.) 53 S. W. 522; Rathbun v. Bmigh, 6 Wend. (N. Y.) 407 ; Darling v. Clement, 69 Vt. 292, 37 Atl. 779. 109 See Nicholson v. Dlllard, 137 Ga. 225, 73 S. E. 382 ^ Chaddock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137, note; Hayner v. Cowden, 27 Ohio St 292, 22 Am. Rep. 303; McMillan v. Birch, 1 Bin. (Pa.) 178, 2 Am. Dec. 426, note; Darling v. Clement, 69 Vt. 292, 37 Atl. 779. But see Anonymous, 1 Ohio, 83, note; Ayre v. Craven, 2 Adol. & M. 2; Gallwey v. Marshall, 9 Bxch. 294; Tighe v. Wicks, 33 Up. Can. Q. B. 479. 110 cf. Sanderson v. Caldwell, 45 N. Y. 401, 6 Am. Rep. 105, where, speaking of a libelous charge that an attorney prosecuted his busi- ness In his sober moments, it was observed (45 N. Y. 404, 6 Am. Rep. 110) that this "authorized the Inference that he was in the 312 INJURIES TO REPUTATION DEFAMATION (Ch. 10 a failure to draw the line with some strictness would be to make the present class in some respects all-inclusive, or at the best would promote unwarrantable speculation.^*^ It would seem that no definite rule can be laid down, and that each case must rest largely upon its particular' facts.*** Further illustrations of the general principle will be found in the note.*** habit of the immoderate use of Intoxicating liquors ; and the natural tendency and result of snch a habit, in a person engaged in any business, and especially in a professional business, is to unfit him for the proper discharge of it" 111 Still, where the words, as in Lumby v. AUday, supra, not only impute lack of a general moral quality. which is no more requisite for the exercise of plaintiff's calling than for hundreds of others, but in addition it is expressly stated that by reason thereof — i. e., that the evil propensities have been indulged to such an extent that — plaintiff is not fit to hold his position, his case is greatly strength- ened. Nevertheless, even here it is clear that the conclusion drawn by the defendant may be obviously unwarranted, as if it should be asserted that a physician had taken a single glass of wine at a din- ner and therefore was unfit to practice medicine. But it should be fully apparent that the conclusion cannot be drawn. For instance, a publication iu which it was asserted that dancing was taught in a certain school, and that therefore its administration was harmful to the moral and religious interests of the community, was properly, it is submitted, held actionable without proof of special damage. St. James Military Academy v. Gaiser, 125 Mo. 517, 28 S. "W. 851, 28 L. R. A. 667, 46 Am. St. Kep. 502. 112 Cf. Nelson v. Borchenius, 52 111. 236; Buck v. Hersey, 31 Me. 558; Fitzgerald v. Robinson, 112 Mass. 371; Ireland v. McGarvish, 3 N. Y. Super. Ct. 155 ; Broughton v. McGrew (C. O.) 39 Fed. 672, 5 L. R. A. 406. 113 In the following the Imputation was deemed defamatory with- out proof of special damage: Broughton v. McGrew (C. C.) 39 Fed. 672, 5 L. R. A. 406 (charge of drunkenness; plaintiff was general manager and assistant vice president of a raUroad) ; Pemberton v. Colls, 10 Q. B. 461, 16 L. J. Q. B. 403, 11 Jur. 1011 (charge that a clergyman had drugged another clei-gyman and thereby obtained his signature to a bill). Contra: To say of a bank cashier that he was an "Irish buU head," Clavin v. Froelich, 162 111. App. 50; "Squire Oakley is a damned rogue" (plaintiff was a justice of the peace), Oakley v. Farrington, 1 Johns. Gas. (>f. Y.) 129, 1 Am. Dec. 107; to accuse a physician witU being a "white capper,!' Diven's v. Mere- dith, 147 Ind. 693, 47 N. EX 143 ; to write and" publish that a cer- tain pamphlet, the work of a lawyer and author of a text-book on § 70) SLANDEK — WHEN DAMAGE PRESUMED 313 4- Charging Unchastity At common law an oral charge of unchastity was not actionable, without averment and proof of special damage pecuniary in its nature, and not consisting merely of the mental anguish or loss of the society of friends and neigh- bors which would naturally ensue.^^* But in England *^° and in many states in this country a statutory cause of ac- tion is now given to the female.^^* In others it is given to both sexes,^^^ or such a charge is held to impute a crime under leg- islation punishing fornication or adultery.^^* patent law, was "the'effuslon of a crank," Walker v. Tribune Co. (C. C.) 29 Fed. 827; to say that a stone mason was a "ringleader of the nine hours system," Miller v. David (1874) L. K, 9 C. P. 118, 30 li. T. N. S. 58. Cf. Doyley v. Roberts, 3 Bing. N. O. 835, 3 Hodges, 154, 6 L. J. C. P. 279, 5 Scott, 40, 32 E. C. L. 384, where the words were: "He has defrauded his creditors and has been horsewhipped off the course at Doncaster." Jury found that they were not spoken of plEiintiff in his character of attorney. 11* Shafer v. Ahalt, 48 Md. 171, 30 Am. Rep. 456; Bassell v: El- more, 48 N. Y. 561 ; Terwilliger v. Wands, 17 N. T. 54, 72 Am. Dec. 420; Davies v. Gardiner, Pop. 36; Allsop v. Allsop, 5 Hurl. & N. 534. Up to 1855 a nominal remedy was. given In the ecclesiastical courts, which could inflict penance on the defendant for the good of his soul, but could award no damages to plaintiff. Odgers on libel & Slander (4th Ed.) 67. 115 Slander of Women Act, 54 & 55 Vict. c. 51, passed in 1891. 116 B. g.. Code Pub. Gen. Laws Md. 1904, art. 88, §§ 1-4; Comp. Laws Mich. 1897, § 10401; Code Civ. Proc. N. Y. § 1906; Pell's Re- visal N. O. 1908, § 2015. 117 E. g., Civ. Code Cal. § 46, subd. 4; Hurds' Rev. Stats. 111. 1909, c 126, § 1 ; ftev. St. Mo. 1909, § 5424. lis Page V. Mervrin, 54 Conn. 426, 8 Atl. 675; Patterson v. Wil- kinson, 55 Me. 42, 92 Am. Dec. 568; Noyes v. Hall, 62 N. H. 594; Mayer v. Schleichter, 29 Wis. 646. See Joralemon v. Pomeroy, 22 N. J. Law, 271. 314 INJURIES TO EEPUTATION DEFAMATION (Ch. 10 LIBEL— WHEN DAMAGE PRESUMED 71. Matter addressed to the eye, which is calculated to bring one into hatred, contempt, ridicule, or oblo- quy, to cause him to be shunned or avoided, or to injure him in his ofHce or calling, is libelous, and actionable, without averment or proof of special damage.^^' It is. evident that all imputations constituting slander per se are libelous, without proof of special damage, if addressed to the eye.^"" But libel is much broader in scope, since it embraces matter which exposes to hatred, contempt, rid- icule, or obloquy.^^^ It is enough that "the necessary effect of what was stated respecting the plaintiff is to injure his reputation and lower him in the esteem and opinion of the community." ^^^ "Much," it has been said, "which if only spoken might be passed by as idle blackguardism, doing no discredit save to him who utters it, when invested with the ii»Cf. Iron Age Pub. Co. v. Crndup, 85 Ala. 519, 5 South. 332; Prosser v. CalUs, 117 Ind. 105, 19 N. B. 735 ; Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Colby v. Reynolds, 6 Vt 489, 27 Am. Dec. 574. 120 Imputing crime: Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 Soutb. 332; Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S. W. 332; Ramsey v. Cbeek, 109 N. C..270, 13 S. E. 775; Cochran V. Melendy, 59 Wis. 207, 18 N. W. 24. Disease: Simpson v. Press Pub. Co., 33 Misc. Rep. 228, 67 N. T. Supp. 401 (leprosy) ; Vlllers v. Monsley, 2 \V51s. K. B. 403 (leprosy; semble). Misconduct in or lack of capacity for profession, business, or office: Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Bommann v. Star Co., 174 N. X. 212, 66 N. E. 723 ; Mattiee v. Wilcox, 147 N. X. 624, 42 N. B. 270 ; O'Brien V. Times PubUshing Co., 21 B. I. 256, 43 Atl. 101. 121 Cerveny v. Chicago Daily News Co., 139 111. 345, 28 N. EL 692, 13 L. B. A. 864; Prosser v. CaUis, 117 Ind. 105, 19 N. E. 735; Hand V. Winton, 38 N. J. Law, 122 ; Cady v. Brooklyn Union Pub. Co., 23 Misc. Bep. 409, 51 N. Y. Supp. 198 ; Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. Supp. 650; Simmons v. Morse, 51 N. 0. 6; Colby v. Eeynolds, 6 Vt 489, 27 Am. Dee. 574; BUCKSTAFF v. VIALL, 84 Wis. 129, 54 N. W. Ill, Chapin Cas. Torts, 164. Pfitzinger v. Dubs, 64 Fed. 696, 12 C. O. A. 399. 122 Williams v. Godkin, 5 Daly (N. Y.) 499, 502. § 7l) LIBEL — WHEN DAMAGB PKESDMED 315 dignity of print, is. capable by reason of its permanent char- acter and wide dissemination of inflicting serious in- jury," ^-^ and, although it has at times been questioned whether this distinction rests upon a sound basis,^^* it is nevertheless fully established. Hence epithets or expres- sions which, if orally uttered, would require averment and proof of damage, may constitute libel, though such aver- ment and proof be lacking, e. g., an "itchy old toad," ^^° a "villain," 126 ^ "rascal,""' a "liar," "« a "hoary-headed filcher.""» a "cowardly snail,""" a "swindler," "* or a lis llllson V. Bbbbins, 68 Me. 295, 298, 28 Am. Rep. 50, per Bar- rows, J. Cf. Iron Age Pub. Co. v. Cmdup, 85 Ala. 519, 520, 5 South. 332. 124 "So It has been argued that writing shows more deliberate malignity ; but the same answer suffices, that the action is not main- tainable upon the ground of the malignity, but fpr the damage sus- tained. So it is argued that written scandal is more generally dif- fused than words spoken, and is therefore actionable; but an asser- tion 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." Thorley v. Lord Kerry, 4 Taunt 355, 365, per Mansfield, C. J. Cf. Herrick v. Tribune Co., 108 HI. App. 244 ; Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574. 12 5 Villers v. Monsley, 2 Wils. K. B. 403. 126 Bell V. Stone, 1 Bos. & Pul. 331. Cf. Browne v. Hawkins, T. B. 17 Edw. IV, fol. 3, pi. 2. 127 See William^ v. Karnes, 4 Humph. (Tenn.) 9. But "villain," "rascal," and "cheater" may be slander per se, if spoken with refer- ence to plaintiff in his trade. Nelson v. Borchenius, 52 111. 236. 128 Llndley v.. Horton, 27 Conn. 58; Hake v. Brames, 95 Ind. 161; Rider v. Rulison, 74 Hun, 239, 26 N. Y. Snpp. 234; Colby v. Rey- nolds, 6 Vt 489, 27 Am. Dec. 574. Aliter, when oral. Kimmis v. Stiles, 44 Tt 351. 129 Crocker v. Hadley, 102 Ind. 416, 1 N. E. 734. 130 Price v. Whitely, 50 Mo. 439. Here plaintiff was alsp referred to as an "imp of the devU," but the court says that this phrase "in itself has no specific meaning, but is a mere term of reproach," and "receives point and takes chiefly its libelous character from the al- legation that as imp of the devil he sat In the mayor's seat" Bed quwre. isiKlinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; J'Anson v. Stuart, 1 T. R. 1357 ; Zierenberg v. Labouchere, [1893] 2 Q. B. 183. But not slander per se. Stevenson v. Eayden, 2 Mass. 406; Kuhne 316 INJURIES TO iftjPUTATION DEFAMATION (Ch. 10 charge that one not a 'clergyman was a hypocrite and used the cloak of religion for unworthy purposes.^*^ Imputa- tions of unchastity, it is submitted, furnish another illustra- tion ; ^'^ also charges of misconduct in office, published after the official term has expired.^** Other illustrations are given in the note.^"* DEFAMATION WITH SPECIAL DAMAGE 72. If the matter be defamatory, and cannot be placed in any of the classes already described, there must be averment and proof of special damage.^^' T. Ahlers, 45 Misc. Rep. 454, 92 N. Y. Supp. 41 ; Chase v. Whitlock, 3 Hill (N. Y.) 139; Savile v. Jardine, 2 H. Bl. 531. Unless spoken of one la his office or calUng. Forrest v. Hanson, 1 Cranch, C. O. 63, Fed. Gas. No. 4,943. See Neal v. Lewis, 2 Bay (S. O.) 204, 1 Am. Dec. 640. 132 Thorley v. Lord Kerry, 4 Taunt. 355. 13 3 Not slander per se at common law. See supra, p. 313. But libelous, though damage not shown. More v. Bennett, 48 N. T. 472. See Cady v. Brooklyn Union Pub. Co., 23 Misc. Rep. 409, 411, 51 N. Y. Supp. 198. 134 Russell V. Anthony, 21 Kan. 450, 30 Am. Rep. 436; Cramer v. Riggs, 17 Wend. (N. Y.) 209. issHerrick v. Tribune Co., 108 111. App. 244; Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Hep. 730. A charge that a white man Is a negro is libelous. Upton V. Times-Democrat Pub. Co., 104 La. 141, 28 .South. 970; Flood V. News & Courier Co., 71 S. C. 112, 50 S. E. 637, 4 Ann. Cas. 685. But not slander per se, McDoweU v. Bowles, S? N. C. 184;* Williams V. Riddle, 145 Ky. 459, 140 S. W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151. So of imputations of Insanity, Selp v. Deshler, 170 Pa. 334, 32 Atl. 1032 (written) ; JOANNES v. BURT, 6 Allen (88 Mass.) 236, 83 Am. Dec. 625, Chapin Cas. Torts, 160 (oral) ; and illegitimacy, Shelby v. Sun Printing & Publishing Ass'n, 38 Hun emiian, C. J. Con- tra, Anonymous, 60 N. T. 262, 19 Am. Rep. 174 (semble). i*5Watters & Son v. Retail Clerks' Union, No. 479, 120 Ga. 424, 47 S. B. 911; Smid v. Bernard, 31 Misc. Rep. 35, 63 N. Y. Supp. 278; Hallock V. Miller, 2 Barb. (N. Y.) 630; Railroad v. Delaney, 102 § 73) COMPLETE DEFENSES 319 COMPLETE DEFENSES 73. Defenses may be complete or partial. Of the former there will be considered: (1) The truth, (2) Fair comment, (3) Privilege. 1. Truth In a civil action for defamation it Vas a settled principle of the common law that no recovery could be had where there was no falsehood, and it mattered not what motive might have actuated the defendant.^** It was generally- conceded, however, though it has been vigorously denied, that in a criminal prosecution the truth might not be given in evidence, however honorable and praiseworthy the mo- tives of the publisher. Hence originated the familiar max- im, "The greater the truth the greater the libel" ^*' — a strange doctrine, which has been abrogated probably uni- versally, by statutes and constitutional provisions which make the truth a defense where publication was with Tenn. 289, 52 S. W. 151, 45 U R, A. 600; PoUard v. Lyon, 91 U. S. 225, 23 L.. Ed. 308. 148 Castle V. Houston, 19 Kan. 417, 27 Am. Rep. 127; CJourier Jour- nal Co. V. PMlllps, 142 Ky. 372, 134 S. W. 446, 32 L. R. A. (N. S.) 309 ; Sulllngs v. Shakespeare, 46 Mich. 408, 9 N. W. 451, 41 Am. Rep. 166; Joannes v. Jennings, 6 Thomp. & iC. (N. Y.) 138; Baum v. Clause, 5 Hill (N. Y.) 196 ; Press Co. v. Stewart, 119 Pa. 584. 14 Atl. 51. But in some states by statute the truth is made a defense to an action for libel only when the publication was with good motives. So in Illinois (Const. 1870, art. 2, § 4), Florida (Declaration of Rights, § 13; Wilson -v. Marks, 18 Fla. 322), Maine (Rev. St. 1903, c. 84, I 42; Pierce v. Rodliff, 95 Me. 346, 50 Atl. 32), Massachusetts (Rev. Laws 1902, c. 173, § 91; plaintiff must prove malice, Conner V. Standard Pub. Co., 183 Mass. 474, 67 N. E. 596), and "West Vir- ginia (Const, art. 3, § 7; Sweeney v. Baker,a3 W. Va. 158, 31 Am. Rep. 757). 14' Castle V. Houston, 19 Kan. 417, 420, 27 Am. Rep. 127, where Horton, C. J., added: "This doctrine was based upon the theory that, where it was honestly believed a particular person had committed a crime, it was the duty of him who so believed, or so knew, to cause the offender to be prosecuted and brought to justice, as in a settled state of government a party aggrieved ought to complain for an in- jury to the settled course of law ; and to neglect this duty and pub- 320 mjUEIES TO REPUTATION DEFAMATION (Ch. 10 good motives and for justifiable ends,^*' or even, as some courts have held, irrespective of motive.**" But, though the truth be a defense to a civil action, it is essential that defendant plead the specific facts which he claims constitute his justification. A general averment that the charge is true, or a denial that it is false, will raise no issue."" This requirement is "intended to prevent sur- prise by informing the plaintiff of what he must expect to meet," *^* and that the court "may judge whether the facts warrant the charge." *"* Furthermore, "the justification as pleaded and proved must be as broad as the charge," for "there is no such thing as a halfway justification." *"* Hence, where it was stated that plaintiff had stolen $1 from A'., evidence that he had stolen $1 from B. is not ad- Usli the offense to the world, thereby bringing the party published into disgrace or ridicule, without an importunity to show by the judgment of a court that he was Innocent, was libelous, and if the matter charged was in fact true (thereby Insuring social ostracism), the injury caused by the publication was mucSi greater than where the publication was false. A false publication, it was contended, could be explained and exposed ; a true one was diflBcult to explain away. As an additional reason for this rule, it was also held that such publications, eren if true, were provocative of breaches of the peace, and the greater the truth contained therein the greater the liability of hostile meetings therefrom." To the same effect. People V. CrosweU, 3 Johns. Gas. (N. X.) 337. 148 E g., Florida (Declaration of Rights, § 13), Illinois (Rev. St. 1909, a 38, § 179; C!onst. 1870, art. 2, § 4; People v. FuUer, 238 111. 116, 87 N. E. 336), Nebraska (Const, art. 1, § 5), New Jersey (Ctonst. art. 1, par. 5), New Yoit (Const art. 1, § 8; Penal law [Consol. Laws, c. 40] § 1342), and VTest Virginia (Const, art. 3, par. 7). 1*0 State V. Bush, 122 Ind. 42, 23 N. E. 677; Razee v. State, 73 ■ Neb. 732, 103 N. W. 438. 150 Hunt V. Fidelity Mutual Life Ins. Co., 167 Ala. 188, 51 South. 1000; Donahoe v. Star Pub. Co., 3 Pennewill (Del.) 545, 53 Atl. 1028; Fodor V. Fuchs, 77 N. J. Law, 92, 71 AU. 108; Brush v. Blot, 16 App. Div. 80, 44 N. T. Supp. 1073 ; Van Derveer v. Sutphin, 5 Ohio St 294 ; Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757. isiWachter v. Quenzer, 29 N. Y. 547, 553. See Ames v. Hazard, 8 B. I. 143, 147. 152 Torrey v. Field, 10 Vt 353, 408. See De Armond v. Armstrong, 37 Ind. 35, 56. 163 Fero V. Ruscoe, 4 X. Y. 162, 165, per Bronson, C. J. See Miller V. McDonald, 139 Ind. 465, 467, 39 N. E. 159. § 73) COMPLETE DEFENSES 321 missible,*** nor, where the charge was of incest with one daughter, can defendant show that plaintiff had committed or attempted an outrage upon another daughter,^"' nor is it an answer to a libel charging a party with having been "actively and profitably engaged" in smuggling "during the late war" that he had violated the revenue laws in a single instance previous to the war and in time of peace.^"' Fur- ther illustrations are given in the note.^°' So, since he who says that there is a rumor or report makes the same charge in legal intendment that he would have done had he made a direct assertion, it is clear that he cannot be permitted to set up in defense that there was in fact such a rumor or report,^" though a charge of bad reputation can be justified by showing that such reputation existed.^ °" There is, moreover, an exception to the rule that the answer must be specific in its denial, and that is where the charge is specific. Thus, a charge that one is a thief can only be met by a definite averment of certain in- stances of larceny ; ^'"' but it is otherwise of "a charge that 15* Gardner v. Self, 15 Mo. 480. 1=5 Haddock v. Nanghton, 74 Hun, 391, 26 N. Y. Supp. 455. 1S8 StilweU V. Barter, 19 Wend. (N. Y.) 487. 157 Wallace v. Homestead C!o.,,117 Iowa, 348, 90 N. W. 835; East- land V. Caldwell, 2 Bibb (Ky.) *21, 4 Am. Dec. 668; Rutherford v. Paddock, 180 Mass. 289, 62 N. E. 381, 91 Am. St. Rep. 282 ; Feely v. Jones, 79 Hon, 18, 29 N. Y. Supp. 446, aflSrmed 151 N. Y. 656, 46 N. B. 1146; StUes v. Comstock, 9 How. Prac. (N. Y.) 48; Burford v. WSble, 32 Pa. 95 ; Torrey v. Field, 10 Vt. 353, 408. 158 "Let it be understood tbat a bare rumor or report is sufficient to justify the retailing of slander, and character would be at the mercy of the artful and designing, as such defenses could be easily manufactured beforehand to suit any emergency." Kelley v. Dillon, 5 Ind. 426, 427, per Hovey, J. To the same effect, Powers v. Skinner, 1 Wend. (N. Y.) 451; Watkin v. HaU, L. R. 3 Q. B. 396. 1 59 Cooper v. Greeley, 1 Denio (N. Y.) 347. Here defendant, after stating that plaintiff had brought suit for libel, added that he would not like to bring it to trial in a particular county, ''for he is known there." Held a proper justification that plaintiff 6ad the reputation in said county of a proud, captious, censorious, arbitrary, dogmatical, malicious, illiberal, revengeful, and litigious man, and that therefore he was in bad repute. 