Cornell University Law Library THE GIFT OF .tfS1^«2l^^^fc«^....V^^n^.. ^.:fLri^..y.yiju<)....'^ 3 Ind. Ap. 151 533 8 Wend. 462 134 5 Abb. Pr. (N. S.) 218 159 52 N. J. L. 284 23T 65 N. H. 658 169, 710 25 Pa. St. 275 358 44 Minn. 237 231 18 la. 153 139 3 Sunm. 189 728 44 Me. 147 425. 96 Cal. 14 251 78 N. Y. 310 36 13 Pick. 402 364 3 Met. (Ky.) 192 35.S ILLUSTRATIYE CASES IN TORTS. A NATUEE OF TOETS AND PRINCIPLES OF LIABILITY. 1. Definition. " A tort is an act or omission, giving rise, by virtue of the common-law jurisdiction of the Court, to a civil remedy which is not an action of contract." 2. Tort as Distinguished from a Contract. The duty violated by the act or omission in both, a pure tort and a quasi tort is fixed by law and not by agreement. a Pure Tort. Masters v. Stratton. Supreme Court of New York, 1845. 7 Hill, 101. Action on the case tried at the Madison circuit in Septem- ber, 1843, before Gridley, C. Judge. The facts proved on 1 2 NATURE AND PRINCIPLES. the trial were as follows : In April, 1842, the parties entered into a covenant, by which the defendant, in consideration, of |350 to be paid him, agreed, among other things, to take the charge, management, and superintendence of a certain farm belonging to the plaintiff, for one year, " and to take charge and care of the stock, etc., on said farm." The defendant immediately entered upon the farm, and continued to work there until the 16th of November, 1842, when he gave up the managemant of it to the plaintiff, and went away. The stock on the farm during this time consisted in part of a flock of sheep, and the present action was brought for the defendant's neglect to take proper care of them. The alleged neglect was fully proved, but the Circuit Judge ordered a non-suit on the ground that the plaintiff's remedy was by action of covenant, and that trespass on the case could not be maintained. The plaintiff now moved for a new trial on the case. Nelson, C. J. In Govett v. Radnidge, 3 East, 62, it was held by the K. B. that an action of tort might be maintained against the defendants for the negligent performance of a duty arising out of contract. They had been employed to load a hogshead of molasses ; and so carelessly conducted in loading the same that it fell and was lost to the plaintiff. This was decided in 1802. But in Powell v. Layton, 2 New. R. 365, the C. B. held that tort could not be maintained for negligence in the per- formance of a duty arising out of a contract to transport goods; it not appearing that the defendant was a common carrier. The action was for so negligently carrying the goods that they became wholly lost. The Court denied the correct- jiess of the decision in Govett v. Radnidge, and said the case before them was not distinguishable from any other action founded upon contract. This was decided in 1806. The same thing was held in Max v. Roberts, 2 New Rep. 454 ; 12 East, 89, S. C. It is remarkable that this conflict between the two Courts on the point remains open and apparently unsettled down to the MASTERS V. STRATTON. 3 present time ; though in point of fact the doctrine of the case of Powell V. Layton seems finally to have prevailed. See Pozzi V. Shipton, 8 Adol. & Ellis, 963, A. D. 1838. In Brotherton v. Wood, 3 Brod. & Bing. 54, the action was case for so negligently carrying the plaintiff in a stage-coach that he was thrown out and injured. The objection taken was that the action rested altogether in contract ; it not hav- ing been averred that the defendants were common carriers, though it appeared on the trial they were. The Court said : " If it were true that the action is founded on a contract, so that, to support it, a contract between the parties to it must have been proved, the objection would deserve consideration. But we are of opinion that this action is not so founded, and that, on the trial, it could not have been necessary to show that there was any contract, and therefore that objection fails. This action is on the case against a common carrier, upon whom a duty is imposed by the custom of the realm, or, in other words, by the common law, to carry and convey their goods or passengers safely and securely, so that by their neg- ligence or default, no injury or damage happen. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it." The same doctrine was laid down in Leslie v. Wilson, 3 Bred. & Bing. 171. That was an action on the case for negli- gently shipping goods ; and the Court said : " The owners of a ship, for whose benefit she is navigated, are bound by the maritime law to owners of goods, shipped and received on board to be carried, for the safe carriage thereof, and are liable for any- negligence on the part of themselves or their servants whereby the goods may be damaged. If without fraud, and in the doe course of the ship's employment, the master makes a charter-party, the ship-owners are not thereby divested of lia- bility, but are still liable for the performance of such duties, belonging to them in that character, as are not inconsistent with the stipulations of the charter-party." The Court added, that the action was not founded upon the charter-party, but upon 4 NATURE AND PKINCIPLES. the general liability of the defendants for the performance of such duties as belonged to them as carriers. In Weall v. King, 12 East, 452, an action of tort was brought upon a warranty in the sale of sheep. Heath, J., who tried the cause, ordered a non-suit, saying, that if the reasoning of the counsel for the plaintiff were to prevail, every breach of promise might be converted into a tort : and the ruling was upheld in the K. B. The general result of all the decisions is well stated in a note to Cabell v. Vaughan, 1 Wm. Saund. 291, 5th ed., and is in substance this : Where the action is maintainable for the tort -simply, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract ; as, for instance, in actions against common carriers founded on the custom of the realm, and the like. But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, there the plaintiff must proceed upon the contract, and a special action on the case will not lie. . Testing the case under consideration by this rule, it appears to me the decision of the learned Judge at the circuit was correct. Here was no common-law liability independently of what arose out of the contract ; and of course no duty founded upon the common law alone. The obligation of the defendant rested entirely upon contract. He was hired as a laborer by the plaintiff, to take charge of her farm Upon certain terms and conditions specified in the written instrument ; and, for aught I can see, if she can leave the contract, and maintain an action of tort for negligence in the performance of it, there is no case of hire for service in which the same thing may not be done. I am of opinion that a new trial should be denied. Ordered accordingly. Hall V. Conn. Steamboat Co., 13 Conn. 319 ; Legge v. Tucker, 1 Hurl. & Norman, 500 ; Courtenay v. Earle, 10 0. B. 73, 70 E. C. L. ; Tattan v. G. W. E. R., 2 EI. & El. 844, 105 E. 0. L. ; Marshall v. Y. N. & B. E. E., 11 C. P. 655, 73 E. C. L. RICH V. N. Y. C. & H. RIV. R. CO. Quasi Tort. EiCH V. N. Y. C. & H. Riv. R. Co. Court of Appeals of New York, 1882. 87 N. Y. 382. The complaint, in this action, alleged in substance that, about the year 1850, plaintiff, with others who were the owners of certain lands in the village of Yonkers, entered into an agreement with the Hudson River Railroad to the effect that tiiey would convey to said corporation a site for its depot, would fill in the same, and would lay out and grade their lands §0 as to give convenient communication between the depot and the business portion of said village, the said company agreeing to pay the actual cost of filling in the depot site, and to erect and ever after maintain its depot thereon. That said agree- ment was carried out, the site conveyed and the depot erected ; that defendant succeeded to the rights, franchises, and obliga- tions of said Hudson River Railroad Company, and plaintiff acquired the titles of the other owners of said remaining lands ; that there was a navigable inlet crossed by said railroad, which, together with the stream discharging into it, was known as theNepperham or Saw-mill River; that said Hudson River Railroad Company, having no right to cut off or obstruct the navigation in said inlet, had constructed and maintained a draw-bridge over it. That it subsequently procured the passage of an Act of the Legislature authorizing it to bridge said inlet without any opening or draw on making compensa- tion to the riparian owners. That defendant, to avoid the payment of damages to said owners, " resolved to accomplish the same object by artifice and strategy," and so threatened said riparian owners that unless they would surrender their rights, and consent to the construction of such bridge, it would remove its depot, and, upon said owners refusing so to do, did NATURE AND PKINCIPLES. remove its depot to a point above a third of a mile northj) that plaintiff, a short time previous to the threatened removal, had borrowed, on his bond secured by mortgage on his said lands, the sum of $35,000, most of which was expended in erecting stores on his said lands, directly opposite and about one hundred feet south of said depot, and, if the depot had not been removed, could have rented said stores and the ad- jacent lots for $5,000 per annum, and could have sold other lots for sufficient to pay off said mortgage, but [that, in consequence of such removal, his premises became wholly un- productive and unsalable; that, in order to have the depot restored to its original site and to save his property from being sacrificed, he was induced and coerced into giving his consent to the closing of said draw-bridge, and an agreement was entered into on March 7, 1877, in and by which defend- ant, in consideration of such consent, agreed that it would, "as soon as practicable and within a reasonable time, build and forever thereafter maintain its principal passenger depot for Yonkers " upon said original site. That defendant there- upon removed the draw-bridge and erected a permanent bridge over the inlet. That it also erected a new depot on the old site, and had the same ready for use about April 15, 1878, but absolutely refused to open or establish its depot there unless the Common Council of Yonkers would pass an ordinance declaring and ordering the closing of a portion of a street which crossed its tracks, so that it could build a fence inclosing said tracks which would so exclude the plaintiff and others from the right and privilege of crossing said tracks to i the steamboat docks on the Hudson Rive^ That defendant procured the passage of an Act of the Legislature amending the charter of Yonkers so as to provide for the assessment and payment of damages claimed by the owners of land in- juriously affected by the closing of a street. That the closing of said street would have damaged plaintiff's property to at least the sum of $50,000, and would have neutralized, in great measure, all the benefits derived from the restoration of the depot(pthat plaintiff and others sent in remonstrances to the RICH V. :S. Y. C. & H. KIV. K. CO. 7 Common Council against such discontinuance, and it refused to pass an ordinance to that effect because of the large amount of damages the city would have to pay ; that upon such re- fusal being made knowoi, defendant's officers publicly asserted that it would never open said new depot until said ordinance was passed, and would tear down the new depot, or use it exclu- sively for freight. " In all of which the defendant was actu- ated by malice and vindictiveness toward plaintiff, and a de- sign to crush, ruin, and destroy him ;" that in consequence of the removal of the depot and the consequent unproductiveness of plaintiff's property', he was unable to paj' the interest on-s-Ci'^'' said bond and mortgage^' Foreclosure was commenced, and a decree of foreclosure and sale was made ; but that the mort- gagee had foreborne selling to give to plaintiff the benefit of the re-establishment of the depot ; that defendant's officers and agents, after the refusal of the Common Council to pass the said ordinance,[called upon the mortgagee and induced it " to withdraw the grace and favor " accorded to plaintiff, and to advertise the property immediately for sale, so as to cut off plaintiff's claim for damages, the mortgagee having been in- duced to waive any such claim ; that the " scheme or plan which had been so concocted and arrangeo^by and in the inter- est and for th£ special benefit and advantage of the defendant, ffo enablejft to evade and violate with impunity its a - f o resaid covenant and obligation with the plaintiff, //,'/i and to escape the payment of its fair and just proportion of the plaintiff's damages on the closing of said street, was fully carried out and executed by the instigation and connivance of the defend- ant ;" that plaintiff 's entire property was sold under said decree, and bid off by the mortgagee for f i!Q,OOQ , and thereupon the ordinance was passed closing said street, and defendant im- mediately opened the new depot. The complaint closes tfeae : " That the defendant, by means of the wrongs, injuries, and grievances aforesaid, and its malicious and unlawful actions in doing as aforesaid, has inflicted pecuniary loss and damage upon the plaintiff to_the amount of $150,000," for which sum judgment was askedj 8 NATURE AND PRINCIPLES. Finch, J. We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex con- tractu and those as clearly ex delicto there exists what has been termed a border-land, where the lines of distinction are shadowy and obscure, and the tort and the contract so ap- proach each other, and become so nearly coincident as to make their practical separation somewhat difficult : Moak's Under- bill on Torts, 23. The text-writers either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Diet. 600), or depend upon one which they concede to be inaccurate, but hold sufficient for judicial pur- poses : Cooley on Torts, 3, note 1 ; Moak's Underbill, 4 ; 1 Hilliard on Torts, 1. By these last authors a tort is described in general as " a wrong independent of contract." And yet it is conceded that a tort may grow out of, or make part of, or be coincident with a contract (2 Bouvier, supra), and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto ; Cooley on Torts, 90. In such cases the tort is dependent upon, while at the same time independent of the contract ; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract : 1 Addison on Torts, 13. Ordinarily the essence of a tort consists in the violation of some duty due to an individual, which duty is a thing differ- ent from the mere contract obligation. When such duty grows out of relations of trust ^.nd confidence, as that of the agent to his principal or the lawyer to his client, the ground of the duty is apparent, and the tort is, in general, easily separable from mere breach of contract. But where no such relation flows from the constituted contract, and still a breach of its obligation is made the essential and principal means, in combination with other and perhaps innocent acts and conditions, of inflicting another and different injury, and accomplishing another and different purpose, the question whether such invasion of a right is actionable as a breach of contract only, or also as a tort, leads to a somewhat difficult search for a distinguishing test. RICH V. N. Y. C. & H. RIV. R. CO. 9 In the present case, the learned counsel for the respondent seems to free himself from the difficulty by practically deny- ing the existence of any relation between the parties except that constituted by the contract itself, and then, insisting that such relation was not of a character to originate any separate and distinct legal duty, argues that, therefore, the bare viola- tion of the contract obligation created merely a breach of con- tract, and not a tort. He says that the several instruments put in evidence showed that there never had been any relation between the plaintiff and the railroad company, excq)t that of parties contracting in reference to certain specific subjects, by plain and distinct agreements, for any breach of which the parties respectively would have a remedy, but none of which created any such rights as to lay the foundation for a charge of willful misconduct or any other tortious act. Upon this theory the case was tried. Every offer to prove the contracts, and especially their breach, was resisted upon the ground that the complaint, through all its long history of plaintiff's griev- ances, alleged but a single cause of action and that for a tort, and, therefore, something else, above and beyond and outside of a mere breach of contract, must be shown, and proof of such breach was immaterial. From every direction in which the plaintiff approached the allegations of his complaint, the same barrier obstructed his path and excluded his proof Whatever may be true of the earlier agreements between the plaintiff and the railroad company, and conceding, what seems probable, that the evidence relating to them was properly re- jected, on the ground that they left the defendant entirely at liberty to change the site of its depot, so that such change was in no respect either unlawful or wrong, there was yet a later agreement by the terms of which the defendant was bound, as soon as practicable and within a reasonable time, to restore the depot to its old location. The complaint ex- plains the importance of such restoration to the plaintiff. It alleges that valuable property of his, heavily mortgaged, had depreciated in value in consequence of the removal of the depot, and could only be restored to something like its old 10 NATURE AND PKINCIPLES. value, and saved from the sacrifice of a foreclosure in a time of depression, by the prompt return of the depot to its former site. The complaint further avers, that to secure this re- sult the plaintiff had surrendered valuable riparian rights to the defendant, but the latter, fully understanding the situa- tion, maliciously apd willfully broke ;ts agreement, and de- layed a restoration of the depot for the express purpose of preventing plaintiff from being enabled to ward off a fore- closure of the mortgagfe, and itself instigated such foreclosure and caused the ultimate sacrifice. For the breach of this con- tract to restore the depot within a reasonable time the plaintiff had a cause of action. But that was not the one with which he came into Court. His complaint was for a single cause of action, and that for a tort ; and what that alleged tort was it is quite necessary -to know, and in what respect and how it differs from a mere breach of contract, in order to determine whether the rejected proofs were admissible or not. That a good cause of action, sounding in tort, was stated in the complaint was not denied upon the trial. Neither by de- murrer nor by motion was the sufficiency of the complaint in any manner assailedj The second ground upon which a non- suit was asked practically confessed that there was a good cause of action, but merely a failure to prove it. The ground stated was, "because the gist of this action is the malicious and unlawful acts of the defendant in pursuing a scheme or plan to injure the plaintiff by depriving him of his property, based upon an alleged malicious violation of certain alleged con- tracts : but the proof offered fails to make out any cause of action as set forth in the complaint." The opinion of the General Term distinctly concedes the point, saying that the facts alleged made out " a clear case of fraud." And on the present appeal the learned counsel for the respondent explicitly admits in his brief that it was competent for the plaintiff, under the issue of fact joined by the pleadings, to give evidence of any of the alleged wrongful acts charged in the complaint as a basis for the claim of damages which he asserted. There was, therefore, something to try ; something which was susceptible RICH V. N. Y. C. & tl. KIV. K. CO. 11 1 of proof ; a tortious act or omission, or a series of such acts or omissions, properly alleged in the complaint and open to the plaintiff's evidence. Why he was not permitted *to have a single one of the forty questions put to his witnesses answered becomes now the important inquiry. It will not be necessary to consider them all, for many were excluded for a defect in their form, or because totally immaterial, or in the exercise of the proper discretion as to the order of proof, but enough remain, and may be grouped together, to raise the serious question argued at the bar. The plaintiff offered to show the agreement of March, 1877, between himself and the railroad company for the restoration of the depot to its original site within a reasonable time, and the breach of that agreement by the defendant company. The objection, put upon the ground that the offered proof was irrelevant and incompetent, was sustained and the evidence excluded. The plaintiff then sought to show how long a time elapsed, after the execution of the contract, before the depot was re-established at the foot of Main Street ; whether an inter- val did occur, and how much time elapsed from the date of the contract to the building of the new depot, which evidence was also excluded as immaterial. A series of questions were further put, to show what the defendant did, if anything, in and about procuring plaintifif's mortgaged property to be sold and sacrificed under the mortgage ; when the foreclosure took place, at whose instigation, and at what price compared with its real value, the property was sold. These questions were excluded. The plaintiff also attempted to show that the re- establishment of the depot at the foot of Main Street would have largely increased the value of his adjoining property cov- ered by the mortgage. That evidence was rejected. The plaintiff was then asked if he had an interview with the offi- cers of the defendant in reference to the removal and tlie re- establishment of the depot. This question was objected to, and the only ground assigned was, "as it is in writing." No proof of that was given ; the case shows nothing but the assertion of the party objecting, and thereupon the witness 12 NATURE AND PKINCIPLES. was not permitted to answer the inquiry, whether he had an interview at all. He was then asked what reasons they as- signed for removing the depot and refusing to bring it back, and this was excluded. And in the end the plaintiff was non- suited because he had given no proof of a tort or a fraud. He now insists that he was first debarred from giving such proof, and then non-suited because he had not given it. The exclusion of proof of the contract for re-establishing the depot, and the willful and intended breach of that contract, brings up for our consideration the question principally argued. Such exclusion must rest for its justification upon the theory of the defendant's counsel, already adverted to, which we are troubled to reconcile with his concession that a cause of action was alleged in the complaint. At the founda- tion of every tort must lie some violation of a legal duty, and, therefore, some unlawful act or omission : Cooley on Torts, 60. Whatever, or however numerous or formidable, may be the allegations of conspiracy, of malice, of oppression, of vin- dictive purpose, they are of no avail ; they merely heap up epithets, unless the purpose intended, or the means by which it was to be accomplished, are shown to be unlawful : O'Cal- laghan v. Cronan, 121 Mass. 114; Mahan v. Brown, 13 Wend. 261. The one separate and distinct unlawful act or omission alleged in this complaint, or rather the only one so separable which we can see may have been unlawful, was the unreason- able delay in restoring the depot to its original location ; and that was unlawful, not inherently or in itself, but solely by force of the contract with plaintiff. The instigation of the sale on foreclosure, as a separate fact, may have been unkind or even malicious, but cannot be said to have been unlawful. The mortgagee had a perfect right to sell, judicially estab- lished, and what it might lawfully do, it was not unlawful to ask it to do. The act of instigating the sale may be material and have force, as one link in a chain of events, and as serving to explain and characterize an unlawful purpose, pursued by unlawful means, but, in and of itself, it was not an unlawful act, and cannot serve as the foundation of a tort : Randall v. KICH V. N. Y. C. & H. EIV. R. CO. 13 Hazeltoii, 1'2 Allen, 412. We are forced back, therefore, to the contract for re-establishing the depot and its breach as the basis or foundation of the tort pleaded. If that will not serve the purpose in some manner, by some connection with other acts and conditions, then there was no cause of action for a tort stated in the complaint. We are thus obliged to study the doctrine advanced by the respondent, and measure its range and extent. It rests upon the idea that unless the con- tract creates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the contract, there is no tort, since there is -no duty to be violated. And the illustration given is the com- mon case of a contract of aflfreightment, where, beyond the contract obligation to transport and deliver safely, there is a duty, born of the relation established to do the same thing. In such a case, and in the kindred cases of principal and agent, of lawyer and client, of consignor and factor, the contract es- tablishes a legal relation of trust and confidence ; so that upon a breach of the contract there is not merely a broken promise, but, outside of and beyond that, there is trust betrayed and confidence abused ; there is constructive fraud, or a negligence that operates as such, and it is that fraud and that negligence which, at bottom, makes the breach of contract actionable as a tort : Coggs v. Bernard, 2 Lord Raym. 909 ; Orange Bank v. Brown, 3 Wend. 161, 162. So far we see no reason to disagree with the learned counsel for the respondent save in one respect, but that is a very im- portant one. Ending the argument at this point leaves the problem of the case still unsolved. If a cause of action for a tort, as is admitted, was stated in ' the complaint, it helps us but little to learn what it was not, and that it does not fall within a certain class of exceptional cases, and cannot be ex- plained by them. We have yet to understand what it is, if it exists at all, as a necessary preliminary to any just apprecia- tion of the relevancy or materiality of the rejected evidence. The General Term, as we have remarked, described the tort pleaded as a " clear case of fraud." If that be true, it cannot 14 NATURE AND PRINCIPLES. depend upon a fiduciary or other character of the relation con- stituted by the contract merely, for no such relation existed ; and there must be some other relation not created by the con- tract alone, from which sprang the duty which was violated. Let us analyze the tort alleged somewhat more closely. At the date of the contract, the complaint shows the relative situation and needs of the two parties. The railroad company desired to close the draw over the Nepperhan River, and sub- stitute a solid bridge. With the growth of its business, and the multitude of its trains the draw had become a very great evil, and a serious danger. The effort to dispense with it was in itself natural and entirely proper. On the other hand, the plaintiff was both a riparian owner above the draw, and likely to be injured in that ownership by a permanent bridge, and had suffered and was still suffering from a severe depreciation in the value of his property near Main Street by the previous removal of the railroad station. The defendant was so far master of the situation that it could and did shut up the plain- tiff to a choice of evils. He might insist upon the draw, and leave his mortgaged property to be lost frond depreciatioii, and save his riparian rights, or he might surrender the latter to save the former. This last was the alternative which he se- lected, and the contract of 1877 was the result. In the making of this contract there was no deceit or fraud, and no legal or actionable wrong on the part of the defendant. If it drove a hard bargain, and had the advantage in the negotiation, it at least invaded no legal right of the plaintiff, and he was free to contract or not, as he pleased. The complaint does not allege that at the execution of this agreement there was any purpose or intention of not fulfilling its terms. The tort, if any, origi- nated later. What remains, then, is this : the railroad com- pany conceived the idea of closing Main Street to any travel where it passed their tracks at grade ; of substituting a bridge crossing in its stead ; and of fencing in its track along the street beneath, so as to compel access to the cars through its depot In such a manner that the purchase of tickets could be compelled. This in itself was a perfectly lawful purpose. The RICH V. N. Y. C. & H. RIV. R. CO. 15 grade crossing was a death-trap, and the interest of tlie com- panj'- and the safety of individuals alike made a change de- sirable, and the closing in of the depot was in no sense repre- hensible. But there was a difl&culty in the way. This plaintiff "again stood as an obstacle in the path. The closing of Main Street, though beneficial to the company, was to him and his adjoining property claimed to be a very serious injury. He declined to consent, except upon the condition of an award of heavy damages, and in dread of that peril the Common Coun- cil refused to pass the necessary ordinance. At this point, ac- cording to the allegation of the complaint, if at all or ever, arose the tort. It is alleged that the defendant, in order to reach a lawful result, planned a fraudulent scheme for its ac- complishment by unlawful means, and through an injury to the plaintiff, which would strip him of his damages by a com- plete sacrifice of his property. That plan was executed in this manner : The company willfully and purposely refused to perform its contract. It had built its permanent bridge over the Nepperhan, and so received the full consideration of its promise ; its new depot was substantially finished and ready for occupation ; and no just reason remained why its contract should not be fulfilled. But the company refused. It did not merely neglect or delay ; it openly and publicly refused. The purpose of that public refusal was apparent. It was to drive the plaintiff's mortgagee to a foreclosure ; it was to shut out from plaintiff that appreciation of his property which would enable him to save it ; it was to strip him of it, so as to extin- guish the threatened damages, and thus procure the assei\t of the Common Council, and get Main Street closed. This unlaw- ful refusal to perform the contract, this deliberate announce- ment of the purpose not to restore the depot, was well calcu- lated to influence the mortgagee toward a foreclosure. But the defendant's direct instigation was added. The foreclosure came ; the mortgagee bid in the property at a sacrifice ; swiftly followed a release of damages, an ordinance of the Common Council, the closing of Main Street, and then the restoration of the depot. 16 NATURE AND PRINCIPLES. We are thus able to see what the tort pleaded was. It was not a constructive fraud, drawn from the violation of a duty imposed by law out of some specific relation of trust and con- fidenqe, but an actual and affirmative fraud ; an alleged scheme to accomplish a lawful purpose by unlawful means. There was here, on the theory of the complaint, something more than a mere breach of contract. That breach was not the tort ; it was only one of the elements which constituted it. Beyond that and outside of that there was said to have existed a fraudulent scheme and device by means of that breach to procure the foreclosure of the mortgage at a particular time and under such circumstances as would make that foreclosure ruinous to the plaintiff 's rights, and remove him as an ob- stacle by causing him to lose his property, and thereby his means of resistance to the purpose ultimately sought. In other words, the necessary theory of the complaint is that a breach of contract may be so intended and planned, so purposely fitted to time and circumstances and conditions, so inwoven into a scheme of oppression and fraud, so made to set in mo- tion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and become, in its asso- ciation with the attendant circumstances, a tortious and wrong- ful act or omission. It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omis- sion of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, inher- ent in the nature of the contract itself, as in the cases referred to in the respondent's argument, but may spring from ex- traneous circumstances, not constituting elements of the con- tract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It has been well said that the liability to make reparation for an injury rests not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon RICH V. N. Y. C. & H. RIV. R. t\). 