160 Kansas City ^tar Co. v. Carlisle, 108 Fed. 344, 47 C. C. A. 384. Chap.Tobts — ^21 322 INJURIES TO REPUTATION ^DEFAMATION (Ch. 10 defendant on a day and at a place named took specified arti- cles of personal property under such specified circumstances as to justify the conclusion that the taking was willful and a larceny. In such a case an answer can be interposed alleg- ing generally the truth of the specific statements of fact alleged in th,e complaint." ^°^ Furthermore, the general principle is not to be construed to mean that the justifica-' tion must embrace every charge, for, if separate and dis- tinct charges are made, defendant may justify as to some and plead otherwise as to others.^*^ Defamatory matter is presumptively false. All that the plaintiff has to do in the first instance is to prove the pub- lication of and concerning him. This is first to be consid- ered by the jury. If he fail to do so, there is an end of the case. If he succeed, he is entitled to a verdict, unless the defendant should establish the truth of the fact charged by a preponderance of evidence. If this is left in doubt, the justification is not made out.^** It is also well to keep in mind that it is bad tactics to plead justification, unless there is a reasonable expectation of establishing it, for, if de- fendant fail to do so, it is generally held that the jury may be instructed that, if they find that the plea was not inter- posed in good faith, they are. at liberty, in assessing the damages, to consider this reiteration of the defamation as evidence of malice.^"* Cf. Wachter v. Quenzer, 29 N. Y. 547, 552; Suninan v. Brewin, 52 Ind. 140. 161 Bingham v. Gaynor, 203 N. Y. 27, 35, 96 N. B. 84. 162 Merrey v. Guardian Printing & Publishing Co., 79 N. J. Law, 177, 74 Atl. 464; Lanpher v. Clark, 149 N. Y. 472, 44 N. E. 182. i63Sperry v. Wilcox, 1 Mete. (Mass.) 267; Finley v. Widner, 112 Mich. 230, 70 N. W. 433 ; Sotham v. Drovers' Telegram Co., 239 Mo. 606, 144 S. W. 428; Sacchettt v. Fehr, 217 Pa. 475, 66 Atl. 742; Reynolds v. Holland, 46 Wlash. 537, 90 Pac. 648. 164 Dauphiny v.Buhne, 153 Cal. 757, 96 Pae. 880, 126 Am. St Rep. 136; Ward v. Dick, 47 Conn. 300, 36 Am. Rep. 75 ; Ruskin v. Armn, 82 N. J. Law, 72, 81 Atl. 342 ; Marx v. Press Pub. Co., 134 N. Y. 561, 31 N. B. 918; Distin v. Rose, 69 N. Y. 122; Pflster v. Milwaukee Free Press Co., 139 Wis. 627, 121 N. W. 938. Contra, Rev. Laws Mass. 1902, c, 173, § 90. Cf . Jackson v. Stetson, 15 Mass. 48 ; Whit- taker V. McQueen, 128 Ky. 260, 108 S. W. 236. § 73) COMPLETE DEFENSES 323 S. Fair Comment "Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose." ^^^ It is, of course, impossible to set forth in detail the subjects of permissible criticism. The com- munity has, for instance, an interest in the conduct' of pub- lic officers and the qualifications of candidates for office,^"" in the acts of public men with reference to public aflfairs,^®^ and in the character and quality of books,^** pictures,^°' entertainments,^^* and other offerings for public patron- age.^'^ It matters not that the opinion expressed was hostile or incorrect, that the writer was prejudiced, or that damage has been suffered. "Mere exaggeration, or even gross exaggeration," it has been said, "would not make the comment unfair ;" ^'" nor would sarcasm or ridicule, since i«5 Bearce v. Bass. 88 Me. 521, 539, 34 Att. 411, 51 Am. St. Rep. 446 ; Johns v. Press Pub. Co., 19 2s. T. Supp. 3. lee Miner v. Detroit Post & Tribune Co., 49 Mich. 358, 13 N. W. 773 ; Herringer v. Ingberg, 91 Mini}. 71, 97 N. W. 460; Diener v. Star-Chronical Pub. Co., 230 Mo. 613, 132 S. W. 1143, 33 I* R. A. (N. S.) 216; Express Printing Co. v. Copeland, 64 Tex. 354. 16T Klos V. Zahorik, 113 Iowa, 161, 84 N. W. 1046, 53 L. R. A, 235; Duffy V. New York Evening Post Co., 109 App. Div. 471, 96 N. T. Supp. 629; KeUy t. Tinling, I* R. 1 Q. B. 699; Seymour v. Butter- worth, 3 F. & P. 372. Cf. RuMand v. Cole, 143 Wis. 367, 127 N. W. 959. i«8 Dowling V. lavlngstone, 108 Mich. 321, 66 N. W. 225, 32 L. B. A. 104, 62 Am. St Rep. 702; Reade v. Sweetzer, 6 Abb. Prac. N. S. CN. T.) 9, note. i«» Outcault V. New York Herald Co., 117 App. Div. 534, 102 N. Y. Supp. 685; Thompson v. ShackeU, 1 Mood. & Mai. 187. 170 Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, 54 L. R. A. 855, 89 Am. St Rep. 365. iTiGott V. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322 ("Cardiff Giant") ; Press Co., Ltd., v. Stewart, 119 Pa. 584, 14 AtL 51 (school) ; Soane v. Knight, 1 Mood. & Mai. 74 (architectural work). Cf. Hun- ter V. Sharpe, 4 F. & F. 983 (treatment of consumption) ; Paris v. Levy, 9 C. B. N. S. 342 (advertising handbill). 17 2 Referring to comment upon a play. Merivale v. Carson, L. R. 20 Q. B. D. 275, 281, per Esher, M. R., who added: "The question which the jury must consider is this: Would any fair man, how- ever prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work criticized." To the same effect Cherry v. Des Moines Leader, 114 324 INJURIES TO REPUTATION^ — DEFAMATION (Ch. 10 they are often the fittest weapons to employ against er- ror.^" Still the language may be so severe and such epi- thets may be employed as to furnish a basis for a reasonable inference by the jury that malice existed.^'* "Criticism cannot be used as a cloak for mere invective." ^'"' Other limitations must be noted. Criticism must be im- personal; that is, it must not be upon the individual him- self, but upon his official conduct or cjualifications, or upon his work. The privilege which the law extends to fair comment .upon public matters cannot be made the excuse for an attack upon the private character of the officer, candidate, author, painter, or other individual whose pro- duction is under discussion.^'' Again, one has no right to make false statements of fact merely because the subject- matter is of public interest, but only to criticize, discuss, and comment upon the real facts. Hence the basis must be a fact, and not a falsehood.^'' The law will not extend Iowa, 298, 86 N. W. 323, 54 L. R, A. 855, 89 Am. St. Rep, 365 ; Vance V. Louisville Courier-Journal Co., 95 Ky. 41, 23 S. W. 591 ; Howarth v. Bariow, 113 App. Div. 510, 99 N. Y. Supp. 457 ; Strauss v. Francis, 4 F. & F. HOT. 173 Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, 54 L. R. A. 855, 89 Am. St. Rep. 365 (theatrical entertainment) ; Dowling V. Livingstone, 108 Mich. 321, 66 N. W. 225, 32 L. R. A. 104, 62 Am. St. Rep. 702 (book); CARR v. HOOD, 1 Campb. 355, note, Chapln Cas. Torts, 167 (book) ; Soane v. Knight, 1 Mood. & Mai. 74 (archi- tectural work); Odger v. Mortimer, 28 L. T. N. S. 472 (public man). 174 Mulderig v. Wilkes-Barre Times, 215 Pa. 470. 64 Atl. 636, 114 Am. St. Rep. 967; BUCKSTAFF v. VIALL, 84 Wis, 129, 54 N. W. Ill, Ohapin Cas. Torts, 164 ; Seymour v. Butterworth, 3 F. & F. 372. 17 6 McGuire v. Western Morning News Co. (1903) 2 K. B. 100, 109, per Collins, M. R. 176 Rearick v. Wilcox, 81 111. 77; Clifton v. Lange, 108 Iowa, 472, 79 N. W. 276; Morris v. Sailer (1911) 154 Mo. App. 305, 134 S. W. 98; Triggs v. Sun Printing & Publishing Ass'n, 179 N. Y. 144, 71 N. E. 739, 66 L. R, A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326; Cooper V. Stone, 24 Wend. (N. Y.) 4.34; Wood v. Boyle, 177 Pa. 620, 35 Atl. 853, 55 Am. St. Rep. 747; Stuart v. Lovell, 2 Stark, 92, 3 E. C. L. 331, Cf. Ott V. Murphy (1913) 160 Iowa, 730,, 141 N. W. 463. Still with respect to officers and particularly candidates there must be allowed some latitude in commenting, upon moral character as af- fecting their fitness. Cf. Comm. v. Wardwell, 136 Mass. 164, 169, though here the defense was privilege. 177 Hubbard v. AUyn, 200 Mass. 166, 170, 86 N. B. 356. , § 73) COMPLETE DEFENSES 325 protection to one who invents a fiction for the purpose of drawing conclusions. Thus "it is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct." ^'" And, when reviewing a book or play, the critic must not im- pute to the author that he has written something which in fact he has not.^^' So "a line must be drawn between criticism upon public conduct and the imputation of mo- tives by which that conduct may be supposed to be actu- ated. One man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth- of the statements, but that his belief was not without foundation." ^"' Fur- thermore, there must have been an honest design to en- lighten the community respecting the merits or demerits of the matter, an,d not to subserve some ulterior purpose^^** But this will be discussed later, when malice is consid- ered."=' I's Davis V. Shepstone, 11 App. Gas. 187, 190, per liord Herschell. To the same effect, Donahoe v. Star Pub. Co., 4 Pennewill rennan v. Grady, 167 Mass. 415, 45 N. E. 741; Gilbert v. Nagle, 118 Mass. 278; S*ln- arton v. Le Boutillier,.7 Misc. Rep. 639, 28 N. T. Supp. 53, 58 N. T. St. Rep. 345, affirmed 148 N. Y. 752, 43 N. E. 990; Bloomer v. Snel- lenburg, 221 Pa. 25, 69 Atl. 1124, 21 L. R. A. (N. S.) 464. As to the difference between licensees and invited persons, see infra, pp. 508, 510. 87 Breitenbach v. Trowbridge, 64 Mich. 393, 31 N. W. 402, 8 Am. St. Rep. 829 ; Bogert v. Haight, 20 Barb. (N. T.) 251. Of. Adams v. Freeman, 12 Johns. (N. Y.) 408, 7 Am. Dec. 327. Under certain cir- cumstances he may, of course, subject himself to an action for breach of contract or for a violation of a Civil Rights Act. Of. Consol. Laws N. T. c. 6, art. 4, §§ 40, 41. 8 8 Comm. book III, p. 6. 80 Bouvier, L. Diet. See' 2 Pollock & Maitland, History of English Law, p. 575 et seq. As to distress of cattle damage feasant, see Mosher v. Jewett, 63 Me. 84; Rust v. Low, 6 Mass. 90; Cook v. Gregg, 46 N. T. 439 ; Taylor v. Welbey, 36 Wis. 42. The right "sprang from a felt necessity for a summary and direct remedy against the beasts committing damage, and also for some guard against possible incentives to do hurt to them or put them out of the way. The owner § 79) DEFENSES 363 restricted, however, to cattle, since it might apply equally to domestic fowl,°° or indeed to any chattel °^ "found in- cumbering °^ or doing damage on the land, either to the land itself or to chattels on the land." *' The property so seized was placed by the distrainer in pound there to be held in pledge for the payment of the damages."* The right of distress in some states has been regulated by stat- ute." Distinguished from distress, by the fact that the object is prevention, is the right which the landowner has to drive away trespassing cattle,*" using no means or degree of force beyond what is reasonably necessary to accomplish the purpose.*' He may, for instance, use a dog, unless there is something in the size, character, or habits of the dog, or in the mode of setting him on, or pursuing, which would negative the idea of ordinary care and prudence."' miglit not be discoverable, or be in a sitnation to be reached by pro- cess, or, if discovered and within the reach of process, there might be impediments to any redress by an ordinary action. And if the beasts could not be held, the injured party might be moved to misuse them, or put them in a way to be lost to the owner." Hamlin v. Mack, 33 Mich. 103, 106, per Graves, C. J. 90 McPherson v. James, 69 111. App. 337. See State v. Neal, 120 N. C. 613, 619, 27 S. E. 81, 58 Am. St. Rep. 810. »i Ambergate, etc., R. Co. v. Midland R. Co., 2 E. & B. 793 (loco- motive). Cf. Code Civ. Proc. N. Y. § 1724. Not applicable to dogs. Fisher v. Badger, 96 Mo. App. 289, 293, 69 S. W. 26 (semble). 82 Ambergate, etc., R. Co. v. Midland R. Co., supra. 93 PoUock on Torts, p. 383; Roscoe v. Bodin, 63 L. J. Q. B. 767, [1894] 1 Q, B. 608. 94 See Rockwell v. Nearing, 35 N. Y. 302, 309. 9 5 See Code Iowa, § 2313; Syford v. Shriver, 61 Iowa, 155, 16 N. W. 56; Rev. Laws Mass. (1902) c. 33, § 26; Conners v. Loker, 134 Mass. 510. »e Bonney v. Smith, 121 Mass. 155; Cory v. Little, 6 N. H. 213, 25 Am. Dec. 458 ; Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177. »T Snap v. People, 19 HI. 80, 68 Am. Dec. 582; Leach v. Lynch, 144 Mo. App. 391, 128 S. W. 795; Carney v. Brome, 77 Hun, 583, 28 N. Y. Supp. 1019. He must not drive them an unreasonable dis- tance from his premises. Knour v. Wagoner, 16 Ind. 414; Gilson V. Fisk, 8 N. H. 404. See Knott v. Digges, 6 Har. & J. (Md.) 230. 98 Wood V. La Rue, 9 Mich. 158, 160; Tobin v. Deal, 60 Wis. 87, 91, 18 N. W. 634, 50 Am. Rep. 345. To the same effect, see Richard- 364 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 11 So, with due care,*' one may remove an inanimate chattel wrongfully upon his land,^°° and may enter upon the own- er's land for the purpose of replacing it.^"^ Under certain conditions the animal or fowl may be killed, but not mere- ly because it is trespassing.^"^ The defendant must estab- lish that he had reasonable cause to believe and did believe . that the killing was necessary for purposes of self-protec- tion,^"* or the protection of property.^"* The effect of an offer to return the goods will be dis- cussed later in connection with conversion.^"* son V. Carr, 1 Har. (Del.) 142, 25 Am. Dec. 65; Totten v. Cole, 33 Mo. 138, 82 Am. Dec. 157 ; Carney v. Brome, 77 Una, 583, 28 N. Y. Supp. 1019 ; Davis v. Campbell, 23 Vt. 236. See Spray v. Ammerman, 66 111. 309. osGrier v. Ward, 23 Ga. 145; Mead v. Pollock, 99 111. App. 151; Beyry v. Carle, 3 Me. (3 Greenl.) 269; Behm v. Damm (Sup.) 91 N. Y. Supp. 735. 100 Maryland Telephone & Telegraph Co. v. Ruth, 106 Md. 644. 68 Atl. 358, 14 L. R. A. (N. S.) 427, 124 Am. St. Rep. 506, 14 Ann. Cas. 576; Clark v. Keliher, 107 Mass. 406 ; Crane v. Mason, Wright (Ohio) 333 ; Knapp v. Hortung, 103 Pa. 400. Cf. Burgess v. Graffam (C. C.) 18 Fed. 251. 101 Rea V. Sherward, 2 M. & W. 424. ^ 102 Brent v. Kimball, 60 111. 211, 14 Am. Rep. 35; Clark v. kM- her, 107 Mass. 406; Fenton v. Bisel; SO Mo. App. 135; Matthews v. Tiestel, 2 B. D. Smith (N. Y.) 90; State v. Neal, 120 N. C. 613, 27 S. E. 81, 58 Am. St. Rep. 810. 108 Russell v; Barrow, 7 Port (Ala.) 106; Reynolds v. Phillips, 13 111. App. 557; Credit v. Brown, 10 Johns. (N. Y.) 365; Morris v. Nugent, 7 C. & P. 572. 104 Ford V. Glennon^ 74 Conn. 6, 49 Atl. 189; Harrington v. Hall, 6 Pennewill (Del.) 72, 63 Atl. 875; Livermore v. Batchelder, 141 Mass. 179, 5 N. B. 275 ; Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339; Leonard v. Wilkins, 9 Johns. (N. Y.) 233; Williams v. Dixon, 65 N. C. 416. lOB See infra, p. 385. § 80) DAMAGES 865 DAMAGES 80. Upon the commission of a trespass, plaintiff is entitled at least to nominal damages, since there has been an invasion of a legal right. Beyond this, the amount depends upon circumstances. Upon proof that a trespass has been committed, plain- tiff becomes entitled to some damages, though where he has suffered no actual loss the amount may be but nom- inal.^"' Beyond "this, except where smart money may be awarded,-"' his recovery will be limited to compensation for such damages as he may establish,^"' and ^which prox- imately result from the wrongful act.^"* The trespasser, it has been said, cannot be permitted to urge, even in mit- igation, that he has really benefited the plaintiff by his "iwrongful acts, since one may not thrust benefits upon an- other, and then set them up in reduction of the damage he has caused.^^" While generally this is true, it is unfair so to hold in cases where improvements have in good faith lieen added to the land, which plaintiff would not other- 106 Realty, Brown v. Perkins, 1 Allen (Mass.) 89 ; Brame v. Clark, 148 N. C. 364, 62 S. B. 418, 19 L. R. A. (N..S.) 1033, 16 Ann. Cas. 73. Personalty, Champion v. Vincent, 20 Tex. 812. 107 Stevens v. Stevene, 96 Ga. 374, 23 S. E. 312; Druse v. Wheeler, 22 Mich. 439; Trainer v. Wolff, 58 N. J. Law, 381, 33 Atl. 1051; Brame v. Clark, 148 N. C. 364, 62 S. E. 418, 19 L. R. A. (N. S.) 1033, 16 Ann. Cas. 73. 108 Engle V. Jones, 51 Mo. 316. Proof of the extent of loss is es- sential, in order that there may be a recovery for more,than nominal damages. Batson v. Higginbothem, 7 6a. App. 835, 68 S. E. 455; Caruth v. Allen, 2 McCord (S. C.) 226 ; Miirray v. Pannaci, 130 Fed. 529, 65 C. C. A. 153. Cf. Fortescue v.. Kings County Lighting Co., 128 App. Div. 826, 112 N. Y. Supp. 1010. 109 Cf. Burton v. HoUey, 29 Ala. 318, 65 Am. Dee. 401; Loker v. Damon, 17 Pick. (Mass.) 284; Longfellow v, Quimby, 29 Me. 196, 48 Am. Dec. 525; Fore v. Western N. C. R. Co., 101 N. C. 526, 8 S. E. 335; McKnlghtv. Ratcliff, 44 Pa. 156. 110 Bird v. Womack, 69 Ala. 390; Pinney v. Borough of Winsted, 83 Conn. 411, 76 Atl. 994, 20 Ann. Cas. 923 ; Williams v. Hathaway, 21 R. I. 566, 45 Atl. 578. Cf. Hanmer v. Wilsey, 17 Wend. (N. Y.) 91. 366 INFRINGEMENT OF PEIVATE PROPERTY (Ch. 11 wise have had, and which become his property, for here his damage is less by the value thus added.^^^ But proof that the trespasser has not in^ct benefited cannot be consid- ered."'' It is manifestly impossible within the compass of this work to discuss adequately the principles governing the quantum of damages. ^^^ Where there has been a perma- nent injury to real property, the damages are generally measured by the difference in values before and after the trespass.^^* But it is permissible to prove the cost of re- storing the property to its former condition, "for the very obvious reason that, if the land could be restored for less, the landowner ought to restore it, and not attempt to hold the tort-feasor for the full diminution in value." ^^^ To iiiJewett V. Whitney, 43 Me. 242; Mayo v. City of Springfield, 138 Mass. 70 ; Murphy v. City of Fond du Lac, 23 Wis. 365, 99 Am. Dec. 181. Applied in trespass for mesne profits. Morrison v. Rob- inson, 31 Pa. 456. See Putnam v. Ritchie, 6 Paige Ch. (N. Y.) 390. Cf. Code Civ. Proc. N. Y. § 1531. 112 Thus one who trespassed upon a mining claim is not entitled to a verdict merely because the value of the ore extracted equaled or was less than the cost of extracting it. Elmpire Gold Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406, 7 Pac. 810. lis For illustrative cases, see WrightsviUe & T. R. Co. v. Holmes, 85 Ga. 668, 11 S. E. 658 ; Huftalin v. Misner, 70 111. 55; Johnson v. Farwell, 7 Me. (7 Greenl.) 370, 22 Am. Dec. 203; Thiel v. Bull's Ferry Land Co., 58 N. J. Law, 212, 33 Atl; 281. Deprivation of use and loss of profits. White v. Moseley, 8 Pick. (Mass.) 356; Luse v. Jones, 39 N. J. Law, 707 ; Schile v. Brokhahus, 80 N. Y. 614; Capel V. Lyons, 3 Misc. Rep. 73, 22 N. T. Supp. 378, 51 N. Y. St. Rep. 601 ; mental anguish, Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476 ; Meagher V. briscoU, 99 Mass. 281, 96 Am. Dec. 759; Lesch v. Great Northern Ry. Co., 97 Minn. 503, 106 N. W. 955, 7 L. R. A. (N. S.) 93; BonelU V. Bowen, 70 Miss. 142, 11 South. 791. 11* Southern Ry. Co. v. Cleveland, 169 Ala. 22, 53 South. 767 ; Bar- nett V. St. Anthony Falls Water Power Co., 33 Minn. 265, 22 N. W. 535; Argotsinger v. Vines, 82 N. Y. 308; Pedelty v. Wisconsin Zinc Co., 148 Wis. 245, 134 N. W. 356. Cf. Freeman v. Sayre, 48 N. J. Law, 37, 2 Atl. 650 ; Disbrow v. Westchester Hardwood Co., 164 N. Y. 415, 58 N. E. 519. 116 Manda v. City of Orange, 77 N. J. Law, 285, 286, 72 Atl. 42, per Swayze, J. To the same effect, Graessle v. Carpenter, 70 Iowa, 166. 30 N. W. 392 ; Cavanagh v. Durgin, 156 Mass. 466, 31 N. E. 643 ; Wal- ters V. Ohamberlin, 65 Mich. 333, 32 N. W. 440. § 80) DAMAGES 367 this may be added compensation for loss of use.^*' "On the other hand, when the cost of restoring is more than such diminution, the latter is generally the true measure of damages." ^^^ If defendant's acts do not work any per- manent injury to plaintiff's property, the diminution in rental value is the standard.^^* Varying rules have been adopted with respect to the cutting of trees. A distinction is usually recognized between those available for timber or fuel and fruit or ornamental trees. The former have a substantial value in themselves, which may serve as a ba- sis for compensation. The value of the latter when severed is but slight; hence their loss is an injury to the realty itself. It would be unsafe, however, to attempt the state- ment of a general doctrine.^^° Where minerals have been mined, their value is usually fixed as in situ.^^" If a chattel has been destroyed, or ^aken and retained, its market value at the time of the taking or destruction, with interest, is awarded. ^"^ If the deprivation has been not total, but partial, as where the owner has regained ^^^ or retained possession,^''' he is entitled to the value of the "« Graessle v. Carpenter, supra ; Cavanagh v. Durgin, supra. iiT Hartshorn v. Chaddoek, 135 N. Y. 116, 31 N. E, 997, 17 L. R. A. 426, per O'Brien, J. To the sanje effect, Nelson v. Village of" West Duluth, 55 Minn. 497, 57 N. W. 149 ; Smith v. Kansas City, 128 Mo. 23, 30 S. W. 314; Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642. 118 Carli V. Union Depot, S. R. & T. Co., 32 Minn. 101, 20 N. W. 89; Glllett v. Trustees of Village of Kinderhook, 77 Hun, 604, 28 N. X. Supp. 1044 ; Honsee v^ Hammond, 39 Barb. (N. T.) 89 ; Irwin v. Nolde, 176 Pa. 594, 35 Atl. 3J7, 35 L. B. A. 415; Carl v. Sheboygan & F. Du Ia R. Co., 46 Wis. 625, 1 N. W. 295. Cf. Baltimore & O. R. Co. V. Boyd, 67 Md. 32, 10 Atl. 315, 1 Am. St. Rep. 362; Adams v. Dur- ham & N. R. Co., 110 N. C. 325, 14 S. E. 857. 119 See Sedgwick on Damages, vol. 3, § 933, and 38 Cyc. p. 1130, where the cases are collected. * 120 See Sedgwick on Damages, vol. 3, § 935. 121 Oviatt V. Pond, 29 Conn. 479; Schindel v. Schindel, 12 Md. 108; Gardner v. Field, 1 Gray (Mass.) 151' Adams v. Blodgett, 47 N. H. 219, 90 Am. Dec. 569; King v. Orser, 4 Duer (N. Y.) 431 ; Conard v. Pacifle Ins. Co., 6 Pet. (U. S.) 262, 8 L. Ed. 392. 122 Fields V. Williams, 91 Ala. 502, 8 South. 808 ; Smith v. Miller, 145 111. App. 606 ; Hart v. Blake, 31 Mich. 278. Cf. Hammond v. Sul- livan, 112 App. Div. 788, 99 N. T. Supp. 472. 12S Streett v. Laumier, 34 Mo. 469. See Graves v. Baltimore & N. 368 IXFEINGBMENT OF PEIVATE PROPERTY (Ch. 11 Chattel's use while deprived thereof, with the necessary arid reasonable expense of repairs, and an amount which will represent the difference, if any, between the value be- fore the injury and after the repairs.^** In many states, by statute, double or treble damages are given in'certain cases of willful trespass. ^^'^ Where an injury has been done to the property itself, there would seem no reason why the possessor of a chattel should not be permitted to recover full damages from a stranger. Trespass was maintainable only for an injury to the thing itself, not for an injury to a right.^"' It has been said that, if "the suit is brought by a bailee or special property man against the general owner, then the plain- / tiff can recover the value of his special property only; but if the writ is against a stranger, then he recovers the value of the property and interest according to the gener- al rule, and holds the balance beyond his own interest in trust for the general owner." ^" The same rule would ap- T. R. Co., 76 N. J. Law, 362, 69 Atl. 971 ; Stearns v. McGinty, 55 Hun, 101, 8 N. Y. Supp. 216; Johnson v. Parker, 7 Misc. Rep. 685, 28 N. Y. Supp. 146, 58 N. Y. St. Rep. 332; Baker v. Mims, 14 Tex. Civ. App. 413, 37 S. W. 190. 124 Necessary and reasonable expense incurred in regaining posses- sion should be allowed. See Fields v. Williams, supra. i25Real property, forcible entry or detainer, see Howell's Ann. St. Mich. (2d Ed.) 1912, § 13319; Rev. Codes Mont. 1907, § 6869; Code Civ. Proc. N. Y. § 1669 ; Fults v. Munro, 202 N. Y. 34, 95 N. E. 23, 37 L. R. A. (N. S.) 600, Ann. Cas. 1912D, 870; cutting trees, see Code Iowa, § 4306; Werner v. Flies, 91 Iowa, 146, 59 N. W. 18; Rev. Laws Mags. 1902, c. 185, § 7; Palmer v. Davidson, 211 Mass. 556, 98 N. B. 623; Howell's St. Mich. (2d Ed.) 1912, § 13317; Bockes V. A. McAfee & Son Co., 165 Mich. 7, 130 N. W. 313 ; Rev. Codes Mont. 1907, § 6867 ; 4 Comp. St, N. J. 1910, p. 5396, § 1, ($8 per tree) ; Lott V. Leventhal, 80 N. J. Law, 216, 76 Atl. 328 ; Code Civ. Proc. N. Y. §§ 1667, 1668; McCruden v. Rochester Ry. Co., 5 Misc. Rep. 59, 25 N. Y. Supp. 114, affirmed 151 N. Y.- 623, 45 N. E. 1133. Personal property, see Rev. St. Mo. 1909, § 5455 ; Herman v. Owen, 42 Mo. App. 387. 126 See "The Disseizin of Chattels," by Prof. James Barr Ames, 3 Harv. L. Rev. 23, 313, 337. 127 White V. Webb, 15 Conn. 302, 305, per Hinman, J., quoted in Becker v. Bailies, 44 Conn. 167, 174. To the same effect, Luse v, Jones, 39 N. J. Law, 707 : Criner v. Pike, 2 Head (Tenn.) 398 ; Wooley V. Edson, 35 Vt. 214. But see Sterrett's Els'r v. Kaster, 37 Ala. 366 ; § 80) DAMAGES 369 pear applicable to real property,^^' but by many courts the quantum of his recovery has been fixed by the extent of his interest.^2* The principle that the owner of the title, out of possession, may sue in case and likewise obtain the amount of damages to his interest,^'" will not, however, be allowed to work a disadvantage to the defendant by forc- ing him to pay twice. The doctrine of full liability to the possessor must be subject to an exception permitting the trespasser to prove in mitigation facts showing that the owner himself had no cause of action,^^^ e. g., that he has received the property or its proceeds, ^'^ the effect of which may be to reduce the possessor's damages to the value of his interest. Gwaltney v. Scottish Carolina Timber & Land Co., 115 N. C. 579, 20 S. E. 465. 128 See Elvins v. Delaware & A. Telegraph & Telephone Co., 63 N. J. Law, 243, 43 Atl. 903, 76 Am. St. Rep. 217; Perry v. Jefferies, 61 S. C. 292, 39 S. E. 515; WUley v. Lara way, 64 Vt. 559, 25 Atl. 436. Cf. Rogers v. Atlantic, Gulf & Pacific Co., 213 N. Y. 246, 107 N. E. 661, L. R. A. 1916A, 787. 129 "In the case of a tenant, whether for life or for years, he may sue and recover for the Injury to his possession and right of enjoy- ment, and the reversioner or remainderman may sue and recover for any injury sustained to the estate in reversion or remainder. And where there are several entitled in succession as tenants for life, in tail, or in fee, they can recover only damages commensurate to the injury done to their respective estates. • * • The damages there- fore must be assessed with reference to the extent of the several in- terests affected." Zimmerman v, Shreeve, 59 Md. 357, 362, per Al- vey, J. See Frisbee v. Town of MarshaU, 122 N. C. 760, 30 S. E. 21; Sedgwick on Damages (9th Ed.) vol. 1, p. 109 et seq.; Suther- land on Damages (3d Ed.) vol. IV, p. 2960 et seq. 130 Chattels, Forbes v. Parker, 16 Pick. (Mass.) 462; Goulet v. Asseler, 22 N. T. 225. See New York, L. E. & W. R.-Co. v. New Jersey Elec. Ry. Co., 60 N. J. Law, 338, 38 Atl. 828. Real property, Randall V. Cleaveland, 6 Conn. 328; Indianapolis, B. & W. Ry. Co. v. Mc- Laughlin, 77 111. 275; Walden v. Conn, 84 Ky. 312, 1 S. W. 537, 4 Am. St. Rep. 204 ; Van Deusen v. Young, 29 N. Y. 9 (trespass under statute) ; Dutro v. Wilson, 4 Ohio St. 101. Cf. Cotes & Patchin v. City of Davenport, 9 Iowa, 227. 131 Anthony v. Gilbert, 4 Blackf. (Ind.) 34g. 132 Sheldon v. Southern Express Co., 48 Ga. 625; Squire^v. Hol- lenback, 9 Pick. (Mass.) 551, 20 Am. Dec. 506 ; Huning v. Chavez, 7 N. M. 128, 34 Pac. 44. See Elvins v. Delaware & A. Telegraph & Telephone Co., 63 N. J. Law, 243, 43 Atl. 903, 76 Am. St. Rep. 217. Chap.Tobts — 24 370 INFEINGHMENT QF PRIVATE PROPERTY (Ch. 12 CHAPTER XII INFRINGEMENT OF PRIVATE PROPERTY (Continued)— CON- VERSION 81. Deflnition. 82. Method of Accomplishment. 83. Quantum of Plaintiff's Interest. 84. Defenses. 85. Damages. DEFINED 81. Conversion is committed where there has been an tin- lawful act of dominion exerted over the personal property of another in denial of his right.^ The common-law remedy was an action of trover, in which the declaration averred that defendant had found ^ the goods and had converted them to his own use.' It was extended, however, to cases where dominion had been ex- ercised; the allegation of a finding being treated as not 1 See Southern Exp. Co. v. Sinclair, 130 Ga. 372, 373, 60 S. E. 849; LAVERTY V. SNETHBN, 68 N. Y. 522, 524, 23 Am. Rep. 184, Chapin Cas. Torts, 191 ; Budd v. Multnomah Ry. Co., 12 Or. 271, 274, T Pac. 99, 53 Am. Rep. 355. 2 Whence the name. sThe following form of declaration in trover, taken from "The Attorney's Practice in the Court of Common Pleas" (1746, 2d Ed.) vol. 1, p. 121, is found in Wigmore's Cases on Torts, p. 666 : "Surrey to wit, J. T. late of etc. Brewer was attached to answer W. B. of a plea of trespass on the case ; and whereupon said W. B. by L. R. his attorney complains, that whereas the said W. B. on the tenth day of December in the fourteenth year of his present majesty's reign at Kingston, in the County of Surrey, was possessed of the following goods and chattels, to wit (here insert the goods) to the value of one hundred pounds, as of his own proper goods and chat- tels; and being so thereof possessed the said W. B. casually lost the said goods and chattels out of his hands and possession ; which said goods and chattels afterwards, to wit, on the said tenth day of December in the fourteenth year aforesaid at Kingston aforesaid ' in the county aforesaid, came by finding to the hands and possession § 81) DEFINED 371 traversable. It was well described by Lord Mansfield * as in form "a fiction; in substance, a remedy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies and has been brought in many cases where in truth the defendant has got the possession lawfully. Where the defendant takes them wrongfully and by trespass, the plaintiff, if he thinks fit to bring this action, waives the tres- pass and admits the possession to have been lawfully got- ten." * It should therefore be noted that, where there had been an appropriation of personal property, it was essential to an action of trespass that the taking be shown to have been unlawful, while in an action of trover its lawfulness was assumed.' Again, trespass, it has been seen, consists mere- ly in the unlawful and forcible disturbance of another's pos- session. To constitute conversion, defendant must have acted in defiance, and not in recognition, of the other's right. This was well illustrated in the celebrated case of Fouldes v. 'Willoughby.'' Here plaintiff had embarked with two horses on defendant's ferry boat. Defendant refused transportation and put the horses back on shore, turning them loose on the road. Now, whatever may have been plaintiff's right to re- cover for trespass, it is evident that there was no conversion, of the said J. T. Nevertheless the said J. T. knowing the said goods and chattels to be the goods and chattels of the said W. B. and to him of right to belong and appertain, yet contriving and fraudulently intending craftily and subtilly to deceive and defraud the said W. B. of the said goods and chattels, has not delivered the said goods and chattels to the said W. B. (although often required) but after- wards to wit, on the tenth day of January, in the fourteenth year aforesaid at Kingston aforesaid, in the county aforesaid converted the said goods and chattels to his own proper use, to the damage of the said W. B. of £200 and thereupon he brings suit," etc. « Cooper v. Chitty, 1 Burr. 20, 31. » See, also, Barron v. Davis, 4 N. H. 338, 345 ; Burnhara v. Pid- cock, 33 Misc. Rep. 65, 67, 66 N. Y. Supp. 806 ; affirmed 58 App. Div. 273, 68 N. Y. Supp. 1007 ; Burroughs v. Bayne, 5 H. & N. 296, 309. 6 Bradley v. Davis, 14 Me. 44, 30 Am. Dec. 729 ; Stanley v. Gaylord, 1 Cush. (Mass.) 536, 48 Am. Dec. 643. 7 8 M. & W. 540. 372 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 12 for at no time was there a denial of his right. "Why did this defendant turn the horses out of his boat? Because he rec- ognized them as the property of the plaintiff. He may have been a. wrongdoer in putting them ashore; but how is that in- consistent with the general right which the plaintiff has to the use of the horses ?" " At common law, trover lay only for the coiiversion of tangi- ble chattels. This qualification no longer exists, for it is gen- erally admitted that every species of personal property may now become the subject of an action of trover,* including shares of stock," and certificates thereof,^^ promissory notes," drafts,^' checks,^* muniments of title," and other instruments ; " also money,^' provided it "is capable of s Fouldes V. Willoughby, 8 M. & W. 540, 549, per Alderson, B. lu accord, SHEA v. MILFORD, 145 Mass. 525, 14 N. E. 769, Chapln Cas. Torts, 184 ; Mattice v. Brinkman, 74 Mich. 705, 42 N. W. 172 ; Ham- mond V. Sullivan, 112 App. Div. 788, 99 N. Y. Supp. 472 ; Simmons v. LlUystone, 8 Exch. 431. 8 See State v. Omaha Nat. Bank, 59 Neb. 483, 492, 81 N. W. 319. 10 Payne v. Elliot, 54 Cal. 839, 35 Am. Kep. 80; Ayres v. French, 41 Conn. 142 ; Budd v. Multnomah Ry. Co., 12 Or. 271, 7 Pac. 99, 53 Am. Rep. 355. Cf. Daggett v. Davis, 53 Mich. 35, 18 N. W. 548, 51 Am. Rep. 91 ; Miller v. Miles, 58 App. Div. 103, 68 N. T. Supp. 565, affirmed 171 N. X. 675, 64 N. E. 1123. 11 Stewart v. Bright, 6 Houst. (Del.) 344 ; Daggett v. Davis, 53 Mich. 35, 18 N. W. 548, 51 Am. Rep. 91 ; Barry v. Calder, 48 Hun, 449, 1 N. Y. Supp. 586, affirmed 111 N. Y. 684, 19 N. E. 285 ; Connor V. Hillier, 11 Rich. (S. C.) 193, 73 Am. Dec. 105. 12 Kingman v. Fierce, 17 Mass. 247 ; Rose v. Lewis, 10 Mich. 483 ; Decker v. Mathews, 12 N. Y. 313; Brickhouse v. Brickhouse, 33 N. O. 404. 13 Oomparet v. Burr, 5 Blackf. (Ind.) 419 ; People v. Bank of North America, 75 N. Y. 547 ; Evans v. Kymer, 1 B. & Ad. 528. 1* Lovell V. Hammond Co., 66 Conn. 500, 34 Atl. 511 ; Pawson v. Miller, 66 App. Div. 12, 72 N. Y. Supp. 1011. 15 Towle V. Lovet, 6 Mass. 394; Weiser v. Zeisinger, 2 Yeates (Pa.) 537. 18 Griswold v. Judd, 1 Root (Conn.) 221 (public securities) ; Mer- chants' & Planters' Nat. Bank v. Trustees of Masonic Hall, 62 Ga. 1' CuUen V. O'Hara, 4 Mich. 132 ; Grand Trunk Ry. Co. v. Ed- wards, 56 Barb.. (N. Y.) 408. See Moody v. Keener, 7 Port. (Ala.) 218; Farrelly v. Hubbard, 148 N. Y. 502, 43 X. E. 65; Meyer v. Doherty, 133 "Wis. 398, 113 N. W. 671, 13 L. R. A. (N. S.) 247, 126 Am. St. Rep. 967. § 81) DEFINED 373 being identified, as when delivered at one time, by one act and in one mass, or when the deposit is special, and the identical money is to be kept for the party making the de- posit, or when wrongful possession of such property is ob- tained." " Crops,^» timber,^" ore,=^ and earth and gravel," are likewise subject to conversion upon severance from the realty.^* Like trespass, conversion requires a positive act, or, un- like trespass, a wrongful withholding. Thus it is not con- version if property intrusted to a bailee is lost through the latter's want of care, though he may be held for negligence. There is here only* nonfeasance. Nor will demand and re- fusal after loss alter the case, for, the property not being in the bailee's possession, he cannot deliver it.^* But trover 271 (municipal bonds) ; TopUtz v. Bauer, 161 N. Y. 325, 55 N. E. 1059 (life insurance policy) ; Heading Finance & Securities Co. v. Harley, 186 Fed. 673, 108 C. C. A. 529 (certificates of deposit for stock). But trover cannot be maintaiiled against a holder in due course, if the instrument be negotiable. Goodwin v. Kobarts, 1 App. Cas. 476, 45 L. J. Ex. 748, 35 L. T. Rep. N. S. 179, 24 Wkly. Rep. 987; Gorgier r. Mieville, 3 B. & C. 45, 4 D. & R. 641, 10 B. C. L. 30, 107 Eng. Repr. 651. 18 Hazelton v. Locke, 104 Me. 164, 167, 71 Atl. 661, 20 I/. R. A. (N. S.) 35, 15 Ann. Cas. 1009, per Peabody, J., citing numerous cases. In accord, Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45 ; Kerwin v. Balhatchett, 147 111. App. 561 ; Lar- son V. Dawson, 24 R. I. 317, 53 Atl. 93, 96 Am. St. Rep. 716. Of. Gordon v. Hostetter, 37 N. Y. 99, holding that trover will lie for money, though not specifically earmarked ; Kelsey v. Bank of Mans-' field, 85 App. Div. 334, 83 N. Y. Supp. 281. i» Nelson v. Burt, 15 Mass. 204; Mueller v. Olson, 90 Minn. 416, 97 N. W. 115 : Leidy v. Carson, 115 Mo. App. 1, 90 S. W. 754 ; Black V. Eason, 32 N. C. 308 ; Donahue v. Shippee, 15 R. I. 4,53, 8 Atl. 541. 20 Sampson v. Hammond, 4 Cal. 184 ; Clow v. Plummer, 85 Mich. 550, 48 N. W. 795. 2 1 Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 135 Ala. 579, 33 South. 547, 93 Am. St. Rep. 46; Hartford Iron Mining Co. v. Cambria Mining Co., 93 Mich. 90, 53 N. W. 4, 32 Am. St. Rep. 488. 22 Nashville, C. & St. L. Ry. v. Karthaus, 150 Ala. 633, 43 South. 791 ; Radway v. Duffy, 79 App. Div. 116, 80 N. Y. Supp. 334. 28 See Riley v. Boston Water Power Co., 11 Cush. (Mass.) 11. 2 4 DAVIS & SON V. HURT, 114 .Ala. 146, 21 South. 468, Chapin Cas. Torts, 185 ; Berman v. Kling, 81 Conn. 403, 71 Atl. 507 ; Warns- 374 INFRINGEMENT OF PEIVATE PEOPEETT (Ch. 12 will He where the loss is due to the act of the bailee, though he may have been guilty of no intentional wrong, as where there was misdelivery by mistake or under a forged or- der." METHOD OF ACCOMPLISHMENT 82. With respect to its method of accomplishment, con- version, it has been said, "may be divided into four distinct classes: (1) By a wrongful taking; (2) by an illegal assumption of ownership; (3) by an illegal user or misuser ; and (4) by a wrongful de- tention." "" With respect to the first, it has been seen that trover did not originally lie for a taking, since the goods must have come into the defendant's possession lawfully. But later it was recognized that there might be an exercise of 'dominion arising out of a taking though unlawful, for which trover might be brought, provided the facts showed a denial of plaintiff's right. Under such circumstances the remedy was concurrent with trespass.^' The principle that a man- ual taking or appropriation is not essential in trespass ap- plies equally to conversion. Hence trover may be main- tained against an officer who unlawfully levied or attached, ' ley V. Atlas Steamship C!o., 168 N. T. 533, 61 N. B. 896, 85 Am. St. Rep. 699 ; Ross v. Johnson, 5 Burr. 2825. 2» Gibbons v. FarweU, 63 Mich. 344, 29 N. W. 855, 6 Am. St. Rep. 301; Devereux v. Barclay, 2 B. & Aid. 702. See Bowlin v. Nye, 10 Oush. (Mass.) 416 ; Hawkins v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 767. 28 Glaze r. McMllllon, 7 Port. (Ala.) 279, 281. Quoted in Strauss v. Schwab, 104 Ala. 669, 672, 16 South. 692. See, also, Baltimore & O. R. Co. V. O'Donnell, 49 Ohio St. 489, 497, 32 N. E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579 ; Aschermann v. Philip Best Brewing Co., 45 Wis. 262, 266. 27 See Basset v. Maynard, 1 Rolle Abr. 105 M. PI. 5 ; Kinaston v. Moore, Cro. Car. 89; Norman v. Bell, 2 B. & Ad. 190; Moody v. Whitney, 34 Me. 563 ; Phillips v. Bowers, 7 Gray (Mass.) 21. § 82) METHOD OF ACCOMPLISHMENT 875 it being sufficient that he assumed such control over the goods by a possession, actual or constructive, as deprived the owner of his dominion over them for any purpose.^* The owner's consent to the taking will not prevent the taker from being treated as a converter, where he obtained the consent by fraud or other unlawful means. The owner is in a position to declare the transaction void, and to insist that the taking itself was tortious.^' This is somewhat similar to the case where the property has been purchased from a thief.'" Though the purchaser has paid value and acted in the best of faith, he has none the less taken unlawfully, and according to the weight of authority by the act of taking possession he becomes a con- verter. No demand for a return is therefore necessary.'^ But the position of a purchaser in good faith and for value from one who acquired possession fraudulently is very dif- ferent from that of the purchaser from a thief. "The su- perior equity of a purchaser of property from one who has acquired a title defeasible at the election of the former owner and vendor, by reason of fraud, to that of such owner* seeking to reclaim his property, is based upon the fact 28 Johnson v. Farr, 60 N. H. 426. In accord, Abercrombie y. Brad- ford, 16 Ala. 560 ; Stuart v. Phelps, 39 Iowa, 14 ; Kloos v. Gatz, 9T Minn. 167, 105 N. W. 639; Reynolds v. ShiUer, 5 Cow. (N. T.) 323. 2»Farwell v. Hanchett, 120 111. 573, 11 N. E. 875; Thurston v. Blanchard, 22 Pick. (Mass.) 18, 33 Am. Dec. 700 ; Moody v. Drown, 58 N. H. 45; Warner v. Vallily, 13 R. I. 4&3. Cf. Baird v. Howard, 51 Ohio St. 57, 36 N. E. 732, 22 L. R. A. 846, 46 Am. St. Rep. 550. so Not including, of course, negotiable instruments transferred to a holder in due course. SI Galvin v. Bacon, 11 Me. 28, 25 Am. Dec. 258 : Heckle v. Lurvey, 101 Mass. 344, 3 Am. Rep. 366 ; Stanley v. Gaylord, 1 Gush. (Mass.) 536, 48 Am. Dec. 643 ; Hyde v. Noble, 13 N. H. 494, 38 Am. Dec. 508 ; Bucklin v. Beals, 38 Vt. 653 ; Eldred v. Oconto Co., 33 Wis. 133. But in New York a cause of action for conversion will not arise until demand and refusal. It is said : "The rule is a reasonable ,and just one that an innocent purchaser of personal property from a wrong- doer shall first be informed of the defect in his title and have an opportunity to deliver the property to the true owner, before he shall be made liable as a tort-feasor for a wrongful conversion." Gillet v. Roberts, 57 N. Y. 28, 34. 