17 every person so to conduct himself or exercise his own rights as not to injure another: Kerwhacker v. G. C. & C. R. R. Co., 3 Ohio St. 18S. Whatever its origin, such legal duty is uni- formly recognized, and has been constantly applied as the foundation of actions for wrongs ; and it rests upon and grows out of the relations which men bear to each other in the framework of organized society. It is then doubtless true that a mere contract obligation may establish no relation out of which a separate or specific legal duty arises, and yet ex- traneous circumstances and conditions, in connection with it, may establish such a relation as make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts of which the breach of the contract was but one. The whole doctrine is accurately and concisely stated in 1 Chit. PL 135, that "if a common-law duty result from the facts, the party may be sued in tort for any negligence or misfeasance in the execution of the contract." It is no difficulty that the mortgagee's agreement to give time, and postpone the sale for plaintiff's benefit was invalid, and a mere act of grace which could not have been compelled. If it is made plain that the mortgagee would have waited but for the fraudulent scheme and conduct of the de- fendant, that is enough : Benton v. Pratt, 2 Wend. 385 ; Rice V. Manley, 66 N. Y. 83. Nor is it a difficulty that the injury sufi"ered was the result of a series of acts some of which were lawful and innocent : Cooley on Torts, 70 ; Bebinger v. Sweet, 1 Abb. N. C. 263. . V s Assuming now that we correctly understand what the tort pleaded was, and which was conceded to constitute a cause of action, it seems to us quite clear that the plaintiff was improp- erly barred from proving it. From the very nature of the case a fraud can seldom be proved directly, and almost uni- formly is an inference from the character of the whole trans- action and the surrounding and attendant circumstances. Proof of the contract and its breach, of the delay in restoring the depot and the reasons therefor were essential links in the chain. If the proof should go no further a non-suit would be 2 18 NATURE AND PRINCIPLES. proper, but without these elements the tort alleged could not be established at all. And so the situation of the parties as it respected their several properties, the existence of the mort- gage, the agreement to postpone the sale were elements of the transaction proper to be shown. The plaintiff's interview with the oflficers of the defendant company, and their statement of the reasons for refusing to restore the depot were improperly excluded. While we cannot know what it was which actually occurred, it is very plain that their statement of reasons would bear materially upon the issues involved. We are not concerned with the question of the wisdom of the plaintiff's choice of his form of action, or of what may re- sult if the cause of action pleaded as a tort shall be hereafter assailed, instead of its sufficiency being conceded. It may well be that he has chosen the one most difficult to maintain, and that an action upon one or more of the contracts would be less surrounded with difficulties. But we have nothing to do with his choice. He is entitled to prove his cause of action if he can. The judgment should be reversed and a new trial granted, costs to abide the event. Jaggard, 2 ; Bishop, 4 ; Cooley, 2 ; Pollock, 4. 3. Torts as Distinguished prom a Crime. a Intention is the essence of a crime, ■while in tort it is not involved in the right to recover except to effect the measure of damages. GuiLLE V. Swan. Supreme Court of New York, 1822. 19 Johns. 381. One Guille ascended in a balloon in the vicinity of Swan's garden and descended into it ; being in peril he called for help and the attending crowd broke into the garden, beating down GUILLE V. SWAN. 19 his vegetables and flowei-s. Swan sued Guille in Justice Court and recovered damages for the entire injury. Reviewed on certiorari. Spencer, C. J., deHvered the opinion of the Court. The counsel for the plaintiff in error supposes that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was no union of intent; and that upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises. The intent with which an act is done is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional, or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey, 18 Johns. Rep. 257. Where an immediate act is done by the co-operation, or the joint act of several per- sons, they are all trespassers, and may be sued jointly or severally ; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the others. The case of Scott V. Shepard, 2 Black Rep. 892, is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepard threw a lighted squib, composed of gunpowder, into a market-house where a large concourse of people were assembled ; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing ; from thence, to save the goods of the owner, it was thrown to another part of the market-house, and in so throwing it, it struck the plaintiff in the face, and, .bursting, put out one of his eyes. It was decided, by the opinions of three Judges 20 NATURE AND PRINCIPLES. against one, that Shepard was answerable in an action of tres- pass, and assault and battery. Db Grey, C. J., held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of the mischief. AH that was done subsequently to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable ; the blame lights upon the first thrower ; the new direction and new force, flow out of the first force. He laid it down as a principle, that every one who does an unlawful act is considered as the doer of all that follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man, and it was held that trespass would lie. In Leame v. Bray, 3 East Rep. 595, Lord Ellenborough said, if I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass ; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans. I will not say that ascending in a balloon is an unlawful act, for it is not so ; but, it is certain, that the aeronaut has no control over its motion horizontally ; he is at the sport of the winds, and is to descend when and how he can ; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff' below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would ordinarily and naturally draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation ; all this he ought to have' foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial ; he had put himself in a situation to invite help, and they rushed for- ward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted that if the plaintiff" in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the inclosure ? I think not. In that COOK r. ELLIS. 21 case they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and de- signedly, as equivalent to a direct request to the crowd to follow him. In the present case he did call for help, and may have been heard by the crowd ; he is, therefore, undoubtedly, liable for all the injury sustained. Judgment afl&rmed. Chapman v. State, 78 Ala. 463 ; Beach v. Hancock, 27 N. H. 223 ; Weaver V. "Ward, Hobart, 134 ; Groenvelt v. Burwell, Ld. Kay. 467 ; Amick v. O'Hara, 6 Black. 25S ; Gate i-.Cate, 44 N. H. 211 ; Tobin v. Deal, 60AVis. 87 ; Jaggard, 8 ; Gooley, 4 n. ; Pollock, 3 ; Innes, 33. A crime is a violation of a public la\w and an injury to the whole community, ■while a tort is a violation of a private law^ and an injury to an individual ; but the same act may be both a tort and a crime. Cook v. Ellis. Supreme Court of New York, 1844. 6 Hill, 466. Trespass for assault and battery in the Circuit Court. Judg- ment for plaintiff. Defendant moves for new trial. Per Curiam. This action is for an assault made upon the plaintiff with intent to have carnal connection with her. It is not denied that there were circumstances in proof which authorized the jury to give exemplary damages, had not the defendant been convicted and fined $250 for the same assault, which he had paid. This, it is insisted, barred all claim be- yond the actual damages. The Judgfe charged that the crim- inal proceedings did not prevent the jury from giving exem- plary damages if they chose, though the fine and payment were proper to be considered in fixing the amount which they would allow the plaintiff. We have examined the several authorities cited on the part 22, NATURE AND PRINCIPLES. of the defendant, and find none of them so favorable to him as the learned Judge was in this case, unless, indeed, a remark in 1 Chit. General Practice (p. 17, Am. ed. of 1834) forms an exception. But the author does not pretend to be sustained by any adjudged case — at least he cites none — and we think he is mistaken. In vindictive actions — and this is agreed to come within that class — jurors are always authorized to give exemplary damages where the injury is attended with cir- cumstances of aggravation ; and the rule is laid down without the qualification that we are to regard either the possible or the actual punishment of the defendant by indictment and conviction at the suit of the people. That the criminal suit is not a bar to the civil, and that no Court will drive the prose- cutor to elect between them, if the former be by indictment, is entirely settled : Jones v. Clay, 1 Bos. & Pull. 191 ; Jacks v. Bell, 3 Carr. & Payne, 316. He may proceed by both at the same time : lb. ; nor will the Court even stay proceedings in the civil action, to govern themselves by the event of a pend- ing criminal prosecution: Caddy v. Barlow, 1 Man. & Ryl. 275. We concede that smart-money allowed by a jury, and a fine imposed at the suit of the people, depend on the same princi- ple. Both are penal, and intended to deter others from the commission of the like crime. The former, however, becomes incidentally compensatory for damages, and at the same time answers the purposes of punishment. The recovery of such damages ought not to be made dependent on what has been done by way of criminal prosecution any more than on what may be done. Nor are we prepared to concede that either a fine, an imprisonment, or both, should be received in evi- dence to mitigate damages. True, if excluded, a double pun- ishment may sometimes ensue ; but the preventive lies with the criminal rather than the civil Courts. The former have ample power, if they choose to exert it, of preventing any great injurj^ from excess of punishment. In a proper case if the party aggrieved will not release his private injury, or stipulate to waive a suit for it, or at least to waive all claim COOK V. ELLIS. 23 for smart-money, the Court may, after conviction, either impose a fine merely nominal or stay proceedings till a trial shall be had in the civil action, and govern themselves accordingly in the final infliction of punishment. This, or something equiva- lent, has often been done. The more usual case in England is where the party comes as the principal actor in the prose- cution by way of applying for a criminal information. The Court will then make it a condition that he shall waive his right of action : Rex v. Sparrow, 2 T. E. 198 ; see also Rex v. Fielding, 2 Burr. 654, 2 Kenyon's Rep. 386, S. C. Indeed, so common has this become that the very application by the party is said to be considered as an implied stipulation not to bring a private suit. This will, therefore, be stayed : lb. ; Tidd. Pr. 9, Am. ed. 1840. And even where he proceeds by indictment, the Court often, in effect, turn over the whole case to be disposed of by action in the method before mentioned. The more usual course is to stay proceedings on the criminal side till those on the civil side are at an end : Commonwealth V. Bliss, 1 Mass. Rep. 32 ; Commonwealth v. Elliot, 2 lb. 372. This is not done with us till after conviction : The People v. General Sessions of Genesee, 13 John. 84 ; and such is, no doubt, the better practice. In Jacks v. Bell, 3 Carr. & Payne, 316, the party had re- ceived, on the certificate of th6 Judges, a portion of several fines amounting to more than the actual damage he had sus- tained by the assault. This was pursuant to the practice men- tioned in 1 Chit. Cr. Law, 8, 810. In a civil action, therefore, Lord Tenterden, C. J., directed a verdict for one farth- ing only, saying that no certificate for the sum received would have been given by the Court, unless it had been with the understanding that no action was to be brought. The Judges might, without doubt, have prevented an action entirely had they required a release or stipulation as the condition of their certificate. The damages were properly mitigated, because the party had actually got his full compensation. It, is believed that no case goes further ; and even this would not authorize the jury to notice what fine may have been paid to the people. 24 NATURE AND PRINCIPLES. Of that the party gets nothing. The Judges in this country- are not authorized to give it to him. On the whole, we are of opinion that the charge was quite as favorable to the defendant as he could possibly claim, not to sa}' more so. New trial denied. Jacks V. Bell, 3 Car. & P. 316, 14 E. C. L. 586 ; Jones v. Clay, 1 Bos. & P. 191 ; Story v. Hammond, 4 Ohio, 376 ; Pettingill v. Eideout, 6 N. H. 454 ; B. & W. E. E. V. Dana, 1 Gray, 83 ; State v. Frost, 1 Brev., S. C. 385 ; Winter- bottom V. Derby, L. E. 2 Ex. 316 ; Hart v. Bassett, cited in L. E. 2 Ex. 316 ; Kirland v. State, 43 Ind. 146 ; Bundy v. Maginess, 18 Pac. 668 ; Thomason^;. Gray, 3 So. 38 ; Hutchinson v. Bank, 41 Pa. St. 42 ; Minn. Stat. 1894, J 6287 ; Jaggard, 10 ; Bishop, 70, 71 ; Cooley, 40. 4. The Duty Violated must be a Legal one, and not merely a moral right or duty (damnum absque injuria). Buhl v. Fort St. Union Depot Co. Supreme Court of Michigan, 1894. 98 Michigan, 596 ; 57 N. W. 829. Montgomery, J. The Common Council of the city of Detroit vacated that portion of Fourth Street in said city ex- tending from Congress Street to Fort Street. The defendant thereupon occupied the vacated portion of the street for depot purposes, which, of course, resulted in closing the street to public travel. The action was had under authority of Act No. 94, Laws of 1891, amendatory to the " Union Depot Act," so called. The amendatory section of 1891 provides that — "Any corporation organized^ under this Act shall have power, with the consent of the Common Council of any city, or the village board of any village, in which the station and depot grounds of such company are located, to occupy and close any highway, street or alley within the limits of its station and depot grounds, but such company shall pay to the BUHL V. FORT ST. UNION DEPOT CO. 25 parties entitled to the same any and all damages that may accrue to them in consequence of the closing of any such high- way, street or alley ; and such damages may be recovered in an action on the case in any Court of competent jurisdiction." The plaintiff is the owner of a brick block fronting Fourth Street, and extending from Larned Street to Congress. He brings this suit to recover damages resulting to his property from the closing up of Fourth Street between Congress and Fort. The portion of the street beyond Congress is made less accessible from plaintiff's property, it being made necessary to make a detour to Third Street instead of passing directly through what was formerly a part of Fourth. It cannot be doubted that there has been some resulting disadvantage occasioned by the closing of that portion of the street. The question pre- sented is, is the resulting inconvenience damnum absque injuria, or should the damages actually resulting to the property be held recoverable? It is contended, on the one hand, that such inconvenience as the plaintiff suffers is of like character to that which any member of the community submits to, differing only in degree. On the other hand, it is broadly claimed that under the statute in question any person who is actually damaged by the closing of the street is entitled to re- cover his damages, and the fact that it is difficult to draw the line showing when depreciation of property will end does not militate against the right, or present any greater obstacle than is often presented in other classes of cases, and that the question can safely be left to the good sense of the Court and the jury. Under the right of eminent domain, where there is no other limitation of the power than such as is contained in our Con- stitution, which provides that private property shall not be taken for public use without just_compensation, it is conceded that it is competent for the Legislature to provide for a public improvement which may work an incidental damage to prop- erty without providing compensation for property not actually taken. See City of Pontiac v. Carter, 32 Mich. 164 ; Hinch- man v. City of Detroit, 9 lb. 103 ; People v. Board of Super- visors, 20 lb. 95. And the distinct question of whether the 26 NATURE AND PEINCIPLES. discontinuance of a public street, or its appropriation to other purposes than that of a highway, constitutes a taking of the property of the users generally (other than abutting owners) has been distinctly ruled in the negative by many of the American Courts. See McGee's Appeal, 114 Pa. St. 477 ; Smith V. City of Boston, 7 Gush. 254 ; Paul v. Carver, 24 Pa. St. 207 ; Fearing v. Irwin, 55 N. Y. 486 ; Hatch v. Railroad Co., 25 Vt. 49 ; Dill Mun. Corp. (4th ed.), § 666. But it is contended that the statute in question is more nearly analo- gous to those constitutional provisions, which exist in some of the States, that property shall not be taken or damaged for public use without just compensation, and it is urged that where these provisions exist, in some of the States at least, a doctrine has been held which sustains the plaintiff's contention here. Plaintiff's counsel also relies upon decisions of the English Courts as sustaining his contention. The English statute provides for compensation to the owner of lands in- juriously affected, and it has been held that this entitled one to compensation whose land was permanently diminished in value by an authorized obstruction to a street, although his lot was at a distance from the obstruction : M'Carthy v. Board, L. R. 7 C. P. 508, L. R. 7 H. L. 243 ; Railway Co. v. Walker's Trustees, 7 App. Gas. 299. Mr. Sedgwick, in the eighth edition of his work on Damages (§ 1093), comments upon these deci- sions as follows : " The disposition made by the English Courts of the ques- tion of redress for interference with access from private prop- erty to streets and highways (and the case of water highways, etc., is the same) is particularly deserving of attention. Under the rule already stated, if the owner has suffered no injury to his right of ownership he would have had no right of action in respect of his interest in lands if there had been no statu- tory powers ; consequently he cannot maintain a claim to com- pensation under the statute. The claim, therefore, seems to be limited and defined by the right of access. If the access is taken away, or rendered less convenient, and the value of the lands depreciated, even though they do not immediately abut BUHL V. FORT ST. UNION DEPOT CO. 27 on the public highway or river, the plaintiff can recover ; but if the obstruction is onl}^ temporary, or an inconvenience, di- verting the public and causing a loss in custom or trade, the damage, as it would not have given the owner any right of action if there had not been any statutory powers, is not re- coverable." The plaintiff also cites cases in which the construction of a constitutional provision entitling the party to compensation where property is taken or damaged is claimed to be sufficiently broad to include the present case. Tlie cases cited are : Rigney V. City of Chicago, 102 111. 64 ; City of Chicago ■«. Taylor, 125 U. S. 161 ; Gottschalk v. Railroad Co., 14 Neb. 550 ; Railway Co. V. Hazels, 26 lb. 364 ; Railway Co. v. Janecek, 30 lb. 276 ; Harvey v. Railroad Co., 90 Ga. 66 ; City of Omaha v. Kramer, 25 Neb. 489 ; Montgomery v. Townsend, 80 Ala. 489 ; Rail- road Co. V. Williamson, 45 Ark. 429 ; Moore v. City of Atlanta, 70 Ga. 611 ; Town of Longmont v. Parker, 14 Colo. 386. In the case of Town of Longmont v. Parker it was held that, under a constitution providing compensation for lands taken or damaged, a land-owner whose means of ingress and egress are interfered with by the construction of a ditch on the high- way abutting his land is entitled to recover as damages depre- ciation of the property because of such ditch — Richmond, C, dissenting. In Moore v. City of Atlanta it was held that, under a similar constitution, damages resulting to the abutting owner from a change in the grade of a street could be recovered. The same thing was held in Montgomery v. Townsend. In Railroad Co. v. Williamson it was held that the owner of premises abutting upon a street may recover from a railroad company damages resulting to his premises from the construc- tion of a road-bed in its right of way along the street in such a manner as to obstruct access to the premises, though the owner has no interest in the fee. In the case of City of Omaha v. Kramer it was held that the construction of a viaduct on a street upon which the plaintiff's 28 NATURE AND PKINCIPLES. land abutted was such damage as could be recovered for, the Court stating that, under the constitutional provision provid- ing that property taken or damaged shall be paid for, the words "or damaged" include all actual damages resulting from the exercise of the right of eminent domain which di- minish the market value of private property. The Court repudiate the English rule, and the rule adopted in Penn- sylvania, that, under such a provision, no damage can be re- covered except such as the plaintiff would be entitled to sue for and recover at the common law if the Act had not been au- thorized by statute. See, as to the English rule, 3 Sedg. Dam., § 1124; the Pennsylvania rule, Eailroad Co. v. Marchant, 119 Pa. St. 541. In Rigney v. City of Chicago the city con- structed a viaduct or bridge along Halsted and across Kinzie Streets at their intersection, which was two hundred and twenty feet west of plaintiffs premises, fronting on Kinzie Street. The viaduct in question cut off all communication with Hal- sted Street by way of Kinzie Street, except by means of a pair of stairs at the intersection of the streets. Halsted Street is one of the main thoroughfares of Chicago, on which is ope- rated a line of horse railway. The evidence showed that the value of plaintiff's lot was largely depreciated. The question is considered at great length, and the majority of the Court reached the conclusion that the plaintiff, under the facts stated, is entitled to recover compensation for the injury to his prop- erty ; the Constitution providing that private property shall not be taken or damaged for public use without just compensation. Three members of the Court dissented from this opinion — Justices Scott, Ceaig, and Sheldon. The Supreme Court of the United States, in City of Chicago V. Taylor, followed the decision of the State Court, and affirmed a recovery by a plaintiff whose property was damaged by the construction of a viaduct on the street abutting the plaintiff's premises. Limitations have been placed upon the rule by the Supreme Court of Illinois. In City of Chicago v. Building Ass'n, 102 111. 379, the complainant sought to enjoin the closing of a street BUHL V. FORT ST. UNION DEPOT CO. 29 three and a half blocks from its premises, which act it claimed worked a peculiar injury to it. The Court say : " It has been supposed in argument that our Constitution, in providing that ' property shall not be damaged for public use without due compensation,' necessarily modifies the doctrine of these cases [referring to Massachusetts, Pennsylvania, Iowa, and other cases cited] to some extent. So far as affects the present question, we are of opinion this supposition is not well founded." See, also, the case of City of East St. Louis v. O'Flynn, 119 111. 200. The counsel for the plaintiff argues that these cases were wrongly decided, as the Court attempt to determine as a matter of law in each case whether damages have resulted. This only illustrates the difficulty in drawing any precise line, if it be admitted that one other than the abutting owner is entitled to recover damages for the obstruction or discontinu- ance of a public street. Indeed, it is not altogether clear that the line intended to be drawn by the Supreme Court of Illi- nois is not the one indicated, namely, between an abutting owner affected by the closing of a street adjacent to his prem- ises and one whose property is incidentally affected by the closing of a street in another block. In City of East St. Louis V. O'Flynn, 119 111. 204, it is said : " The onlj' question that can be considered in this Court is purely a question of law. It is : Can defendant, as a matter of law, be held liable to the plaintiff for damages resulting from the vacation of streets and alleys between Front and Fourth Streets, the vacation being in another block in the city than that in which plaintiff's property is situated?" The Court then considered the force and effect both of the constitutional provision and the statute of the State as bear- ing upon the subject, the constitutional provision being that private property shall not be taken or damaged for public use without just compensation, and the statute providing that when property is damaged by the vacation or closing of any 30 NATURE AND PRINCIPLES. street or alley the same shall be ascertained and paid as pro- vided by law. The Court say : " Here plaintiff's lot is not adjacent to the streets or alleys vacated. It is in another block. The access to and egress from his lot are not affected by the vacating ordinance passed by the city. The street in front and the alley in the rear of his property remain open as before, affording the same access to and egress from it. The inconvenience that would be occa- sioned to plaintiff in going from the street in front of his house to a particular part of the city, on account.of vacating and closing up certain streets and alleys in another block, is the ' same kind ' of damage that would be sustained by all other persons in the city that might have occasion to go that way ; and, although the inconvenience he may suffer may be greater in degree than to any other person, that fact would not give him a right of action." The Court held that he had no right of action. In City of Chicago v. Building Ass'n it was held that.the fact that property-owners upon a street have been specially assessed as benefited by the opening of a street some blocks off, and have paid assessments, does not give them any special property in said street, any more than any other taxpayer, and gives them no equitable ground to enjoin the vacation of such part of the street. The same view was taken in Kean v. City of Elizabeth, 54 N. J. Law, 46^ It was said : " It is assumed by counsel for prosecutrix that, because the prosecutrix was assessed for a benefit resulting from the open- ing of this street peculiar to herself, she got a vested right in the continued existence of the street, of which she could not be stripped without compensation. But this, I think, is more plausible than substantial. While the right she got may have been of peculiar benefit to her property, yet it was a right which she shared with the public. The privilege of using the street was shared by each member of the community. It may not have been of the same value to each member of the com- BUHL V. FORT ST. UNION DEPOT CO. 31 munity, but the right to use the street was in each citizen the same. It was exclusively a public right put under the con- trol of the representatives of the public. It was subject to alteration or abolition when, in the judgment of those to whom the public interests were confided, those interests de- manded such action." It was held in that case that a person owning lands upon a part of a street not vacated is not deprived of any vested rights in property for which he is entitled to compensation by reason of such vacation. A distinction may well be held to exist between the injury which results to an abutting owner, or another so situated that the means of ingress and egress to and from his premises are cut off by a discontinuance of a street, and one owning land upon another street, or on the same street at a distance from the part of the highway discontinued. The subject has been considered by the Supreme Court of Massachusetts many times. In Stanwood v. City of Maiden, 157 Mass. 17, damages were sought for a discontinuance of a part of Summer Street in Maiden, which ran into Florence Street obliquely just opposite the petitioner's land. It was said it is possible, if not probable, that the money value of petitioner's property was diminished by diverting the stream of travel which formerly flowed toward it over Summer Street ; and it was contended on the authority of the English cases, and for the further reason that the laying out of the discon- tinued piece of street would have been a benefit for which the petitioner might have been assessed, that a recovery should be had for its discontinuance. But the Supreme Court, following Smith V. City of Boston, 7 Cush. 254, denied the right. In Smith v. City of Boston it appeared that the plaintiff owned several lots in the city on or near Market Street, and offered to prove that the value of each had been lessened, and the rent of one or more of them diminished, but it appeared that no one of the lots bounded on that part of the street which had been discontinued. Chief Justice Shaw, in con- veying the opinion of the Court, said : 32 NATURE AND PRINCIPLES. " There is obviously a difficulty in laying down a general rule applicable to all cases. One limit, however, must be ob- served, which is that the damage for which a recompense is sought must be the direct and immediate consequence of the act complained of, and that remote and contingent damages are not recoverable. The inconvenience of the petitioner is ex- perienced by him in common with all the rest of the members of the community. He may feel it more, in consequence of the proximity of his lots and buildings. Still it is a damage of like kind, and not in its nature peculiar or specific. . . . We not mean to be understood as laying down a universal rule that in no case can a man have damages for the discontin- uance of a highway unless his land bounds upon it, although, as applicable to city streets, intersecting each other at short distances, it is an equitable rule. A man may have a farm, store, mill or wharf, not bounding on a street, but commu- nicating with it by a private way, so situated that he has no access to his property but by the public way. If this is dis- continued, he must lose the benefit of his estate or open a way at his own expense, which might be a direct and tangible damage consequent upon the discontinuance of the public way, and we are not prepared to say that he would not have a claim for damages under the statute." In McGee's Appeal, 114 Pa. St. 417, the Court consider the effect of a constitutional provision which reads as follows : " Municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works," etc. The Court held that this gave no right of action to the owner of a lot whose property was incidentally injured by the vacation of a public street. In the case of Coster v. Mayor, 43 N. Y. 399, the city was authorized by Act of the Legislature to cause the removal cif a bridge which was a portion of a street leading to plaintifl's' lot, which Act provided that the city should pay all damages BUIIL V. FORT ST. UNION DEPOT CO. 33 to property caused by the improvement, and should enter into a contract and give a bond to the State to do so. The language of the Act was substantially the same as that under consider- ation here. The Court saj : " ' Damage ' and ' claim ' are words having a well-defined meaning in statutes and legal instruments. And for so much as they rightfully convey, for so much is the city bound. ' What is a claim ? It is, in just judicial sense, a demand of some matter, as of right, made by one person of another, to do or forbear to do some act or thing as a matter of duty.' The plaintiffs may claim no more of the city than the law will give them as a matter of right. The city need pay as much as the State should pay as matter of duty." Considering the question of whether the plaintiffs had such a right which had been encroached upon, the Court say : " The plaintiffs further claim that the best approach to their property having been by the Hamilton Street bridge, and that having been entirely removed by the agents of the State, a damage has resulted to their property for which' the city is liable. Xo part of the bridge was on the property of the plain- tiffs. They had no interest or right in it as property. There is left to the plaintiffs an approach to their property by the State Street bridge, though less near, less easy, less commodious. The damage to the plaintiffs' property from this cause is en- tirely indirect and remote. It is not claimed to the contrary, and we shall assume that the State had right, by virtue of this Act, or from other source, to do this work, and in doing it to remove this bridge. The bridge, so far as the plaintiffs M^ere interested in it, was but a part of a public street or highway. Over streets and highways the Legislature has control, and may, when no private interests are involved or invaded, close them and altogether relinquish their use by the public. And if in the exercise of this right a street be discontinued, and the value of lands abutting on other parts of the street and on neighboring streets is lessened, it is not such an injury to the owner as to entitle him to damages." In Glasgow v. St. Louis, 107 ]Mo. 204, the plaintiffs sought 3 34 NATURE AND PRINCIPLES. to enjoin the vacation of Papin Street, from Twelfth Street to Thirteenth Street, one block east of property owned by plain- tiffs, lying between Thirteenth and Fourteenth Streets. The situation of the property was not materially different from the property of plaintiff in the present case. The Court say : " There is no doubt but a property-owner has an easement in a street upon which his property abuts which is special to him and should be protected, but here the plaintiffs own no property fronting or abutting on the part of the street which was vacated. Their property is surrounded by streets not touched or affected by the vacating ordinance. They will be obliged to go a little further to reach Twelfth Street, but that is an inconvenience different in degree only from that suffered by all other persons, and it furnishes no ground whatever for injunctive relief. " Nor are the plaintiffs entitled to any relief by reason of the clause in the present Constitution which declares ' that private property shall not be taken or damaged for public use without just compensation.' To entitle them to relief because their property will be damaged, though not taken, they must show a special injury. Here there is no physical interference with their property, nor is any right or easement connected therewith or annexed thereto affected. They will, therefore, suffer no injury which is special or peculiar to them. The in- convenience, if any in reality there is, is the same as that cast upon other persons. For these reasons the constitutional amendment furnishes them no ground for complaint." We think the weight of authority in this country fully sus- tains the contention of defendant that such an injury as that resulting to the plaintiff here is one which he suffers in com- mon with the general public, and damnum, absque injuria. But it is contended by the plaintiff that, unless the amen- datory Act is so construed as to give the plaintiff a right of action in the present case, the provision that damages may be recovered is rendered wholly nugatory, as it is urged that only such streets as are within the depot grounds are permitted to be vacated, and that there is no abutting owner who could be BUHL V. FORT ST. UNION DEPOT CO. 35 injuriously affected by the closing of such streets. And, as applied to the present case, such is probably the result of this construction. But the Act is general, and applies to all depot companies. The street which passes through depot grounds may be a cul de sac, and in such case the closing of a street might leave the owner of the property without any means of egress whatever. In such case, undoubtedly, his right to damages would be as clear for the interruption of his means of ingress and egress as would be that of the abutting owner for a similar interference with a like right. See opinion of Shaw, C. J., in Smith v. City of Boston, supra; Pearsall v. Board of Supervisors, 71 Mich. 438 ; 74 lb. 558 ; Goss v. High- way Commissioner, 63 lb. 608 ; Phillipsburg v. Highway Com- missioner, 35 lb. 15. The Circuit Judge directed a verdict for the defendant- on the ground that the plaintiff was not entitled to recover any damages for the closing of the street in question. We think his conclusion was right, and the judgment will be affirmed, with costs. The other Justices concurred. Lamb v. Stone, 11 Kck. 526 ; Hutchins v. Hutching, 7 Hill, 104 ; Pryce v. Belcher, 3 C. B. 58, 54 E. C. L. ; Bradley v. Fuller, 118 Mass. 239 ; Long r. Warren, 68 N. Y. 426 ; Eandall v. Hazleton, 12 Allen, 412 ; Keeble v. Hick- eringill, 11 East, 574 ; Ocean Grove v. Asbury Park, 40 N. J. Eq. 447 ; Acton V. Blundell, 12 M. & W. 341 ; Guest v. Eeynolds, 68 111. 