376 INFRINGEMENT OF PRIVATE PROPEETT (Ch. 12 that, acting upon the evidence of title which the owner has permitted the wrongdoer to assume and possess, he has been induced to part with value, and will be the loser be- cause of the credit given to the apparent ownership, if he is compelled to surrender the property." *^ It would seem logical to hold that, when the fraudulent purchaser trans- fers the goods to one who receives them in good faith, but pays no value, e. g., an assignee for the benefit of creditors, the latter is deemed to have taken wrongfully.'' But the courts are not in accord.'* To the rule that until the vendor does some act to disaffirm the transaction the property vests in the fraudulent vendee, and hence an innocent trans- feree for value will take title, the mere fact that the con» tract may be afterwards rescinded not affecting its inter- mediate efficiency, an exception must be noted where the fraud consists in false personation. "No contract is in such case made with the party personated, and none is contem- plated with the false impersonator; the title, therefore, re- mains in the vendor, and the transaction is wholly inopera- tive, even as to third persons." '® Though defendant may have received possession under circumstances not amounting to a conversion, yet he may be liable in trover, if he has, however innocently, exercised dominion in defiance of the rights of the true owner, as by 32 Barnard v. Campbell, 58 N. T. 73, 76, 17 Am. Rep. 208, per Allen, J. See Curme, Dunn & Co. v. Rauh, 100 Ind. 247 ; American-German Nat. Bank v. Gray & Dudley Hardware Co., 129 Ky. 105, 110 S. W. 393 ; HofEman v. Noble, 6 Mete. (Mass.) 68, 39 Am. Dec. 711. 3 3 FarweU v. Hanehett, 120 lU. 573, 11 N. E. 875; Bussing v. Rice, 2 Cush. (Mass.) 48; Farley v. Lincoln, 51 N. H. 577, 12 Am. Rep. 182. 3* Thus in New York it is held that, the original possession of the transferee from the fraudulent purchaser not being tortious, it is necessary to change its character by demand and refusal before an action of trover or replevin can be maintained. Goodwin v. Wert- heimer, 99 N. Y. 149, 1 N. B. 404. 35 Neff V. Landis, 110 Pa. 204, 207, 1 Atl. 177, per Clark, J. In accord, Aloody v. BlaUe, 117 Mass. 23, 19 Am. Rep. 394; Ashton v. Allen, 70 N. J. Law, 117, 56 Atl. 165 ; Hamet v. Letcher, 37 Ohio St. 356, 41 Am. Rep. 519. § 82) METHOD OP ACCOMPLISHMENT 377 making a sale,'' exchange," lease,", pledge," or gift." Thus, where it is held, as in New York, that the mere pur- chase and receipt of property from a thief is not of itself sufficient, the purchaser, by disposing of the property, will incur an immediate responsibility, thus obviating the neces- sity of demand.*^ The phrase "exercise of dominion" must not be under- stood as indicating that defendant should have acted under claim of superior title in himself. It is the denial of the true owner's right which is the essential feature of con- version. Hence it is no excuse that in good faith one acted as servant or ageift of another, who was himself a wrong- mp. St. 1910, pp. 5789-5791, §§ 1-8), and New York (Code Cav. Proc. §§ 1651-1659). 394 INFEINGEMENT OF PEIVATB PEOPKETY (Ch. 14 CHAPTER XIV • INFRINGEMENT OF PRIVATE PEOPERTI (CoNTiinJED) — FRAUD 87. Definition. 88. Elements. (1) Statement of Fact (2) Intent to Cause Action. (3) Action by Complainant. (4) Falsity. (5) Scienter. (6) Damage. DEFINED 87. "Fraud consists in deception practiced in order to in- duce another to part with property or to surren- der some legal right, and which accomplishes the end designed." ^ The question whether fraud has been committed may be raised in various ways. For example, the party injured may bring a common-law action for damages, or he may seek rescission or other relief in equity, or when sued upon an alleged obligation he may defend upon the ground of fraud practiced in its procurement, or he may proceed on the theory that the entire transaction is void, and seek to recover the property transferred, or 1;reat the exercise of dominion over the same as a conversion. In equity, a broader interpretation is given to the term, which, it has been said, "properly includes all acts, omissions, and con- cealments which involve a breach of legal or equitable du- ty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious ad- vantage is taken of another." * But, whether the subject 1 2 Cooley on Torts (3d Bd.) 905, quoted in Beard v. Bliley, 8 Colo. App. 479, 34 Pac. 271, 272 ; Alexander v. Church, 53 Conn. 561, 562, ' 4 Atl. 103 ; FOTTLER v. MOSEIiEY, 179 Mass. 295. 298, 60 N. B. 788, Ohapln Cas. Torts, 215. 2 1 Story, Eq. Jur. § 187, quoted in Sears v. HickUn, 13 Colo. 143, § 87) DEFINED 395 be considered from the legal or equitable standpoint, it is inadvisable to attempt a definition, for as it is the very nature and essence of this tort "to elude all laws in fact without appearing to break them in form, a technical def- inition of fraud, making everything come within the scope of its words before the law could deal with it as such, would be, in effect, telling to the crafty precisely how to avoid the grasp of the law." ^ We shall discuss fraud only as a com- mon-law wrong, not as a ground for equitable relief. Fraud usually results in an injury to property rights, and accordingly has been placed in that class. But this is not invariably the case. Thus, where a manufacturer of farm implements sold a land roller with a cross-grained wooden tongue having a knot and knot hole, which he had plugged and concealed by putty and paint, an action based on fraud is maintainable to recover damages for personal injuries suffered by one who had purchased the implement from a retail dealer.* "The injury to one's person by the fraud of another is quite as serious as ah injury to his pocket- book." » 153, 21 Pa& 1022; Larson v. WiUlams, 100 Iowa, 110, 118, 63 N. W. 464, 69 N. W. 441, 62 Am. St. Rep. 544; Caty of Clay Center v. Myers, 52 Kan. 363, 365. 35 Pac. 25 ; Hatch v. Barrett, 34 Kan. 223, 236, 8 Pac. 129 ; Richardson v. Trimble, 38 Hun (N. Y.) 409, 416 ; Moore v. Crawford, 130 V. S. 122, 128, 9 Sup. Ct 447, 32 L. Ed. 878. a McAleer t. Horsey, 35 Md. 439, 452, per Miller, J. See Hanger Y. Evins, 38 Ark. 334, 346; Rhodes v. Dickerson, 95 Mo. App. 395, 400, 69 S. W. 47; MorUoct v. Buller, 10 Ves. Jr. 292, 306, 32 Elng. Rep. 857. 4 Knelling v. Roderick Lean Mfg. Co., 183 N. T. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Gas. 124. For further illustrations, see AUen v. TruesdeU, 135 Mass. 75; KUJEK v. GOLDMAN, 150 N. Y. 176, 44 N. E. 773, 34 U R. A. 156, 55 Apt. St. Rep. 670, Chapin Cas. Torts, 16 (loss of consortium) ; Langridge V. Levy, 2 M. & W. 519, affirmed 4 M. & W. 337. Cf. Woodward v. Miller, 119 Ga. 618, 46 S. E. 847, 64 L. R. A. 932, 100 Am. St. Rep. 188 5 Flaherty v. TiU, 119 Minn. 191, 192, 137 N. W. 815, per Start, O. J. 396 INFRINGEMENT OF PEIVATB PEOPEETX (Ch. 14 ELEMENTS 88. To establish fraud it must be proved that — (1) There was a statement or representation of a fact. (2) The statement or representation was made with the intent that complainant act thereon. (3) The complainant did act thereon. (4) The statement or representation was untrue. (5) The party making the statement or representation knew it to be false, or did not believe it to be true, or made it recklessly, not knowing or caring whether it were true or not.* (6) Damage proximately resulted to the complainant from the deception. Tersely put, these elements are representation, falsity, scienter, deception, and injury.^ The burden rests upon the party alleging fraud to pro^e each of these elements. Fraud is never presumed.* But this does not mean that direct evidence is required. "Experience shows that pos- itive proof of fraudulent acts is not generally to be expect- ed, and for that reason, among others, the law allows a re- sort to circumstances as the means of ascertaining the truth." ' "It is very seldom that frauds are so bunglingly executed as to admit of direct proof. Unless exposed by • While this is believed to be sanctioned by the weight ot authority, many courts have dissented. See infra, p. 410 et seq. T Arthur V. Griswold, 55 N. Y. 400, 410; Brackett v. Griswold, 112 N. T. 454, 467, 20 N. B. 376 ; Ley v. Metropolitan Life Ins. Co., 120 lojva, 203, 211, 94 N. W. 568. Cf. Busterud v. Farrington, 36 Minn. 320, 31 N. W. 360 ; Byard v. Holmes, 34 N. J. Law, 296 ; Martin v. Eagle Development Co., 41 Or. 448, 69 Pac. 216; Southern Develop- ment Co. V. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678. 8 Ley V. Metropolitan I4fe Ins. Co., 120 Iowa, 203, 94 N. W. 568 ; Wakeman v. Dalley, 51 N. Y. 27, 10 Am. Rep. 551; Southern Devel- opment Co. V. SUva, 125 TJ. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678. » Castle v. Bullard, 23 How. (U. S.) 172, 187, 16 U Ed. 424, per Clifford, J. § 88) ELEMENTS 397 circumstantial evidence, they cannot generally be exposed at all." " (1) Statement of Fact This means a statement as to a past or an existing fact. A mere promise is not enough. Hence fraud is not shown where the owner of property was induced to convey it by an as- surance that he would receive a bond to reconvey, which was never given. ^^ But suppose that, when the promise was ni,ade, the promisor did not intend to perform. He has here misrepresented the condition of his mind, and "the state of a man's mind is as much a fact as the state of his digestion." ^- The principle is well illustrated where the vendor of goods, sold on credit to an insolvent vendee, seeks to rescind the contract and recover his merchandise. The mere fact that the vendee is insolvent does not neces- sarily show fraud. There must be a preconceived design not to pay,^' though his condition may be so hopeless that such an inference will be justified.^* 10 Stauffer v. Young, 39 Pa-. 455, 459, per Woodward, J. 11 IX)NG V. WOODMAN, 58 Me. 49, Chapin Gas. Torts, 205. To the same effect, Smith v. Parker, 148 Ind. 127, 45 N. E. 770 (promise to supply money for a business) ; Dawe v. Morris, 149 Mass. 188, 21 X. E. 313, 4 li R. A. 158, 14 Am. St. Rep. 404 (promise to sell at a fixed price) ; Esterly Harvesting Mach. Co. v. Berg, 52 Neb. 147, 71 X. W. 952 (promise to make a machine give satisfaction) ; Lexow v. Julian, 21 Hun (N. T.) 577, affirmed 86 N. Y. 638 (promise not to dis- pose of Stock Exchange seat) ; Patterson v. Wright, 64 Wis. 289, 25 X. W. 10 (promise to pay a claim). 12 Edgington v. Mtzmaurice, Lk R. 29 Oh. Div. 459, 483, per Bowen, L. J. In accord, Dow v. Sanborn, 3 Allen (Mass.) 181 ; McCready vv. PhilUps, 56 Neb. 446, 76 N. W. 885 ; Devoe v. Brandt, 53 N. Y. 462 ; Swift V. Rounds, 19 B. I. 527, 35 Atl. 45, 33 L.. R. A. 561, 61 Am. St. Rep. 791. IS The reasons are weU stated in -Nichols v. Pinner, 18 N. Y. 295, 299. It was not fraudulent in Pinner, said the court, "to make rea- sonable efforts to retrieve his fortune and to extricate himself from 1* Edson V. Hudson, 83 Mich. 450, 47 N. W. 347; Leedom v. J. M. Ward Furniture, Stove & C. C3o., 38 Mo. App. 425 ; Wright v. Brown, 07 N. Y. 1 ; MuUiken v. Millar, 12 R. I. 296 ; Gillespie v. J. C. PUes & Co., 178 Fed. 886, 102 C. C. A. 120, 44 L. R. A. (N. S.) 1 ; Kitson v. Farwell, 132 111. 327, 23 N. H. 1024 ; Backentoss v. Speicher, 31 Pa. 324. 398 INFKINGEMENT OF PRIVATE PROPERTY (Ch. 14 A prophecy or opinion is not a statement of fact. For example, fraud is not shown where a builder falsely stated what would be the cost of an unbuilt house; ^° nor is it ac- tionable for a seller falsely to state that a certain bond was an A No. 1 bond, even if he did so in bad faith.^' So rep- resentations of value are generally deemed mere expres- sions of opinion.^^ It is at times very difficult to deter- mine whether the statement is of fact or opinion.^* Logical- his embarrassment. It Is not unnatural that he should ding to the hope that better times would come, that to-morrow should be as this day and more abundant, and that with this hope, however delusive results may have shown it to be, he should have been impelled to buy more goods, contract new debts, and struggle on until some casu- alty should precipitate the catastrophe upon him, and he find him- self in hopeless bankruptcy. This is an everyday experience in the commercial world; and it would be hard indeed if the unfortunate victim of hopes that looked to him at the time as reasonable must in his misfortunes be judged by the actual instead of the possible results." In accord, Burrill v. Stevens, 73 Me. 395, 40 Am. Rep. 366 ; Talcott V. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501, note. 15 Sweney v. Davidson, 68 Iowa, 3S6, 27 N. W. 278 ; Emmerson v. Hutchinson, 63 111. App. 203. 16 DEMING V. DARUNG, 148 Mass. 504, 20 N. E. 107, 2 L. R. A. 743, Chapin Gas. Torts, 207. To the same effect, Holton v. Noble, 83 Cal. 7, 23 Pac. 58; Mumford v. Tolman, 157 lU. 258, 41 N. E. 617; Clark V. Ralls, 50 Iowa, 275 ; Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179. " Kincaid v. Price, 82 Ark. 20, 100 S. W. 76; Everist v. Drake (1914) 26 Colo. App. 273, 143 Pac. 811; Bossingham v. Syck, 118 Iowa, 192, 91 N. W. 1047 ; Mecum v. Mooyer, 166 App. Div. 793, 152 N. Y. Supp. 385; Ellis v. Andrews, 56 N. Y. 83, 15 Am. Rep. 379, note ; Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166. 18 The following were deemed facts: That a patented improve- ment in machinery had been largely sold and successfully applied in many mills and was a practical success, that there was a large de- mand therefor, and that defendant was making the article and found it a good and profitable business (Scholfield Gear & Pulley Co. v. Scholfield, 71 Conn. 1, 40 Atl. 1046) ; that coal imderlying a certain tract "showed almost invariably low sulphur, sulphur suflSciently low for the manufacture of metallurgical coke," etc. (Hotchkiss v. Bon Air C. & I. Co., 108 Me. 34, 78 Atl. 1108) ; that a worthless medi- cine was a sure cure for cholera (McDonald v. Smith [1905] 139 Mich. 211, 102 N. W. 668) ; that the exterior of a building was fireproof, it being in part of wood (Hickey v. Morrell, 102 N. Y. 454, 7 N. E. 321, 55 Am. Rep. 824). Cf. Marshall v. Seelig, 49 App. Div. 433, 63 N. Y, § 88) ELEMENTS 399 ly it would seem that statements by a proposed vendor that he»had paid a certain price for the property were state- ments of fact/' but by some courts they are put on a par with representations of value.*" The boundaries of land are facts ; ^^ also dimensions or acreage.*'' Statements of Supp. 355. The following were deemed opinion: • That certain grad- ing to be undertaken "contained 5,000 cubic yards of borrow and 10,000 cubic yards of waste" (East v. Worthlngton, 88 Ala. 537, 7 South. 189 ; to the same effect, Nounnan v. Sutter County lAnd Co., 81 CaL 1, 22 Pac. 515, 6 L. R. A. 219) ; that a grain screen would clean wheat rapidly and effectually (Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198); that there was no dirt, smell, or smoke in the use of an apparatus, that it burned for a long time, and could be run for a small expense, etc. (Kimball v. Bangs, 144 Mass. 321, 11 N. E. 113) ; that a horse could travel a certain distance in a given time (Cummlngs v. Cass, 52 N. J. I>aw, 77, 18 Atl. 972). 19 Zang V. Adams, 23 Colo. 408, 48 Pac. 509, 58 Am. St. Rep. 249; Holmes v. Rivers, 145 Iowa, 702, 124 N. W. 801 ; Thompson v. Koew- ing, 79 N. J. Law, 246, 75 Itl. 752 ; Fairchild v. McMahon, 139 N. X. 290, 34 N. E. 779, 36 Am. St. Rep. 701. See Wustrack v. HaU (1914) 95 Neb. 384, 145 N. W. 835. 20 Way V. Ryther, 165 Mass. 226, 42 N. E. 1128; Jones v. Thomp- son, 8 Allen (Mass.) 334; Holbrook v. Connor, 60 Me. 578, 11 Am. Bep. 212; Beare v. Wright, 14 N. D. 26, 103 N. W. 632, 69 I* B. A, 409, 8 Ann. Cas. 1057. Cf. Banta v. Palmer, 47 111. 99; Sowers v. Parker, 59 Kan. 12, 51 Pac. 888. AUter, where fiduciary relationship exists. Hauk v. Brownell, 120 lU. 161, 11 N. E. 416. Of. Beare v. Wright, supra. 21 Foster v. Kennedy's Adm'r, 38 Ala. 359, 81 Am. Dec. 56; Smith V. Packard & Co. (19U) 152 Iowa, 1, 130 N. W. 1076; Leavitt v. Seaney (1915) 113 Me. 119, 93 Atl. 46 ; McGhee v. Bell, 170 Mo. 121, 70 S. W. 493, 59 L. R. A. 761; Beardsley v. Duntley, 69 N. T. 577. See Ramsey v. Wallace, 100 N. O. 75, 6 S. B. 638. 22 O'Neill V. Conway, 88 Conn. 651, 92 Atl. 425; Boddy v. Henry, 126 Iowa, 31, 101 N. W. 447; Antle v. Sexton, 137 lU. 410, 27 N. E. 691 ; Judd v. Walker, 114 Mo. App. 128, 89 S. W. 558 ; Coon v. At- well, 46 N. H. 510; Cabot v. Christie, 42 Vt 121, 1 Am. Repl 313. See SheU v. Roseman, 155 N. C. 90, 71 S. B. 86. But in Massachu- setts it is held that, if the representations relate to "the number of acres within boundaries which are pointed out, they are not action- able, for they are to be regarded as the usual and ordinary means adopted by sellers to obtain a high price, and are always understood as affording to buyers no ground for omitting to make inquiries." Mooney v. Miller, 102 Mass. 217, 220, per Chapman, O. J. ; Mabardy V. McHugh, 202 Mass. 148, 88 N. E. 894, 23 I* B. A. (N. S.) 487, 132 Am. St. Rep. 484, 16 Ann. Cas. 500. It is somewhat curious that tha 400 INFRINGEMENT OP PRIVATE PEOPEETT (Ch. 14 law are in themselves mere expressions of opinion^** though the reason sometimes given that "every man is presumed to know the law" ** is unsound, since there is no such presumption.** It is at times very difficult to draw the line. There is hardly any iact which, when stated, will not call for the expression of a legal opinion. "If you state that a man is the eldest son of a marriage, you state a question of law, because you must know that there has been a valid mar- riage and that that man was the first-born son after the marriage, or in some countries before. * * * If you state that a man is in possession of an estate of ilO,0(X) a year, the notion of possession is a legal notion." *" Yet there could be no doubt that these were statements of fact." court refused to apply this rule where defendant had falsely stated the number of yards in carpets to one who had inspected them as they lay on the floor. Lewis v. Jewell, 151 Mass. 345, 24 N. B. 52, 21 Am. St. Eep. 454. 23 Beall V. McGehee, 57 Ala. 438 ; C!hampion v. Woods, 79 CaL 17, 21 Pac. 534, 12 Am. St Rep. 126; DlUman v. NadlehofCer, 119 111. 567, 7 N. E. 88 ; Abbott v. Treat, 78 Me. 121, 3 Atl. 44 ; Jaggar v. Win- slow, 30 Minn. 263, 15 N. W. 242 ; Ltexow v. Julian, 21 Hun, 577, Id., 86 N. T. 638 ; .^Etna Ins. Co. v. Eeed, 33 Ohio St. 283. Foreign law is deemed a fact. Schneider v. Schneider, 125 Iowa, 1, 98 N. W. 159; Travelers' Protective Assn. of America v. Smith (Ind. 1913) 101 N. B. 817 ; Wood v. Roeder, 50 Neb. 476, 70 N. W. 21. Cf. Van Slochem V. Villard, 207 N. Y. 587, 101 N. E. 467; Brady v. Edwards, 35 Misc. Eep. 435, 71 N. Y. Supp. 972. 2* See Beall v. McGehee, supra ; Abbott v. Treat, supra ; Burt v. Bowles, 69 Ind. 1. 26 In certain cases, "ignorance of the law excuses no one." This Is very different. 28 Eaglesfield v. Marquis of Londonderry, L. R. 4 Ch. D. 693, 703, per Jessel, M. R. 2TThe following were held statements of law, and hence mere matters of opinion: That a surviving wife would not be entitled to dower in lands sold by her husband during coverture (Martin v. Wharton, 38 Ala. 637) : that a deed of trust is "not a good and sub- sisting lien" (Dalrymple v. Craig, 149 Mo. 345, 50 S. W. 884) ; that a certain legacy was as good as a mortgage, where its value depended on whether it was a charge upon testator's real testate (Duffany v. Ferguson, 66 N. Y. 482) ; that the Nattonal Lead Trust was a legat § 88) ELEMENTS 401 But it is not always true that statements of opinion, in- cluding statements of law, cannot constitute fraud. For instance, "liability may arise where one has or assumes to have knowledge upon a subject of which the other is ig- norant, and knowingly makes false statements on which the other relies";^* nor will the general rule apply where the parties are not dealing at arm's length and on equal termSj the relation between them being one of trust and confidence.^' To be actionable, the representation need not have been made in express terms. Thus, the drawer of a check, who obtains money ori the strength thereof, knowing that he organization, and legally entitled to issue certificates of shares (Unckles v. Hentz, IS Misc. Rep. 644, 43 N. Y. Supp. 749, affirmed 19 App. Div. 165, 45 N. Y. Supp. 894). Of. Thompson v. Phoenix Ins. Co., 75 Me. 55, 46 Am. Rep. 357 (that the non-occupancy of an in- sured building rendered the policy void). But the following were held facts: That a trust deed is a first lien upon certain premises, and that there were no other trust deeds or mortgages ahead of it (Kehl V. Abram, 210 111. 218, 71 N. E. 347, 102 Am. St. Rep. 158) ; that a certain deed did not affect (cover) particular premises (Da- shiel V. Harshman, 113 Iowa, 283, 85 N. W. 85) ; that a college had the right to grant a degree (Kerr v. Shurtleff, 218 Mass. 167, 105 N. E. 871) ; that defendant had attached plaintiff's fish traps (Burns V. I/ane, 138 Mass. 350); that a certain mortgage did not exist (Haight V. Hayt, 19 N. Y. 464). Cf. Kathan v. Comstock, 140 Wis. 427, 122 N. W. 1044, 28 L. R. A. (N. S.) 201. 2s Hedui V. Minneapolis Medical & Surgical Institute, 62 Minn. 146, 148, 64 N. W. 158, 35 L. R. A. 417, 54 Am. St. Rep. 628, per Collins, J., who added: "Where parties possess special learning or knowledge on the subject with respect to wliich their opinions are given, such opinions are capable of approximating to the truth ; and for a false statement of them, when deception is designed, and in- jury has followed from reliance on the opinions, an action will lie." To the same effect, Biewer v. Mueller, 254 111. 315, 98 N. E. 548; Board of Water Com'rs of City of New London v. Robbins, 82 Conn. 623, 74 Atl. 938; Kinney v. Dodge, 101 Ind. 573; Picard v. McCor- mick, 11 Mich. 68 ; Conlan v. Roemer, 52 N. J. Law, 53, 18 Atl. 858 ; MarshaU v. Seelig, 49 App. Div. 433, 63 N. Y. Supp. 355; Powell v. Fletcher, 18 N. Y. Supp. 451 ; Moreland v. Atchison, 19 Tex. 303. 2 9Manley v. Felty, 146 Ind. 194, 45 N. B. 74; Fisher v. Budlong, 10 R. I. 525; Allen v. Frawley, 106 Wis. 638, 82 N. W. 593. See Townsend v. Cowles, 31 Ala. 428; Nolte v. Reichelm, 96 111. 425; Hubbard v. McLean, 115 Wis. 9, 90 N. W. 1077. Chap.Tobts — ^26 402 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 14 has no funds on hand to meet it, and being without any rea- sonable expectations that it will be paid, is guilty of fraud, though he never stated in so many words that the check was good.'" Further illustrations are given in the note.'^ Generally mere silence is not fraudulent.*" But it must be "mere" silence. Resort may not be had to trick or artifice. Thus, fraud is shown where the, vendors of a vessel caused her to be taken from the ways previous to sale and kept afloat, so that the worm-eaten condition of the hull could not be dis- covered; and this, though the sale was "with all faults," for that does not mean "with all frauds." '* Again, though the owner of a house which is in a ruinous and unsafe condition may be under no duty to inform a prospective tenant that it is unfit for habitation,** he may not conceal the defects with plaster and paper.'" Furthermore, concealment will be ac- tionable where there has been "such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false." *° Thus a purchaser, when buying on credit, is not bound to disclose the 80 Eastern Trust & Banking Co. v. Cunningham, 103 Me. 455, 70 Atl. 17; Sieling v. Clark, 18 Misc. Rep. 464, 41 N. Y. Supp. 982;- MusslUer v. Bice, 116 N. Y. Supp. 1028. Cf. City Nat. Bank of Selma V. Bums, 68 Ala. 267, 44 Am. Rep. 138. 81 Baker v. Hallam, 103 Iowa, 43, 72 N. W. 419 ; James v. Cros- thwait, 97 Ga. 673, 25 S. B. 754, 36 li. R. A. 631 ; Weikel v. Sterns, 142 Ky. 513, 134 S. W. 908, 34 L. R. A. (N. S.) 1035 ; Smith v. King- man & Co., 70 Minn. 453, 73 N. W. 253 ; People v. O'Brien, 209 N. Y. 366, 103 N. E. 710; Blossom v. Barrett, 37 N. Y. 434, 97 Am. Dec. 747; Dirks Trust & Title Co. v. Koch (1913) 32 S. D. 551, 143 N. W. 952, 49 li. B. A. (N. S.) 513. 32 Boileau v. Records & Breen (1913) 165 Iowa, 134, 144 N. W. 336 ; Cocke V. Greene, 180 Mass. 525, 62 N. B. 1053 ; CroweU v. Jackson, 53 N. J. Law, 656, 23 Atl. 426; Graham, v. Meyer, 99 N. Y. 611, 1 N. E. 143 ; Iron City Nat. Bank of Pittsburg v. Du Puy, 194 Pa. 205, 44 Atl. 1066. 88 Schneider v. Heath, 3 Campb. 506. 84 Keats v. Earl of Cadogen, 10 C. B. 591. 85 See Pickering v. Dowson,. 4 Taunt. 779. For further illustra- tions, see Weikel v. Stems, 142 Ky. 513, 134 S. W. 908, 34 L. B. A. (N. S.) 1035 ; Knelling v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. B. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. Cf. Lancaster County Bank v. Albright, 21 Pa. 228. 86 Lord Cairns in Peek v. Gurney, L. R. 6 H. L. 377, 403. § 88) ELEMENTS 403 facts of his financial condition. But if he undertake to answer an inquiry concerning such condition, he is bound to tell the whole truth. "To tell half a truth only is to conceal the other half. Concealment of this kind under the circumstances amounts to a false representation." ^'^ Again, the doctrine of caveat emptor will not be applied where "the means of in- formation are not equally accessible to both, but exclusively within the knowledge of one of the parties, and known to be material to a correct understanding of the subject, and es- pecially where one of the parties relies upon the other to com- municate to him the true state of facts, to enable him to judge of the expediency of the bargain." ** Here a suppressio veri is equivalent to a suggestio falsi, or, put another way, an ex- press representation may be inferred from circumstances. Thus, fraud was deemed established where a tenant had in- duced his landlord to accept an insolvent person in his stead, being aware of, though not making known, such insolvency.^" Manifestly it is impossible to fix the exact limits of this prin- ciple. Perhaps it is best illustrated by cases where the vendor fails to disclose a latent defect in the article sold, which is known to him,** or where he is aware that the article is sold for a particular purpose and suppresses a fact which makes it unfit for the purpose.*^ 37 Newell v. Randall, 32 Minn. 171, 173, 19 N. W. 972, 50 Am. Rep. 562, per Mitchell, J. For further illustrations, see Edward Malley Co. V. Button, 77 Conn. 571, 60 Atl. 125; James v. Crosthwait, 97 Ga. 673, 23 S. E. 754, 36 L. R. A. 631 ; Atwood v. Chapman, 68 Me. 38, 28 Am. Rep. 5; KIDNEY v. STODDARD, 7 Mete. (Mass.) 252, Chapin Cas. Torts, 209 ; Baker v. Seahorn, 31 Tenn. (1 Swan) 54, 55 Am. Dec. 724. 3 8 Prentiss v. Russ, 16 Me. 30, 32; Atwood v. Chapman, 68 Me. 38, 41, 28 Am. Rep. 5. 3 9 Bruce v. Ruler, 2 Mann. & Ryl. 3, 17 B. C. L. 700. For further illustrations, see Norris v. McFadden, 159 Mich. 424, 124 N. W. 54 ; Paddock v. Strobridge, 29 Vt. 470; Loewer v. Harris, 57 Fed. 368, 6 C. C. A. 394 ; Hill v. Gray, 1 Stark, 434, 2 B. O. L. 167. Cf . Roth- miller V. Stein, 143 N. Y. 581, 38 N. E. 718, 26 L. R. A. 148. *o Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421 ; Jones v. Ed- wards, 1 Neb. 170 ; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476 ; Cardwell v. McClelland, 35 Tenn. (3 Sneed) 150. Cf. Sock- man V. Keim (1909) 19 N. D. 317, 124 N. W. 64. 41 Weikel v. Stems, 142 Ky. 513, 134 S. W. 908, 34 L. R. A. (N. S.) 404 mFEINGEMENT OP PRIVATE PEOPBETY (Ch. 14 (Z) Intent to Cause Action It is essential that there should have been a purpose to influence complainant's conduct,*^ though the representa- tions need not have been made directly to him. They are none the less actionable if made to another, provided an intent be "found to exist in the party making them that they be communicated to the complainant. "A representation made to one person, with the intention that it shall reach the ears of another and be acted upon by him, and is acted upon by him to his injury, gives the person so acting upon it the same right to relief or redress as if it had been made to him directly." *' This jprinciple is peculiarly applicable to the case of statements furnished to mercantile agencies. Almost invariably there can here be no intent other than to have the information supplied to those who seek guid- ance in extending credit.** It also may apply where a di- rector or promoter issues or sanctions the circulation of a prospectus,*" or bond.*' Further illustrations are given in the note.*' If the statement is contained in a report required 1035 ; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440 ; Van Braci- lln V. Fonda, 12 Johns. (N. Y.) 468, 7 Am. Dec. 339; Maynard v. Maynard, 49 Vt 297. *2 Steiner v. CUsby, 103 Ala. 181, 15 Sonth. 612 ; Bank of Atchison County V. Byers, 139 Mo. 627, 41 S. W. 325 ; Wells v. Cook, 16 Ohio St. 67, 88 Am. Dec. 436n ; Butterfield v. Barber, 20 R. I. 99, 37 Atl. 532; Langridge v. Levy, 2 M. & W. 519. ■ts HENRY V. DENNIS, 95 Me. 24, 29, 49 Atl.' 58, 85 Am. St. Rep. 365, Chapin Cas. Torts, 212, per Wiswell, C. J. ** Moyer v. Lederer, 50 HI. App. 94 ; Hinchman v. Weeks, 85 Mich. 535, 48 N. W. 790; Tindle v. Birkett, 171 N. Y. 520, 64 N. E. 210, 89 Am. St Rep. 822 ; Eaton, Cole & Bumham Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389 ; Katzensteln v. Reld, Murdock & Co. (1905) 41 Tex. dv. App. 106, 91 S. W. 360. *B Downey v. Flnucane, 205 N. Y. 251, 98 N. E. 391, 40 I,. R. A, (N. S.) 307 ; Morgan v. Skiddy, 62 N. Y. 319. In Peek v. Gumey, U R. 6 H. Li. 377, relief was denied to one not an original allottee. But see Andrews v. Mockford (1896) L. R, 1 Q. B. 372. *« Clark V. Edgar, 84 Mo. 106, 54 Am. Rep. 84, affirming 12 Mo. App. 345 ; Stickel v. AtwSbd, 25 R. I. 456, 56 AtL 687. *i HENRY V. DENNIS, 95 Me. 24, 49 AU. 58, 85 Am. St Rep. 365, Chapin Cas. Torts, 212 ; Nash v. Minnesota Title Insurance & Trust Co., 159 Mass. 437, 34 N. E. 625; Chubbuck v. Cleveland, 37 Minn. § 88) ELEMENTS 405 to be filed in a public office, the liability of the signers to one induced thereby to deal with the corporation or pur- chase its stock will require a determination whether the object of the statute was to furnish information to the pub- lic, or only to public officials. It thus becomes a question whether the signers should have known that such a one as the complainant would act thereon. It would appear that such statutes are not generally considered to have been enacted for the benefit of individual members of the community.'" It must be emphasized that wh^t is required is the in- tent to cause action. Motive is immaterial. Misrepresen- tations "are frequently made from inconsiderate good na- ture, prompting a desire to benefit a third person, and without a view of advancing the party's own interests. But the motives by which he was actuated do not enter into the inquiry." ** (S) Action by Complainant Usually plaintiff has acted. But he may have refrained from doing what he would have done, save for the fraud practiced upon him. For instance, "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 466, 35 N. W. 362, 5 Am. St Eep. 864; Keeler v. Seaman, 47 Misc. Rep. 292, 95 N. Y. Supp. 920; Denton v. Great Northern By., 5 El. & Bl. 860. *8 For the information of public officials only. Hunnewell v. Dux- bury, 154 Mass. 2SG, 28 N. E. 26T, 13 I.. K. A. 733 ; McKee v. Rudd, 222 Mo. 344, 121 S. W. 312, 133 Am. St Rep. 529; Webb v. Rockefel- ler, 195 Mo. 57, 93 S. W. 772, 6 I* R. A. (N. S.) 872 ; Hindman v. First Nat Bank, 112 Fed. 931, 50 O. C. A. 623, 57 L. B. A. 108. For the benefit of one acting thereon. Macdonald v. De Fremery (1914) 168 Cal. 189, 142 Pac. 73 : Warfleld v. Clark, 118 Iowa, 6», 91 N. W. 833 ; Gerner v. Mosher, 58 Neb. 135, 78 N. W. 384, 46 L. R. A. 244. 19 Boyd's Ex'rs v. Browne, 6 Pa. 310, 316, per Bell, J. To the same effect, Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798; Stoney Creek Woolen Co. v. SmaUey, 111 Mich. 321, 69 N. W. 722 ; Cowley V. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432 ; Foster v. Charles, 7 Bing. 105; Pasley v. Freeman, 3 Term Rep. 51. Ct Rothmiller v. Stein, 143 N. Y. 581, 38 N. E. 718, 26 L. R. A- 148. 406 INFRINGEMENT OP PRIVATE PROPERTY (Ch. 14 keep or to sell." ^" In either event, he cannot be heard to complain where his conduct was not influenced by the mis- representations."^ Thus there can be no recovery, if he was unaware of the latter at the time he acted,°^ or if he knew or believed them to be false."' Nor may he recover if he relied upon information obtained from other sources and acted upon his own judgment."* "A mere naked lie — a falsehood — though told with intent to deceive, upon which nobody acts, and by which nobody is deceived, is not ac- tionable." "" Thus a declaration sets forth no cause of ac- tion where it merely alleges that the defendant falsely and fraudulently represented that he had a valid claim against the plaintiffs for damages, that the plaintiffs relied upon the representations, and that they investigated them at a large expense and found them to be false. "One or the other of, the last two allegations is as untruthful as the rep- resentations are claimed to be ; both cannot be true. If the plaintiffs relied upon the representations, they did not 60FOTTLER v. MOSELET, 179 Mass. 295, 299, 60 N. E. 788, Chapin Gas. Torts, 215, per Hammond, J. To the same effect, Rhodes v. JDickerson, 95 Mo. App. 395, 69 S. W. 47 ; Ross v. W. D. Cleveland & Sons (Tex. Civ. App. 1910) 133 S. W. 315; Butler v. Watkins, 13 Wall. (U. S.) 456, 20 L. Ed. 629; Barley v. Walford, 9 Ad. & El. N. S. 197. So' a third party may have been prompted to refrain from acting. Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30. 61 Burnett v. Hensley, 118 Iowa, 575, 92 N. W. 678; Duryea v. Zimmerman, 143 App. Div. 60, 127 N. T. Supp. 664; Powell v. P. C. Linde Co., 58 App. Div. 261, 68 N. Y. Supp. 1070, affirmed 171 N. Y. 675, 64 N. B. 1125 ; Chemical Bank v. Lyons (C. C.) 137 Fed. 976. 02 Burnett v. Hensley, 118 Iowa, 575, 92 N. W. 678; Brackett v. Grlswold, 112 N. Y. 454, 20 N. B. 376. 63 Hooper v. Whitaker, 130 Ala. 324, 30 South. 355; Bowman v. Carithers, 40 Ind. 90 ; Raffel v. Epworth, 107 Mich. 143, 64 N. W. 1052; Bradford v. Wright, 145 Mo. App. 623, 123 S. W. 108; Lem- beck V. Gerken (1914) 86 N. J. Law, 111, 90 Atl. 698 ; Vemol v. Ver- -nol, 63 N. Y. 45; BaUey v. Fraaier (1912) 62 Or. 142, 125 Pac. 643. 6* Bradley v. Ovlatt (1912) 86 Conn. 63, 84 Atl. 321, 42 L. R. A. (N. S.) 828; Craig v. Hamilton, 118 Ind. 565, 21 N. E. 315; Warren v. Ritchie, 128 Mo. 311, 30 S. W. 1023; Grauel v. Wolfe, 185 Pa. 83, 39 Atl. 819; Southern Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881, 31 L. Ed. 678; Slaughter v. Gerson, 13 Wall. (U. S.) 379, 20 L. Ed. 627. BB Enfield v. Colbum, 63 N. H. 218, 219, per Carpenter, J. § 88) ELEMENTS 407 investigate them; if they investigated them, they did not rely upon them. It is a perversion of language to say that they did both." "' It is not, however, essential to a recovery that the representations "should have been the sole, or even the predominant, motive; it is enough that they had ma- terial influence upon the plaintiff, although combined with other motives." " Redress will not be denied merely because the represen- tation was of such a character that a man of ordinary care and caution would not have been deceived. -"No rogue should enjoy his ill-gotten plunder for the siinple reason that his victim is by chance a fool." "' It is possible, of course, for the statement to be too preposterous for belief — e. g., that certain eyeglasses had been treated by a chemical preparation which imparted a quality that made them fit the eye indefinitely; that the glasses, once fitted, would always adapt themselves to the eye."" Such a case, how- ever, must be exceptional. It seems best to say that "if the representations were so extravagant that sensible, cautious people would not have believed them, that is a proper con- sideration for the jury in determining whether the plaintiff believed and relied upon them ; but it does not preclude a finding that plaintiflF did so, nor relieve the defendant from liability for his fraud, if he committed fraud. It is as much an actionable fraud willfully to deceive a credulous person 5 8 Enfield v. Colbum, supra. ST Safford v. Grout, 120 Mass. 20, 25, per Colt, J. To the same ef- fect, Jordan v. Pickett, 78 Ala. 331; Braley y. Powers, 92 Me. 203, 42 AU. 362; Massey v. Luce, 158 Mich. 128, 122 N. W. 514; Strong v. Strong, 102 N. Y. 69, 5 N. E. 799; Handy v. Waldron, 19 R. I. 618, 35 Atl. 884. , 58 Chamberlln v. Puller, 59 Vt. 247, 256, 9 Atl. 832. "The design of the law Is to protect the weak and credulous from the wllei and stratagems of the artful and cunning, as well as those whose vigi- lance and sagacity enable them to protect themselves. • * • The law is not bUnd to the fact that communities are composed of In- dividuals of several degrees of intelligence and capacity." Ingalls v. MUler, 121 Ind. 188, 191, 22 N. B. 995. B» H. Hirschberg Optical Co. v. Michaelson (1901) 1 Neb. Unof. 137, 95 N. W, 461. To the same effect, Ellis v. Newbrough, 6 N. M. 181, 27 Pac. 490. 408 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 14 with an improbable falsehood, as it is to deceive a cautious, sagacious person with a plausible one." "" Is the one to whom the representation has been made under a duty to investigate its truth? The general prin- ciple is sometimes asserted that if the means of knowledge are at hand and equally available, and the subject-matter open to the inspection of both parties alike, the injured person must not neglect to make use of the means of in- formation existing at the time.*^ It is evident, however, that this doctrine must be applied with extreme caution. Thus, on the one hand, there should be no recovery where defendant had falsely represented the nonexistence of a noxious weed, when plaintiff, an experienced farmer, had inspected the farm on which it was growing and could have discovered its existence, had he taken ordinary pains to look for-it.'* Here the falsity was obvious. Plaintiff had simply refused to use his eyes.^* But, on the other hand, the principle cannot be invoked where at the time of the examination the farm was covered with snow, precluding investigation of its productiveness,®* or where the land was at a distance, and no examination had in fact been made.*" 80 Barndt v. Frederick, 78 Wis. 1, 11, 47 N. W. 6, 11 L. B. A. 199, per Lyon, J. (statement that a mining company had $1,500,000 of ore on the surface ready for crushing).' Cf. King v. Livingston Mfg. Co. (1912) 180 Ala. 118, 60 South. 143 ; Porter v. United Rys. Co. of St. Louis (1912) 165 Mo. App. 619, 148 S. W. 162. 81 See Champion v. Woods, 79 Cal. 17, 21 Pac. 534, 12 Am. St. Rep. 126; Hart v. Waldo, 117 Ga. 590, 43 S. E. 998; De Grasse v. Verona Min. Co. (1915) 185 Mich. 514, 152 N. W. 242 ; Brauckman v. Leigh- ton, 60 Mo. App. 38 ; Slaughter v. Gerson, 13 WaU. (U. S.) 379, 20 L. Ed. 627. , 62 Long v. Wlarren, 68 N. Y. 426. 83 To the same effect, see Moore v. Howe, 115 Iowa, 62, 87 N. W. 750 ; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932 ; Slaughter V. Gerson, 13 Wall. (U. S.) 379, 20 L. Ed. 627. .84 Martin t. Jordan, 60 Me. 531. See Ladner v. Balsley, 103 Iowa, 674, 72 N. W. 787, holding that the question whether due care had been used was for the jury, where the land was too muddy to permit inspection. 86 Ladd V. Pigott, 114 lU. 647, 2 N. E. 503; Godfrey v. Olson (1912) 68 Wash. 59, 122 Pac. 1014; Smith v. Richards, 13 Pet. (U. S.) 26, 10 L. Ed. 42. Cf. Brandt v. Krogh (1910) 14 Cal. App. 39, 111 Pac. 275. § 88) ELEMENTS 409 • In fine, while a failure to note obvious defects or incon- sistencies might well be sufficient ground for refusing relief, there would seem no reason why such effect should be given to a mere failure to investigate. "It is no excuse for, nor does it lie in the mouth of, the defendant to aver that plaintiff might have discovered the wrong and prevent- ed its accomplishment, had he exercised watchfulness, be- cause this is but equivalent to saying, 'You trusted me, therefore I had the right to betray you.' " ** For example, plaintiff should be permitted to recover for false representa- tions concerning the title to or extent of the property pur- chased, though he might have discovered their falsity had he consulted the public recofds,'' and so should the pur- chaser of stock in a corporation, though by employing an accountant he might have ascertained the falsity of repre- sentations concerning its condition.** Certainly defendant should not escape where his conduct has been such that plaintiff has been thrown off his guard and induced to omit inquiry or examination which otherwise he would have made,°° or where confidential relations exist.'" 