478 ; Transportation Co. V. Chicago, 99 U. S. 635 ; Buhl v. Fort St. Union Depot, 57 N. W. 829 ; Xicholson v. Erie R. R., 41 N. Y. 525 ; Thurston v. Hancock, 12 Mass. 220 ; Tunstall v. Christian, 80 Va. 1 ; Winn v. Abeles, 35 Kan. 85, 92 ; Gilmore v. Driscoll, 122 Mass. 199 ; Quinn v. Anderson, 11 Pac. 746 ; Pa. Coal Co. v. Sanderson, 112 Pa. St. 126 ; National Copper Co. v. Mining Co., 23 N. W. 781 ; Jaggard, 86 ; Bishop, 26, 103 ; Cooley, 81 ; Pollock, 22. 36 NATURE AND PRINCIPLES. 5. The Violated Legal Duty may have been Prescribed BY Common Law, Statute, or Ordinance. Willy v. Mulledy. Court of Appeals of New York, 1879. 78 N.Y. 310 ; 6 Abb. (N. 0.) 97. Earl, J. This is an action to recover damages for the death of plaintiff's wife, alleged to have been caused by the fault of the defendant. Prior to the 1st day of November, 1877, the plaintiff hired of the defendant certain apartments in the rear of the third story of a tenement-house in the city of Brooklyn, and with his wife and infant child moved into them on that day. On the fifth day of the same month, in the daytime, a fire took place, originating in the lower story of the house, and plaintiff's wife and child were smothered to death. It is claimed that the defendant was in fault because he had not constructed for the house a fire-escape, and because he had not placed in the house a ladder for access to the scuttle. Section 36 of title 13 of chapter 863 of the Laws of 1873 provides that every building in the city of Brooklyn shall have a scuttle of place of egress in the roof thereof of proper size, and " shall have ladders or stairways leading to the same ; and all such scuttles and stairways or ladders leading to the roof shall be kept in readiness for use at all times." It also provides that houses like that occupied by the plaintiff " shall be provided with such fire-escapes and doors as shall be di- rected and approved by the commissioners (of the department of fire and buildings) ; and the owner or owners of any build- ing upon which any fire-escapes may now or hereafter be erected, shall keep the same in good repair and well painted, and no person shall at any time place any incumbrance of any kind whatsoever upon said fire-escapes now erected or that may hereafter be erected in the city. Any person, after being notified by said commissioners, who shall neglect to place upon any such building the fire-escape herein provided for, shall WILLY V. MULLEDY. 37 forfeit the sum of $500, and shall be deemed guilty of a mis- demeanor." Under this statute the defendant was bound to provide this house with a fire-escape. He was not permitted to wait until he should be directed to provide one by the commissioners. He was bound to do it in such way as they should direct and approve, and it was for him to procure their direction and ap- proval. No penalty is imposed for the simple omission to provide one. The penalty can be incurred only for the neglect to provide one after notification by the commissioners. Here was, then, an absolute duty imposed upon the defend- ant by statute to provide a fire-escape, and the duty was im- posed for the sole benefit of the tenants of the house, so that they would have a mode of escape in the case of a fire. For a breach of this duty causing damage, it cannot be doubted that the tenants have a remedy. It is a general rule, that whenever one owes another a duty, whether such duty be im- posed by voluntarj' contract or by statute, a breach of such duty causing damage gives a cause of action. Duty and right are correlative ; and where a duty is imposed, there must be a right to have it performed. When a statute imposes a duty upon a public officer, it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of a duty imposed by statute upon any citizen : Cooley on Torts, 654 ; Hover v. Barkhoff, 44 N. Y. 113 ; Jetter v. N. Y. C. & H. R. R. R. Co., 2 Abh Ct. of App. Dec. 458 ; Heeney v. Sprague, 11 R. I. 456 ; Couch v. Steele, 3 Ell. & Bl. 402. In Comyn's Digest, Action upon Statute (F.) it is laid down as the rule that " in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." There was no fire-escape for this house. But the claim is made on behalf of this defendant that he is not liable in this action, because the plaintiff and his wife knew, when they ;J8 NATURE AND PRINCIPLES. moved into the house and while they occupied the same, that there was no fire-escape, and hence that they voluntarily took the hazard of its absence. It is undoubtedly true that the plaintiff could have stipulated against or have waived the per- formance of this duty imposed for his benefit, but this he did not do. There is no proof of any kind that it was the inten- tion of the parties entering into their contract that he should take and occupy this house without a fire-escape. There is nothing to show that he knew there was no fire-escape there when he hired the apartments. It is not shown that his atten- tion was in any way called to the matter or that he looked for one. Its absence could be discovered only by an examination outside of the house, and there is no evidence that he made such examination. He had the right to assume that the statu- tory duty had been performed. There is no proof that during his occupancy he discovered the absence of a fire-escape. He was there but three days, excluding the day upon which he moved in and the day upon which the fire occurred, and during that time it does not appear how much of the time he was in the house. There is certainly no evidence that he or his wife discovered that there was no fire-escape, or that their attention had been called to the matter. They owed no duty to the defendant to look and see whether there was one there or not. They had the right to rely upon its presence there as required by the statute. But suppose they did discover that there was no fire-escape at some time while there, after they moved in, does such discovery absolve the defendant from his duty ? After making the discovery, they were not bound at once to leave the house and go into the street. They had a reasonable time to look for and move into other apartments ; and by remaining for such reasonable time they waived nothing ; and if they did not choose to move out, they were entitled to a reasonable time to find the defendant and to call upon him to furnish the fire-escape. By remaining in the house for such a reasonable time after discovery of the breach of duty on the part of the defendant, it could not be said as matter of law that they waived the performance thereof or WILLY ('. MULLEDY. o'J took upon themselves voluntarily the hazard of all the dam- ages which they might sustain by the non-performance thereof. The duty rested upon the defendant not solely to have a fire- escape there when the plaintiff leased the premises, but it con- tinued to rest upon him ; and before it can be held that the plaintiff absolved him in any way from this duty, the proof should be clear and satisfactory. Here, I hold, there was no proof whatever from which it could projjerly have been found that he did so absolve him. But it was needful for the plaintiff to show not only that there was this breach of duty, but that the death of plaintiff's wife was due to such breach ; that is, that her life would have been saved if there had been a fire-escape there. It is reason- ahlj certain that if the defendant had placed the fire-escape at the rear of the house, constructed as they were required to be, that the deceased would have seen it and made her escape, as it would have been at one of the windows of the rear rooms which she occupied. But it is said that the defendant was not bound to place the fire-escape at the rear of his house, but that he could have placed it in the front of his house ; and that if he had placed it there, she could not have escaped. It is probably true that she could not have escaped from the front of the house. But there is no proof where fire-escapes are usually constructed, nor whether the front or rear of this par- ticular house would have been the more suitable place for the fire-escape. I think we may assume from the manner in which the front part of this house was. constructed, and from the structure of fire-escapes, that it is most probable that it would have been placed on the rear of the house. We think upon the whole case there was enough to authorize the jury to find that the deceased would have escaped, if the defendant had discharged his duty as the law required. Many of the observations already made apply to the ladder for the scuttle. The duty to furnish and keep such a ladder was imposed mainly for the benefit of the tenants. It was the intention of the statute that they should have two means of escape in the case of fire, one by the scuttle and anotlier by 40 NATURE AND PRINCIPLES. the fire-escape. It was the duty of the defendant to provide a ladder, and then to use reasonable care to keep it there in readiness for use. The defendant had once provided a ladder for this scuttle, but for many months before this fire there had been none there. This the plaintiff and his wife did not know. They knew where the scuttle was, and they had the right to suppose that there was a ladder to reach it, as the law requires. Hence there was, or at least the jury had the right to find, that there was a breach of duty in this respect. But the claim is also made as to this, that there was not sufficient evidence to authorize the jury to find that the breach of this duty had any connection with the death of plaintiff' 's wife — that her life would have been saved if the ladder had been there. "We think there was. The evidence was not very satis- factory. It is true that much is left, from the necessity of the case, to the weighing of probabilities. But the jury could find that the deceased knew where the scuttle was, that she had time after notice of the fire to reach it, and that as she was making efibrts to escape, she probably tried to escape in that direction and failed for want of the ladder. There was sufficient evidence, therefore, to authorize a ver- dict for the plaintiff, and we do not think the judgment should be reversed for other errors alleged. There was no prejudicial error committed by the Judge at the trial in receiving a copy of the printed specifications adopted by the commissioners, as to the material and manner of constructing fire-escapes. I think the evidence was wholly immaterial and harmless. The defendant was not charged with not building a fire-escape according to those specifications, but with wholly neglecting to build any. It was his duty to build one, and to apply to the commissioners for their direc- tions and approval ; and that they had adopted certain speci- fications, of which he would have been informed if he had called upon them, is of no account and had no possible bearing upon the result of the trial. The Court did charge in substance as requested, that the defendant was not liable unless the evidence established the ASHBY V. WHITE. 41 fact that the deceased made an effort to escape through the scuttle, and was prevented from so doing by the absence of the ladder. It was not error to refuse to charge that if the plaintiff and his wife knew that there was no fire-escape, then they could not recover. There was no evidence from which the jury could properly find that they knew this when they hired the premises ; and if they learned it afterward, for reasons above stated, it would not necessarily follow that the plaintiff could not recover. Other allegations of error have been considered, and are found to be without substance. The judgment must be affirmed, with costs. All concur. Judgment affirmed. Stone V. Bumpus, 46 Cal. 218 ; T. & P. R. E. v. Cox, 145 U. S. 593 ; Parker V. Barnard, 135 Mass. 116 ; Hayes !-. Mich. C. E. E., Ill IT. S. 228 ; Penn. R. E. !■. Ervin, 89 Pa. St. 71 ; Flynn v. Canton Co., 40 Md. 312 ; Minn. Stat. 1894, I? 2252, 2253 ; Ja^ard, 95-100 ; Bishop, 19 ; Cooley, 11 ; PoUock, 22 Wron^ul Conduct Consisting of an Act of Commission OK Omission in Violation of a Legal Right Gives A canse of action in tort (injuria sine damno). AsHBY V. White. Kings Bench, 1704. 2 Lord Bay. 938. In an action on the case the plaintiff declared that on such a day in December, in the twelfth year of the late king, there issued a writ to the sheriff of Bucks for the election of mem- bers of Parliament in his county ; that the said writ was de- livered to the said sheriff; whereupon the sheriff made his warrant to the constable of Ailesbury to choose two burgesses 42 NATURE AND PRINCIPLES. for that borough, which warrant was delivered to said con- stable; that in pursuance thereof the burgesses were duly assembled to choose, etc. ; that the plaintiff, being qualified to give his voice for the election of two burgesses before the said White, he was ready to give his voice for Lee and Mayne to be burgesses of Parliament for the said borough ; and that the defendant, knowing the premises, with malice, etc., did obstruct him from giving his voice, and did refuse it, and not allow or receive it, and that two burgesses were chosen without allowing or receiving his voice. Verdict for plaintiff. Holt, Chief Justice. The single question in this case is. Whether, if a free burgess of a corporation, who has an un- doubted right to give his vote in the election of a burgess to serve in Parliament be refused and hindered to give it by the officer, if an action on the case will lie against such officer. I am of opinion that judgment ought to be given in this case for the plaintiff. My brothers differ from me in opinion ; and they all differ from one another in the reasons of their opinion ; but notwithstanding their opinion, I think the plaintiff ought to recover, and that this action is well maintain- able, and ought to lie. I will consider their reasons. My brother Gould thinks no action will lie against the defendant because, as he says, he is a Judge ; my brother Powys indeed says he is no Judge, but quasi a Judge ; but my brother Powell is of opinion that the defendant neither is a Judge nor any- thing like a Judge, and that is true ; for the defendant is only an officer to execute the precept — i. e., only to give notice to the electors of the time and place of election and assemble them together in order to elect, and upon the conclusion to cast up the poll and declare which candidate has the majority. But to proceed, I will do these two things : First, I will maintain that the plaintiff has a right and privilege to give his vote; secondly, in consequence thereof, that if he be hin- dered in the enjoyment or exercise of that right, the law gives him an action against the disturber, and that this is the proper action given by the law. ASHBY V. WHITE. 43 I did not at first think it would be any diflSculty to prove that the plaintiff has a right to vote nor necessary to main- tain it, but from what my brothers have said in their argu- ments I find it will be necessary to prove it. It is not to be doubted but that the commons of England have a great and considerable right in the government, and a share in the legis- lative, without whom no law passes ; but because of their vast numbers this right is not exercisable by them in their proper persons, and therefore, by the Constitution of England, it has been directed that it should be exercised by representatives, chosen by and out of themselves, who have the whole right of all the commons of England vested in them ; and this representation is exercised in three different qualities, either as knights of shires, citizens of cities, or burgesses of boroughs ; and these are the persons qualified to represent all the com- mons of England. The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the freehold, and can no more be sev- ered from their freehold than the freehold itself can be taken away. Before the statutes of 8 H. 6, c. 7, any man that had a freehold, though never so small, had a right of voting, but by that statute the right of election is confined to such persons as have lands or tenements to the yearly value of forty shillings at least, because, as the statute says, of the tumults and dis- orders which happened at elections by the excessive and outrageous number of electors ; but still the right of election is as an original right, incident to and inseparable from the freehold. As for citizrens and burgesses, they depend on the same right as the knights of shires, and differ only as to the tenure, but the right and manner of their election is on the same foundation. Xow boroughs are of two softs ; first, where the electors gave their voices by reason of their burgess- ship ; or, secondly, by reason of their being members of the corporation. Littleton, in his chapter of tenure in burgage, 162, C. L. 108, b. 109, says : Tenure in burgage is, where an ancient borough is, of the which the king is lord, of whom the tenants hold by certain rent, and it is but a tenure in socage ; 44 NATURE AND PRINCIPLES. and § 164, he says, and it is to wit, that the ancient towns called boroughs be the most ancient towns that be within Eng- land, and are called boroughs because of them come the bur- gesses to Parliament. So that the tenure of burgage is from the antiquity, and their tenure in socage is the reason of their estate, and the right of election is annexed to their estate. So that it is a part of the Constitution of England that these bor- oughs shall elect members to serve in Parliament, whether they be boroughs corporate or not corporate ; and in that case the right of election is a privilege annexed to the burgage land, and is, as I may properly call it, a real privilege. But the second sort is, where a corporation is created by charter or by prescription, and the members of the corporation as such choose burgesses to serve in Parliament. The first sort have a right of choosing burgesses as a real right, but here in this last case it is a personal right, and not a real one, and is exer- cised in such manner as the charter or custom prescribes ; and the inheritance of this right, or the right of election itself, is in the whole body politic, but the exercise and enjoyment of this right is in the particular members. And when this right of election is granted within time of memory, it is a franchise that can be given only to a corporation, as is resolved by all the Judges against my Lord Hobart, in the case of Dungannon in Ireland, 12 Co. 120, 121. That if the king grant to the inhabitants of Islington to be a free borough, and that the burgesses of the same town may elect twc^ burgesses to serve in Parliament, that such a grant of such privilege to burgesses not incorporated is void, for the inhabitants have not capacity to take an inheritance. See Hob. 15. The principal case there was, the king constituted the town of Dungannon to be a free borough, and that the inhabitants thereof shall be a body politic and corporate, consisting of one provost, twelve free burgesses and commonalty ; and in the same name may sue and be sued ; et quod ipsi prsesati prsepositi et liberi burgenses hurgi prmdidi et successores sui in perpetuum habeant plenum potestatem et authoritatem eligendi, mittendi, et retornandi duos discretos et idoneos viros ad inserviendum et attendum in quolibet parliamento ASHBY r. WHITE. 45 in dido reg-no nostro Hibernia; in postennn tenmdo, aud so pro- ceeds to give them power to treat, aud gives voice in Parlia- ment, as other burgesses of any other ancient borougii, either in Ireland or England, have used to do. Aud upon this graut it was adjudged, by all the Judges of England, that this power to elect burgesses is an inheritance of which the provost and burgesses were not capable, for that it ought to be vested in the entire corporation, viz., provost, burgesses, and commonalty, and that therefore the law in this case did vest that privilege in the whole corporation in point of interest, though the exe- cution of it was committed to some persons, members of the same corporation : 12 Co. 120, 101 ; Hob. 14, 15. As to the manner of election, every borough subsists on its own founda- tion, and where this privilege of election is used by particular persons, it is a particular right vested in every particular man ; for if we consider the matter, it will appear that the particular members and electors, their persons, their estates, and their liberties are concerned in the laws that are made, and they are represented as particular persons, and not quatenus a body politic ; therefore, when their particular rights and properties are to be bound (which are much more valuable, perhaps, than those of the corporation) by the act of the representative, he ought to represent the private persons. And this is evident from all the writs, which were anciently issued for levying the wages of the knights and burgesses that served in Parliament. As 46 Edw. 3, Rot. Pari. memb. 4, in dorso. For when wages were paid to the members they were not assessed upon the corporation, but upon the commonalty as private persons, as the writ shows, which, indeed, is directed to the sheriff or to the mayor, etc., yet the command is, quod de communitate comi- tatus, civitatis, vel burgi, habere facial miliiihus, civibus, avt bvr- gensibus, lOl. pro expends suis. But now, if the corporation were only to be represented, and not the particular members of it, then the corporation only ought to be at the charge ; but it is plain that the particular members are at the charge. And this is no new thing, but agreeable to reason and the rules of law, that a franchise should be vested in the corporation aggre- 46 NATURE AND PRINCIPLES. gate, and yet the benefit of it to redound to the particular members, and to be enjoyed by them in their private capacity. As is the case of Waller and Hanger, Mo. 832, 833, where the king granted to the mayor ahd citizens of London, quod nulla prisagia sint soluta de vinis civium et liberorum hominum de London, etc. And there it was resolved, that although the grant be to the corporation, yet it should not inure to the body politic of the city, but to the particular persons of the corpora- tion, who should have the fruit and execution of the grant for their private wines, and it should not extend to the wines belonging to the body politic ; and so is the constant experi- ence at this day. So in the case of Mellor v. Spateman, 1 Saund. 343, where the corporation of Derby claim common by prescription, and though the inheritance of the common be in the body politic, yet the particular members enjoy the fruit and benefit of it, and put in their own cattle to feed on the commons, and not the cattle belonging to the corporation ; but that is not indeed our case. But from hence it appears that every man that is to give his vote on the election of members to serve in Parliament has a several and particular right in his private capacity as a citizen or burgess. And surely it cannot be said that this is so considerable a right as to apply that maxim to it, de minimis non curat lex. A right that a man has to give his vote at the election of a person to represent him in Parliament, there to concur to the making of laws, which are to bind his liberty and property, is a most tran- scendant thing, and of a high nature, and the law takes notice of it in such divers statutes, as in the statute of 34 & 35 H. 8, c. 13, entitled an Act for making of knights and burgesses within the county and city of Chester ; where, in the pre- amble, it is said, that whereas the said county palatine of Chester is and hath been always hitherto exempt, excluded, and separated out, and from the king's court, by reason whereof the said inhabitants have hitherto sustained manifold disherisons, losses, and damages, as well in their lands, goods, and bodies, as in the goods, civil and politic, governance, and maintenance of the commonwealth of their said county, etc. ASHBY V. WHITE. 47 So that the opinion of the Parliament is, that the want of this privilege occasions great loss and damage. And the same farther appears from the 25 Car. 2, c. 9, an Act to enable the county palatine of Durham to send knights and burgesses to serve in Parliament, which recites, "Whereas the inhabitants of the county palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the high court of Parliament, etc. The right of voting at the election of burgesses is a thing of the highest importance, and so great a privilege that it is a great injury to deprive the plaintiff of it. These reasons have satisfied me as to the first point. 2. If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it ; and indeed it is a vain thing to imagine a right without a remedy ; want of right and want of remedy are reciprocal. As if a purchaser of an advowson in fee simple, before any presentment, suffer an usurpation, and six months to pass, without bringing his quare impedit, he has lost his right to the advowson, because he has lost his qiuire impedit, which was his onlj'^ remedy ; for he could not maintain a writ of right of ad- vowson ; and though he afterward usurp and die, and the advowson descend to his heir, yet the heir cannot be re- mitted, but the advowson is lost forever without recovery : 6 Co. 50. Where a man has but one remed}' to come at his right, if he loses that he loses his right. It would look verj' strange, when the commons of England are so fond of their right of sending representatives to Parliament, that it should be in the power of a sheriff or other officer to deprive them of that right, and yet that they should have no remedy ; it is a thing to be admired at by all mankind. Supposing, then, that the plaintiff had a right of voting, and so it appears on the record, and the defendant has excluded him from it, nobody can say that the defendant has done well ; then he must have done ill, for he has deprived the plaintiff of his right, so that the plaintiff having a right to vote, and the defendant having 48 NATURE AND PRINCIPLES. hindered him of it, it is an injury to the plaintiff. Where a new Act of Parliament is made for the benefit of the subject, if a man be hindered from the enjoyment of it he shall have an action against such person who so obstructed him. How else comes an action to be maintainable by the party on the statute of 2 Ric. 2, de scandalis magnatum, 12 Co. 134, but in consequence of law ? For the statute was made for the pre- servation of the public peace, and that is the reason that no writ of error lies in the exchequer chamber by force of the statute of 27 Eliz. in a judgment in the king's bench on an action de scandalis, for it is not included within the words of the statute ; for though the statute says, Such writ shall lie upon judgments in actions on the case, yet it does not extend to that action, although it be an action on the case, because it is an action of a far higher degree, being founded specially upon a statute : 1 Cro. 142. If, then, when a statute gives a right, the party shall have an action for the infringement of it, is it not as forcible when a man has his right by the common law ? This right of voting is a right in the plaintiff by the common law, and consequently he shall maintain an action for the obstruction of it. But there wants not a statute, too, in this case, for by West 1, 3 Ed. 1, c. 5, it is enacted. That forasmuch as elections ought to be free, the king forbids, upon grievous forfeiture, that any great man, or other, by power of arms, or by malice or menaces, shall disturb to make free elec- tion : 2 Inst. 168, 169. And this statute, as my Lord Coke observes, is only an enforcement of the common law ; and if the Parliament thought the freedom of elections to be a matter of that consequence, as to give their sanction to it, and to en- act that they should be free, it is a violation of that statute to disturb the plaintiff in this case in giving his vote at an elec- tion, and consequently actionable. And I am of opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action upon the case is not maintainable, because here is no hurt or damage to the plaintiff ; but surely every injury im- ports a damage, though it does not cost the party one farthing. ASHBY V. WHITE. 49 and it is impossible to prove the contrary ; for a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, }et he shall have an action. So if a man givts another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall iiave his action, ivv it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage ; for it is an invasion of his property, and the other has no right to come there. And in these cases an action is brought vi et ai~mis. But for invasion of another's franchise, trespass vi et amis does not lie, but an action of trespass on the case ; as where a man has retorna brevium, he shall have an action against any one who enters and invades his franchise, though he lose nothing by it. So here in the principal case the plaintiff is obstructed of his right, and shall therefore have his action. And it is no objec- tion to say that it will occasion multiplicity of actions ; for if men will multiply injuries, actions must be multiplied too ; for every man that is injured ought to have his recompense. Sup- pose the defendant had beat forty or fifty men, the damage done to each one is peculiar to himself, and he shall have his action. So if many persons receive a private injury by a public nuisance, everj' one shall have his action, as is agreed in Wil- liam's Case, 5 Co. 73 a, and Westbury and Powell, Co. Lit. 56 a. Indeed, where many men are offended by one particular act, there they must proceed by way of indictment, and not of action ; for in that case the law will not multiply actions. But it is otherwise, when one man only is offended by that act, he shall have his action ; as if a man dig a pit in a common, every commoiKi' shall have an action on the case per qtwd communiam suam in (am amplomodo habere non pofii.it ; for every commoner has a several right. But it would be otherwise if a man dig a pit in a highway ; everj' passenger shall not bring his action, but the party shall be punished by indictment, because the injury is general and common to all tliat pass. But when the 4 50 NATURE AND PEINCIPLES. injury is particular and peculiar to every man, each man shall have his action. In the case of Turner v. Sterling, the plain- tiff was not elected, he could not give in evidence the loss of his place as a damage, for he was never in it ; but the gist of the action is, that the plaintiff having a right to stand for the place, and it being difficult to determine who had the majority, he had therefore a right to demand a poll, and the defendant by denying it was liable to an action. If public ofl&cers will infringe men's rights, they ought to pay greater damages than other men, to deter and hinder other officers from the like offenses. So the case of Hunt and Dowman, 2 Cro. 478, where an action on the case is brought by him in reversion against lessee for years, for refusing to let him enter into the house, to see whether any waste was committed. In that case the action is not founded on the damage, for it did not appear that any waste was done, but because the plaintiff was hindered in the enjoyment of his right,- and surely no other reason for the action can be supposed. But in the principal case my brother says we cannot judge of this matter because it is a parliamentary thing. Oh ! by all means, be very tender of that ! Besides, it is intricate, and there may be contrariety of opinions. But this matter can never come in question in Parliament ; for it is agreed that the persons for whom the plaintiff voted were elected, so that the action is brought for being deprived of his vote ; and if it were carried for the other candidates against whom he voted, his damage would be less. To allow this action will make public oflBcers more careful to observe the constitutions of cities and boroughs, and not to be so partial as they commonly are in all elections, which is indeed a great and growing mischief and tends to the prejudice of the peace of the nation. But they say that this is a matter out of our jurisdiction, and we ought not to enlarge it. I agree we ought not to encroach or enlarge our jurisdiction; by so doing we usurp both on the right of the queen and the people ; but sure we may determine on a char- ter granted by the king, or on a matter of custom or prescrip- tion, when it comes before us without encroaching on the ASHBY V. WHITE. 51 Parliament. And if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. This is a matter of property determinable before us. Was ever such a petition heard of in Parliament, as that a man was hindered of giving his vote, and praying them to give him remedy ? The Parlia- ment undoubtedly would say, Take your remedy at law. It is not like the case of determining the right of election between the candidates. My brother Powell says that the plaintiff 's right of voting ought first to have been determined in Parliament, and to that purpose cites the opinion of my Lord Hobaet, 318, that the patron may bring his action upon the case against the ordinary after a judgment for him in a quare impedit, but not before. It is indeed a fine opinion, but I do not know whether it will bear debating, and how it will prove when it comes to be han- dled. For at common law the patron had no remedy for dam- ages against the disturber, but the statute 13 Ed. 1, st. 1', c. 5, s. 3, gives him damages ; but if he will not make the bishop a party to the suit, he has lost his remedy which the statute gives him. But in our case the plaintiff has no opportunity to have remedy elsewhere. My brother Powys has cited the opinion of Little- ton on the statute of Merton that no action lay upon the words si parentes conquerantur, because none had ever been brought ; yet he cannot depend upon it. Indeed, that is an argument, when it is founded upon reason, but it is none when it is against reason. But I will consider the opinion. Some question had arose on the penning of that statute on those words, si parentes conqueratur, etc., what was the meaning of them, whether they meant a complaint in a court in a judicial manner. But it is plain the word conqii^antur means only si parentes lamententur — that is, only a complaint in pais, and not in a court ; for the guardian in socage shall enter in that case, and shall have a special writ de ejedione custodise terrse et hseredis. But this saj'- ing has no great force, if it had it would have been destructive of many new actions which are at this day held to be good law. The case of Hunt and Dowman before mentioned was the first action of that nature, but it was grounded on the common 52 NATURE AND PRINCIPLES. reason and the ancient justice of the law. So the case of Turner and Sterling. Let us consider wherein the law con- sists, and we shall find it to be not in particular instances and precedents, but on the reason of the law, and ubi eadem ratio, ibi idem jus. This privilege of voting does not differ from any other franchise whatsoever. If the House of Commons do deter- mine this matter, it is not that they have an original right, but as incident to elections. But we do not deny them their right of examining elections, but we must not be frightened when a matter of property comes before us by saying it belongs to the Parliament ; we must exert the queen's jurisdiction. My opinion is founded on the law of England. The case of Mors and Slue, 1 Ventr. 190, 238, was the first action of that nature, but the novelty of it was no objection to it. So the case of Smith and Crayshaw, 1 Cro. 15, W. Jones, 93, that an action of the case lay for falsely and maliciously indicting the plaintiff for treason, though the objections were strong against it, yet it was adjudged that if the prosecution were without probable cause there was as much reason the action should be maintained as in other cases. So 15 Car. 2 C. B. between Bodily and Long, it was adjudged by Bridgman, Chief Justice, etc., that an action on the case lay for a riding, whenever the plaintiff and his wife fought, for it was a scandalous and reproachful thing. So in the case of Herring and Finch, 2 Lev. 250, nobody scrupled but that the action well lay, for the plaintiff was thereby deprived of his right. And if an action is maintainable against an officer for hindering the plaintiff from voting for a mayor of a corporation, who cannpt bind him in his liberty nor estate, to say that yet this action will not lie in our case for hindering the plaintiff to vote at an election of his representative in Parliament is inconsistent. Therefore my opinion is that the plaintiff ought to have judg- ment. Webb V. Portland, 3 Sumner, 189 ; Chichester v. Sethbridge, Willes 73 • Seint John's Case, V Coke, 72 ; Keepers Harrow School r. Alderton, 2 Bos. & P. 86 ; Abadie v. Berges, 41 La. Ann. 281, 6 So. 529 ; Jaggard, 78 ; Bishop, 22 et seq.; Cooley, 62 ; Pollock, 214. MILWAUKEE & ST. PAUL R. R. V. KELLOGG. 53 b An appropriate legal remedy, " Ubi jus ibi remedinm." AsHBY V. White. King's Bench, 1704. 2 Lord Ray. 938. {Ante, page 41.) Marzetti v. Williams, 1 Bam. & Adol. 415, 20 E. C. L. 541 ; Chasemore v. Richards, 7 Ho. Lds. Cas. 349 ; Jaggard, 78 ; Bishop, 31 el seq.; Cooley, 19 ; Pollock, 214. 7. The Wrongful Act must be the Proximate not the Remote Cause of the Injury. Milwaukee & St. Paul R. R. v. Kellogg. Supreme Court of United States, 1876. 94 IT. S. 469. Mr. Justice Strong. This was an action to recover com- pensation for the destruction by fire of the plaintiff's saw- mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was un controverted. From the bill of exceptions, it appears that the " plaintiff alleged the fire was negligently communicated from the de- fendants' steamboat ' Jennie Brown ' to, an elevator built of pine lumber, and one hundred and twenty feet high, owned bv the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's saw-mill and lumber piles, while an unusually strong wind was blowing from the elevator toward the mill and lumber. On the trial, it was admitted that the defendants owned the steamboat and elevator ; that the mill was five hundred and thirty-eight feet from the elevator, and that the nearest of plaintiff's piles of lumber was 54 NATURE AND PRINCIPLES. three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties plaintiff and defendant respecting the ownership of the land where the mill stood and the lumber was piled, both claiming under a common source of title. The plaintiff had built the inill, and he was in the occupation of it, believing he had a right to be there." Such having been the admissions, the Court refused to allow the parties to try the title to the land upon which the mill and lumber had been placed, proof of title being, in the opinion of the Court, immaterial. To this ruling the defendants ex- cepted, and it is the first error they have assigned. "We are unable to perceive any reason why the proof offered was not, as the Circuit Court held it to be, perfectly immaterial to the issue between the parties. By the law of the State of Iowa, " where an occupant of land has color of title thereto, and in good faith has made any valuable improvements thereon, and is afterward, in a proper action, found not to be the right- ful owner thereof," he is entitled to payment or credit for the value of his improvements: Code of Iowa, §§ 1976-1981. The effect of this statute is to make such an occupant practi- cally the owner of his improvements, even though he be not the owner of the land on which they have been made. If, therefore, the title to the land had been shown to be in the defendants, the proof would not have affected the right of the plaintiff to recover compensation for willful or negligent de- struction of the buildings and lumber. Nor could it have changed the degree of prudence and care which the defend- ants were bound to exercise in order to guard against injury to that property. The plaintiff is not to be regarded as a mere trespasser, wantonly thrusting himself or his property in the way of danger — a trespasser to whom the defendants owed a less degree of caution than would have been due if he had been the undisputed owner of therfee-simple of the land on which the mill stood. We cannot admit that the defendants owed no duty to the plaintiff, even if he was occupying their land without their consent. An attempt was made during the MILWAUKEE & ST. PAUL R. R. C. KELLdGG. 55 argument to maintain that they had been found by the jury guilty only of an act of omission, and it was insisted that such an act would not give a right of action to the plaintiff if he was wrongfully in possession of their land. Neither the fact asserted nor the inference drawn from it can be conceded. The verdict of the jury was : 1st, That the elevator was burned from the steamer " Jennie Brown ;" 2d, that such burning was caused by not using ordinary care and prudence in landing at the elevator, under circumstances existing at that particular time ; and, 3d, that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator. The only reasonable construction of the verdict is, that the fault of the defendants — in other words, their want of ordinary care and prudence — consisted in landing the steamer at the elevator in the circumstances then existing, when a gale of wind was blowing toward it, when the elevator was so com- bustible and so tall. If this is not the meaning of the verdict, no act of negligence, of want of care, or of fault has been found. And this is one of the faults charged in the declaration. It averred that while the wind was blowing a gale from the steamboat toward and in the direction of the elevator, the de- fendants carelessly and negligently allowed, permitted, and counselled (or, as stated in another count, " directed ") the steamboat to approach and lie alongside of or in close prox- imity to the said elevator. This is something more than non- feasance ; it is positive action, the result, consequence, or out- working, as the jury have found it, of the want of such care as should have been exercised. It has been further argued in support of this assignment of error that the proffered proof of title should have been ad- mitted, because it tended to show contributory negligence on the part of the plaintiff. But we cannot understand how it could have had any such tendency. Whether the mill stood on the defendants' land, or on other land equally distant from the steamer and elevator, and in the same direction, its exposure to the fire was exactly the same. A second exception taken in the Court below, and here in- 56 NATURE AND PEINCIPLES. sisted upon, is that the Court refused to permit the defendants to prove by witnesses who were experts, experienced in the business of fire insurance, and accustomed by their profession to estimating and calculating the hazard and exposure to fire from one building to another, and to fixing rates of insurance, that, owing to the distance between the elevator and the mill, and the distance between the elevator and the lumber piles, the elevator would not be considered as an exposure to the mill or lumber, and would not be considered in fixing a rate thereon, or in measuring the hazard of mill or lumber. This exception is quite unsustainable. The subject of pro- posed inquiry was a matter of common observation, upon which the lay or uneducated mind is capable of forming a judgment. In regard to such matters, experts are not per- mitted to state their conclusions. In questions of science their opinions are received, for in such questions scientific men have superior knowledge, and generally think alike. Not so in matters of common knowledge. Thus, it has been held that an expert cannot be asked whether the time during which a railroad train stopped was sufficient to enable the passengers to get off: Keller v. Railroad Company, 2 Abb. (N. Y.) Ap. Dec. 480 ; or whether it was prudent to blow a whistle at a particular time : Hill v. Railroad Company, 55 Me. 438. Nor can a person conversant with real estate be asked respecting the peculiar liability of unoccupied buildings to fire : Muloy v. Insurance Company, 2 Gray (Mass.), 541. In Durell v. Bed- erly. Chief Justice Gibbs said : " The opinion of the under- writers on the materiality of facts, and the effect they would have had upon the premium, is not admissible in evidence : " Powell's Evid. (4th ed.) 103. And in Campbell v. Richards, 5 Barn. & Ad. 846, Lord Denman said : " Witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties had acted in one way rather than in another." See, also, Lord Mansfield's opinion in Carter v. Boehm, 3 Burr. 1905, 1913, 1914, and Norman u Higgins, 107 Mass. 494, in which it was ruled that in an action for MILWAUKEE & ST. PAUL R. E. V. KELLOGG. 57 kindling a fire on the defendant's land so negligently that it spread to'the plaintiff's land and burned his timber, the opin- ion of a person experienced in clearing land by fire, that there was no probability that a fire set under the circumstances de- scribed by the witnesses would have spread to the plaintiff's land, was inadmissible. The next exception is to the refusal of the Court to instruct the jury as requested, that " if they believed the sparks from the ' Jennie Brown ' set fire to the elevator through the negli- gence of the defendants, and the distance of the elevator from the nearest lumber-pile was three hundred and eighty-eight feet, and from the mill five hundred and twenty-eight feet, then the proximate cause of the burning of the mill and lumber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for a re- covery." This proposition the Court declined to affirm, and in lieu thereof submitted to the jury to find whether the burning of the mill and lumber was the result naturally and reason- ably to be expected from the burning of the elevator ; whether it was a result which, under the circumstances, would nat- urally follow from the burning of the elevator ; and whether it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonably to be expected. All this is alleged to have been erroneous. The assignment presents the oft-embarrassing question, what is and what is not the proximate cause of an injury." The point propounded to the Court assumed that it was a question of law in this case ; and in its support the two cases of Ryan v. The New York Central Railroad Co., 35 N. Y. 210, and Kerr v. Pennsylvania Railroad Co., 62 Pa. St. 353, are relied upon. Those cases have been the subject of much criticism since they were decided ; and it may, perhaps, be doubted whether they have always been quite understood. If they were intended to assert the doctrine that when a building has been set on fire through the negligence of a party, and a second building has been fired from the first, it is a conclusion of law that the owner of the second has no recourse to the negligent wrong- 68 NATURE AND PRINCIPLES. doer, they have not been accepted as authority for such a doc- trine, even in the States where the decisions were made : "Webb V. The Rome, Watertown & Ogdensburg Eailroad Co., 49 N. Y. 420, and Pennsylvania Railroad Co. v. Hope, 80 Pa. St. 373. And certainly they are in conflict with nu- merous other decided cases : Kellogg v. The Chicago & North- western Railroad Co., 26 Wis. 224 ; Perley v. The Eastern Railroad Co., 98 Mass. 414 ; Higgins v. Dewey, 107 lb. 494 ; Tent V. The Toledo, Peoria & Warsaw Railroad Co., 49 111. 349. The true rule is, that what is the proximate cause of an in- jury 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. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place: 2 Bl. Rep. 892. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation ? Did the facts con- stitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and inde- pendent cause intervening 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 tljat neg- ligence, 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. These circumstances, in a case like the present, are the strength and direction of the wind, the combustible character of the elevator, its great height, and the proximity and combustible nature of the saw- mill and the piles of lumber. Most of these circumstances were ignored in the request for instruction to the jury. Yet it MILWAUKEE & ST. PAl'L R. K. V. KELLOGG. 59 is obvious that the immediate and inseparable consequence of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low build- ing constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the de- fendants might well have anticipated or regarded the probable consequences of their negligence as much more far-reaching than would have been natural or probable in other circum- stances. "We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primar}' fault, and self-operating, which produced the in- jury. Here lies the difficulty. But the inquiry must be an- swered in accordance with common understanding. In a suc- cession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it may be so imperceptible as to be overlooked by a common mind. Thus, if a building be set on fire by negligence, and an ad- joining building be destroyed without any negligence of the occupants of the first, no one would doubt that the destruction of the second was due to the negligence that caused the burn- ing of the first. Yet, in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burning of the first. The same might be said of the burning of the furniture in the first. Such refinements are too miimte for rules of social conduct. In the nature of things, there is in every transaction a succession of events, more or less depend- ent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by 60 NATURE AND PEINCIPLES. a continuous sequence, or are dissevered by new and inde- pendent agencies, and this must be determined in view of the circumstances existing at the time. If we are not mistaken in these opinions, the Circuit Court was correct in refusing to affirm the defendants' proposition, and in submitting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from the burning of the elevator, under the cir- cumstances, and whether it was the result of the continued influence or effect of the sparks from the boat, without the aid or concurrence of other causes not reasonably to have been expected. The jury found, in substance, that the burning of the mill and lumber was caused by the negligent burning of the elevator, and that it was the unavoidable consequence of that burning. This, in 'effect, was finding that there was no intervening and independent cause between the negligent conduct of the defendants and the injury to the plaintiff. The judgment must, therefore, be affirmed. Judgment affirmed. Vandenburg v. Truax, 4 Denio, 464 ; Lowery v. E. R, 99 N. Y. 158 ; Guille V. Swan, 19 Johns. 381 ; Hoag v. R. E., 85 Pa. St. 293; Ala. G. S. & E. Co. V. Chapman, 80 Ala. 615 ; Dickson v. Hollister, 123 Pa. St. 421 ; Henry v. So. Pac, 50 Cal. 176; Sharp v. Powell, 1 Q. B. 86; Scott v. Shepherd, 2 Wm. Bl. 892 ; Balto., etc., R. R. v. Kemp, 61 Md. 74 ; Terre Haute R. E. Co. V. Buck, 96 Ind. 346 ; Liming v. 111. C. E. E., 81 la. 246 ; Allen v. Trues- dell, 135 Mass. 75 ; Hill v. Winsor, 118 Mass. 251 ; Purcell v. St. P. City E. E., 48 Minn. 134 ; Wharfboat Ass'n v. Wood, 64 Miss. 661 ; Insurance Co. V. Tweed, 7 Wall. 44 ; Jaggard, 371 and 74 ; Bishop, 37 et seq.; Cooley, 68 et seq.; Pollock, 29-32, 42-57. a The ■wrongful act must not be an inevitable accident. The Nitro-Glycerine Case. Supreme Court of United States, 1872. 15 Wall. 524. Error to the Circuit Court for the District of California. Parrot brought an action in the Court below against certain THE NITRO-GLYCERINE CASE. 61 defendants, who composed the well-known firm of Wells, Fargo & Co., express carriers, to recover damages for injuries to cer- tain large buildings owned by him in the city of San Fran- cisco, caused in April, 1866, by the explosion of nitro-glycerine whilst in charge of the said . defendants. The action was originally begun in the State Court of California, and was thence removed, on motion of the defendants, to the Circuit Court of the United States, where it was tried by the Court without the intervention of a jury, by stipulation of the parties, under the recent Act of Congress. The premises occupied by the defendants were used by them for their business, as stipulated in the lease. They were en- gaged in the business of public express carriers in the States and Territories of the Pacific coast, and between New York and San Francisco by way of the Isthmus of Panama, using on the latter route the steamships of the Pacific Mail Steam- ship Company, running between New York and Aspinwall on the Atlantic side, and Panama and San Francisco on the Pacific side, to convey their express matter, and transporting the same across the isthmus by the Panama railroad. In 1866 the steamers left New York on the 1st, 11th, and 21st days of each month, and it was a regulation of the company that no express freight should be received at the wharf in New York on those days. On the afternoon of March 11, 1866, and after the steamer sailing that day had left for Aspinwall, a man brought to the wharf from which the steamer had taken her departure, a case to be carried to California, and asked an employee of the defendants to receive it for that purpose. The employee informed him that it was too late to receive freight on that day, but that he could leave the case at his own risk and come the next day and get a receipt. He thereupon placed the case on the dock opposite the freight oflSce of the company. The employee noticed at the time that the case had not been marked or strapped, as required by the regula- tions of the company, and called the man's attention to the omission ; whereupon he requested the employee to mark and strap the case at his expense. The case \vas accordingly 62 NATURE AND PRINCIPLES. strapped as required, and was marked with the proper address of the person for whom it was intended in Cahfornia. Two days afterward the man returned and obtained a receipt from the proper clerk of the company. The case, remained on the dock where deposited till the next steamer left New York, when it was taken with other freight. At the time the case was presented it was clean and appeared to be in perfect condition. There was nothing in its appearance calculated to awaken any suspicion as to its contents. It re- quired strapping and marking, and when this was done it was in proper condition for shipment. The case was an ordi- nary wooden box about two and a half feet square, and weighed three hundred and twenty-nine pounds. Nothing was said upon its delivery, or upon taking the receipt after- ward, or at any other time, about the contents of the case to the defendants, or to any of their employees, nor were any questions subsequently asked by any one respecting the con- tents. The case was shipped for California with a large quan- tity of other express freight, amounting to several thousand cases, on the steamer that left New York on the 21st of March, 1866. It was carried to Aspinwall, thence transported over the Panama railroad, reshipped on a steamer at Panama, and arrived in San Francisco on the 13th or 14th of April. On the afternoon of the 14th it was taken from the steamer and placed upon the wharf, when it was discovered that the con- tents were leaking. These contents had the appearance of sweet oil. Another box of similar size had been stained by the con- tents leaking and appeared to be damaged. On the 16th of April, in accordance with the regular and ordinary course of the defendants' business, when express freight is found to be damaged, the two boxes were taken to the defendants' build- ing, the premises in question, for examination. The agent of the steampship company was requested to send a representa- tive to be present at the examination so that it might be determined, if possible, by inspection, where the responsibility rested between the two companies for the injury to the case. A representative of the company accordingly attended, and in THE NITRO-GLYCERINE CASE. 63 his presence, and in the presence of an agent of the defend- ants, and of other persons, an employee of the defendants, by their direction, with a mallet and chisel, proceeded to open the case, and while thus engaged the substance contained in it exploded, instantly killing all the parties present, and causing the destruction of a large amount of property, and the injuries to the buildings occupied by the defendants, for which the present action was brought. Upon subsequent examina- tion it was ascertained that the substance contained in the case was nitro-glycerine or glonoin oil. The other box con- tained silverware. Nitro-glycerine, according to the account given of it in the record, in its pure condition, is a nearly colorless substance, but when impure it has the color and consistency of sweet oil. It is a liquid which, under some conditions, explodes with great violence, its explosion being produced by percussion and concussion, and by a high degree of pressure, but not by con- tact with fire. If a flame be applied it will burn slowly with- out exploding, and if the flaine be withdrawn it will cease to burn. It will also explode upon being subjected to a heat of 360 degrees Fahrenheit, and in explosion combustion takes place. When kept it closed vessels it gradually decomposes, and in decomposing disengages gases, the pressure alone of which may cause an explosion. In this case the nitro-glycerine in some of the cans in the case had become partially decom- posed, generating gases and producing pressure within the cans and a tendency to explode. In this condition of decom- position the percussion or concussion caused by opening the box with the mallet and chisel, operating in connection with the internal pressure, produced the explosion. Mr. Justice Field. It appears from the record that the Court finds, that neither the defendants, nor any of their em- ployees, nor any of the employees of the Pacific Mail Steamship Company, who had anything to do with the case of nitro- glycerine, knew the contents of the case, or had any means of such knowledge, or had any reason to suspect its dangerous 64 NATURE AND PRINCIPLES. character, and that they did not know anything about nitro- glycerine, or that it was dangerous. And it also appears that the Court finds that there was no negligence on the part of the defendants in receiving the case, or in their failure to ascertain the dangerous character of the contents ; and in view of the condition of their knowledge, of the want of means of knowledge, and the absence of any reasonable ground of suspicion, that there was no negligence in the handling of the case at the time of the explosion. The question presented to us is, whether upon this state of facts the plaintiff is entitled to recover for the injuries caused by the explosion to his buildings, outside of that portion oc- cupied by the defendants under their lease. For the injuries to that portion the defendants admit their liability, as for waste committed, under the statute. Immediately after the accident they repaired that portion with the sanction of the plaintiff, and placed the premises in a condition as good as they were previously. It appears, however, that a part of the expenses incurred were by mistake paid by the plaintiff in settling for repairs on other buildings. For the part thus paid the Court gave judgment for the plaintiff under the first count, and the defendants take no exception to its action in this respect. To fasten a further liability on the defendants, and hold them for injuries to that portion of the buildings not covered by their lease, it was contended in the Court below, and it is urged here, that, as matter of law, they were chargeable with notice of the character and properties of the merchandise in their possession, and of the proper mode of handling and dealing with it, and were consequently guilty of negligence in receiving, introducing, and handling the box containing the nitro-glycerine. If express carriers are thus chargeable with notice of the contents of packages carried by them, they must have the right to refuse to receive packages offered for carriage without knowledge of their contents. It would, in that case, be un- reasonable to require them to accept, as conclusive in every THE NITRO-GLYCEEINE CASE. 65 instance, the information given by tlie owner. They must be at liberty, whenever in doubt, to require, for their satisfaction, an inspection even of the contents as a condition of carrying the packages. This doctrine would be attended in practice with great inconvenience, and would seldom lead to any good. Fortunately the law is not so unreasonable. It does not exact any such knowledge on the part of the carrier, nor permit him, in cases free from suspicion, to require information as to the contents of the packages offered as a condition of carrying them. This was ruled directly by the Common Pleas in Eng- land in the case of Crouch v. The London & Northwestern Railway. The proposition that a carrier is, in all cases, entitled to know the nature of the goods contained in the package's offered to him for carriage, is there stated to be unsupported by any authority, and one that would not stand the test of reasoning. In Brass v. Braitland, it was held by the Queen's Bench that it was the duty of the shipper, when he offered goods which were of a dangerous nature to be carried, to give notice of their character to the owner of the ship, the Chief Justice, in delivering the opinion of the Court, observing that "it would be strange tg suppose that the master or mate, having no reason to suspect that goods offered to him for a general shipment may not be safely stowed away in the hold, must ask every shipper the contents of every package." The case cited from the Common Pleas recognizes the right of the carrier to refuse to receive packages offered without being made acquainted with their contents, when there is good ground for believing that they contain anything of a dangerous character. It is only when such ground exists, .arising from the appearance of the package or other circum- stances tending to excite his suspicions, that the carrier is authorized, in the absence of any special legislation on the subject, to require a knowledge of the contents of the pack- ages offered as a condition of receiving them for carriage. It not, then, being his duty to know the contents of any package offered to him for carriage, when there are no attend- 5 66 NATURE AND PRINCIPLES. ant circumstances awakening his suspicions as to their char- acter, there can be no presumption of law that he had such knowledge in any particular case of that kind, and he cannot accordingly be charged as a matter of law with notice of the properties and character of packages thus received. The first proposition of the plaintiff, therefore, falls, and the second, which depends upon the first, goes with it. The defendants, being innocently ignorant of the contents of the case, received in the regular course of their business, were not guilty of negligence in introducing it into their place of business and handling it in the same manner as other packages of similar outward appearance were usually handled. " Negligence " has been defined to be " the omis- sion to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and rea- sonable man would not do." It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. What would be extreme care under one condition of knowledge, and one state of circum- stances, would be gross negligence with different knowledge and in changed circumstances. The law i^ reasonable in its judgments in this respect. It does not charge culpable negli- gence upon any one who takes the usual precautions against accident, which careful and prudent men are accustomed to take under similar circumstances. The case of Pierce v. Winsor, decided by Mr. Justice Clifford, in the Circuit Court of the District of Massachusetts furnishes a pertinent illustration of this doctrine. There a general ship was put up for freight. Among other freight offered and taken was mastic, an article new in commerce and which was so affected by the voyage that it injured other parts of the cargo in contact with it, and caused increased expenditure in discharging the vessel. The Court held the shipper and not the charterer liable, and observed that " the storage of the mastic was made in the usual way, and it is not disputed it would have been proper, if the article had THE XITRO-GLYCERINE CASE. 67 been what is was supposed to be, when it was received and laden on board. Want of greater care in that behalf is not a fault, because the master had no means of knowledge that the article required any extra care or attention beyond what is usual in respect to other goods." Tills action is not brought upon the covenants of the lease ; it is in trespass for injuries to the buildings of the plaintiff, and the gist of the action is the negligence of the defendants ; unless that be established, they are not liable. The mere fact that injury has been caused is not sufficient to hold them. No one is responsible for injuries resulting from unavoidable acci- dent, whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of. The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to caTTv safely, the proof of the injury usually establishes a prima facie case, which the carrier must overcome. His con- tract is shown, prima fade at least, to have been violated by the injury. Outside of these cases, in which a positive obli- gation is cast upon the carrier to perform safely a special serv- ice, the presumption is that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances, and if he has not, the plaintiff must prove it. Here no such proof was made, and the case stands as one of unavoidable accident, for the consequences of which the defendants are not responsible. The consequences of all such accidents must be borne by the sufferer as his misfortune. This principle is recognized and affirmed in a great variety of cases — in cases where fire originating in one man's build- ing has extended to and destroyed the property of others ; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives, or caused by horses running away, or by blasting rocks, and in numerous other 68 NATURE AND PRINCIPLES. cases which will readily occur to every one. The rule dedu- cible from them is, that the measure of care against accident which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk were his own. And the principle is not changed whether the injury com- plained of follows directly or remotely from the act or con- duct of the party. The direct or remote consequences of the act or conduct may determine the form of the action, whether it shall be case or trespass, where the forms of common law are in use, but cannot alter the principle upon which liability is enforced or avoided. In Brown v. Kendall, which was be- fore the Supreme Court of Massachusetts, the action was in trespass for an assault and battery. The defendant was trying to part two dogs, fighting, and in raising his stick for that purpose accidentally struck the plaintiff in his eye, injuring it severely. The Court, Mr. Chief Justice Shaw, delivering the opinion, held that the defendant was doing a lawful and proper act, which he might do by the use of proper and safe means ; and that if in so doing, and while using due care and taking all proper precautions necessary to the exigency of the case to avoid hurt to others, the injury to the plaintiff occurred, the defendant was not liable therefor, and that the butden of proof was on the plaintiff to establish a want of due care on the part of the defendant. In Harvey V. Dunlap, which was before the Supreme Court of New York, the action was trespass for throwing a stone at the plaintiff's daughter, by which her eye was put out. It did not appear that the injury was inflicted by design or careless- ness, but on the contrary that it was accidental, and it was held that the plaintiff could not recover. " No case or prin- ciple call be found," said Mr. Justice Nelson, in denying a new trial, " or, if found, can be maintained, subjecting an in- dividual to liability for an act done without fault on his part ;" and in this conclusion we all agree. Judgment affirmed. MORRISON V. DAVIS A CO. 69 Brown v. Kendall, 6 Cush. 292 ; Morris v. Piatt, 32 Conn. 75 ; Harvey v. Dunlap, Lalor, 193 ; Brown v. Collins, 53 N. H. 442 ; Eichard ;•. Bough, 53 Mich. 212 ; Gould r. Slater Woolen Co., 147 Mass. 315 ; Nelson r. Chic^o, etc., By., 30 Minn. 74 ; iNIcCauley v. Logan, 152 Pa. St. 202 ; Jaggard, 65 ; Bishop, 155 et seq. ; Cooley, 80 ; Pollock, 160-174. b The wrongful act mast not be a mere condition of the injury. Morrison v. Davis & Co. Supreme Court of Pennsylvania, 1852. 