66 Pomeroy v. Benton, 57 Mo. 531, 542, per Sherwood, J. ; Cottrill V. Krum, 100 Mo. 397, 405, 13 S. W. 753, 18 Am. St. Rep. 549. To the same effect, Hale v. Philbrick, 42 Iowa, 81; Foley- v. Holtry, 43 Neb. 133, 61 N. W. 120 ; Wilcox v. American Telefihone & Telegraph Co., 176 N. Y. 115, 68 N. E. 153, §8 Am. St. Rep. 650 ; David v. Moore (1905) 79 Pac. 415, 46 Or. 148; Hingston v. L. P. & J. A. Smith Co., 114 Fed. 294, 52 C. G. A. 206. "Any different doctrine, carried to its logical conclusion, would facilitate transactions in gold bricks, salted mines, bogus diamonds as real, fac similes as originals, and would permit a variety of things destructive to commerciail integrity." Crompton v. Beedle, 83 Vt. 287, 302, 75 Atl. 331, 30 L. R. A. (N. S.) 748, Ann. Cas. 1912A, 399, per Hasleton, J. 67 Kehl v. Abram, 210 111. 218, 71 N. E. 347, 102 Am. St. Rep. 158 ; Elley V. Bell, 120 Iowa, 618, 95 N. W. 170 ; David v. Park, 103 Mass. 501 ; Mead v. Bunn, 32 N. Y. 275; Blumenfeld v. Stine, 42 Misc. Rep. 411, 87 N. Y. Supp. 81 ; Hunt v. Barker, 22 R. I. 18, 46 AU. 46, 84 Am. St. Rep. 812. 68 JACOB SEN v. WHITBLY, 138 Wis. 434, 120 N. W. 285, Chapin Cas. Torts, 218. «» Stewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496; Schumaker V. Mather, 133 N. Y. 590, 30 N. B. 755; May v. Loomis, 140 N. C. 350, 52 S. E. 728 ; Strand v. Griffith, 97 Fed. 854, 38 0. C. A. 444. 7 King V. White, 119 Ala. 429," 24 South. 710; Vance v. Supreme 410 INFHINGBMENT OF PRIVATE PEOPBETY (Ch. 14 • ('4^ Falsity If the statement was not in fact false when made, there is ordinarily no ground for complaint.^^ It has been said, however, that "in order to establish a case of false repre- sentation it is not necessary that something which is false should have been stated as if it were true. If the presenta- tion of that which is true creates an impression which is false, it is as to him who, seeing the misapprehension, seeks to profit by it, a case of false representation," '"' and, as previously stated,^* a half truth may be equivalent to a lie. So recovery may be had, though the representation was true when made, if to the knowledge of the party making it, events occur which render such representation false when it is acted upon, and he fails to correct the misapprehen- sion.'* (5) Defendanfs Knowledge of Falsity The action of deceit is based upon defendant's moral de- linquency, and therefore his knowledge of the falsity of his representation, or what in law is equivalent to knowledge, must be alleged and proved.'" It is necessary here to note Lodge of Fraternal Brotherhood (1911) 15 Cal. App. 178, 114 Pac. 83; Faust V. Hosford, 119 Iowa, 97, 93 N. W. 58 ; . Gray v. Reeves (1912) 69 Wash. 374; 125 Pac. 162. Ti Wiesselhoeft v. Schanze, 153 lU. App. 443; Allison v. Jack, 76 Iowa, 205, 40 N. W. 811 ; Putney v. Hardy, 99 Mass. 5. See Ide v. Graham, 3 Misc. Rep. 151, 22 N. Y. Supp. 709, 51 N. T. St. Rep. 490. 72 LOMERSON V. JOHNSTON, 47 N. J. Eq. 312, 314, 20 Atl. 675, 24 Am. St. Rep. 410, Chapin Gas. Torts, 222, per Garrison, J. Here the effect of the statements was to cause a wife to apprehend the immediate arrest of her husband. To the same effect. Mulligan v. Bailey, 28 Ga. 507 ; Moens v. Heyworth, 10 M. & W. 147, 10 L. J. Ex. 177. Of. Denny v. Gilman, 26 Me. 149 ; Match v. Hunt, 38 Mich. 1 ; Jones V. Commercial Travelers' Mut. Ace. Ass'n, 114 N. X. Supp. 589, affirmed 134 App. Div. 936, 118 N. Y. Supp. 1116. 78 See supra, page 402. 1* Janes v. Trustees, 17 Ga. 515 ; Loewer v. Harris, 57 Fed. 368, 6 0. C. A, 394. Of. Mooney v. Davis, 75 Mich. 188, 42 N. W. 802, 13 Am. St. Rep. 425; Davies v. L. & P. M. Ins. Co., L. R. 8 Ch. D. 469. Fraud is established if the purchaser receive goods, intending not to pay for them, although, when the goods were ordered, he had in- tended to pay. Whitten v. Fitzwater, 129 N. Y. 626, 29 N. E. 298. Contra, In re Levi v. Pickard (D. C.) 148 Fed. 654. " Davis v. Central Land Co. (1913) 162 Iowa, 269, 143 N. W. 1073, § 88) ELEMENTS 4ll the distinction between actions at law and in equity. "Where rescission is claimed, it is only necessary to prove that there was misrepresentation; then, however honestly it may have been made, however free from blame the per- son who made it, the contract, having been obtained by misrepresentation, cannot stand." In an action on deceit, on the contrary, it is not enough to establish misrepresenta- tion alone ; it is conceded on all hands that something must be proved to cast liability on the defendant, though it has been a matter of controversy what additional elements are requisite." '^ In the celebrated case of Derry v. Peek,''* it was declared that fraud is proved when it is shown that a false representation has been made: (1) Knowingly;'" or (2) without belief in its truth;'" or (3) recklessly, careless whether it be true or false.*^ It will bfe observed that the defendant's honest belief is here made the test. It is not enough that he was negligent.*" Thus the New 49 U R. A. (N. S.) 1219; Trimble v. Reld, 97 Ky. 713, 31 S. W. 861; Hartford Live Stock Ins. Co. v. Matthews, 102 Mass. 221; Adams v. BaiEber (1911) 157 Mo. App. 370, 139 S. W. 489; Inderlied v. Honey- wefl, 88 App. Dlv. 144, 84 N. X. Supp. 333 ; Cobb v. Peters (1913) 68 Or. 14,» 136 Pae. 656; Kimber v. Young, 137 Fed. 744, 70 C. C. A. 178. T6 Weise v. Grove (1904) 123 Iowa, 585, 99 N. W. 191; Spurr v. Benedict, 99 Mass. 465; Martin v. HIU, 41 Minn. 337, 43 N. W. 337; Phillips V. Hollister, 2 Cold. (Tenn.) 269; Smith v. Richards, 13 Pet. (U. S.) 26, 10 I/. Ed. 42. Cf. Bank of Atchison Co. v. Byers, 139 Mo. 627, 653, 41 S. W. 325, 332 ; Cowley v. Smyth, 46 N. J. Law, 380, 50 Am. St. Rep. 432 ; Hindman v. First Nat. Bank, 112 Fed. 931, 944, 50 C. C. A. 623, 57 L. R. A. 108; In re Reese River SUver Mining Co., L. R. 2 Ch. App. 604. t\ DERHY V. PEEK, L. R. 14 App. Cas. 337, 359, 54 J. P. 148, 61 L. T. Rep. N. S. 265, Chapin Cas. Torts, 223, per Lord HerscheU. 7 8 Supra, DERRY v. PEEK, 14 App. Cas. at page 374, Chapin Cas. Torts, 223. 79 As In Foster v. Charles, 6 Bing. 396, 7 Bing. 105 ; PolhiU v. Wal- ' ter, 3 B. & Ad. 114. Cf. McAleer v. Horsey, 35 Md. 439; Helberg v. Hosmer, 143 Wis. 620, 128 N. W. 439. 80 Cf. Shackett v. Bickford, 74 N. H. 57, 65 Atl. 252, 7 L. R. A. (N. S.) 646, 124 Am. St Rep. 933 ; Howard v. Gould, 28 Vt. 523, 67 Am. Dec. 728. 81 Shackett v. Bickford, supra ; Aitken v. Bjerkvig (1915) 77 Or. 397, 150 Pac. 27a 82 Le Laevre v. Gould, [1893] 1 Q. B. 491, 57 J. P. 484, 62 L. J. Q. B. 412 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 14 York Court of. Appeals observed that "intentional fraud, as distinguished from a mere breach of duty or the omis- sion to use due care, is an essential factor in an action for deceit. * * * if ^ through inattention, want of judg- ment, reliance upon information which a wiser man might not credit, misconception of the facts, or of his moral ob- ligation to inquire, he makes a representation designed to influence the conduct of another, and upon which the other acts to his prejudice, yet if the misrepresentation was honestly made, believing it to be true, whatever other lia- bility he may incur, he cannot be made liable in an action for deceit." " This, it would seem, is the prevailing view. But there is strong authority to the contrary.** But, though 353, 68 L. T. Rep.-N. S. 626, 41 Wkly. Rep. 468; Angus v. CUfford (1891) • L. R. 2 Ch. 449. There has been a statutory change respect- ing the liability of directors and promoters. St 53 '& 54 Vict, c 64 (Directors' Liability Act of 1890). 83 Kountze v. Kennedy, 147 N. T. 124, 129, 41 N. B.,414, 29 L. R, A. 360, 49 Am. St. Rep. 651, per Andrews, C. J. To same effect, Boddy ■V. Henry, 113 Iowa, 462, 85 N. W. 771, 53 L. R. A. 769; CahUl v. Applegarth, 98 Md. 493, 56 Atl. 794 ; Nash v. Minnesota Title Injair-. ance & Trust Co., 163 Mass. 574, 40 N. E. 1039, 28 L. R. A. 753, 47 Am. Rep. 489; Ray County Sav. Bank v. Hutton, 224 Mo. 42, •123 S. W. 47; Pittsburg Life & Trust Co. v. Northern Cent. Life Ins. Co. (C. C.) 140 Fed. 888; Id., 148 Fed. 674, 78 C. C. A. 408: "Whether he had a belief and honestly expressed it was in issue, but the reasona- bleness of his ground for that belief could not be called into ques- tion." Lemberton v. Dunham, 165 Pa. 129, 132, 80 Atl. 716, per Fell, J. 84 In Alabama a distinction is drawn between representations by strangers and by parties to the transaction. Foster v. Kennedy's Adm'r, 38 Ala. 359, 81 Am. Dec. 56; Einstein v. Marshall, 58 Ala. 153, 29 Am. Rep. 729. California by statute (Civ. Code, § 1572, subd. 2) has declared that fraud may consist in "the positive assertion, tn a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true." Mayer V. Salazar, 84 'Cal. 646, 24 Pac. 597. A similar provision is contain- ed in the South Dakota Civil Code (section 1201, subd. 2). McCabe v. Desnoyers, 20 S. D. 581, 108 N. W. 341. The Supreme Court of Florida has said that "an averment that defendant's situation or means of knowledge were such as made it his duty to know whether his statement was true or false, and an averment that defendant well knew his statements to be untrue', are but different methods of stat- ing the same ultimate fact, viz. knowledge." Watson v. Jones, 41 Fla. § 88) ELEMENTS 413 defendant's negligence is not the determinative point, evi- dence may nevertheless be received to show the existence of want of care, or of reasonable grounds for his belief, for it may prove of great assistance in determining what his state of mind really was.*' Furthermore, to the doctrine that 241, 25 South. 678, 682. In Georgia, "misrepresentation of a ma- terial fact, made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and in- nocently, and acted upon by the opposite party, constitutes legal fraud." Civ. Code 1895, § 4026. Walters v. Eaves, 105 Ga. 584, 32 S. E. 609. In Michigan, the doctrine is stated to be established "that if there was in fact„a misrepresentation, though made Innocently, and Its deceptive Influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby, either at law or in equity." Holcomb v. Noble, 69 Mich. 396, 399, 37 N. W. 497; Busch v. Wilcox, 82 Mich. 315, 46 N. W. 940. In North Carolina, it is the duty of directors to know the truth of cor- porate reports. Hence it is unnecessary to establish that such re- ports were known to be false. Houston v. Thornton, 122 N. C. 365, 29 S. B. 827, 65 Am. St. Rep. 699; Solomon v. Bates, 118 N. C. 311, 321, 24 S. E. 478, 746, 54 Am. St. Rep. 725. In Wlisconsin, it has been held that "if the representations were material and false, and the de- fendant knew, or had the means of knowing, or ought to have known, that they were untrue, and the plaintiff did not know, or have the present means of knowing, that they were false, and relied upon them as being true, and suffered damage thereby, it is immaterial whether the defendant made the representations willfully or inten- tionally or not ; for he had no right to make even a mistake in facts so material to the contract, except under the penalty of responding in damages, and in the application of this principle, there is no dif- ference between actions at law for damages and suits in equity to rescind or set. aside the contract" Cotzhausen v. Simon, 47 Wis. 103, 106, 1 N. W. 473, per Orton, J.; Montreal River Lumber Co. v. -Mi- hills, 80 Wis. 540, 50 N. W. 507. 85 "When a false statement has been made," says Lord Herschell (DERRX V. PEEK, supra, 14 App. Cas. at page 375, Chapin Cas. Torts, 223), the questions whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for consideration. The ground upon which an alleged belief was founded is a most im- portant test of its reality. I can conceive many cases where the fact that an alleged belief was destitute of all reasonable foundation would suffice of itself to convince the court that it was not really en- tertained, and that the representation was a fraudulent one. So, too, although means of knowledge are • • • a very different 414 INFEINGBMENT OF PRIVATE PROPERTY (Ch. 14 honest belief will protect, there is an exception in cases where one has undertaken to act for another, though lack- ing authority to do so. He will be liable to the person misled, despite his sincere belief in the existence of the power." Again, to the three cases put by Lord Herschell in Deny V. Peek, there must be added a fourth, namely, where the defendant has asserted or conveyed the impression that he has actual knowledge of the truth of the statement made, although conscious that he has no such knowledge, provided the matter is not-merely one of opinion, estimate, or. judg- ment, but is susceptible of actual knowledge.*' thing from knowledge, if I thought that a person making a false statement had shut his eyes to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated that which was false." To the same effect, Gordon v. Irvine, 105 Ga. 144, 31 S. E. 151 ; French v. Vlning, 102 Mass. 132, 3 Am. Rep. 440. Cf . Downey v. Fiuucane, 205 N. T. 251, 98 N. B. 391, 40 L. R. A. (N. S.) 307. So "to eliminate the possible inflrmative hypothesis that the act in question was done innocently, or was the result of an accident or honest mistake, it may be shown that the perpetrator of the act had committed similar acts; t e., frauds of a like nature." Chamber- layne on Evidence, vol. IV, § 3223. 86 Groeltz v. Armstrong, 125 Iowa, 39, 99 N. W. 128; Jefts v. York, 10 Gush. (Mass.) 392 ; People's Nat. Bank of Boston v. Dlxwell, 217 Mass. 436, 105 N. E. 435, Ann. Gas. 1915D, 722 ; Kroeger v. Pitcaim, 101 Pa. 311, 47 Am. Rep. 718. Cf. Gilmore v. Bradford, 82 Me. 547, 20 Atl. 92. In some states, however, the agent's liability is held to rest upon his implied contract of warranty or promise that he pos- sessed the authority he assumed to exercise. Taylor v. Nostrand, 134 N. Y. 108, 31 N. B. 246 ; Simmons v. More, 100 N. Y. 140, 2 N. B. 640; Baltzen v. Nicolay, 53 N. T. 467 ; Farmers' Co-op. Trust Co. v. Floyd, 47 Ohio St. 525, 26 N. E. 110, 12 L. R. A. 346, 21 Am. St. Rep. 846. 87 "There can be no variance in the principle upon which one is held liable for damage who asserts the existence of a fact, knowing that in truth it does not exist, and that upon which a like responsi- bility is visited upon one who, conscious that he is ignorant concern- ing the subject-matter of which he speaks, still falsely asserts that, within his own personal knowledge, a fact stated by him does in truth exist" Riley v. Bell, 120 Iowa, 618, 626, 95 N. W. 170, per Bishop, C. J. To the same effect, Braley v. Powers, 92 Me. 203, 42 Atl. 362; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168, 9 Am. St Rep. 727; Hadcock v. Osmer, 153 N. Y. 604, 47 N. E. 923; Cabot v. Christie, 42 Vt 121, 1 Am. Rep. 313^ ^ 88) ELEMENTS 415 Analyzing these four cases, it will be observed that in the first there is a knowingly false assertion as to the fact itself; in the second, as to a belief in the fact. The third, though treated as distinct, "is but an instance of the sec- ond, for one who makes a statement under such circum- stances can have no real belief in the truth of what he states." *^ In the fourth, the conscious false assertion is as to the asserter's knowledge of the fact.°* Here honest be- lief in the existence of the fact as to which knowledge is asserted will be no defense,'" nor will it be enough that defendant has exercised due diligence to ascertain the truth. *^ But this floctrine can, of course, have no applica- tion, where the statement is not an unqualified assertion, but purports to be upon information and belief, and is made by one who believes in its truth.^'' Again, the distinction must be emphasized between cases where the representa- tion was made with respect to a specific fact susceptible of exact knowledge, so that an affirmation of knowledge may be taken in its strict sense, and not merely as a strong expression of belief and cases where the representation con- cerned a condition of affairs not susceptible of exact knowl- edge,*' as in Haycraft v. Creasy.''' If the representation is 8 8 DERRT V. PEEK, supra, 14 App. Cas. at page 374, Ohapin Cas. Torts, 223, per Lord Herschell. 89 Humphrey v. Merriam, 32 Minn. 197, 198, 20 N. W. 138; Spead V. Tomlinson, 73 N. H. 46, 59 Atl. 376, 68 L. R. A. 432. »o Smith V. Pacljard & Co. (1911) 152 Iowa, 1, 130 N. W. 1076 ; Litchfield v. Hutchinson, 117 Mass. 195 ; Fisher v. Mellen, 103 Mass. 503.; Bullitt V. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149, 18 Am. St. Rep. 485 ; Hadcock v. Osmer, 153 N. Y. 604, 47 N. B. 923 ; Johnson v. Gate, 75 Vt. 100, 53 Atl. 329. »i Huntress v. Blodgett, 206 Mass. 318, 92 N. B. 427. Contra, where defendant is not conscious that he has no knowledge. Powell v. F. C. Linde Co., 58 App. Div. 261, 68 N. Y. Supp. 1070, affirmed 171 N. X. 675, 64 N. E. 1125. »2 Davidson v. Jordan, 47 Cal. 351; Stevens v. Allen, 51 Kan. 144, 32 Pac. 922 ; Cooper v. Levering, 106 Mass. 77 ; Moore v. Scott, 47 Neb. 346, 66 N. W. 441. »s Page V. Bent, 2 Mete. (Mass.) 371; Spead v. Tomlinson, 73 N. H. 46, 59 AO. 376, 68 L. R. A. 432 ; Kmber v. Young, 137 Fed. 744, 70 C. C. A. 178. Cf. Board of Water Com'rs of City of New London V. Robbins, 82 Conn. 623, 74 Atl. 938. • 04 2 Bast, 92. Here the words were: "I can positively assure you 416 INFRINGEMENT OF PKIVATB PROPEETY (Ch. 14 to be regarded as of opinion only, the question resolves itself into one of good faith. Did the defendant honestly believe such representation to be true? "' (6) Damage If plaintiff can establish no damage, he will be denied re- covery,"" for, in the words of Croke, J., "fraud without dam- age, or damage without fraud, gives no cause of action ; but, where these two do concur and meet together, there an ac- tion lieth." °^ For example, an action will not lie by one of my own knowledge that you may credit Miss Robertson to any amount with perfect safety." These were held to import nothing more than a strong belief. But it is submitted that defendant mis- stated a fact, and did not merely utter a strong expression of opin- ion, when on another occasion he said: "I know of my own knowl- edge that she has been left a considerable fortune lately by her mother, and that she is in daily expectation of a much greater at the death of her grandfather, who has been bedridden a considera- ble time." Apparently this was not considered. In accord with Haycraft v. Creasy, Cowley v. Smyth, 46 N. J. Law, 3S0, 50 Am. Kep. 432, cf. Sylvester v. Henrich, 93 Iowa, 489, 61 N. W. 942. A con- trary conclusion was reached by the New York Court of Appeals, where defendant's language was: '"The Browns are good for what money you let them have." Hadcock v. Osmer, 153 K. T. 604, 47 N. E. 923. In accord, Crane v. Elder, 48 Kan. 259, 29 Pac. 151, 15 L. El A. 795. Cf. Simons v. Cissna (1909) 52 Wash. 115, 100 Pac. 200. 05 To exculpate himself, he may resort to evidence not admissiWe in actions where the fraud is of a different nature. "He may, as in Haycraft v. Creasy, give evidence that the person whose ability he affirmed lived in a style and with such appearances of property and means as gave assurances of affluence. He may give in evidence the information he had upon the subject, and show the general reputa- tion for trustworthiness of the person whose credit he affirmed. -In jne, he may avail himself of any evidepce which may tend to show jood faith or probable grounds for his. belief." Cowley v. Smyth, 46 N. J. Law, 380, 389,' 50 Am. Rep. 432, per Depue, J. In accord, Baker V. Trotter, 73 Ala. 277; Clausen v. Tjernagel, 91 Iowa, 285, 59 N. W. 277. Cf. Duryea v. Zimmerman, 121 App. Div. 560, 106 N. X. Supp. 237. 9 6 Wtoodson v. Winchester (1911) 16 Cal. App. 472, 117 Pac. 565; Bailey v. Oatis (1911) 85 Kan. 339, 119 Pac. 830; Danforth v. Cush- Ing, 77 Me. 182; Kuper v. Snethen (1914) 96 Neb. 34, 146 N. W. 991; URTZ V. NEW YORK CENT. & H. R. B. CO., 202 N. Y. 170, 95 N. E. 711, Chapin Cas. Torts, 230 ; Farwell v. Colonial Trust Co., 147 Fed. 480, 78 C. G. A. 22. »7 Baily v. Merrell, 3 Bulstr. ^, 95. And see supra, p. 73. § 88) ELEMENTS 417 who has been fraudulently induced to indorse a note which is still outstanding,"* or by one so induced to pay a debt which he was bound to pay in any event.'" The damage must likewise be the proximate result of the deception.^"" At times, the method of computation will present a question of some difficulty. Take, for example, the case of a sale induced by defendant's fraud. Where vendee sues vendor, it has been held that the damages are usually to be meas- ured by the difference. between the actual or market value of the thing sold and the price paid therefor.^"^ But "authority and reason would seem to sanction the award of an indem- nity not limited by the consideration received. Hence it is. preferable to allow the difference between actual value and what the value would have been, had the representations been true.^"^ The purchaser "has a right to make a good bargain if he can, provided only that he deals honestly. Often the profit secured above the price paid is the sole motive for the purchase. * * * To the entire benefit of his bargain he is entitled. If there had been no fraud, he »8 Freeman v. Venner, 120 Mass. 424. But see Hoffman v. Toft (1914) 70 Or. 488, 142 Pac. 365, 52 L. R. A. (N. S.) 944. But an action In equity will lie to restrain the negotiation of promissory notes, and to cancel such notes when they are obtained by fraud and the present holders are not in due course, warnock Uniform Co. V. Garifalos, 170 App. Div. 674, 156 N. X. Supp. 637. »9 Museonetcong Iron Works v. Delaware, L. & W. R. Co. (1910) 78 N. J. Law, 717, 76 Atl. 971, 20 Ann. Cas. 178. 100 Jamison v. EUsworth, 115 Iowa, 90, 87 N. W. 723; Vilett v. Moler, 82 Minn. 12, 84 N. W. 452; Byard v. Holmes, 34 N. J. Law, 296; Morgan v. Hodge, 145 WBs. 143, 129 N. W. 1083; Richardson V. I>unn, 8 C. B. N. S. 655. 101 Holmes v. Rivers, 145 Iowa, 702, 124 N. W. 801; Freeman v. F. P. Harbaugh Co., 114 Minn. 283, 130 N. W. 1110. Cf. Duffy v. McKenna (1912) 82 N. J. Law, 62, 81 Atl. 1101 ; Crater v. Binninger, 33 N. J. Law, 513, 97 Am. Dec. 737n ; Van de Wiele v. Garbade (1912) 60 Or. 585, 120 Pac. 752; Smith v. BoUes, 132 U. S. 125, 10 Sup. Ct. 39, 33 L. Ed. 279 ; Chandler v. Andrews, 192 Fed. 543^ 113 C. C. A. 15. io2Nysewander v. Lowman, 124 Ind. 584, 24 N. E. 355; Thomson V. Pentecost, 210 Slass. 223, 96 N. E. 335; Adams v. Barber (1911) 157 Mo. App. 370, 139 S. W. 489; Benedict v. Guardian Trust Co., 91 App. Div. 103, 86 N. Y. Supp. 370; R. A. Elder & Co. y. Shoffstall (1914) 90 Ohio St 265, 107 N. B. 539. Chap.Toets — 27 418 INFRINGEMENT OF PRIVATE PROPERTY (Ch. 14 would have had it ; he should not lose it because the other party has been dishonest." ^°' There would seem no reason why this rule should not be applied where vendor sues vendee.^** . But it would appear that the contrary doctrine has received stronger support.^"" It is impossible, within the compass 'of this work, to dis- cuss at length the measure of redress which will be accord- ed. Each case must largely be a law unto itself. By the weight of authority, exemplary damages are not prohibit- ed."' 103 Krumm v. Beach, 96 N. T. 398, 407, per Finch, J. So, where one joint purchaser is induced to pay the represented price for prop- erty which he subsequently ascertains is more than that in fact paid, he should recover the difference between what he in fact paid and what he should have paid of the true price. It is immaterial that the property was in fact worth more than the true price, or as much or more than the represented price. He is entitled to the profit of his bargain. Lowe v. Hendrick, 86 Conn. 481, 85 Atl. 795; Thorp v. Hough (1913) 160 Iowa, 694, 142 N. w. 201 ; Douglass v. Richards, 116 App. Div. 27, 101 N. T. Supp. 299; Bergeron v. Miles, 88 Wis. 397, 60 N. W. 783, 43 Am. St. Rep. 911. 104 Hicks V. Deemer, 187 111. 164, 58 N. E. 252; Potter v. Necedah Lumber Co., 105 WSs. 25, 80 N. W. 88, 81 N. W. 118. Cf. Boddy v. Henry, 113 Iowa, 462, 85 N. W. 771, 53 L. R. A. 769. los McDonough v. Williams, 77 Ark. 261, 92 S. W. 783, 8 L. R. A. (N. S.) 452, 7 Ann. Cas. 276; Vivian v. Allen (1897) 9 Colo. App. 147, 47 Pac. 844; Ranch v. Lynch (1913) '4 Boyce (Del.) 446, 89 Atl. 134; McMillan v. Reaume (1904) 137 Mich. 1, lOO N. W. 166, 109 Am. St. Rep. 666 ; Mountain v. Day, 91 Minn. 249, 97 N. W. 883. 106 Kearney v. Davin, 162 111. App. 37; McAroy v. Wright, 25 Ind. 22; KUJEK v. GOLDMAN, 150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670, Chapin Cas. Torts, 16 ; Nye v. Merriam, 35 Vt. 438. Contra, Singleton's Adm'r v. Kennedy (Ky.) 9 B. Mon. 222; Hoffman v. GiU, 102 Mo. App. 320, 77 S. W. 146. Ch. 15) INFRINGEMENT OF PRIVATE PROPERTY 419 CHAPTER XV rNFMNGEMENT OF PRIVATE PROPERTY (Continued)- SLANDER OF TITLE 89. Definition. 90. Elements. DEFINED 89. Under this head will be considered the disparagement of title or quality of lands knd goods. Though the term "slander of title" is well established, it is largely a mere figure of speech.^ It directs attention to the fact that there is here an assault, not upon the rep- utation of the individual, but upon the extent or value of a property Hght. But it is nevertheless misleading. In the first place, the action is not one of defamation, but is in the nature of trespass on the case for the special dam- ages sustained." Second, it is not essential that there be oral defamation. "The fact that the publication is written or printed, and not oral, makes no difference in the ground of the action, and goes only to the question of dissemina- tion, and consequent damage." ' Third, the wrong, it is true, may consist of an assault upon plaintiff's title,* but it is not limited thereto. There may be a disparagement of quality, as if it should be asserted that a horse was aged,' 1 See Kendall v. Stone, 5 N. T. 14, 18. ' Wilson V. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335 ; Meyrose v. Adams, 12 Mo. App. 329 ; Hatchard v. M6ge, 56 L. J. Q. B. 397; Malachy v. Soper, 3 Bing. N. 0. 371, 2 Hodges, 217, 6 L. J. C. P. 32, 3 Scott, 725, 32 E. 0. L. 176. 3 Meyrose v. Adams, 12 Mo. App. 329, 332, per Bakewell, J. Cf. Ohesebro v. Powers, 78 Mich. 472, 44 N. W. 290. '- Hill V. Ward, 13 Ala. 310; Ohesebro v. Powers, 78 Mich. ,472, 44 N. W. 290 ; Long v. Rucker, 166 Mo. App. 572, 149 S. W. 1051 ; Dodge V. Colby, 108 N. T. 445, 15 N. E. 703. B WUson v. Dubois, 35 Minn. 471, 29 N. W. 68, 59 Am. Rep. 335. 420 INFKINGBMBNT OF PKIVATB PEOPBRTT (Ch. 15 that the ore of a mine would suddenly run out,' or that a dinner furnished by a caterer on a public occasion was "wretched," and was served "in such a way that even hun- gry barbarians might justly object," that "the cigars were simply vile, and the wines not much better." '' It should be noted, however, that although assertions of inferiority are no doubt disparaging, yet a certain leeway must be allow- ed to trade rivalry. Hence it is not actionable merely to assert that one's goods are better than those of a com- petitor. Were it otherwise, as Lord Chancellor Herschell remarked, "the courts of law would be turned into a ma- chinery, for advertising rival productions by obtaining a judicial determination which of the two was the better." ' But competition will not excuse the charge of a positive defect." ELEMENTS 90. Publication, is, of course, essential. In addition, plain- tiff must aver and establish (a) the falsity of the charge; (b) the sustaining of a special damage, proximately resulting; and (c) under certain cir- cumstances, malice.^" • Paull V. Halferty, 63 ta. 46, 3 Am. Rep. 518. 1 DOOLING V. BUDGET PUB. CO., 144 Mass. 258, 10 N. B. 809, 59 Am. Rep. 83, Chapin Gas. Torts, 235. For further illustrations, see Kennedy v. Press Pub. Co., 41 Hun (N. Y.) 422; Cleveland Leader Printing Co. v. Netliersole, 84 Ohio St. 118, 95 N. E. 735, Ann. Cas. 1912B, 978 ; Lyne v. Nichols, 23 T. L, R. 86. « White V. Mellln, [1895] App. Cas. 154, 165. » "Thus, if A. simply says, 'My soothing syrup Is better than B.'s,' this statement is not actionable, although it is not true, and A. knew it was not. But, suppose A. says, 'My syrup is better than B.'s syrup, because there is opium in B.'s syrupi' If there is in fact no opium in B.'s syrup, and damage follows upon this statement, then A. is at least prima faeie liable." "Disparagement of Property," by Jeremiah Smith, 13 Columbia Law Rev. 133. 10 Burkett v. Griffith, 90 Cal. 532, 537, 27 Pac. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151 ; Meyrose v. Adams, 12 Mo. App. 329, 332 ; Car- don V. McConneU, 120 N. C. 461, 27 S. E. 109 ; Le Massena v. Storm, 62 App. Div. 150, 154, 70 N. Y. Supp. 882 ; Like v. McKinstry, 41 Barb. (N. Y.) 186, 190 ; Potosi Zinc Co. v. Mahoiiey (1913) 36 Nev. 390, 135 § 90) • ELEMENTS , 421 (a) Falsity Plaintiff has the burden of proving the falsity of the charge, in which respect this action differs from personal defamation, where falsity is presumed, and where the bur- den of establishing truth rests upon a justifying defend- ant." (b) Damage Proximately Resulting Special damage must also be "distinctly- and precisely set out in the declaration and established by the proof." ^* Hence mere general allegations of loss of custom or sales will not be enough.^^ There should be averment and proof of a loss of Sale to some particular person.^* Recovery has been denied where defendants' act has caused the third party to break a contract made with plaintiff. If the lat- ter has consented to the breach and canceled the agree- ment, he has himself brought about the loss.^" If he has Pae. 1078. "If some portions of the statement which a person makes are dona fide, but others are mala fide, and occasion, injury to an- other, the injured party cannot recover damages, unless he can dis- tinctly trace the damage as resulting from that part which Is made mala fide." Brook v. Eawl, 4 Bxch. 521, 524, per Parke, B. 11 Fant V. Sullivan (Tex. Civ. App. 1912) 152 S. W. 515 ; Burnett v. Tak, 45 !>. T. 743. And see Pater v. Baker, 3 O. B. 831, 869; Steward V. Young, L. E. 5 C. P. 122, 127. 12 Swan V. Tappan, 5 Cush. (Mass.) 104, 109. To the same effect, Ebersole v. Fields (1913) 181 Ala. 421, 62 South. 73; Stark v. Chit- wood, 5 Kan. 141 ; Cleveland Leader Printing Co. v. Nethersole; 84 Ohio St. 118, 95 N. E. 735, Ann. Cas. 1912B, 978; McGuinness v. Hargiss, 56 Wash. 162, 105 Pac. 233, 21 Ann. Cas. 220; Malachy v. Soper, 32 E. C. L,. 176. 13 MarUn Firearms Co. v. Shields, 171 N. X. 384, 64 N. B. 163, 59 L. E. A. 310; Tobias v. Harland, 4 Wend. (N. Y.) 537. 14 "The rule Is not technical, but substantial. It imposes no hard- ship upon the plalntifC. If there Is a person to whom a sale could have been made in the absence of the disparagement, he can be named, so as to inform defendant of the particular charge of dam- age which he is required to meet. If there is no such person, there Is no cause of action." Wilson v. Dubois, 35 Minn, 471, 473, 29 N. W. 68, 59 Am. Eep. 335, per Berry, J. To the same effect, Stevenson V. Love (C. C.) 106 Fed. 466 ; Tasburgh v. Day, Cro. Jac. 484 ; Man- ning V. Avery, 3 Keb. 153. 15 KendaU v. Stone, 5 N. T. 14. 422 INFRINGEMENT OP PRIVATE PHOPERTT (Ch. 15 not consented, then he has a perfect remedy against the third party.^° But it would seem illogical to deny recov- ery in the latter -case. If A.'s wrongful act is the foresee- able consequence, and therefore the proximate result, of the wrongful act of B., surely the injured party should not be refused redress against the latter. Why should B. be permitted to escape liability merely because there happens to exist a cause of action against another? (c) Malice Though malice is usually said to be an essential ingredi- ent, yet as a learned author " has pointed out, where there has been disparagement of title, a distinction must be drawn between actions against strangers and against rival claimants. If by "malice" is meant "malice in fact," it really forms no part of plaintiff's case when defendant is a stranger. Here the conclusion that a wrongful act, done without just cause or excuse, was prompted by an im- proper motive, i. e., "malice in law," may well be drawn. Though defendant may in fact have acted horiestly, he has none the less caused loss to an innocent party, which the latter should not be compelled to bear. On the other hand, if the defendant is a rival claimant, he occupies a position somewhat analogous to that of one charged with defama- tion uttered on an occasion conditionally privileged. Here bad motive should not be presumed merely because he has made an unfounded claim. "Malice in fact" should be es- tablished. Not only has one the right to assert what he believes to be his title, but it may even be his duty to do so, where a sale is in contemplation, in order that inno- cent purchasers may not be misled; and though a sale be thereby prevented, his assertion will give rise to no cause of action, unless it is "bottomed on fraud." ^* Plaintiff 16 Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 13 L. R. A, 707, 25 Am. St. Rep. 151 ; Felt v. Germania Life Ins. Co., 149 App. Div. 14, 133 N. Y. Supp. 519; C!ohen v. Minzesheimer (Sup.) 118 N. Y. Supp. 385. Cf. Walkley v. Bostwick, 49 Micli. 374, 13 N. W. 780. 1? Jeremiah Smith, "Disparagement of Property," 13 Columbia Law Eev. 13, 19. 18 Cardon v. MeConnell, 120 N. C. 461, 463, 27 S. E. 109. To the § 90) ELEMENTS 423 is not unduly burdened when he is required to prove that defendant could not honestly have believed in the exist- ence of the right claimed. Even where there appears no reasonable or probable cause for the belief, still, as the lat- ter may have acted from mere stupidity, the jury are not bound to find malice, though they are at liberty to do so.^° Where quality is disparaged, there would seem no rea- son why defendant's bad faith must be shown by plain- tiff. The position of a rival trader is not analogous to that of a claimant. If the latter remain silent, he may jeopardize his title; but the possible increase of a trad- er's sales, which may be brought about by spreading re- ports of the quality of a rival's goods, scarcely constitutes an interest worthy of protection.^" A fortiori, should a mere stranger be forced to make good the damage he has caused, irrespective of the motive which prompted him. same effect. Hill v. Ward, 13 Ala. 310 ; Duncan v. Griswold, 93 Ky. 546, 18 S. W. 354; Harriss v. Sneeden, 101 N. C. 273, 7 S. B. 801; Smith v. Spooner, 3 Taunt. 246. Cf. Hovey v. Rubber Tip Pencil Co., 57 N. X. 119, 15 Am. Rep. 470. i» Harrison v. Howe, 109 Midi. 476, 67 N. W. 527 ; Butts v. Long, 106 Mo. App. 313, 80 S. W. 312 ; Hopkins v. Browne, 21 R. I. 20, 41 Ati. 567 ; Pitt v. Donovan, 1 M. & S. 639. Cf. Gent v. Lynch, 23 Md. 58, 87 Am. Dea 558, note. 20 Cf. Western Counties Manure Co. t. Lawes Chemical Manure Co., L. R. 9 Esch. 21& 424 INFfilNGEMENT OF PRIVATE PEOPEETX (Ch. 16 CHAPTER XVI I>fFRINGB!MENT OF PRIVATE PEOPERTT (Continued)— IN- TERFERENCE WITH CONTRACTUAIi RIGHTS 91. (I) Prospective Contracts of Einployment. 92. (II) Prospective Contracts Not of Employment, 9-3. (Ill) EMsting Contracts of Employment. 94. (IV) EMstlng Contracts Not of Employment SCOPE OF CHAPTER We shall here consider whether A will have a cause of action against C under the following conditions : First : Owing to C's interference, B did not enter into a contract with A (I) of employment (II) not of employ- ment. ■^ '^ /^ Second: Owing to C's interference, B broke an existing ^^contract with A. The contract was (III) one of employ- ment (IV) not one of employment. V / It will be necessary to distinguish between cases where the interference was (a) malicious and (b) non-malicious and where unlawful means (c) were and (d) were not used. The question whether a cause of action will arise out of an interference with contractual rights is one of extreme difficulty.^ This is largely due to the fact that it cannot be \0'"*i Til The following may profitably be consulted:' ''The Tub women v. "-j'v/fhe Brewers of London" by William A, Purrington, 3 Columbia Law /" uRev. 447 ; "The Boycott and Kindred Practices as Ground for Dam- ages" by John H. Wigmore, 21 Am. Law Rev. 509; "Interference with Social Relations" by John H. Wigmore, 21 Am. Law Rev. 764; "Privilege, Malice, and Intent" by Justice Holmes, 8 Harv. Law Rev. 1; "Combination by Coercion" 17 Harv. Law Rev. 558; ''Inter- ference with Contracts and Business In New York" by E. W. Huff- cut, 18 Harv. Law Rev. 423; "The Closed Market, the Union Shop, and the Common Law" by Wm. Draper Lewis, 18 Harv. Law Rev. 444; "Crucial Issues in Labor Litigation" by Jeremiah Smith, 20 Harv. Law Rev. 253, 345, 429; "Predatory Price Cutting as Unfair SCOPE OF CHAPTER 425 answered solely through legal reasoning for it must like- wise be viewed from the standpoint of sociology and eco- nomics. "The true grounds of decision are considerations of policy and of social advantage and it is vain to sup- pose that solutions can be attained merely by logic and the general propositions of law which nobody disputes." " In many respects, the law is still in process of evolution. Naturally there has been great divergence in views. While it is believed that a fairly clear rule may be worked out, yet it must be confessed that the decisions hereafter cited, are in the main, decidedly unsatisfactory. Owing to the indefinite phraseologfy frequently employed and the vast amount of dicta that has crept in, the cases upon disputed points require close analysis.* Strictly speaking, the term "contractual rights" means rights secured by existing contracts but in its larger aspect, it may include rights to contract. Since, however, a distinc- tion has been drawn between them, and between contracts ac- tual and prospective, of employment and not of emplo3mient, separate treatment becomes necessary |L Trade" by E. S. Rogers, 27 Harv. Law Rev. 139; "Comments on the Modem Law of Unfair Trade" by E. S. Rogers, 3 111. Law Rev. 551 ; 'The Authority of Allen v. Flood" by H. L. Wilgus, 1 Mich. Law Rev. 28; "Labor Organizations in Legislation" by Jerome C. Knowl- ton, 6 Mich. Law Rev. 609. 2 Vegelahn v. Gimtner, 167 Mass. 92, 106, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St Rep. 443, per Holmes, J. 3 This forces a writer to elect whether he will convert his work into a mere digest or risk the charge that his cited authorities fail to sustain the propositions for which they are advanced. t It has been deemed advisable to include under the head of in- terference with contractual rights, many cases which are usually grouped under conspiracy, boycott, unfair competition, and kindred titles. The reason is that they are, after all, only illustrations of a few underlying principles. The question presented in every instance is how far the law will afford redress against interference with (1) contracts not in existence and (2) existing contracfts. When ana- lyzed, the so-called unfair competition and boycott cases will be seen to fall under one or both of these teads. If goods are sold in pack- ages resembling those in which an established product is put up, or if a trade name is adopted so similar as to be calculated to deceive, it is evident that this falls under the first bead. The label or name 426 INFRINGEMENT OF PRIVATE PROPBRTT (Ch. 16 421 91. (I) PROSPECTIVE CONTRACTS OF EMPLOYMENT At, the outset, it will be advisable to see just what right ay be infringed. It was well said in Brennan v. United atters * that "as a part of the right of acquiring property |here resides in every man the right of making contract's r the purchase and sale of property, and contracts for ersonal services, which amount to the purchase and sale If labor. It makes little difference whether the right that nderlies contracts of the latter sort is called a personal ght-or a property right. It seems to us impossible to raw a distinction between a right of property and a right f acquiring property that will make a disturbance of the latter right any less actionable than a disturbance of the ormer. In a civilized community which recognizes the I :ight of private property among its institutions, the notion • ; s intolerable that a man should be protected by the law ■: n the enjoyment of property once it is acquired, but left inprotected by the law in his effort to acquire it." ' There nay therefore be a cause of action for depriving a man of ;ustom, that is of possible contracts.'' -4s merely a means by which the wrongdoer has succeeded In induc- ing customers not to enter into contractual relations with his com- -petitor. If a labor union threaten to strike unless a non-union em- •iJloye is discharged, it would appear that this is only a method of 4)rocuring the breach of an existing contract. To treat the first un- ■-der unfair competition and the second under strikes, boycotts or la- -bor unions seems tantamount to ignoring a very close kinship. See ■r. X. 276, 83 N. E. 41. 62 Peck V. Caiouteau, 91 Mo. 138, 3 S. W. 577, 60 Am. Rep. 236 ; Flrer v. Lowery, 59 Mo. App. 92 ; Giusti t. Del Papa, 19 B. I. 338, 33 AU. 525. But see Perkins v. Spaulding, 182 Mass. 218, 65 N. E. 72, holding that it is evidence, though not prima facie. 