20 Pa. St. 171. LowEiE, J. This is an action of assumpsit, and the decla- ration contains several counts, the two first charging the de- fendants as common carriers, and the others charging them on a special contract, substantially amounting to an agreement to carry safely and to insure them against all risks. On the first two counts the evidence offered was admitted, and it appeared, among other things, that the defendants' canal-boat, in which the goods were carried, was wrecked below Piper's dam, by reason of the extraordinary flood in the Juniata division of the Pennsylvania Canal in the fall of 1 847 ; and further, that the boat started on its voyage with one lame horse, and that by reason thereof great delay was occasioned in making the voyage, and that, had it not been for this, the ' boat would have passed the point where the accident occurred before the flood came, and would have arrived safely and in time. The plaintiff insisted that inasmuch as the negligence of the defendants in using a lame horse for the voyage occasioned the loss, therefore they were liable. But the Court refused so to instruct the jury ; and this is one of the principal assign- ments of error. In answering this question we must assume that the proxi- mate cause of the disaster was the flood, and the fault of having a lame horse was a remote one, which, by concurring with the 70 NATURE AND PRINCIPLES. extraordinary flood, became fatal. We assume that the im- mediate cause had the character of an inevitable accident ; but that this cause could not have affected the boat had it not been for the remote fault of starting with a lame horse. The question then is, does the law treat this fault and its conse- quent delay as an element in testing the inevitableness of the disaster at Piper's dam ? We think it does not. In any other than a carrier case, the question would present no difficulty. The general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and as may, on this account, be fore- seen by ordinary forecast ; and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature. Thus, a blacksmith pricks a horse by careless shoeing ; ordi- nary foresight might anticipate lameness, and some days or weeks of unfitness for use ; but it could not anticipate that by reason of the lameness the horse would be delayed in passing through a forest until a tree fell and killed him, or injured his rider ; and such injury would be no proper measure of the blacksmith's liability. The true measure is indicated by the maxim causa proxima, non remota spedatur. It is on the same principle that insurers against the perils of the sea are not liable for a loss immediately arising from another cause, though, by the perils of the sea, the ship had sustained an injury without which the loss would not have taken place : 12 East, 648 ; 2 Bing. 205 ; 12 Mass. 230. And on the other hand, the insurers are liable in case of a loss by the perils insured against, though the loss would not have happened had it not been for remote negligence by the master or crew : 3 Sumner, 270 ; 14 Meeson & W. 476 ; 8 lb. 895 ; 11 Peters, 213 ; 5 Barn. & A. 171 ; 7 Barn. & C. 214; 2 Camp. 149. The case of a deviation is no exception to this rule ; for there the insurer is not liable because that act makes a differ- ent voyage from the one insured. There are often very small faults which are the occasion of the most serious and distressing consequences. Thus a MORRISON !'. DAVIS & CO. 71 momentary act of carelessness set fire to a little straw, and that set fire to a house, and, by an extraordinary concurrence of very dry weather and high winds, with this fault, one-third of a city (Pittsburg) was destroyed. Would it be right that this small act of carelessness should be charged with the whole value of the property consumed ? On the other hand, these very small acts are often the cause of incalculable blessings. A bucket of water promptly applied would have saved all that loss ; but the amount saved would have been no proper meas- ure of reward for such an act. There are thousands of acts of the most beneficial consequence that receive and deserve very little reward, because, in themselves and in their purpose, they have very little merit. Now there is nothing in the policy of the law relating to common carriers that calls for any different rule, as to conse- quential damages, to be applied to them. They are answer- able for the ordinary and proximate consequences of their negligence, and not for those that are remote and extraordi- nary ; and this liability includes all those consequences which may have arisen from the neglect to make provision for those dangers which ordinary skill and foresight is bound to antici- pate. Though they are held to the strictest care, as to the sufficiency of their ship and other vehicles, and the custody of the goods, yet no greater foresight of extraordinary perils is expected of them than of other men, and no greater penalty is visited for its failure. The consequence which ordiuary foresight may anticipate from an insufficient ship is that all the goods maj' be lost ; their value is, therefore, the proper measure of the damage. But the ordinary consequence of the fault charged in this case is the loss of time, and the penalty is measured accordingly, even though a concurrence of other extraordinary circumstances has greatly increased the extent of the loss. The law does not make this delay an element in testing the inevitableness of the final disaster : 14 Wend. 215. We may here say a word as to the care required of carriers when they discover themselves in peril by inevitable accident. In such a case, the law requires of them ordinary care, skill, 72 NATURE AND PRINCIPLES. and foresight. This is different in different countries, depend- ing upon the degree of civilization, and in different circum- stances depending upon the degree of peril. It is commonly defined as the common prudence which men of business and heads of families usually exhibit in matters that are interest- ing to them. It increases as difficulties increase. In great danger, great care is the ordinary care of prudent men. Such was the substance of the instruction given on this point by the Court below, and it is right. So far, therefore, as relates to the first and second counts, there is no error, and the judgment as to them must be affirmed. We come now to the question of evidence. The plaintiff, in support of the third, fourth, and fifth counts, offered to prove by oral testimony, connected with advertisements and circulars of the defendants, that the defendants agreed to in- sure the safe delivery of the 'goods, without any exception for inevitable accidents ; and this offer was rejected by the Court, as tending to contradict the written contract. These counts are somewhat strange ; but they have not been objected to, and perhaps they sufficiently lay a contract to carry and to insure a safe delivery. It is impossible to make two contracts out of one, by ingenuity in declaring. If the reward was the consideration for carrying and insuring, a different contract is not made by charging or proving that the reward and delivery of the goods to be carried was the con- sideration for insuring. Both are substantially the same. Let it be noticed, that by the bill of lading the defendants have undertaken to deliver the goods, and that they have not inserted in it the usual exception clause as to inevitable acci- dents. But still the exception is, prima facie at least, implied by law in all such contracts. The question then is, not may parol evidence be received to contradict the written agree- ment ; but may it be received to repel an implication of a con- dition usually raised by the law in such cases, and which is itself, in this instance, contrary to the words as written ? A written contract creates a specified relation between the parties ; and when the duties of that relation are not fully de- MORRISON V. DAVIS & CO, 73 fined in the contract, the law defines them according to the circumstances. In a carrier case, it defines the duty, in part, by implying the exception against inevitable accident. But here the maxim applies, conventio vincit legem. The law does not imply the exemption, where the circumstances show that parties intended that it should not be implied ; and these cir- cumstances may be shown by parol evidence. This is the very principle decided in the case of Barclay v. Weaver, 7 Harris, 396, argued about the same time with this ; and it was there applied in the same way when it was decided that parol evidence may be given to show that an indorser of a promis- sory note agreed to be liable without the usual demand and notice required by law. The Court was therefore in error in rejecting this evidence on such grounds. See, also, Abbott on Shipping, 130 ; lb. 320 ; Angell on Carriers, § 222. But the whole evidence proposed to be given is set out in the bill of exceptions ; and it is argued that, if admitted, it is insufficient to prove the allegation, because the circulars con- tain an offer to carry and insure at one price, and these goods are contracted to be delivered at another and less price ; and this argument would prevail, if the circulars were the only evidence. But they are not. There were oral testimony and advertisements besides ; and we cannot say that, from all taken together, the inference of an agreement to insure would be illegitimate. Where a man advertises favorable terms of business as a means of gaining customers, it is proper to presume that his customers have been induced by them, or that they have been repeated to them ; and therefore it is not necessary that the plaintiff should prove that the advertisements came to his knowledge before delivering his goods to the defendants to be carried. The judgment as to these counts must be reversed. Judgment affirmed as to first and second counts ; and as to the third, fourth, and fifth counts it is reversed, and a new trial therein awarded. Schefier v. R. E., 105 U. S. 249 ; Parsons v. Hardy, 14 Wend. 215 ; McClary v. E. R., 3 Neb. 44 ; McDonald v. Snelling, 14 Allen, 290 ; Bodkin V. W. U. T. Co., 31 Fed. 134 ; .laggard, fjS ; Bishop, 44. 74 KATURE AND PRINCIPLES. 8. A Rightful Act Negligently Done is a Tort. SisK V. Crump. Supreme Court of Indiana, 1887. 112 Ind. 504 ; 14 N. E. 381. Elliott, J. Stated in a condensed form, the material alle- gations of the appellant's complaint are these : On and prior to May 5, 1885, the appellee owned fifteen acres of land, bounded on the east by a public street of the city of Columbus, and along the line of this street he had constructed a barbed wire fence. The fence was composed of wooden posts and five strings of barbed iron wire. It was negligently constructed ; the posts being insufficient to keep the wire at a proper tension, and the wires were not drawn into proper position. The wires were armed with sharp iron barbs placed along them at a distance of two inches apart. They were negligently suffered to sag down near the ground. They hung loosely from the posts, and in such a condition as that a horse coming in contact with them would be entangled and thrown down. The fence was not such as a good husbandman would construct or maintain, but was insufficient and dangerous, its height not being suf- ficient to keep off horses or cattle, and there being no plank or other thing to warn them of the existence of the fence. The fence could have been made safe by placing a board along the top of it, and the wires could have been kept at a proper height and tension, but the defendant, knowing its dangerous condition, suffered it to remain insufficient to warn off animals. It was not sufficient in height, as the defendant knew, to prevent animals from attempting to cross it. On the 5th day of May, 1885, the horse escaped from the stable of the plaintiff in which it had been fastened, and, without fault on her part, wandered upon the street bounding the defendant's land. At that time the land was covered with green grass, on which the horses of the appellee were feeding. The appellant's horse was attracted by the green pasture and the horses feeding on SISK V. CRUMP. 75 it, and attempted to cross into the field. In attempting to cross the fence it was, by reason of the dangerous and unsafe con- dition thereof, entangled in the loose wires, thrown down and killed. The proper county and city officers had, by orders duly made, authorized owners of horses and cattle to permit them to run at large. The complaint cannot be upheld on the ground that erect- ing a barbed wire fence along the line of a highway, but on private property, is in itself an actionable wrong. The Courts cannot say, as a matter of law, that erecting such a fence is a tort. We cannot, therefore, yield to the contention of counsel that the act of an individual in erecting a fence of that kind in itself renders him liable to one who sustains an injury. Coui-ts cannot judicially know that such a fence is dangerous. Our statute recognizes the right to use such fences, for it is ex- pressly provided that railroad companies may use them in fencing their tracks : Act of 1885. The complaint before us, however, does not rest solely on the theory that the erection of a barbed wire fence is neces- sarily a tort. It goes much further, and, with great particu- larity, avers that the fence was so constructed as to be dangerous to horses and cattle passing along the highway. Nor does it stop there. It avers that beyond the fence was growing grass, on which the horses were feeding, and that these things would attract horses and induce them to attempt to cross the fence and enter the inclosure. There are, therefore, two important elements to be considered : 1st. The negligence in constructing and knowingly main- taining a dangerous fence along the line of a highway. 2d. The probability that animals would be attracted by what they saw within the inclosure, and would probably attempt to enter it. These two elements exert an important influence upon that branch of the case which presents the question whether the appellee's act was culpably negligent. It is well settled that a lawful act may be done in such a negligent manner as to make the person who does it a wrong- 76 NATUKE AND PRINCIPLES. doer. It may be, therefore, that although erecting a barbed wire fehce is not in itself a tort, yet the manner in which it is constructed and maintained may be such as to make the person erecting and maintaining it guilty of negligence. A thing may not be dangerous if properly constructed, but dangerous if improperly constructed. The complaint before us shows that the appellee was negligent in constructing and maintain- ing the fence, and on that point we have no hesitation in de- claring it to be sufficient. Negligence is not always actionable. A man may do many negligent things on his own premises and yet not incur any liability. Negligence is only actionable where it involves a breach of duty. This rule is illustrated by the cases which hold that there can be no recovery for injuries caused by the negligence of the owner of land in suffering the premises to become unsafe, unless the injured person came on the land under an express or implied invitation : Nave v. Flack, 90 Ind. 205 (46 Am. R. 205) ; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221 (50 Am. R. 783) ; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179. There can, as a general rule, be no action, although there is negligence, unless the party guilty of negligence was under some duty to the person who sustains the injury. While it is essential that the defendant should be under some duty to the plaintiff, it is not essential that the duty should be directly owing to him as an individual. A defend- ant who owes a duty to the community owes it, as a general rule, to every member of the community, and if any member suffers a special injury from a breach of that duty, an action will lie. The pivotal question in this case, therefore, is, whether the defendant was under a general duty to maintain the wire fence so that- it would not inflict injury upon ani- mals which might be tempted from the highway into his inclosure ? The theory of the complaint is that the horse was injured while attempting to cross the fence into the defendant's in- closure, and not that it was injured while simply wandering SISK V. CEUjMP. 77 along the highway. If the horse had been injured while going along the highway a very different question would have been presented ; but that is not the case which the complaint undertakes to make. The case is, therefore, not governed by the authorities which hold that an action will lie against one who makes the use of a highway dangerous, and the cases of Graves v. Thomas, 95 Ind. 361 (48 Am. R. 727), and Beck V. Carter, 68 N. Y. 283 (23 Am. R. 175), are not in point. The complaint does not aver that the fence was intention- ally made dangerous for the purpose of injuring persons or animals that might trespass on the defendant's land. The cases which assert and extend the old doctrine that spring- traps and guns shall not be set to catch trespassers have no application, for here the negligence charged against the de- fendant is nothing more than the failure to exercise proper care in constructing and maintaining the fence. The cases of Hooker v. Miller, 37 Iowa, 613 ; Deane v. Clayton, 7 Taunt. 489, and similar cases, can exert no influence upon this in- vestigation. The case of Henry v. Dennis, 93 Ind. 452 (47 Am. R. 378), does not belong to the same class as the present, for in that case the poisonous substance which caused the injury was placed in the street. Here the fence was on the defend- ant's own land, and the rule declared in the case cited can- not apply. The defendant did nothing to entice the plaintiff's horse to leave the highway. If the defendant had purposely placed feed near the highway, and thus tempted animals wandering along it to enter his inclosure, a different case would con- front us ; but, here, the land was covered with grass and herbage, the usual and natural growth of the season. Nature clothed the field with the grass, not the defendant. At common law this action could not be maintained, be- cause owners of animals are forbidden to allow them to run at large; but our statute changes this rule of the common law, and invests the board of county commissioners with 78 NATURE AND PKINCIPLES. authority to permit domestic animals to run at large : Welch V. Bowen, 103 Ind. 252. The complaint avers that the proper order had been made, so that, in permitting the horse to wander upon the highway, the appellant was not guilty of any wrong. The order of the board permitting animals to run at large forms an important element in the case, not only as bearing upon the question of contributory negligence, but also as bearing upon the question of the appellee's negligence. It bears upon the latter question, because it made it the duty of the appellee to take notice that horses and cattle might wander upon the highway, and with this knowledge he had no right to do anything that was reasonably certain to cause injury to animals passing along the highway. Knowing, as he did, that animals might lawfully wander along the high- way, he owed a duty to the community to use ordinary cate to prevent any act of his from causing injury to animals wan- dering near his land. "Enjoy your own property in such a manner as not to injure that of another person," is a maxim of the law that rules many cases, and we think it must rule the one at bar. The appellee had a right to select his own fence, but he had no right, under the circumstances stated in the complaint, to construct it so as to make it dangerous to animals passing along the highway, for, in doing so, he violated the maxim we have quoted. Suppose he had dug a deep trench along the line of the highway and had covered it with planks so thin as to give way beneath the weight of the smallest do- mestic animal, would he not be liable to the owner of a horse killed in attempting to cross the trench ? Again, suppose that a land-owner places posts along the line of his land and attaches wires near the ground, where they would be hidden by the grass or weeds, would he not be liable to the owner for the value of a horse caught in the wires and killed ? The case as made by the complaint is in principle the same as the cases we have given as illustrations. The land-owner is not bound to maintain a secure fence. SISK V. CRUMP. 79 nor, indeed, any fence ; but if he does undertake to maintain a fence along a highway he must not negligently suffer it to become dangerous to passing animals. His duty is to ex- ercise reasonable care to prevent his fence from becoming dangerous, but it extends no further. If the fence he elects to build is built as such fences are usually built, there is no liability ; but if it is allowed to get out of repair, and thus become essentially dangerous, he may be liable. He is not under any duty to place boards on the top of a wire fence, or to do any like act ; but he is bound to use care to keep the fence from becoming a trap to passing animals. It is the duty of land-owners to take notice of the natural propensity of domestic animals, and, under the allegations of this complaint, it was the duty of the appellee to take notice of the propensity of horses to seek the pasture within his in- closure and join others of its kind feeding there. In view of the facts that the board of commissioners authorized animals to run at large, that the appellee was chargeable with notice of this order, that he was bound to know that it was probable that animals wandering on the highway would seek his pasture, and that the fence was so maintained along the highway as to be in effect a trap to passing animals, we think the complaint must be held good. These are the controlling facts, and they make the complaint good. It is not the kind of fence selected, nor is it the absence of top planks or the like, that influences our judgment, but what chiefly influences it is this : the fence was so negligently maintained that, under the circumstances stated in the complaint, it was in effect a trap into which it was in a great degree probable that passing animals would be caught and injured. Had the fence, although composed of barbed wires, been constructed and maintained as ordinarily prudent husbandmen usually construct such fences, our con- clusion would be altogether different ; but the complaint very clearly avers that it was not so constructed or maintained. The appellant assumed all risks from fences, whatever their kind, constructed and maintained with ordinary care, but she did not assume risks from fences known to be intrinsically 80 NATURE AND PRINCIPLES. dangerous constructed along the line of a public high- way. We regard the location of the dangerous fence immediately along the line of the highway as an important element in the case. The strong probability that the pasture within the in- closure, and the presence of other horses feeding there, would allure horses on the highway to enter it, rendered such a fence almost certain to injure passing animals. This fact, considered in conjunction with the other facts to which we have especially directed attention, brings the case fully within the reasoning of the Court in Durham v. Musselman, 2 Blackf. 96 (18 Am. Dec. 133), and directly within the decision in Young v. Harvey, 16 Ind. 314. In the former case it was said : " If the injury is the natural or probable consequence of the act, and such as any prudent man must have foreseen, it is but reasonable that the perpe- trator of the act should be held accountable for the injurious consequences. As, in the case of a man baiting his trap with flesh so near the highway, or the grounds of another, that dogs passing the highway, or kept in another's grounds, are attracted into his traps, and thereby injured, he is liable for the injury: Townsend v. Wathen, 9 East, 277. In the second place, when the injury is accidental, the liability of the actor must depend on the degree of probability there was that such an event would be produced by the act." In Young v. Harvey, supra, the horse of the plaintiff, wandering upon the streets and commons of a suburb of the city of Indianapolis, fell into an old well on the lot of the de- fendant, and it was held that an action would lie. This decision is strongly approved by a writer of excellent standing : 1 Thompson Neg. 300. The case has been approved in many subsequent cases : Graves v. Thomas, 95 Ind. 361 ; Smith v. Thomas, 23 Ind. 69 ; Indianapolis, etc., R. R. Co. v. Wright, 22 Ind. 376 ; Howe v. Young, 16 Ind. 312. In Jones v. Nichols, 46 Ark. 207 (55 Am. R. 575), the de- fendant left open an unguarded excavation, some distance from the highway, and the plaintiff's cow, which had been turned PAGE V. FREEMAN. 81 out upon the common, fell into the excavation, and it was held that the action would lie. Our ultimate conclusion is, that the facts stated in the com- plaint at least make a, prima facie case, and that it is strong enough to drive the defendant to answer. Judgment reversed. Howe !■. Young, 16 Ind. 312 ; B. & P. R. E. v. Reaney, 42 Md. 117 ; Hunt f. Hoyt, 20 111. 544 ; Byrne v. Boadle, 2 H. & 0. 722 ; Corrigan v. Union Sugar Refinery, 98 Mass. 577 ; Durham v. Musselman, 2 Blackf. 96 ; Newton !'. Pope, 1 Cow. 109 ; R. R. -!-. Stumps, 69 111. 409 ; Weaver v. Ward, Hob. 134 ; Tuberville v. Stamp, 12 Mod. 152 ; Littleton v. Cole, 5 Mod. 181. 9. Liability Attaches through Conduct. a By personal commission, either individual or joint. Page v. Freeman. Supreme Court of Missouri, 1854. 19 Mo. 421. Scott, J. This was an action for an assault and battery. The petition stated that the defendant conspired with, aided, and abetted a certain Jesse Edwards to assault, beat, and otherwise ill-treat and abuse the plaintiff, and by and in con- sequence of such conspiracy, aiding and abetting by said de- fendant, he, the said Jesse Edwards, did assault, beat, and otherwise ill-treat and abuse the said plaintiff, to the damage, etc. A demurrer was put into this petition, which was over- ruled, and the defendant answered, denying the allegations therein contained. On the trial of the issue, there was a judgment for the plaintiff for the sum of $147.50. After- ward, the defendant moved the Court to compel the plain- tiff to elect between the damages recovered in this action, and those recovered against Jesse Edwards in another action, for the same assault and battery, and produced a record showing 6 82 NATURE AND PKINCIPLES. a recovery against Edwards for the same cause, for the sum of $200. This motion was overruled, and the defendant appealed. 1. By the common law, all were principals in an assault and battery, as in other trespasses. He who counselled, aided, or assisted in any way the commission of the wrong, was, in the eye of the law, as much a principal as he who actually inflicted the blows, and the declaration against him who coun- selled or aided was, consequently, the same as against him who actually committed the violence: Chitty, 91 ; Canefox v. Chapman & Willes, 7 Mo. Rep. The petition of the plaintiff is clearly bad as a declaration at common law. According to its rules, it contains no cause of action. But the present prac- tice Act will support the petition, as it requires the truth of it to be supported by affidavit, and as there may be those who would be unwilling to swear to a statement of the facts, repre- sented according to their legal effect. It cannot be a matter of any consequence, as all of the old forms are done away with. The facts being stated as they really occurred, the mind applies the law to them. But in deviating from the estab- lished forms of pleading, the law did not design to change the rights of the parties. 2. In case of a joint trespass, the plaintiff may sue two or more of them jointly, or may sue them separately, and may recover a judgment against them. But for one trespass or wrong he can have but one satisfaction. It is like a joint promissory note. A satisfaction by one of the makers will discharge it. A trial and recovery against one trespasser will be no bar to a trial and recovery against another. But where separate actions are brought, as there can be but one satisfac- tion, the plaintiff is put to his election between the verdicts, and execution is sued out accordingly. If the plaintiff has received satisfaction for the wrong done from Edwards, he cannot recover another satisfaction for the same wrong. If he has put himself in a situation which prevents his election, it is his own act. The Court, in such case, would relieve the defendant, in the same manner as would be done, should it MOIR V. HOPKINS. 83 be made to appear that one of the judgments or executions against a defendant had been satisfied : 1 John. 290 ; 1 Pick. 62. The other Judges concurring, the judgment will be reversed, and the cause remanded, and the Circuit Court directed to pro- ceed in conformity with tliis opinion. Canifax v. Chapman ei al, 7 Mo. 175 ; Blann v. Crocheron, 20 Ala. 320 ; Jaggard, 37 ; Bishop, 522-524 ; Cooley, 124 et seq. ; Pollock, 230, 231. By consent. (1) In commanding or authorizing the act. MoiR V. Hopkins. Supreme Court of Illinois, 1855. 16 111. 