83 That the conviction may be shown to have been procured by perjury or other improper means, see Holliday v. Holliday, 123 CaL 26, 55 Pac. 703 (semble) ; Murphy v. Ernst, 46 Neb. 1, 64 N. W. 353 tsemble) ; Johnson v. Girdwood, 7 Misc. Rep. 651, 28 N. Y. Supp. 151, affirmed 143 X. X. 660, 39 N. E. 21 (plea of guilty induced by fraud and duress) ; Lawrence v. Cleary, 88 Wis. 473, 60 N. W. 793 (semble). Contra, Severance v. Judkins, 73 Me. 376; Williams v. Woodhouse, 14 N. C. 257. 8* Severance v. Judkins, 73 Me. 376 ; Cloon v. Gerry, 13 Gray (Mass.) 201 ; Blackman v. West Jersey & S. S. R. Co. (C. C.) 126 Fed. 252 ; Bas4b€ v. Matthews, L. R. 2 C. P. 684, 16 L. T. N. S. 417, 36 L. J. M. C. 93, 15 Wkly. Rep. 839. 8 5 Holliday v. Holliday, 123 CaL 26, 55 Pac. 703 (discharge on ha- beas corpus) ; Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666 ; Denne- hey V. Woodsum, 100 Mass. 195; Womack v. Circle, 32 Grat (Va.) 324. e« Morton v. Young, 55 Me. 24. 92 Am. Dec. 565 ; Sartwell v. Par- ker, 141 Mass. 401, 5 N. E. 807. And see Infra, p. 490. 486 OBSTEUCTION AND ABUSE OP REMEDIES (Ch. 18 than act wholly on his own responsibility. If he does so in good faith, and fully and fairly states the facts which he knows and has reasonable grounds to believe exist, as well as those which by proper diligence he could have ascer- tained, his honest reliance upon the advice he had received should protect him. His subsequent action is not without probable cause, though some courts have thought that ad- vice of counsel goes rather to negative malice. Logically it should constitute a complete defense, both where there has been a criminal action,*' and a civii pro- ceeding." Necessarily this will include a case where he has consulted the district attorney or prosecuting officer." But the party consulted must have been licensed to prac- tice law, for the advice of a layman,'" even though he be a magistrate, will not be considered as a justification,'^ and the attorney must not be known to be an interested party, since an unbiased opinion should be sought."' Likewise there must have been no misrepresentation or withholding '1 McLeod V. McLeod, 73 Ala. 42 ; Donnelly v. Daggett, 145 Mass. 314, 14 N. B. 161; Wakely v. Johnson, 115 Mich. 285, 73 N. W. 238; E>astman v. Keasor, 44 N. H. 518 ; Topolewski v. Planklnton Packing Co., 143 Wis. 52, 126 N. W. 554. In New York it has been held that, while advice of counsel may be considered in determining malice, it "does not form the basis for a finding, of fact" as to probable cause. The reason assigned is that "probable cause may be founded on mis- information as to the facts, but not as to the law." Hazzard t._ Mury, 120 N. Y. 223, 227, 24 N. E. 194. This seems a strange ap- plication of the maxim, "Ignorance of the law excuses no one." Seei also. Brown v. McBride, 24 Misc. Eep. 235, 52 N. Y. Supp. 620. To the same effect. Downing y. Stone, 152 N. O. 525, 68 S. B. 9, 136 Am. St Rep. 841, 21 Ann. Cas. 753. 88 SandeU v. Sherman, 107 Cal. 391, 40 Pac 493 ; Stone v. Swift, 4 Pick. (Mass.) 389, 16 Am. Dec. 349 ; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 431; Kompass v. Light, 122 Mich. 86, 80 N. W. 1008 ; Newton v. Weaver, 13 R. I. 616. osFowles V. Hayden. 129 Mich. 586, 89 N. W. 339; Magowan v. Rickey, 64 N. J. Law, 402, 45 Atl. 804. 70 Stanton v. Hart, 27 Mich. 539. '1 Stephens v. Gravit, 136 Ky. 479, 124 S. W. 414; Olmstead v. Partridge, 16 Gray (Mass.) 381; Sutton v. McConnell, 46 Wis. 269, 50 N. W. 414. 7 2 White V. Carr, 71 Me. 555, 36 Am. Rep. 533. § 100) PBEVERSION OF LEGAL REMEDIES 487 of material facts,'* and it must appear that the client has acted under the advice in good faith.'* It is not necessdry, •however, that the facts should have justified counsel's opinion. ■ "If this were so, then the professional advice would be entirely useless for any purpose, because the de- fense would be complete without it." " It only remains to add that the accuser must have had an honest belief that the facts alleged to constitute prob- able cause were true and that the accused was guilty. He cannot be permitted to make these facts "the pretext for prosecution, without even entertaining the opinion that he had a right to prosecute." '" (c) Malice -^...^^^ The terms "maliceh»>4.aw" and "malice in fact" have already been discussed." It is the latter which must be es- tablished in actions for malicious prosecution as a part of plaintiff's case. It will, of course, exist where there is personal hatred; but it is likewise shown where there are "indirect or improper motives, though these may be wholly imconnected with any uncharitable feeling towards any- body." '* Thus, where there has been a criminal prosecu- 73 Cointement v. Cropper, 41 La. Ann. 303, 6 South. 127; Cooper v. Utterbach, 37 Md. 282 ; Norrell v. Vogel, 39 Minn. 107, 38 N. W. 705 ; Hippler v. Quandt, 145 Wis. 221, 129 N. W. 1099 ; Cuthbeit v. GaUo- ■ way (C. C.) 35 Fed. 466. Where an attachment has been procured, the client must make full disclosure as to the grounds thereof. Sco- vUl V. Glasner, 79 Mo. 449. 74 McCarthy v. Kitchen, 59 Ind. 500 ; Cole v. Curtis, 16 Minn. 182 (Gil. 161) ; Ravenga v. Mackintosh, 2 B. & C. 693. '6 Steed V. Knowles, 79 Ala. 446, 451. To the same effect, Kom- pass V. Light, 122 Mich. 86, 80 N. W. 1008 ; Walter v. Sample, 25 Pa. 275. TsHarkrader v. Moore, 44 Cal. 144, 147; Watson v. Oaln, 171 Ala. 151, 54 South. 610; Michael v. Matson, 81 Kan. 360, 105 Pac. 537, li. B. A. 1915D, 1; Spear v. Hiles, 67 Wis. 350, 30 N. W. 506. "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." Haddrick v. Heslop, 12 Adol. & Ed. N. S. 267, 274, per Lord Denman, C. J. 7 7 See supra, p. 338 et seq. "Hicks V. Faulkner, L. R. 8 Q. B. D. 167, 175, 46 J. P. 420, 51 L. J. Q. B. 268, 47 L. T. Rep. N. S. 127, 30 Wkly. Rep. 545. 488 OBSTRUCTION AND ABUSE OF REMEDIES (Ch. 18 tion, it may roughly be defined as some motive other than that of bringing a guilty party to justice," e. g., to recover property,'" or to collect a debt,'^ or to "tie up the mouths'" of certain witnesses in another action,*^ or as an experi- ment and for the purpose of finding out who had committed a particular crime.'^ This does not, however, mean that all selfish motive must be absolutely absent. If only in- cidental, it will not make the motive malicious, "for it can hardly be expected that all selfish aims and desires can be eliminated from such prosecutions." '* It is not, of course, essential that malice be established by direct testimony. It may be shown by circumstantial evidence,'" as wherever there has been a wanton, a gross, a reckless disregard of the rights of another.'' So the jury are at liberty to infer 78 Knig V. Ward, 77 111. 603, 608; Gabel v. Welsensee, 49 Tex. 131, 138 ; Vinal v. Core, 18 W. Va. 1, 27. 80 Kimball v. Bates, 50 Me. 308 ; Kendrick v. Cypert, 10 Humpt. (Tenn.) 291 ; Gabel v. Weisensee, 49 Tex. 131. , siToomey v. Delaware, D. & W. K. Co., 4 Misc. Rep. 392, 24 N. Y. 6upp. 108, 53 N. T. St. Eep. 567, affirmed 147 N. X. 709, 42 N. E. 726 ; Melia v. Neate, 3 F. & F. 757. But see Wenger v. Phillips, 195 Pa. 214, 45 Atl. 927, 78 Am. St. Eep. 810, holding that: "Proof that a criminal process had been made use of as means for the collec- tion of a debt is not conclusive in establishing the want of probable cause and the existence of malice. It Is prima facie only, and, while sufficient to shift the burden of proof (sic) to the defendant, it may be rebutted 'by other proofs." 82 Haddrick v. Heslop, 12 Adol. & El. N. S. 267. 8 3 Johnson v. Ebberts (C. C.) 11 Fed. 129, 6 Sawy. 538. 84 Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 497, 16 Atl. 554, per Carpenter, J. 85 Severns y. Bralnard, 61 Minn. 265, 63 N. W. 477, holding that, where a civil action had been brought without probable cause and had been discontinued by the plaintiff without apparent reason, evi- dence of the subsequent commencement by him of another suit against the same defendant upon the same cause of action is ad- missible to show malice. And see Holden v. Merritt, 92 Iowa, 707, 61 N. W. 390 ; Pierce v. Thompson, 6 Pick (Mass.) 193 ; Thurston v. "Wright, 77 Mich. 96, 43 N. W. 860 ; Laird v. Taylor, 66 Barb. (N. Y.) 139 ; Scott V. Shelor, 28 Grat. (Va.) 891. 8 8Blunk v. Atchison, T. & S. P. R. Co. (C. C.) 38 Fed. 311, 313. To the same effect, Stubbs v. MulhoUand, 168 Mo. 47, 67 S. W. 650 ; Wiggin V. Coffin, 29 Fed. Oas. No. 17,624, 3 Story, 1. § 100) PERVERSION OF LEGAL REMEDIES 489 malice from the want of probable cause, though the con- verse is not true, for the want of probable cause cannot be inferred from the existence of malice.*^ Malice, unlike probable cause, is to be determined by the jury.'^ Still the court may take matters into its own hands, where the facts are not in disfjute and the inferences to be drawn from them are not doubtful.'' (d) Favorable Termination of the Proceeding "It cannot be known until it has terminated that the ac- tion was unjust. No man can say of an action still depend- ing that it is false, or malicious." °'' If the proceeding has been properly terminated, but judgment has been rendered against the defendant therein, it has been seen °^ that prob- able cause will be deemed established.'^ Were this not so, "almost every case would have to be tried over again upon its merits." '' What constitutes a termination ? It has been said '* that a proceeding may be considered as ended "(1) where there is a verdict of 'not guilty' ;°° (2) where the grand jury ig- nore a bill ; °° (3) where a nolle prosequi is entered ; •' and (4) ST Grant v. Moore, 29,Cal. 644; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611 ; Parker v. Parker, 102 Iowa, 500, 71 N. W. 421 ; PIJL- LEN V. GLIDDilN, 66 Me. 202, Chapin Cas. Tortp, 295; Davis v. McMillan, 142 Mich. 391, 105 N. W. 862, 3 L. E. A. (N. S.) 928, 113 Am. St. Rep. 585, 7 Ann. Cas. 854 ; McCarthy v. Weir, 113 App. Div. 435, 99 N. T. Supp. ^72 ; Scott v. Shelor, 28 Grat. (Va.) 891. 88 Lacey v. Porter, 103 Cal. 597, 37 Pa for tlie person so expected to be present at that point." ^° Such would be the case where the company was aware that persons were in the habit of crossing the tracks at a par- ticular place which was not a public thoroughfare.''' If it were a public crossing, there is, of course, no trespass in- volved, and a duty arises to exercise vigilance.''' A child may be a trespasser, and by weight of authority it would seem that the above rules are as applicable to him as to an adult; ^* but in some states an exception is recog- nized in cases of what have been termed "attractive" or ■"alluring nuisances." Where the injured person is of tender years, the owner of the premises may be liable "if the things causing the injury have been left exposed and unguarded and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts." "' 2« Fearons v. Kansas City Elevated R. Co., 180 Mo. 208, 223, 79 S. W. 394, per Fox, J. In accord, Shaw v. Georgia R. R., 127 Ga. 8, 55 S. E. 960 ; Cincinnati, N. O. & T. P. Ry. Co. v. Blankenship, 157 Ky. 699, 163 S. W. 1123 ; Fleming v. Louisville & N. R. Co., 106 Tenn. 374, 61 S. W. 58; Blankenship v. Chesapeake & O. Ry. Co., 94 Va. 449, 27 S. E. 20 ; Garner v. Trumbull, 94 Fed. 321, 36 C. C. A. 361. 2 7 Green v. Chicago & W. M. Ry. Co., 110 Mich. 648, 68 N. W. 988; Byrne v. New York Cent. & H. R. R. Co., 104 N. Y. 362, 10 N. B. 539, -58 Am. Rep. 512. See Meitzner v. Baltimore & O. R. Co. (1909) 224 Pa. 352, 73 Atl. 434. 28 Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 90 South. 558; Baltimore & O. R. Co. v. Owings, 65 Md. 502, 5 Atl. 329; Urbas v. Duluth, M. & N. Ry. Co., 113 Minn. 309, 129 N. W. 513 ; Rafferty v. Erie R. Co., 66 N. J. Law, 444, 49 Atl. 456 ; Norton v. North Carolina R. Co., 122 N. C. 910, 29 S. E. SSG. 29 Louisville & N. R. Co. v. Logsdon's Adm'r, 118 Ky. 600, 81 S. ,W. 657; Morrissey v. Eastern R. Co., 126 Mass. 377, 30 Am. Rep. €S6n ; Moore v. Pennsylvania R. Co., 99 Pa. 301, 44 Am. Rep. 106 ; Felton V. Aubrey, 74 Fed. 350, 20 C. C. A. 436. But see Snare & Triest Co. V. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (X. S.) 367. »o City of Pekin v. McMahon, 154 IlL 141, 147, 39 N. E. 484, 27 L. B. A. 206, 45 Am. St Rep. 114. 506 ■ NEGLIGENCE (Ch. 19 Though the application of the doctrine has not been lim- ited to machinery," it is chiefly with respect thereto that the question has arisen,'^ and in a considerable proportion of the cases the injury was caused by a railroad turntable.^* As will be observed, it "rests upon the conversion of the infant trespasser into an innocently baited victim." '* Rec- ognizing its unfairness to the landowner, whose use of the premises is thus unreasonably restricted,^^"for what is there that the average child may not convert into a plaything? 31 Kopplekom v. Colorado Cement-Pipe Co. (1901) 16 Colo. App. 274, 64 Pac. 1047, 54 L. R. A. 284 (cement tubing) ; City of Pekin v. Mc- Mahon, supra, (pond); Osborn v. Atchison, T. & S. F. Ky. Co., 86 Kan. 440, 121 Pac. 364 (dilapidated building) ; C!oeur d'Alene Lumber Co. V. Thompson, 215 Fed. 8, 131 C. C. A: 316, L. R. A. 1915A, 731 (well). 3 2 Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 301, 38 L. R. A. (N. S.) 754; Smith v. Marion Fruit Jar & Bottle Co., 84 kan. 551, 114 Pac. 845 ; Chesko v. Delaware & Hudson Co., 218 Fed. 804, 134 C. C. A. 492. 3 3 Weik V. Southern Pac. ,Co. (1913) 21 Cal. App. 711, 132 Pac. 775 ; Edgington v. Biurlington C. R. & N. Ry. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561 ; Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203; O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 289, 45 N. W. 440 ; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. 34 Burdick on Torts (3d Ed.) 526. 3B But see Thompson on Negligence, vol. 1, § 1026. With reference to the view that the property owner owes no greater measure of duty to the child trespasser, the learned author observes ; "This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and /Visits upon him the conse- quences of his trespass just as though he were an adult." To this, however, it may be urged that recovery is not denled'an adult trespasser by way of punishment, but "because the landowner owed him no duty to have the premises in safe condition for his enti'y. Why should the moral innocence of a childish intruder raise a duty on the part of the landowner which is not created by the moral innocence of an adult intruder? The youthful innocence of the child does not make restrictions on the right of user less dam- aging to the owner, or make the alleged duty of preventing the en- trance of an intruder, or of protecting him from harm after entry, less burdensome than in the case of an adult. Indeed the -duty would be more onerous in the case of a child." "Liability of Landowners § 106) DUTY OF OCCUPANT OF LAND 507 there is a strong tendency on the part of many courts which have adopted it to limit its application,*" and by the weight of authority it is repudiated.'' Licensees A licensee goes upon the premises for his own purposes and with the permission of the occupant, express or implied. For instance, one is a licensee who calls for the purpose of inquiring as to the character of a servant, where he upon whom the call is made is not engaged in keeping a registry to Children Entering Without Permission," by Prof. Jeremiah Smith, 11 Harv. L. Rev. 349, 434, at page 368. S8 Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, 56 Am. St. Rep. 106; Savannah, F. & W. Ry. Co. v. Beavers, 113 Ga. 398, 39 S. E. 82, 54 L. R. A. 314; Stendal v. Boyd, 73 Minn. 53, 75 N. W. 735, 42 L. R. A. 288, 72 Am. St. Rep. 597, note ; Louisville & N. R. Co. V. Ray, 124 Tenn. 16, 134 S. W. 858, Ann. Cas. 1912D, 910. ST "We have only to add that every man who leaves a wheelbarrow or a spade upon his lawn, a rake with its sharp teeth pointing up- ward, upon the ground or leaning against a fence, a bed of mortar prepared for use in his new house, a wagon in his barnyard, upon which children may climb and from which they may fall, or who turns in his lot a kicking horse or a cow with calf, does so at the risk of having the question of his negligence left to a sympathetic jury. How far does this rule go? Must his bam door and the usual apertures through which the accumulations of the stable are thrown be kept locked and fastened, lest 12 year old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder or a grindstone or a scythe or a plow or a reaper without danger of being called upon to reward tres- passing children whose parents owe and may be presuined to perform the duty of restraint? Does the new rule go stUl further, and make it necessary for a man to fence his gravel pit or quarry? And, if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences? Can a man nowadays safely own a small lake or fish pond? And must he guard ravines and precipices upon his land?" Ryan v. Towar, 128 Mich. 463, 470, 87 N. W. 644, 55 li. R. A. 310, 92 Am. St. Rep. 481, per Hooker, J. In accord, Wihnot V. McPadden, 79 Conn. 367, 65 Atl. 157, 19 L. R. A. (N. S.) 1101 ; Daniels v. New York & N. E. R. Co., 154 Mass. 349, 28 N. E. 283, 13 L. R. A. 248, 26 Am. St. Rep. 253 ; FROST v. EASTERN R. R., 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396, Chapin Cas. Torts, 303 ; Delaware, L. & W. R. Co. v. Reich, 61 N. J. Law, 635, 40 A,tl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 727 ; Walsh v. Fitchburg R. Co., 145 N. T. 301, 39 N. E. 1068, 27 L. R. A. 724, 45 Am. St. Rep. 615; Paolino 508 NEGLIGENCE (Ch. 19 office, or in a similar business," or who goes upon premises adjoining her own to seek her children, who are playing there.'" So is a fireman who enters in case of fire.*" Fur- ther illustrations are given in the hote.*^ It is the fact that the entry is made by the sufferance of the owner, express •or implied, which distinguishes the licensee from the tres- passer. It is the fact that the licensee has entered for his own purpose that marks the difference between him and the invited person. Hence it seems better to say that a social guest, though present at the invitation of the owner, is tO' be treated as a licensee, since he enjoys gratuitous hospi- tality.*^ But it is otherwise where the question arises be- V. McKendall, 24 B. I. 432, 53 Atl. 268, 60 L. R. A. 133, 96. Am. St. Eep. 736. 88 Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463. 3 9 Sterger v. Van Slcklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594. *o Lunt V. Post Printing & Publishing Co., 48 Colo. 316, 110 Pac. 203, 30 L. R. A. (N. S.) 60, 21 Ann. Cas. 492 ; Woodruff v. Bowen, 136 Ind. 431, 34 N. E. 1113, 22 L. R. A. 198 ; Eckes v. Stetler, 98 App. Div. 76, 90 N. T. Suppt 473^; BeeMer v. Daniels CorneU & Co., 18 R. I. 563, 29 Atl. 6, 27 L. R. A. 512, 49 Am. St. Rep. 790. *i Dixon V. Swift, 98 Me. 207, 56 Atl. 761; Benson v. Baltlmorfr Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; Norrls v. Hugh Nawn Contracting Co., 206 Mass. 58, 91 N. E. 886, 31 L. R. A. (N. S.) 623, 19 Ann. Cas. 424 ; Schiffer v. W. N. Sauer Co., 238 Pa. 550, 86 Atl. 479 ; Larmore v. Crown Point Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718 ; Muench v. Heinemann, 119- Wis. 441, 96 N. W. 800. 42 Cf. Bigelow on Torts (8th Ed.) 160, 161 ; Beven on Negligence, pp. 31, 449, 450. In Southcote v. Stanley, 1 Hurl. & N. 247i Pollock, C. B., said that the guest was in a position analogous to that of a servant. For the time being he is a member of the establishment. In Barman v. Spencer (Ind. 1898) 49 N. E. 9, 44 L. R. A. 815, the host was held responsible to the guest for "gross negligence." Cf. Con- verse V. Walker, 30 Hun (N. Y.) 596. In Davis v. Central Congrega- tional Soc. of Jamaica Plain, 129 Mass. 367, 37 Am. Rep. 368, where one attending a religious conference was held an invitee, it was said : "The application of the rule on which the defendant's liabUity de- pends is not affected by the consideration that this is a religious society and that the plaintiff came solely for her own benefit or gratification. It makes no difference that no pecuniary profit or other benefit was received or expected by the society. The fact that the plaintiff comes by invitation is enough to impose on the defendant § 106) DUTY OF OCCUPANT OF LAND 509 tween the guest of a tenant and the landlord, having con- trol of a defective" portion of the premises used fn connec- tion with the part leased, for here liability grows out of the contract of hiring.*' Now the licensee, lil