313. Skinner J. Trespass by Manassah Hopkins against William, James, and Robert Moir, for killing Hopkins' horse. The defendants pleaded not guilty. Upon the trial, the plain- tiff proved by William Hopkins, his brother, that plaintiff had worked for defendants with his team ; that while he was at work he was taken sick, and went home, leaving his team with witness ; that at night, witness took the team home where plaintiff boarded, and kept his team ; that he put the team up and fed it, as directed by plaintiff; that the next day, plaintiff being still sick, witness worked for defendants ; that on said day, defendants wanted a team to haul lumber in their mill-yard ; that early in the morning, defendant, Robert Moir, directed witness to go and see if he could not hire a team to do the hauling ; that witness accordingly endeavored to hire a team among the neighbors, but could not obtain one ; that when defendant, Robert Moir, found that witness had been un- successful in hiring a team, he directed witness to go and get plaintiff's team ; that witness then went and got plaintiff's team out of the stable, without plaintiff's knowledge or con- 84 NATURE AND PRINCIPLES. sent, and took it to the yard and used it for defendants, haul- ing lumber during that forenoon ; that in the afternoon, de- fendants wanted some bricks hauled from the country, a dis- tance of eight miles, and that defendant, James Moir, directed witness to go and haul the bricks ; that witness started with plaintiff's team, got the bricks, and in returning drove partly down a steep hill on the road ; that as he got part way down, one of the horses was forced over the bank, fell and was killed ; that the horse was of the value of $115 ; that witness was a married man ; that the plaintiff was his brother, was an un- married man, lived with witness, and kept his team at the stable of witness; that for some time previous to the time plaintiff was taken sick, plaintiff had been in the employ of defendants, with his team, hauling lumber for defendants ; that plaintiff, on being taken sick, went to witness' house, and was there the next day, when witness took the team ; that plaintiff was sick and confined for some time after the horse was killed. The jury found the defendant, Robert Moir, guilty, assessed the plaintiff's damages at $115, and found the other defendants not guilty. Motion for a new trial overruled, and judgment on the verdict. The plaintiff in error, Robert Moir, assigns for error, the giving of the first and second instructions asked for by the plaintiff below, and the refusal of a new trial. These instruc- tions are as follows : First. If the defendants, or either af them, directed the witness to go and get the plaintiff's horses, and he did go and get them in pursuance of such directions, without the assent, express or implied, of the plaintiff, the person giving such instruction is a trespasser. Second. If a person injures personal property belonging to another, of which he has obtained possession by a trespass, he is liable to pay for such injury. The first instruction construed with reference to the facts before the jury, and in the sense evidently intended by the Court, and understood by the jury, is clearly good law. The MOIE V. HOPKINS. 85 plaintiff below, Hopkins, had, with his team been in the employ of the Moirs ; had left on account of being sick ; was then con- fined, and his team was idle. The Moirs had sent their agent among their neighbors to hire a team, and he had returned unsuccessful. Robert Moir then directed the same agent to " go and get " Hopkins' team. He did so: The instruction is based on the hypothesis of a command by the Moirs to their agent, to go and take Hopkins' team, and the evidence war- ranted the hypothesis. If, then, Robert Moir directed his agent to go and take Hopkins' team, and the agent did so, there can be no question of his liability for any injury done to Hopkins' property thereby. The rule of law is, that all who aid, command, advise, or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are lia- ble in the same manner as they would be if they had done the same tort with their own hands : Judson v. Cook, 11 Barbour's R. 642 ; 1 Chitty's PI. 208 ; Story on Agency, § 455. The general rule is, that the principal is liable for the torts of his agent, done in the course of his employment, although the principal did not authorize, or justify, or participate in, or even if he disapproved of them. If the tort is committed by the agent in the course of his employment, while pursuing the business of his principal, and is not a willful departure from such employment and business, the principal is liable, although ■done without his knowledge : Story on Agency, § 452 ; Fuller V. Voght, 13 111. 285 ; Johnson v. Barber, 5 Gil. 425, and cases there cited ; May v. Bliss et al., 22 Vt. R. 477. As it would seem, that although Moir intended that his agent should get the owner's consent before taking his team, and the .agent misunderstanding the instruction given, took it without the owner's consent, he would still be liable : 22 Vt. R. 478. The second instruction is certainly the law, and the evidence sufficient to sustain the verdict. Judgment affirmed. Haluptzok V. Great Northern Ry. Co., 57 N. W. 144 ; Jaggard, 38 ; Bishop, 524, 609, 610 ; Cooley, 534 ; Pollock, 87. 86 NATURE AND PRINCIPLES. (2) By ratification or adoption. Dempsey v. Chambers. Supreme Judicial Court of Massachusetts, 1891. 154 Mass. 330 ; 28 N. E. 279. Holmes, J. This is aii action of tort to recover damages for the breaking of a plate-glass window. The glass was broken by the negligence of one McCuUock, while delivering some coal which had been ordered of the defendant by the plaintiff. It is found as a fact that McCullock was not the defendant's servant when he broke the window, but that the " delivery of the coal by McCullock was ratified by the defendant, and that such rati- fication made McCullock in law the agent and servant of the defendant in the delivery of the coal." On this finding the Court ruled " that the defendant, by his ratification of the de- livery of the coal by McCullock became responsible for his neg- ligence in the delivery of the coal." The defendant excepted to this ruling, and to nothing else. We must assume that the finding was warranted by the evidence, a majority of the Court being of opinion that the bill of exceptions does not purport to set forth all the evidence on which the finding was made. Therefore, the only question before us is as to the correctness of the ruling just stated. 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 conse- quences 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 seems to us to be hard to find, and probably to have belonged to a different state of society. It is hard to explain why a master is liable to the extent that he is for the negligent acts of one who at the time really is his servant, acting within the general scope of his employment. Probably master and servant are " fained to be all one person " DEMPSEY r. CHAMBERS. 87 by a fiction which is an echo of the patria potestas and of the English frankpledge : Byington v. Simpson, 134 Mass. 169, 170 ; Fitz. Abr. Corone, pi. 428. Possibly the doctrine of ratifica- tion is another aspect of the same tradition. The requirement that the act should be done in the name of the ratifying party looks that way : New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 382 ; Fuller & Trimwell's Case, 2 Leon. 215, 216 ; Sext. Dec. 5, 12, De Reg. Jur., Reg. 9, D. 43, 26, 13, D. 43, 16, 1, § 14, gloss. See also cases next cited. The earliest instances of liability by way of ratification in the English law, so far as we have noticed, were where a man re- tained property acquired through the wrongful act of another : Y. B. 30 Ed. I. 128 (Rolls ed.) ; 38 Lib. Ass. 253, pi. 9 ; s. c, 38 Ed. III. 18, Engettement de Garde. See Plowd. 8 ad fin., 27, 31 ; Bract, fol. 158 b, 159 a, 171 b ; 12 Ed. IV. 9, pi. 23. But in these cases the defendant's assent was treated as relating back to the original act, and at an early date the doctrine of relation was carried so far as to hold that, where a trespass would have been justified if it had been done by the authority by which it purported to have been done, a subsequent ratification might justify it also : Y. B. 7 Hen. IV. 34, pi. 1. This decision is qualified in Fitz. Abr. Bayllye, pi. 4, and doubted in Bro. Abr. Trespass, pi. 86 ; but it has been followed or approved so contin- uously, and in so many later cases, that it would be hard to deny that the common law was as there stated by Chief Justice Gas- coiGNE : Godbolt, 109, 110, pi. 129 ; s. c, 2 Leon. 196, pi. 246 ; Hull V. Pickersgill, 1 Brod. & Bing. 282 ; Muskett v. Drum- mond, 10 B. & C. 153, 157 ; Buron v. Denman, 2 Exch. 167^ 188 ; Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22, 86 ; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249 ; Wiggins v. United States, 3 Ct. of CI. 412. If we assume that an alleged principal by adopting an act which was unlawful when done can make it lawful, it follows that he adopts it at his peril, and is liable if it should turn out that his previous command would not have justified the act. It never has been doubted that a man's subsequent agreement to 88 NATURE AND PRINCIPLES. a trespass done in his name and for his benefit amounts to a command so far as to make him answerable. The ratihabitio mandato comparatur of the Roman lawyers and the earlier cases D. 46, 3, 12, § 4; D. 43, 16, 1, § 14; Y. B. 30 Ed. I. 128 has been changed to the dogma xquiparatur ever since the days of Lord Coke: 4 Inst. 317. See Bro. Abr. Trespass, pi. 113 ; Co. Lit. 207 a ; Wingate's Maxims, 124 ; Com. Dig. Trespass, C. 1 ; Eastern Counties Railway v. Broom, 6 Exch. 314, 326, 327 ; and cases hereafter cited. Doubts have been expressed, which we need not consider, whether this doctrine applied to the case of a bare personal tort : Adams v. Freeman, 9 Johns. 117, 118 ; Anderson and Warber- TON, JJ., in Bishop v. Montague, Cro. Eliz.''824. If a man as- saulted another in the street out of his own head, it would seem rather strong to say that, if he merely called himself my servant, and I afterward assented, without more, our mere words would make me a party to the assault, although in such cases the canon law excommunicated the principal if the assault was upon a clerk : Sext. Dec. 5, 11, 23. Perhaps the application of the doctrine would be avoided on the ground that the facts did not show an act done for the defendant's benefit : Wilson V. Barker, 1 Nev. & Man. 409; s. c, 4 B. & Ad. 614 et seq.; Smith V. Lozo, 42 Mich. 6. As in other cases it has been on the ground that they did not amount to such a ratification as was necessary : Tucker v. Jerris, 75 Maine, 184 ; Hyde v. Cooper, 26' Vt. 552. But the language generally used by Judges and text-writers, and such decisions as we have been able to find, is broad enough to cover a case like the present when the ratification is estab- lished : Perley v. Georgetown, 7 Gray, 464 ; Bishop v. Montague, Cro.'Eliz. 824 ; Sanderson v. Baker, 2 Bl. 832 ; s. c, 3 Wils. 309 ; Barker v. Braham, 2 Bl. 866, 868 ; s. c, 3 Wils. 368 ; Badkin v. Powell, Cowper, 476, 479 ; Wilson v. Tumman, 6 Man. & G. 236, 242 ; Lewis v. Read, 13 M. & W. 834 ; Buron v. Denman, 2 Exch. 167, 188 ; Bird v. Brown, 4 Exch. 786, 799 ;' Eastern Counties Railway v. Broom, 6 Exch. 314, 326, 327 ; Roe v. Birkenhead, Lancashire & Cheshire Junction Railway, 7 Exch. DEMPSEY V. CHAMBERS. 89 36, 41; Ancona v. Marks, 7 H. & K 686, 695; Condit v. Baldwin, 21 N. Y. 219, 225 ; Exum v. Brister, 35 Miss. 391 ; Galveston, Harrisburg & San Antonio Railway v. Donahoe, 56 Texas, 162 ; Murray v. Lovejoy, 2 CliflP. 191, 195 ; see Lovejoy v. Murray, 3 "Wall. 1, 9 ; Story on Agency, §§ 455, 456. The question remains whether the ratification is established. As we understand the bill of exceptions, McCullock took on himself to deliver the defendant's coal for his benefit and as his servant, and the defendant afterward assented to McCuUock's assumption. The ratification was not directed specifically to McCuUock's trespass, and that act was not for the defendant's benefit if taken by itself, but it was so connected with McCul- lock's employment that the defendant would have been liable as master if McCullock really had been his servant when delivering the coal. We have found hardly anything in the books deal- ing with the precise case, but we are of opinion that consist- ency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley, Torts, 128, 129. The ratification goes to the relation, and establishes it ah initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not commanded, and as he may be for those which he has expressly forbidden. In Gib- son's Case, Lane, 90, it was agreed that, if strangers as servants to Gibson, but without his precedent appointment, had seized goods by color of his ofiice and afterward had misused the goods, and Gibson ratified the seizure, he thereby became a tres- passer ah initio, although not privy to the misusing which made him so. And this proposition is stated as law in Com. Dig. Trespass, C. 1 ; Elder v. Bemis, 2 Met. 599, 605. In Coomes v. Houghton, 102 Mass. 211, the alleged servant did not profess to act as servant to the defendant, and the decision was that a subsequent payment for his work by the defendant would not 90 ACTS OF STATE. make him one. For these reasons, in the opinion of a majority of the Court, the exceptions must be overruled. Exceptions overruled. Harrison v. Mitchell, 13 La. Ann. 260 ; Allred v. Bray, 41 Mo. 484 ; More- house V. North rup, 33 Conn. 380 ; Haluptzok v. G. N. R. R., 57 N. "W. IM ; Hower v. Ulrich, 156 Pa. St. 410 ; Hyde u. Cooper, 26 Vt. 552 ; Tucker v. Jerris, 75 Me. 184 ; Jaggard, 43 ; Bishop, 616 ; Cooley, 127 ; Pollock, 87. B GENEEAL EXCEPTIONS. 1. Acts of State. No action in tort lies against the State, except by its consent. Lewis v. State. Court of Appeals of New York, 1884. 96 N. Y. 71. Danforth, J. The claimant, in March, 1879, was con- victed of the crime of burglary and sentenced to the State prison or Industrial Reformatory established at Elmira, de- scribed (Laws of 1870, chap. 427) as the State Reformatory. The statute in relation to this institution declares that its dis- cipline shall be reformatory, empowers its managers to use such means of reformation consistent with the improvement of its inmates as they may deem expedient, and declares that agricultural labor or mechanical industry may be resorted to by them as an instrument of reformation, but excludes the contract system of labor in all its forms, and provides that the prisoners shall be employed by the State. The claimant was set at work in the hollow-ware depart- ment, and while engaged in carrying molten iron in a ladle discovered a crack in the shank which connected the bowl with the handle. He called the overseer's attention to this LEWIS V. STATE. 91 defect, but no attention was paid to his complaint, and when next used by him the bowl separated from the shank, and the melted iron coming in contact with water on the floor exploded with such effect as to cause him serious injurj^. In January, 1882, he was discharged. In October, 1882, he presented to the Board of Audit a claim against the State for damages so incurred, and this claim was by force of the statute (Laws of 1883, chap. 205, § 12) transferred to the Board of Claims, where it was dismissed, on the ground that the facts were not sufiicient to constitute a cause of action against the State. From this decision an appeal is taken to this Court. It is now contended by the learned counsel for the appellant that the act of the overseer in compelling the claimant to use the defective ladle, after having been notified of its unsafe condition, was an act of the State and of gross and inexcusable negligence. It is apparent that even if this is so the claimant must fail unless the doctrine of respondeat superior can be applied to the State, and the State made liable for the negli- gence or misfeasance of its agents, in like manner as a natural person is responsible for the acts of his servants. We are aware of no principle of law, nor of any adjudged case which makes that application, except when the State, by its Legisla- ture, has voluntarily assumed it. The contrary of this is well settled upon grounds of public policy, and the doctrine is so uniformly asserted by writers of approved authority and the Courts that fresh discussion would be superfluous : Story on Agency, § 319 (7th ed.). Indeed the principle upon which the doctrine is founded — that he who expects to derive advan- tage from an act which is done by another for him must an- swer for any injury which a third person may sustain from it, excludes such a case as we have before us. The claimant was not a voluntary servant for hire and reward, nor was the State his master in any ordinary sense. He was compelled to labor as a means of reformation, and to endure imprisonment as a punishment and for the protection of the community. While employed he was subject to such regulations as the keeper charged with his custody might, from time to time, prescribe, 92 EXECUTIVE OFFICERS. and if in the course of service he sustained injury, it must be attributed to the cause which placed him in confinement. He acquires thereby no claim against the State, nor do the statutes referred to by his learned counsel (Laws of 1876, chap. 444 ; Laws 1883, chap. 205) create any liability on its part. There- fore, no error was committed by the Board of Claims, and its decision should be afiirmed. All concur. Decision affirmed.. Beers v. Arkansas, 20 How. 527 ; U. S. v. Lee, 106 U. S. 196 ,• Gibbons v. V. S., 8 Wall. 269 ; Langford v. IT. S., 101 U. S. 341 ; V. S. v. Jones, 131 U. S. 1 ; Buron v. Denman, 2 "W., Hurl. & G. 167 ; Jaggard, 110; Bishop, 749 ; Cooley, 122 ; Pollock, 132. 2. Executive Officers. No liability rests upon executive officers for injuries they may occasion in the discharge of purely public duties. Sage v. Laurain et al. Supreme Court of Michigan, 1869. 19 Mich. 137. Campbell, J. Defendants, who are Highway Commission- ers, were sued for having " falsely, wrongfully, and maliciously, without any reasonable cause therefor and without the public necessity requiring it," caused a petition to be prepared and presented to them for a public highway over the property of plaintiff, and without reasonable cause or public neces- sity, etc., determined that a highway should be opened and recorded ; and that their proceedings were subsequently reversed. The injury complairked of is not a trespass on plaintiff's lands under void proceedings. For such a trespass some one would be liable, but whether any but the actual trespasser, might depend upon circumstances. The injury complained of here is altogether incorporeal, and consists in nothing but the wrong which plaintiff sup- SAGE V. LAUEAIN ET AL. 93 posed himself to have suffered by proceedings which he alleges were carried on to vex him, but which never caused any injury to his freehold, and were reversed without being carried into effect. The case is entirely without precedent and cannot be main- tained on any theory. So long as they do not violate the law, the motives, and discretionary action of these executive boards cannot be reviewed collaterally. If, in due form of law, they declare a highway necessary, no Court or jury can declare it unnecessary, unless upon an appeal such revisory power is given. The public interests which they are required to admin- ister cannot be governed by the discretion of any one else. And no one can have a cause of action for any act that is done in pursuance of law. It is only where law is violated that an action will lie, and then it will only lie for some actual injury. And even where an actual wrong is done, it must be a legal wrong, and there can usually be no remedy where it would involve the review of discretion which is lawfully vested. There must be what is generally termed an excess of jurisdiction — an act outside of the limit of the discretion vested by law. Courts have not always agreed in determining when these limits have been exceeded, but the principle is familiar and settled. In the present case the acts charged were all within the statutory duty of the Board, and purely discretionary. The declaration shows, that for all that was done toward declaring and establishing a highway, the plaintiff has already found an adequate remedy by appeal. But as the land was not tres- passed upon unlawfully, there has been no actual injury, and none is described or claimed, and, of course, there can be nothing to warrant an action. The law cannot remedy imagi- nary or theoretical grievances. The declaration shows no cause of action, and the judgment was properly rendered against the plaintiff. Judgment affirmed with costs. McDonald v. Wilkie, 13 111. 22 ; Brother v. Cannon, 1 Scam. 200 ; Warner V. Shed, 10 Johns. 138 ; Earl v. Stone, 16 Wend. 562 ; Mangold v. Thorpe, 94 LEGISLATORS. 33 N. J. L. 134 ; McLean v. Cook, 23 "Wis. 364 ; Keniston v. Little, 30 N. H. 318 ; Orr v. Box, 22 Minn. 485 ; Neth v. Crofut, 30 Conn. 580 ; Cliurchill v. Churchill, 12 Vt. 661 ; Gray v. Kimball, 42 Me. 299 ; Taylor v. Alexander, 6 Ohio, 144 ; Luddington v. Peck, 2 Conn. 700 ; Norcross v. Nunan, 61 Cal. 640 ; Trobridge v. Bullard, 81 Mich. 451 ; Mason v. Vance, 1 Sneed, 178 ; Sava- cool V. Boughton, 5 Wend. 170 ; Jaggard, 125 ; Bishop, 771 ; CooleJ', 214 ; Pollock, 141. 3. Conduct of Legislatoes. Members of the Legislature -while acting in their official capacity are exempt from liability for all things said or done, though such statements and acts be in violation of the rules of legislative bodies. Coffin v. Coffin. Supreme Judicial Court of Massachusetts, 1808. 4 Mass. 1. Parsons, C. J. The plaintiff has commenced an action of the case, derdanding damages of the defendant for an injury to his character committed by the defendant in maliciously uttering and publishing defamatory words, which imported that the plaintiff had committed felony by robbing the Nan- tucket bank. To this demand the defendant pleaded not guilty, and also, by leave of the Court, a special plea in bar, justifying the speaking of the words, because, as he alleged, at the time when they were spoken, he and Benjamin Russell were mem- bers of the House of Representatives then in session, and that he spoke the words to Russell, in deliberation in the House, concerning the appointment of a notary public, and that the words had relation to the subject of their deliberation. The plaintiff, in his replication, denies these allegations ; and avers that the words were spoken by the defendant of his own wrong, and without such cause as he had alleged, and tenders an issue to the country. The defendant does not demur to the replication, but joins the issue thus tendered. Both the issues came on to trial, and it appeared from the evidence, that when the words were spoken, the defendant and Russell were members of the House of Representatives, then in COFFIN V. COFFIN. 95 session. The occasion, manner, and circumstances of speaking them are thus related by Russell, the witness. He having some acquaintance with the plaintiff, and thinking highly of his in- tegrity, was applied to by him to move a resolution for the appointment of an additional notary for Nantucket, the town represented by the defendant. Russell made the motion, and had leave to lay the resolution on the table. The defendant, in his place, inquired where Russell had the information of the facts, on which the resolution was moved. The witness answered, from a respectable gentleman from Nantucket. The resolution then passed, and the speaker took up some other business. Russell then left his place, and was standing in the passage-way, within the room, conversing with several gentle- men. The defendant, leaving his place, came over to Russell, and asked him who was the respectable gentleman, from whom he had received the information he had communicated to the House ? Russell answered, carelessly, he was perhaps one of his relations, and named CofBn, as most of the Nantucket people were of that name. The witness then, perceiving the plaintiff sitting behind the bar, pointed to him, and informed the defendant he was the man. The defendant looked toward him and said, "what, that convict?" Russell, surprised at the question, asked the defendant what he meant ? He replied, " Don't thee know the business of the Nantucket bank ?" Wit- ness said, " yes, but he was honorably acquitted." The de- fendant then said, " that did not make him less guilty, thee knows." It further appears that this conversation passed a little before one o'clock, that the election of notaries was not then before the House, but was made that afternoon, or the next day, and that the plaintiff was not a candidate for that office. And there is no evidence that the resolution laid on the table by Russell, and passed, or the subject-matter of it, was ever after called up in the House. It does not appear from the report that it was contended by the defendant, that the words testified to did not import the slander charged in the plaintiff's declaration, nor is the verdict objected to on that ground : the Judge therefore directed the 96 LEGISLATORS. jury, that if they believed the testimony, the plaihtiff had maintained the first issue. But the defendant insisted that the evidence supported the justification contained in the bar, and that by law the second issue ought to be found for him. The question of law therefore arises on the second issue. Both parties had submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony : that they might truly decide the law, they were entitled to the assistance of the Judge. If the Judge had declined his aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were able. But the Judge was ofiicially obliged to declare to the jury his opinion of the law. If this be denied, as a matter not within the jurisdiction of the Court, it must also be denied that the jury were legally authorized to decide on the law. The consequence of which would be, that when any defendant representative should plead his privilege in bar, whether the plea be true or false cannot be inquired into, because every such plea must involve both law and fact ; and the Judge must send the parties out of Court. If the Judge was officially obliged to declare the law to the jury, he must necessarily take notice of the law, on which the defendant relied, and give it, according to his judgment, a sound construction, applicable to the issue on trial. The law relied on is the twenty-first article of the Declaration of Rights. This article he was obliged to notice and explain, according to what he judged to be its true intent and effect. If there had been any explanation of this article, by the Act of any Legisla- ture, or by the judgment of any Court, constitutionally obliga- tory on Courts of law, such explanation is law, and ought to have governed the Judge in his construction of the article. It is not pretended that, at the time of the trial, any such Act or judgment existed. The only aid which the Judge could re- ceive must have been derived from other parts of the Consti- tution, and from the principles of the common law, by which sound rules of construction are established. COFFIN V. COFFIN. 97 The Judge accordingly gave to the jury his construction of the article, and declared to them his opinion that the facts did not in law maintain the issue for the defendant ; and the jury found a verdict for the plaintiff. To this opinion of the Judge the defendant excepted, and moves for a new trial ; and on the correctness of it are we now to decide. As the jury found a verdict agreeably to the Judge's direction, it is to be presumed that they were influ- enced by it ; and if the direction was wrong, the cause ought to be again tried by another jury, uninfluenced by an errone- ous opinion of the Judge in a matter of law. The twent)" -first article of the Declaration of Rights declares that " the freedom of deliberation, speech, and debate in either House of the Legislature is so essential to the rights- of the people, that it cannot be the foundation of any accusation, or prosecution, action or complaint in any other Court or place whatsoever." On this article the defendant relies for his justi- fication. And if it were competent to the Judge on the trial to declare his opinion of the true intent and meaning of it, it must be competent for this Court to decide whether his opinion was, or was not legal ; or the defendant can have no relief by his motion ; unless the Court are to decide, without inquiry or authority, that the opinion was against law. But I know of no action within the jurisdiction of a Court, and regularly before it, in which it will not be the duty of the Judges to decide all matters of law arising in it, so far as the Court is competent to decide on them, according to their own appre- hension of the law. Otherwise they will have no jurisdiction of legal questions ; or they must act as ministerial agents, deciding according to the will of others. In considering this article, it appears to me that the privi- lege secured by it is not so much the privilege of the House as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the House. For he does not hold this privilege at the pleasure of the House ; but derives it from the will of the people, expressed in the Constitution, which is paramount to 7 98 LEGISLATOKS. the will of either or both branches of the Legislature. In this respect the privilege here secured resembles other privileges attached to each member by another part of the CoDstitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending the general Court. Of these privileges, thus secured to each mem- ber, he cannot be deprived, by a resolve of the House, or by an Act of the Legislature. These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office, without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictlj'', but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate ; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article, as securing to every member exemption from prosecution, for everything said or done by him, as a representative, in the exercise of the functions of that office ; without inquiring whether the exercise was regular according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House, and I am satisfied that there are cases in which he is entitled to this privilege, when not within the walls of the representatives' chamber. He cannot be exercising the functions of his office as mem- ber of a body, unless the body be in existence. The House must be in session, to enable him to claim this privilege ; and it is in session, notwithstanding occasional adjournments, for short intervals, for the convenience of its members. If a mem- ber, therefore, be out of the chamber, sitting in committee, ex- ecuting the commission of the House, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body, of which he is COFFIN V. COFFIN. 99 a member, is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought, there- fore, to be protected from civil or criminal prosecutions for everything said or done by him in the exercise of his func- tions, as a representative in committee, either in debating, in assenting to, or in draughting a report. Neither can I deny the member his privilege, when executing the duties of his office, in a convention of both Houses, although the conven- tion should be holden in the Senate chamber. To this construction of the article it is objected, that a pri- vate citizen may have his character basely defamed, without any pecuniary recompense or satisfaction. The truth of the objection is admitted. But he may have other compensation awarded to him by the House, who have power, as a neces- sary incident, to demand of any of its members a retractation, or apology, of or for anything he has said, while discharging the duties of his office, either in the House, in committee, or in a convention of the two Houses, on pain of expulsion. But if it is allowed that the remedy is inadequate, then a private benefit must submit to the public good. The injury to the reputation of a private citizen is of less importance to the Commonwealth than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prose- cutions. A more extensive construction of the privileges of the mem- bers secured by this article I cannot give, because it could not be supported by the language or the manifest intent of the article. When a representative is not acting as a member of the House, he is not entitled to any privileges above his fellow- oitizens ; nor are the rights of the people affected, if he is placed on the same ground on which his constituents stand. He is secured in the liberty of traveling to the House, of attending his duties there, of exercising the functions of his office as a member, and of returning home. But so careful were the people in providing that the privileges which they, for their own benefit, had secured to their representatives, should not unreasonably prejudice the rights of private citi- 100 LEGISLATORS. zens, that a member may be arrested upon execution in a civil suit, in cases where he could not be lawfully arrested on original or mesne process. And that offenses against law may be' duly and seasonably punished, this privilege is not extended to arrests on criminal prosecutions, in any case where by law the member may be prosecuted as a criminal. If this very liberal construction of the twenty-first article be just ; if it be warranted by its language ; if it be consonant to its manifest intent and design, the question before the Court lies in a narrow compass. Was CofSn, the defendant, in speaking the defamatory words, executing the duties of his office ? Or, in other lan- guage, was he acting as a representative ? If he was, he is entitled to the privilege he claims; if he was not, but was acting as a private citizen, as a private citizen he must answer. Upon information given by the plaintiff to Eussell, a mem- ber, he had moved a resolution providing for the choice of another notary for Nantucket ; and on Russell's stating that his information was from a respectable person from that place, the resolution had passed ; the House had proceeded to other business ; and the subject-matter of the resolution, or of the information, was not in fact before the House, although it is certain that any member might have moved to rescind the resolution. Russell, his brother member, was in the passage- way, conversing with several gentlemen ; the defendant came to him, and inquired the name of Russell's informant, who, he had declared, was a respectable gentleman from Nantucket. "Was this inquiry thus made the act of a representative, dis- charging his duty, or of a private citizen, to gratify his curi- osity? It was the former, say the defendant's counsel. Whether it was or not, certainly it was innocent. But to pur- sue the evidence. The defendant was answered ; whatever was his motive, he had received the information. If upon it he intended again to call up the resolution, he might have done it. But no motion for that purpose was ever made. He COFFIN V. COFFIN. 101 then utters to Russell the defamatory words. What part of his legislative duty was he now performing? It is said that he might apprehend that the plaintiff was a candidate for the office of notary ; and that his motive might be to dissuade Russell from giving him his vote. But there is no evidence that the defendant supposed the plaintiff to be a candidate, and it is in evidence that the plaintiff was not a candidate. It is also apparent that the defendant believed that Russell was not ignorant of the indictment against the plaintiff, and of his acquittal. I cannot therefore assign to the defendant any other motive for his indiscreet language, but to correct Russell for giving to the plaintiff the appellation of a respectable gen- tlemau ; and to justify the correction, by asserting that an honorable acquittal, by the verdict of a jury, is not evidence of innocence. It is not, therefore, possible for me to presume that the defendant, in using thus publicly the defamatory words, even contemplated that he was in the discharge of any official duty. This inquiry by the defendant, and his replies might have been made, for all the purpose intended by him, in State Street, or in any other place, as well as in the repre- sentatives' chamber ; and it is not easy for mie to conceive that any language or conduct of a representative must be consid- ered as official, merely because he chooses the representatives' chamber for the scene. But it has been urged that the privilege must extend to a representative giving information to a brother member, on any subject before the Plouse ; or which may be expected to come before the House ; for the information may be necessary to enable the member informed to discharge his official duty with ability and propriety. Without remarking the essential distinc- tion between a man's seeking information on subjects relating to his office, and his actual execution of its functions ; and without observing the extreme difficulty of supposing that de- famatory words, maliciously uttered, can ever be considered as useful information, I do clearly admit that a representative will certainly be entitled to his privilege in all cases where he shall give information in the discharge of official dutj', 102 LEGISLATORS. although the manner may be irregular and against the rules of the House. But when a representative pleads his privilege, to entitle himself to it, it must appear that some language or conduct of his, in the character of a representative, is the foundation of the prosecution, for in no other character can he claim the privilege. But in actions for defamatory words against a member, he may, in cases to which his privilege does not extend, defend himself, like any other citizen, by proving that the words were spoken for a justifiable purpose, not maliciously, nor with a design to defame the character of any man. And this defense will avail every man charged with slander, although it may be that the words uttered are not true. I do not there- fore consider any citizen, who is a representative, answerable in a prosecution for defamation, where the words charged were uttered in the execution of his official duty, although they were spoken maliciously ; or where they were not uttered in the execution of his official duty, if they were not spoken mali- ciously, with an intent to defame the character of any person. And I do consider a representative holden to answer for de- famatory words, spoken maliciously, and not in discharging the functions of his office. But to consider every malicious slander, uttered by a citizen, who is a representative, as within his privilege, because it was uttered in the walls of the repre- sentatives' chamber to another member, but not uttered in executing his official duty, would be to extend the privilege further that was intended by the people, or than is consistent with sound policy ; and would render the representatives' chamber a sanctuary for calumny : an effect, which never has been, and, I confidently trust, never will be endured by any House of Representatives of Massachusetts. It has been said, that although the Judge at the trial had no other information of the nature and extent of the defendant's privileges, but what he derived from the Constitution ; yet that since the trial, on the 1st of March instant, the House passed a resolution declaratory of the privileges of its mem- bers, to which declaration we are obliged to conform in our COFFIN r. COFFIN. 103 judgments ; because the House is to judge exclusively of its own privileges. That the House is to judge exclusively of its privileges, for certain intents and purposes, is very certain ; but if it is to exclude Courts of law from judging of the privileges of its members in every case, the consequences would be unfortunate to the members. If a member, in any action, pleads his privilege, he submits it to the judgment of the Court ; and, if it be allowed, it is by virtue of the judgment of the Court. All therefore, which the Court could do, upon such an hy- pothesis, would be to reject the plea, lest, in judging of it, it should invade the privileges of the House. The resolution declares that words spoken by any member, within the walls of the House, relative to any subject under their consideration, either in their separate capacity, or in a convention of both branches of the Legislature, whether the member speaking such words addresses himself in debate to the chair, or deliberates or advises with another member re- specting such subject, are alone and exclusively cognizable by the House ; and that for any other tribunal to take cognizance of words thus spoken would be a violation of the 21st article of the Constitution. And the words relied on for the defend- ant are, "whether the member speaking such words addresses himself to the chair, or deliberates or advises with another member respecting such subject." As it is admitted by the defendant's counsel that this Court is competent to construe the .21st article, in order to decide whether the facts in the case bring the defendant -within it ; so also it is admitted that the Court is competent to construe this resolution for the same purpose. The resolution, judging from the face of it, does not appear to be an act of the House in any case of contempt on trial before it ; but to be a general declaration of the privileges secured to the members by the 21st article of the Constitution ; because it is declared that an invasion of these privileges would be a violation of that article. I consider the House therefore as defining the constitutional privileges of its members, relating to words spoken by them. 104 LEGISLATORS. In this declaration, the words must be spoken on a subject before the House, and either addressed to tlie chair, or by one member to another by way of deliberation and advice on the same subject. In either case, the words must be spoken offi- cially, although in the latter case they may be spoken in a disorderly and irregular manner. The House has not there- fore claimed any privileges for its members, when prosecuted for slander, unless the word charged were spoken officially in the character of a representative. This inference is inevitable, unless it should be unreasonably concluded that one member could deliberate or advise with another member, on a subject before the House, having abandoned his official duty, and acting as a private citizen. Whether I do, or do not allow to the resolution, thus passed, the force of law, I am satisfied that it claims no privileges but what are secured to the members by the Constitution, of which, as far as it extends, it is in affirm- ance. The resolution does not therefore, in my opinion, aid the defendant ; for it appears, from the facts in the case, that the defamatory words, charged on the defendant, were not spoken by him on a subject before the House, either in an address to the chair, or by way of deliberation or advice with another member. It has been urged that a declaration of privileges made by the House, whether those privileges do, or do not belong to it, has the force of law, and is obligatory, in all cases, on the Courts of justice. A declaration of that nature is not now before us ; for I am satisfied that the House has all the privi- leges claimed by its resolution. "Whenever a declaration shall be/made by the House, claiming privileges not belonging to it in the opinion of the Judges of a Court of law, let the Judges then decide the question. The merits of it must depend on a careful consideration of the Constitution, with a due regard to the privileges and prerogatives of the House resulting from it. On this subject I give no opinion ; but from the observations I have already made, it may not be improper to declare, that if it had appeared to me that the words charged on the defend- ant, had been officially spoken by him without the walls of , COFFIN V. COFFIN. 105 the representatives' chamber, either in a convention of the two Houses holden in the Senate chamber, or in a committee, while executing the commission of the House then in session, as I am now advised, I would have allowed him his privilege, although, by the resolution produced, the House seem to con- fine its privileges to words spoken within the walls of the representatives' chamber. But the danger of conflicting jurisdiction has been insisted on with much ability and eloquence, if we should support the present action. I am sensible that where a conflict of final jurisdiction exists in any State, there must be a defect in the laws of that State. In my opinion, this State is not liable to the opprobrium ; for I do not conceive that final conflicting jurisdictions here are consistent either with our Constitution or statutes. To introduce examples from the British House of Commons, cannot much illustrate the subject. The privileges of that house are not derived from any written Constitution, but have been acquired by the successful struggles of centuries, directed either against the monarchy or an hereditaey aristocracy. The exertions of the Commons have generally been popular, be- cause the people were supposed to reap the fruits of them. In this State we have a written Constitution, formed by the peo- ple, in which they have defined, not only the powers, but the privileges of the House, either by express words, or by neces- sary implication. A struggle for privileges, in this State, would be a contest against the people, to wrest from them what they have not chosen to grant. And it may be added that the grant of privileges is a restraint on the rights of private citi- zens, which cannot be further restrained but by some consti- tutional law. These principles are perfectly consistent with the resolution of the House, which is not a claim of any further privileges not granted by the Constitution ; but a de- scription of some, and only of some privileges there granted. I consider the House of Representatives, not only as an integral branch of the Legislature, and as an essential part of the two houses in convention, but also as a Court having final 106 LEGISLATORS. and exclusive cognizance of all matters within its jurisdiction, for the purposes for which it was vested with jurisdiction. It has jurisdiction of the election of its members ; of the choice of its officers ; of its rules of proceeding ; and of all contempts against the House, either in its presence, or by violating the constitutional privileges of its jnemhers. When the House is proceeding as a Court, it has, exclusively, authority to decide whether the matter before it be or be not within its jurisdic- tion without the legal control of any other Court. As to con- tempts, the House proceeds against the offender to punish the contempt. Courts of law proceed to punish offenses against the State and to redress private wrongs. The same act may be a contempt against the House, an offense against the State, and an injury to an individual, and in all these respects pro- ceedings may be had against the offender. When the House decides in a question of election, it can conclusively decide on the right of voting claimed by any elector, so far as is necessary to settle the election. But an elector, illegally deprived of his right of voting, may demand redress for this wrong against the selectmen by a suit at law. This was decided in the cases of Gardner and of Kilham against the selectmen of Salem, where the only defense set up was that the plaintiffs had no right to vote. Upon this ques- tion the judgments of both Courts, however rendered, could be executed without any interference. Let me illustrate the sub- ject by supposing a case or two. A member is assaulted in the town, in which the House is in session, and is cruelly beaten, for words spoken in the House in the execution of his duty. The House may proceed against the assailant for a con- , tempt : and cannot the member prosecute him at law for dam- ages ? And may not the grand jury indict him for a breach of the peace? And neither can the proceedings of a Court of law control the proceedings of the House, nor can the proceedings of the House control the Courts of law. The judgments of each Court, whatever may be the result, can be executed with- out any interference. Suppose a public officer indicted for extortion, and upon trial acquitted at law : Cannot he after- COFFIN ('. COFFIN. 107 ward be convicted by the Senate on an impeachment ? Both judgments maj^ be executed without interference. The Courts of law proceed to punish the offender, and he is acquitted. The power of the Senate is censorial, and exercised to preserve purity in office. If it should be supposed that the Senate can- not proceed after an acquittal at law, it should be remembered that, by the express provision of the Constitution, Courts of law may proceed after a conviction in Senate ; and in the pro- ceedings at law the jury may acquit : and it could not have been intended to place the Senate as subordinate to a Court of law. The true design of that provision was a mere cautionary declaration that the proceedings in the Senate were not to punish offenders against the State, but for a different end. And I would add that, in the present case, if the House, of which the defendant was a member, had proceeded against the plaintiff for a contempt in suing this action ; whatever had been the result of its proceedings, this Court could not have interfered, or granted any relief, until the sentence had been performed. And as this judgment could not have affected those proceedings, so neither could those proceedings have controlled the authority of this Court. The two Courts are independent and have each exclusive cognizance of the mat- ters within its jurisdiction : and although the transaction animadverted on may be the same, yet the proceedings are for different purposes, and the judgments of both Courts may be executed without any interference. There cannot, therefore, be any conflict of jurisdictions. Extreme cases of the abuse of power, either in the House of Representatives, or in this Court, may be imagined ; but they are not to be argued from, to influence legal decisions. Since the argument of this cause I have examined the sub- ject with as much attention as I have been able to give to it, amidst all the business of the Court pressing on us, with a strong disposition to guard the privileges of the House, and of its members, because their privileges are essential to the rights of the people, and ought to be supported by every good citizen according to their true limits. 108 MINISTERIAL OFFICERS. From this examination I am satisfied that, whatever may be our decision of the question, it is within our jurisdiction thus brought before us ; and that no breach of the privileges of the House, or a conflict with its jurisdiction can result from our determination. I am convinced, after much consideration, that the facts pre- sented by the case do not entitle the defendant to the privilege which he claims, and that for this cause the verdict ought not to be set aside. Under this impression, to give a different opinion would be a desertion of a solemn duty, and a gross prevarication with my own conscience. In this opinion of the Chief Justice, the other Judges, viz., Sedgwick, Sewall, Thatcher, and Parker severally de- clared their full and entire concurrence. Kilbourn v. Thompson, 103 U. S. 168 ; Rhodes v. Walsh, 57 N. W. 212 ; Minn. Stat. 1894, I 5172 ; Jaggard, 114 ; Bishop, 744 and 777 ; Cooley, 213, 214 : Pollock, 327. 4. A Public Ministerial Officer is Liable for Tortuous Conduct op an Official Subordinate. Marshall v. Hosmer. Supreme Judicial Court of Massachusetts, 1808. 4 Mass. 60. This is the same action in which the plea in abatement was overruled and a respondeas ouster awarded ( Vid. ante, vol. Ill page 23), and was brought against the defendant, sheriff of the County of Middlesex, for the default of Zaccheus Shed, his deputy, in not attaching personal property of one Ephraim KMder upon a suit brought by the plaintiff against said Kid- der to the Court of Common Pleas in the Countv of Suffolk. At the trial of this action before Parker, J., at the last No- vember Term, it was proved that the plaintiff in person, on the 28th of June, 1804, delivered the writ against Kidder to Shed in Billerica, where Kidder Jived, and directed him to go to MARSHALL V. HOSMER. 109 the store kept by Kidder, and attach the goods therein, and also his furniture in his dweUing-liouse.' Shed wished the creditor to go with him, and show him the goods, but he re- plied that lie was in a hurry to return to Boston, and that it was not necessar}^ for him to go with the officer. Shed then took the writ, without making any other observation. He made service of it by arresting Kidder and taking bail. Upon the execution issuing on the judgment in that suit, which was also delivered to Shed, he committed Kidder to prison, from which he was afterward liberated under the provisions of the "Act for the relief of poor prisoners who are committed by execution for debt," having taken the oath therein prescribed. It also appeared that upon a writ issued against Kidder in favor of another creditor on the 7th of July, 1804, and served on the 9th day of that month, personal property, more than sufficient to satisfy Marshall's demand, was attached, and after- ward levied upon and sold to satisfy the execution of said other creditor. It further appeared in evidence that at the time the plaintiff delivered his writ to Shed, and for several days after, Kidder was doing business openly in his store, and that his house was free of access. Parsons, C. J. From the facts reported it is manifest that the plaintiff has lost his debt through the conduct of the deputy sheriff, and the first point for the decision of the Court is whether, from the circumstances of the case, the deputy was in fault. (Here His Honor recapitulated the facts as before re- ported.) It is urged for the deputy that, in consequence of the special indorsement on the writ, he might attach either the body or estate. And we are inclined to allow this objection, if no verbal directions had been given him. When an original writ is delivered to the sheriff with this special direction, perhaps he is not holden to look up estate and to attach it as belonging to the debtor without any indemnity, and if he takes the body he conforms to the direction. But in this case he was verbally 110 MINISTERIAL OFFICEES. directed to attach certain chattels, describing their nature and situation, and I am satisfied that he was bound to obey this verbal direction if he lawfully could. It is further said that the plaintiff did not go with him to make the attachment. I know of no law directing the pres- ence of the creditor with the officer to oblige him to make an attachment. The creditor ought, if required, to designate the chattels to be attached ; and also, if they are not in the pos- session of the debtor, or if there be a dispute concerning the property, to give the officer an indemnity for making the attachment. In this case the chattels to be attached were sufficiently designated, and there was no request of an in- demnity. And if the officer could have insisted on the plain- tiff's going with him he waived his right by taking the writ with the verbal direction to make the attachment after the plaintiff had declined going with him without making any objection to conforming to the direction. Another question made is, whether, if the deputy was in fault, the sheriff is answerable for the default. The sheriff is answerable civiliter for the defaults of his deputies by non- feasance or malfeasance in the duties of their office enjoined on them by law, and not for a breach of contract made with a plaintifi', obliging themselves to do what by law they were not obliged to do. Here the default charged is in not making an attachment of chattels which he was bound by law to make : the default, therefore, is a neglect of an official duty for which the sheriff is responsible. The verdict must stand and judgment be 'entered up accord- ing to it. Fizzell V. Buffer, 25 S. W. 1111 ; M'lntyrew. Trumbull, 7 John, 35 ; Cotton V. Marsh, 3 Wis. 221 ; Mosby v. Mosby, 9 Grat. 602 ; Lucas v. Locke, 11 W. Va. 81 ; Woodgate v. KnatchbuU, 2 T. E. 148 ; Saunderson v. Martin, 3 Wills, 309 ; Ackworth v. Kempe, 1 Doug. 40 ; Gorham v. Gale, 7 Cow. 739 ; People V. Dunning, 1 Wend. 16 ; Walden v. Davison, 15 Wend. 575 ; Grin- nell V. Phillips, 1 Mass. 530 ; Jaggard, 137 ; Bishop, 791 et seq. ; Cooley, 377 and 378 ; Pollock, 148. GKOVE V. VAN DUYN. Ill 5. Conduct op Judicial Ofpiceks. Within jurisdiction. No judicial officer is liable to ans-wer in a civil suit for any judicial act ■within his jurisdiction hoiwever erroneous or corrupt. Grove v. Van Duyn. Court of Errors and Appeals of New Jersey, 1882. 44 N. J. L. 654. This was an action for trespass for assault and unlawful im- prisonment. The defendant, Cornelius Van Duyn, pleaded the general issue of not guilty to the declaration, which was in its usual form in trespass, for assault and unlawful im- prisonment. The defendant, Charles L. Stout, also pleaded the general issue to the said declaration, and gave notice of special matter in evidence under said plea, setting up that he was one of the justices of the peace of the county of Middlesex, and that the following complaint was made before him by Cornelius Van Duyn : State of New Jersey, Middlesex County, ss : — Cornelius Van Duyn, administrator of Samuel Van Tilburgh, deceased, of the township of Franklin, county of Somerset, upon his oath com- plains that on the 1st day of December, 1879, at the township of South Brunswick, in the county of Middlesex, Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins, with force and arms, did enter upon the lands of Samuel Van Tilburgh, deceased, and with force and arms did unlawfully carry away about four hundred bundles of cornstalks, to the value of $8, and were engaged in carrying other cornstalks from said lands of said Van Tilburgh, deceased ; and therefore he prays that the said Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins may be apprehended and held to 112 JUDICIAL OFPICEKS. answer said complaint and dealt with as law and justice may require. C. Van Duyn, Administrator. Sworn and subscribed before me this 1st day of December, 1879. Chas. L. Stout, Justice of the Peace. Stout, as such justice, thereupon issued his warrant in the ordinary form, directing the said two persons and the said Higgins to be brought before him to answer the said com- plaint ; and such three persons having been arrested by a con- stable, on such warrant, and being brought before said justice, and having waived an examination, were by him committed to the jail of the county for the cause mentioned in the com- plaint, to await t"he action of the next grand jury. Having given bail the next day the persons so arrested were dis- charged, and thereupon one of them, William H. Grove, Jr., brought this suit in trespass for the above-mentioned imprison- ment. At the trial the plaintiff was non-suited, and to review that judgment this writ of error was brought. Beasley, C. J. Most of the general principles of law per- taining to that branch of this controversy which relates to the alleged liability of the defendant in this suit, who was a jus- tice of the peace, are so completely settled as not to be open to discussion. The doctrine that an action will not lie against a Judge for a wrongful commitment, or for an erroneous judg- ment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. Such an exemption is absolutely essential to the very existence, in any valuable form, of the judicial office itself; for a Judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor. GROVE V. VAN DUYN. 113 Heuce we find this judicial immuuity has been conferred by the laws of every civilized people. That it exists in this State in its fullest extent has been repeatedly declared by our own Courts. Such was pronounced by the Supreme Court to be the admittod principle in the case of Little v. Moore, 1 South. 75 ; Taylor v. Doremus, 1 Harr. 473 ; Mangold v. Thorpe, 4 Vroom, 134 ; and by this Court in Loftus v. Fraz, 14 Vroom, 667. To this extent there is no uncertainty or difficulty what- ever in the subject. But the embarrassment arises where an attempt is made to express with perfect defiuiteness when it is that acts done by a Judge and which purport to be judicial acts, are such within the meaning of the rule to which reference has just been made. It is said everywhere in the text-books and decisions that the ofl&cer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been de- fined to be " the authority of the law to act officially in the particular matter in hand :" Cooley on Torts, 417. But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a Court or Judge exercising a general authority. Their defect is that they leave out of the account all those cases in which the officer in the discharge of his public duty is bound to decide whether or not a particular case, under the circum- stances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instance the Judge, in point of fact and law, has no jurisdiction, accord- ing to the definition just given, over " the particular matter in hand," and yet, in my opinion, very plainly he is not respon- sible for the results that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions. There are certainly cases which hold that if a magistrate, in the regular discharge of his functions, causes an arrest to be made under his warrant on a complaint which does not con- tain the charge of a crime cognizable by him, he is answerable 114 JUDICIAL OPPICEES. in an action for the injury that has ensued. But I think these cases are deflections from the correct rule ; they make no allow- ance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exer- cises a cognizance over the case ; if the Superior Court in which the question arises in a suit against the justice differs with him on this close legal question, is he open, by reason of his error, to an attack by action? If the officer's exemption from lia- bility is to depend on the question whether he had jurisdiction over the particular case, it is clear that such officer is often liable under such conditions, because the higher Court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essen- tial to bring this case within the judicial competency of the magistrate. But there are many decisions which, perhaps, without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such conditions. The very copious brief of the counsel of the defendants abounds in such illustrations. As an example, we may refer to the old case of Gwynne v. Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, although there was an arrest in an action which arose out of the justice's juris- diction. This case has been since approved in Kemp v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this decision would have been the opposite of what it is. In the same way the subject is elucidated in Brittain v. Kin- nard, 1 B. & B. 432, the facts being a conviction by a justice of a person of having gunpowder in a certain boat, a special Act authorizing the detention of any suspected boat; and when the magistrate was sued in trespass for an illegal conyiction it was declared that the plaintiff, in order to show the defendants' want of cognizance over the proceedings leading to the convic- tion, could not give evidence that the craft in question was a GROVE V. VAN DUYN. 115 vessel and not a boat, because the justice had judicially deter- mined that point. And in this case, likewise, the test of jurisdiction in the magistrate in point of fact and of la^v was rejected; an inquiry into the authority by force of which the proceedings had been taken being disallowed for the reason that such question had been passed upon by the magistrate himself, the point being before him for adjudication. The same doctrine was promulged in explicit and forcible terms by Mr. Justice Field, delivering the opinion of the Supreme Court of the United States, in the case of Bradley v. Fisher, 13 Wall. 335, this being his language : " If a Judge of a Criminal Court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense which it is not, and proceed to the arrest and trial of a party charged with such act . . no per- sonal liability to civil actions for such acts would attach to the Judge, although those acts would be in excess of his jurisdic- tion, or of the jurisdiction of the Court held by him, for these are particulars for his judicial consideration whenever this general jurisdiction over the subject-matter is invoked." These decisions, in my estimation, stand upon a proper foot- ing, and many others of the same kind might be referred to, but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the refer- ences above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely made that the great weight of judicial opinion is in opposition to the theory that if a Judge, as a matter of law and fact, has not jurisdiction over the particular case that thereby, in all cases, he incurs the liability to be sued by any one injuriously -aflfected by his assumption of cognizance over it. The doc- trine that an officer having general powers of judicature must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all Courts and to all judicial officers acting under a general authority, and it would 116 JUDICIAL OFFICERS. thus involve in its liabilities all tribunals except those of last re- sort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this State, upon a writ being served in a certain manner, should decare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this Court should re- verse such judgment on the ground that the service of the writ in question did not give the inferior Court jurisdiction in the case, no reason can be assigned why the Justices of the Supreme Court should not be liable to suit for any injurious consequence to the defendant proceeding from their judgment. As I have said, in my judgment, the jurisdictional test of the measure of judicial responsibility must be rejected. Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdic- tion by a Judge will impose upon him a liability to an action in favor of the person who has been injured by such excess. If a magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay issue a warrant and cause an arrest for an alleged larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offenses, for the conclusive reply would be that this particular case was not by any form of proceeding, put under his authority. From these legal conditions of the subject my inference is that the true general rule with respect to the actionable responsibility of a judicial officer having the right to exercise general powers, is that he is so responsible in any given case belonging to a class over which he has cognizance unless such case is by complaint or other proceeding put at least colorably under his jurisdiction. Where the Judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer GROVE V. VAN DUYN. 117 is not liable in a suit to the person affected by his decision, whether such decision be right or wrong. But when no facts are present, or onlj^ such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the per- formance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one ; it protects a Judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically willful ; such protection is neces- sary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression. The application of the above-stated rule to this case must, obviously, result in a judgment affirming the decision of the Circuit Judge. There was a complaint, under oath, before this justice, presenting for his consideration a set of facts to which it became his duty to apply the law. The essential things there stated were that the plaintiff, in combination with two other persons, "with force and arms," entered upon cer- tain lands, and " with force and arms did unlawfully carry away about four hundred bundles of cornstalks, of the value," etc., and were engaged in carrying other cornstalks from said lands. By a statute of this State (Rev., p. 244, § 99), it is de- clared to be an indictable offense " if any person shall willfully, unlawfully, and maliciously " set fire to or burn, carry off or destroy any barrack, cock, crib, rick, or stack of hay, com, wheat, rye, barley, oats, or grain of any kind ... or any trees, herbage, growing grass, hay, or other vegetables, etc. Now, although the misconduct described in the complaint is not the misconduct described in this Act, nevertheless, the question of their identity was colorably before the magistrate, and it was his duty to decide it ; and under the rule above formulated, he is not answerable to the person injured for his erroneous application of the law to the case that was before him. As to the other defendant, all he did was to make his com- 118 JUDICIAL OFFICERS. plaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judi- cial action which ensued, even if such action had been extra- judicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant nor any other person could be treated as a tres- passer for his co-operation in procuring a decision and com- mitment which were valid in law, until they had been set aside by a superior tribunal. Let the judgment be affirmed. Stewart v. Oooley, 23 Minn. 347 ; Bradley v. Fisher, 13 Wall. 335 ; Austin V. Vrooman, 128 N. Y. 229 ; Eandall v. Brigham, 7 Wall. 523 ; Bevard v. Hoffman, 18 Md. 479 ; Scott v. Stansfield, L. R., 3 Ex. 220 ; Yates v. Lansing, 5 Johns. 282 ; Moor v. Ames, 3 Caines, 170 ; Morgan v. Dudley, 18 B. Mon. 693 ; Gregory v. Brown, 4 Bibb. 28 ; Pratt v. Gardner, 2 Cush. 63 ; Weaver V. Devendorf, 3 Denio, 117, and cases on page 121 ; Busteed v. Parsons, 54 Ala. 393 ; Garfield v. Douglass, 22 111. 100 ; Wheeler v. Patterson, 1 N. H. 88 ; Tenkins v. Waldron, 11 Johns. 114 ; Butler v. Potter, 17 Johns. 145 ; Jaggard, 116 ; Bishop, 745 and 779 et acq. ; Cooley, 403 d seq. ; Pollock, 138. In Szcess of Jurisdiction. Judges of Courts of record having superior or general jurisdiction are not liable in a civil action for acts done in excess of jurisdiction ; but Judges of inferior Courts having limited jurisdiction do not enjoy this exemption. Bradley v. Fisher. Supreme Court of the United States, 1871. 13 Wall. 335. Mr. Justice Field. In 1867 the plaintiff was a merhber of the bar of the Supreme Court of the District of Columbia, and the defendant was one of the Justices of that Court. In June of that year, the trial of one John H. Suratt, for the murder of Abraham Lincoln, was commenced in the Criminal Court of the District, and was continued until the tenth of the follow- ing August, when the jury was discharged in consequence of BRADLEY V. FISHER. 119 their inability to agree upon a verdict. The defendant held that Court, presiding at the trial of Suratt from its commence- ment to its close, and the plaintiff was one of the attorneys who defended the prisoner. Immediately upon the discharge of the jury, the Court, thus held by the defendant, directed an order to be entered on its records striking the name of the plaintiff from the roll of attornej^s practicing in that Court. The order was accompanied by a recital that on the 2d of July preceding, during the progress of the trial of Suratt, im- mediately after the Court had taken a recess for the day, as the presiding Judge was descending from the bench, he had been accosted in a rude and insulting manner by the plaintiff, charging him with having offered the plaintiff a series of in- sults from the bench from the commencement of the trial ; that the Judge had then disclaimed any intention of passing any insult whatever, and had assured the plaintiff that he entertained for him no oth^ feelings than those of respect, but that the plaintiff, so far from accepting this explanation or disclaimer, had threatened the Judge with personal chastise- ment. The plaintiff appears to have regarded this order of the Criminal Court as an order disbarring him from the Supreme Court of the District ; and the whole theory of the present action proceeds upon that hypothesis. The declaration in one count describes the Criminal Court as one of the branches of the Supreme Court, and in the other count represents the order of the Criminal Court as an order removing the plaintiff from the office of an attorney-at-law in the Supreme Court of the District. And it is for the supposed removal from that Court, and the assumed damages consequent thereon, that the action is brought. Yet the Criminal Court of the District was at that time a separate and independent Court, and as distinct from the Su- preme Court of the District as the Circuit Court is distinct from the Supreme Court of the United States. Its distinct and in- dependent character was urged by the plaintiff, and success- fully urged, in this Court, as ground for relief against the 120 JUDICIAL OFFICERS. subsequent action of the Supreme Court of the District, based upon what had occurred in the Criminal Court. And because of its distinct and independent character, this Court held that the Supreme Court of the District possessed no power to punish the plaintiif on account of contemptuous conduct and lan- guage before the Criminal Court, or in the presence of its Judge. By this decision, which was rendered at the December Term of 1868, the groundwork of the present action of the plaintiff is removed. The law which he successfully invoked, and which protected him when he complained of the action of the Supreme Court of the District, must now equally avail for the protection of the defendant, when it is attempted to give to the Criminal Court a position and power which were then denied. The order of the Criminal Court, as it was then constituted, was not an order of the Supreme Court of the Dis- trict, nor of one of the branches of that Court. It did not, for we know that in law it could not, " remove the plaintiff from the office of an attorney of that Court, nor affect his right to practice therein. This point is distinctly raised by the special plea of the de- fendant, in which he sets up that at the time the order com- plained of was made, he was regularly and lawfully holding the Criminal Court of the District, a Court of record, having general jurisdiction for the trial of crimes and offenses arising within the District, and that the order complained of was an order of the Criminal Court, made by him in the lawful exer- cise and performance of his authority and duty as its presiding Justice, for official misconduct of the plaintiff, as one of its at- torneys, in his presence; and upon this plea the plaintiff joined issue. The Court below, therefore, did not err in excluding the order of removal as evidence in the cause, for the obvious reason that it did not establish, nor tend to establish, the re- moval of the plaintiff by any order of the defendant, or of the Court held by him, from the bar of the Supreme Court of the District. And the refusal of the Court below to admit evidence contradicting the recitals in that order, could not be the ground BRADLEY V. FISHER. 121 of any just exception, when the order itself was not pertinent to any issue presented. Nor is this conclusion affected by the Act of Congress passed in June, 1870, nearly three years after the order of removal was made, and nearly two years after the present action was commenced, changing the independent character of the Criminal Court and declaring that its judg- ments, decrees, and orders should be deemed the judgments, decrees, and orders of the Supreme Court of the District. If the order of removal acquired from this legislation a wider scope and operation than it possessed when made, the defend- ant is not responsible for it. The original act was not altered. It was still an order disbarring the plaintiff only from the Criminal Court, and any other consequences are attributable to the action of Congress, and not to any action of the de- fendant. But this is not all. The plea, as will be seen from our state- ment of it, not only sets up that the order of which the plain- tiff complains was an order of the Criminal Court, but that it was made by the defendant in the lawful exercise and per- formance of his authority and duty as its presiding Justice. In other words, it sets up that the order for the entry of which the suit is brought, was a judicial act, done by the defendant as the presiding Justice of a Court of general criminal jurisdiction. If such were the character of the act, and the jurisdiction of the Court, the defendant cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without appre- hension of personal consequences to himself Liability to answer to every one who might feel himself aggrieved by the action of the Judge would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English Judge, it would establish 122 JUDICIAL OFFICERS. the weakuess of judicial authority in a degrading responsi- bility. The principle, therefore, which exempts Judges of Courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial func- tions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been the settled doctrine of the English Courts for many centuries, and has never been denied that, we are aware of, in the Courts of this country. It has, as Chancellor Kent observes, " a deep root in the common law." Nor can this exemption of the Judges from civil liability be affected by the motives with which their judicial acts are per- formed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608, where it was laid down that the Judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records, except before the king himself, and it was ob- served that if they were required to answer otherwise, it would " tend to the scandal and subversion of all justice, and those who are the most sincere would not be free from continual calumniations." The truth of this latter observation is manifest to all per- sons having much experience with judicial proceedings in the Superior Courts. Controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings, are being con- stantly determined in those Courts, in which there is great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which impose upon the Judge' the severest labor, and often create in his mind a painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the Judge. Just in proportion to the strength of his con- BRADLEY V. FISHER. 123 victions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the Judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in imputations of this character, and from the imperfection of human nature this is hardly a subject of won- der. If civil actions could be maintained in such cases against the Judge, because the losing party should see fit to allege in his complaint that the acts of the Judge were done with par- tiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a Judge for his judicial acts would hesitate to ascribe any char- acter to the acts which would be essential to the maintenance of the action. If upon such allegations a Judge could be compelled to answer in a civil action for his judicial acts, not only would his office be degraded and his usefulness destroyed, but he would be subjected for his protection to the necessity of pre- serving a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the Judge before whom he might be summoned by the losing party — and that Judge, perhaps, one of an inferior jurisdiction — that he had decided as he did with judicial in- tegrity ; and the second Judge would be subjected to a similar burden, as he in his turn might also be held amenable by the losing party. Some just observations on this head by the late Chief Justice Shaw will be found in Pratt v. Gardner, and the point here was adjudged in the recent case of Fray v. Blackburn, by the Queen's Bench of England. One of the Judges of that bench was sued for a judicial act, and on demurrer one of the objec- tions taken to the declaration was that it was bad in not 124 JUDICIAL OFFICERS. alleging malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declaration by introducing an allegation of malice and cor- ruption ; but Mr. Justice Compton replied : " It is a principle of our law that no action will lie against a Judge of one of the Superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly ; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independ- ence of the Judges, and prevent them being harassed by vex- atious actions " — and the leave was refused. In this country the Judges of the Superior Courts of record are only responsible to the people, or the authorities constituted by the people, from whom they receive their commissions, for the manner in which they discharge the great trusts ,of their office. If in the exercise of the powers with which they are clothed as ministers of justice, they act with partiality, or ma- liciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment and suspended or re- moved from ofiice. In some States they may be thus sus- pended or removed without impeachment, by a vote of the two houses of the Legislature. In the case of Randall v. Brigham, decided by this Court, at the December Term of 1868, we had occasion to consider at some length the liability of judicial officers to answer in a civil action for their judicial acts. In that case the plaintiff had been removed by the defendant, who was one of the Jus- tices of the Superior Court of Massachusetts, from the bar of that State, and the action was brought for such removal, which was alleged in the declaration to have been made without law- ful authority, and wantonly, arbitrarily, and oppressively. In considering the questions presented the Court observed that it was a general principle, applicable to all judicial officers that they were not liable to a civil action for any judicial act done by them within their jurisdiction; that with reference to Judges of limited and inferior authority it had been held that BRADLEY ('. FISHER. 125 the}' were protected only when they acted within their juris- diction ; that if this -\vere the case witli respect to them, no such limitation existed with respect to Judges of superior or general authority ; that they were not liable in civil actions for their judicial acts, even when such acts were in excess of their jurisdiction, " unless, perhaps, when the acts in excess of jurisdiction are done maliciously or corruptly." The qualifying words were inserted upon the suggestion that the previous language laid down the doctrine of judicial exemp- tion from liability to civil actions in terms broader than was necessary for the case under consideration, and that if the lan- guage remained unqualified it would require an explanation of some apparently conflicting adjudications found in the re- ports. They were not intended as an expression of opinion that in the cases supposed such liability would exist, but to avoid the expression of a contrary doctrine. In the present case we have looked into the authorities and are clear from them as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that Judges of Courts of superior or general jurisdiction 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 maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exer- cise of such authority, when the want of jurisdiction is known to the Judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the Judge, or in the Court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much ques- tions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a Probate Court, invested only with authority over 126 JUDICIAL OFFICERS. wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the Court, and this being necessarily known to its Judge, his commission would afford no protection to him in the exercise of the usurped authoiity. But if, on the other hand, a Judge of a Criminal Court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the Judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the Court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the Court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdic- tion of both subject and person applies in cases of this kind, and for the same reason. The distinction here made between acts done in excess of jurisdiction and acts where no jurisdiction whatever over the subject-matter exists, was taken by the Court of King's Bench, in Ackerley v. Parkinson. In that case an action was brought against the vicar-general of the Bishop of Chester and his surrogate, who held the consistorial and episcopal court of the bishop, for excommunicating the plaintiff with the greater ex- communication for contumacy, in not taking upon himself the administration of an intestate's effects, to whom the plaintiff was next of kin, the citation issued to him being void, and having been so adjudged. The question presented was. BRADLEY V. FISHER. 127 -whether under these circumstances the action would lie. The citation being void, the plaintiff had not been legally brought before the Court, and the subsequent proceedings were set aside, on appeal, on that ground. Lord Ellenborough ob- served that it was his opinion that the action was not main- tainable if the ecclesiastical court had a general jurisdiction over the subject-matter, although the citation was a nullity, and said, that "no authority had been cited to show that the Judge would be liable to an action where he has jurisdic- tion, but has proceeded erroneously, or as it is termed, inverso ordine." ilr. Justice Blanc said there was " a material dis- tinction between a case where a party comes to an erroneous conclusion in a matter over which he has jurisdiction and a case where he acts wholly without jurisdiction ;" and held that where the subject-matter was within the jurisdiction of the Judge, and the conclusion was erroneous, although the party should, by reason of the error, be entitled to have the con- clusion set aside, and to be restored to his former rights, yet he was not entitled to claim compensation in damages for the injury done by such erroneous conclusion, as if the Court had proceeded without any jurisdiction. The exemption of Judges of the Superior Courts of record from liability to civil suit for their judicial acts existing when there is jurisdiction of the subject-matter, though irregularity and error attend the exercise of the jurisdiction, the exemp- tion cannot be affected by any consideration of the motives with which the acts are done. The allegation of malicious or corrupt motives could always be made, and if the motives could be inquired into Judges would be subjected to the same vexatious litigation upon such allegations, whether the motives had or had not any real existence. Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. But for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction, the Judges of these Courts can only be 128 JUDICIAL OFFICERS. reached by public prosecution in the form of impeachment, or in such other form as may be specially prescribed. If, now, we apply the principle thus stated, the question presented in this case is one of easy solution. The Criminal Court of the District, as a Court of general criminal jurisdic- tion, possessed the power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of removal from the bar is possessed by all Courts which have authority to admit attorneys to practice. It is a power which should only be exercised for the most weighty reasons, such as would render the continuance of the attorney in practice in- compatible with a proper respect of the Court for itself, or a proper regard for the integrity of the profession. And, except where matters occurring in open Court, in presence of the Judges, constitute the grounds of its action, the power of the Court should never be exercised without notice to the offend- ing party of the grounds of complaint against him, and affording him ample opportunity of explanation and defense. This is a rule of natural justice, and is as applicable to cases where a proceeding is taken to reach the right of an attorney to practice his profession as it is when the proceeding is taken to reach his real or personal property. And even where the matters constituting the grounds of complaint have occurred in open Court, under the personal observation of the Judges, the attorney should ordinarily be heard before the order of removal is made, for those matters may not be inconsistent with the absence of improper motives on his part, or may be susceptible of such explanation as would mitigate their offen- sive character, or he may be ready to make all proper repara- tion and apology. Admission as an attorney is not obtained without years of labor and study. The office which the party thus acquires is one of value, and often becomes the source of great honor and emolument to its possessor. To most per- sons who enter the profession, it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destitution to his family. A removal from the bar should BRADLEY I'. FISHER. 129 therefore never be decreed where any punishment less severe — such as reprimand, temporary suspension, or fine — would accomplish the end desired. But, on the other hand, the obligation which attorneys im- pliedly assume, if they do not by express declaration take upon themselves, when thej'^ are admitted to the bar, is not merely to be obedient to the Constitution and laws, but to maintain at all times the respect due to Courts of Justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open Court, but it includes abstaining out of Court from all insulting language and offensive conduct toward the Judges personally for their judicial acts. "In matters collateral to official duty," said Chief Justice Gibson, in the case of Austin and others, " the Judge is on a level with the members of the bar as he is with his fellow-citizens, his title to distinction and respect resting on no other foundation than his virtues and qualities as a man. But it is nevertheless evident that professional fidelity may be violated by acts which fall without the lines of pro- fessional functions, and which may have been performed out of the pale of the Court. Such would be the consequences of beating or insulting a Judge in the street for a judgment in Court. No one would pretend that an attempt to control the deKberation of the Bench, by the apprehension of violence, and subject the Judges to the power of those who are, or ought to be, subordinate to them, is compatible with professional duty, or the judicial independence so indispensable to the ad- ministration of justice. And an enormity of the sort, prac- ticed but on a single Judge, would be an offense as much against the Court, which is bound to protect all its members, as if it had been repeated on the person of each of them, because the consequences to suitors and the public would be the same ; and whatever may be thought in such a case of the power to punish for contempt, there can be no doubt of the existence of a power to strike the offending attorney from the roll." The order of removal complained of in this case, recites that the plaintiff threatened the presiding justice of the Crimi- 9 130 JUDICIAL OFFICERS. nal Court, as he was descending from the Bench, with personal chastisement for alleged conduct of the Judge during the progress of a criminal trial then pending. The matters thus recited are stated as the grounds for the exercise of the power possessed by the Court to strike the name of the plaintiff from the roll of attorneys practicing therein. It is not necessary for Us to determine in this case whether under any circumstances the verity of this record can be impeached. It is sufficient to observe that it cannot be impeached in this action or in any civil action against the defendant. And if the matters recited are taken as true there was ample ground for the action of the Court. A greater indignity could hardly be offered to a Judge than to threaten him with personal chastisement for his conduct on the trial of a cause. A Judge who should pass over in silence an offense of such gravity would soon find himself a subject of pity rather than of respect. The Criminal Court of the District erred in not citing the plaintiff, before making the order striking his name from the roll of its attorneys, to show cause why such order should not be made for the offensive language and conduct stated, and affording him opportunity for explanation, or defense, or apology. But this erroneous manner in which its jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the Court had proceeded without having any jurisdiction whatever over its attorneys. We find no error in the rulings of the Court below, and its judgment must, therefore, be affirmed, and it is so ordered. Judgment affirmed. Revill V. Pettit, 3 Met. (Ky.) 314; Kelly v. Bemis, 4 Gray, 83 ; Clarke v. May, 2 Gray, 410 ; Piper v. Pearson, 2 Gray, 120 ; Noxon v. Hill, 2 Allen, 215 ; Blood v. Sayre, 17 Vt. 609 ; Pratt v. Gardner, 2 Gush. 68 ; Stewart v. Hawley, 21 Wend. 552 ; Rogers v. Mulliner, 6 Wend. 597 ; Knowles v. Davis, 2 Allen, 61 ; Randall v. Brigham, 7 Wall. 523 ; Bigelow v. Stearns, 19 Johns. 39 ; Percival v. Jones, 2 Johns. Gas. 49 ; Money v. Tobias, 12 Johns. 422 ; Jaggard, 121 ; Bishop, 779 et seq. ; Cooley, 403 et seq. ; Pollock, 138. PIPER V. PEARSON. 131 C In the Absence of Jaiisdiction. There being no jnrisdiction all authority is usurped and judicial officers have the liability of private individuals. Piper v. Pearson. Supreme Judicial Court of Massachusetts, 1854. 2 (Gray, 120. Action of Tort against a justice of the peace for assault, battery, and false imprisonment. Answer that the plaintiff was imprisoned in the county jail in due process of law for a contempt of Court. BiGELOW, J. The decision of this case depends on the familiar and well-settled rule concerning the liability of Courts and magistrates exercising an inferior and limited jurisdiction for acts done by them, or by their authority, under color of legal proceedings. One of the leading purposes of every wise system of law is to secure a fearless and impartial administration of justice, and at the same time to guard individuals against a wanton and oppressive abuse of legal authority. To attain this end, the common law affords to all inferior tribunals and magistrates complete protection in the discharge of their official functions, so long as they act within the scope of their jurisdiction, how- ever false and erroneous may be the conclusions and judgments at which they arrive. But, on the other hand, if they act with- out any jurisdiction over the subject-matter ; or if, having cognizance of a cause, they are guilty of an excess of jurisdic- tion, they are liable in damages to the party injured by such unauthorized acts. In all cases, therefore, where the cause of action against a judicial officer, exercising only a special and limited authority, is founded on his acts done colore officii, the single inquiry is whether he has acted without any jurisdiction over the subject-matter, or has been guilty of an excess of juris- 132 JUDICIAL OFFICERS. diction. By this simple test, his legal liability will at once be determined : 1 Chit. PL (6th Am. ed.) 90, 209-213 ; Beauraiu V. Scott, 3 Campb. 388 ; Ackerley v. Parkinson, 3 M. & S. 425, 428 ; Borden v. Fitch, 15 Johns. 121 ; Bigelow v. Stearns, 19 Johns. 89 ; Allen v. Gray, 11 Conn. 95. If a magistrate acts beyond the limits of his jurisdiction, his proceedings are deemed to be coram non judice and void ; and if he attempts to enforce any process founded on any judgment, sentence, or con- viction in such case, he thereby becomes a trespasser : 1 Chit, pi. 210 ; 19 Johns. 89. [See Clarke i-. May, post, 410.] These well-settled principles leave no room for question as to the liability of the defendant in this action. As a justice of the peace for the county of Middlesex, he had no jurisdiction whatever to try the complaint against Euss. It was for an offense committed "within the district of Lowell," of which the Police Court of the city of Lowell had exclusive jurisdic- tion by St. 1848, c. 381, § 4, and which the justice of said Court was legally competent to try and determine : Commonwealth v. Emery, Middlesex, 1853. The defendant therefore acted wholly without legal authority, and can show no legal justification under any judicial record. It was urged on the part of the defendant, that he had au- thority to punish the plaintiff for contempt, although he had no jurisdiction to try the principal case before him. But the answer to this suggestion is obvious. The power to punish for contempt is only incidental to the more general and compre- hensive authority conferred on a magistrate, by which he is empowered to exercise important judicial functions. It is to enable him to try and determine causes without molestation, and protect himself from indignity and insult, that the law gives him authority to punish such disorderly conduct as may interrupt judicial proceedings before him or be a contempt of his authority or person : Rev. Sts., c. 85, § 88. But it is only when he is in the proper exercise of his judicial functions, that this power can be exercised. If he has no jurisdiction of a cause, he cannot sit as a magistrate to try it, and is entitled to no protection while acting beyond the sphere of his judicial power. PIPER V. PEARSON. 133 His action is then extra-judicial and void. His power and au- thority are commensurate only with his jurisdiction. If he cannot try the case, he cannot exercise a power which is only auxiliary and incidental. There can be no contempt, techni- cally speaking, where there is no authority. In the case at bar, the defendant had no more power to entertain jurisdiction of the complaint against Russ than any other individual in the community. Although he acted through mistake, it was nevertheless a usurpation. The plaintiff therefore could not have been guilty of contempt toward the defendant in his capacity as a magistrate, while trying a cause of which he had no jurisdiction; and the commitment therefor was unauthor- ized and void. It was suggested by the counsel for the defendant, that there was nothing in the case from which it could be properly inferred that the offense with which Russ was charged was actually committed in the city of Lowell ; and that as the defendant, by virtue of his authority as a justice of the peace, had cognizance of offenses committed elsewhere in the county of Middlesex, which he might well hear and determine in the city of Lowell, the presumption was that he was acting rightfully', till the con- trary was shown. But there are two decisive answers to this argument. In the first place, the record on its face sets out an , offense committed in the city of Lowell. That being a district set apart by statute, in which the Police Court has exclusive jurisdiction of criminal offenses usually cognizable by magis- trates, and the offense being charged as having been com- mitted in Lowell, the record legally imports that it was committed there : 1 Stark. Crim. PI. (2d ed.) 62 ; Bac. Ab. Indictment, G. 4. But in the next place, it was for the defendant to show a complete justification for the alleged trespass ; if the record left it doubtful whether he had jurisdiction of the offense, it would not avail as a defense to the action. There is a marked distinction in this respect between Courts of general jurisdic- tion and inferior tribunals having pnly a special or limited jurisdiction. In the former case, the presumption of law is 134 JUDICIAL OFFICERS. that they had jurisdiction, until the contrary is shown ; but with regard to inferior Courts and magistrates, it is for them, when claiming any right or exemption under their proceed- ings, to show affirmatively that they acted within the limits of their jurisdiction : Peacock v. Bell, 1 Saund. 74 and notes ; Mills V. Martin, 19 Johns. 33, 34. The record in the present case prima facie shows a want of jurisdiction in the defendant. Exceptions overruled. De CQurcey v. Cox, 94 Cal. 665 ; Truesdell v. Combs, 33 Ohio St. 186 ; Cohoon V. Speed, 2 Jones Law, 133 ; Watson v. Bodell, 14 M. & W. 57 ; Dyer V. Smith, 12 Conn. 384 ; Heffenan (.. Vidal, 6 Munf. 27 ; Crepps v. Burden, Cowper, 640 ; Case of Marshalsea, 10 Coke, 70, 76 ; Cunningham v. Bucklin, 8 Cow. 183 ; Jaggard, 123 ; Bishop, 779 et seq. ; Cooley, 416 ; Pollock, 138. d Judicial Officers are Liable for their Ministerial Acts. Tompkins ■;;. Sands. Supreme Court of New York, 1832. 8 Wend. 462. One Tompkins sued Sands in a Justice Court for refusing to accept an appeal bond in a suit in which Elliot had obtained a judgment against Tompkins, before Sands as a justice of the peace. By Sands' refusal to receive the bond and take Tuttle as a surety Tompkins was prevented from appealing his cause and reversing the judgment. On trial in the Common Pleas Tuttle testified that when the bond was tendered he was a free- holder and worth more than double the bond. The defendant moved for non-suit, insisting that this was a judicial and not a ministerial act. Judgment was entered for defendant and plaintiff sued on a writ of error. Savage, C. J. The question presented in this case is whether a justice, who willfully and maliciously refuses to ap- prove the surety in an appeal bond, and thereby prevents a defendant from appealing his cause, is liable to an action there- TOMPKINS V. SANDS. 135 for. The plaintiff in error does not impugn the doctrine of judicial irresponsibilitj-, but relies on the point that the act complained of was not a, judicial, but a ministerial act. It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds and which are clearly distinguishable. He issues process in the first instance, and in doing so he acts ministerially — his judgment is not at all exercised. When the parties appear before him, and the cause is heard, he renders judgment ; he then acts judicially. After judgment, he issues execution ; he then again acts ministerially. The justice is both judge and clerk. In Yates v. Lansing, 5 Johns. R. 282, it was held that an action would not lie against the Chancellor for imprisoning one of the officers of his Court for malpractice and contempt. Chief Justice Kext, in deliver- ing the opinion of the Court, states that the allowance of the writ of habeas corpus in' vacation is a ministerial act. The statute imposes a penalty on the Chancellor and Judges for refusing to allow the writ when properly applied for in vaca- tion. Such application may be denied or granted at their discretion in term, because there they act judicially ; but when they act ministerially, they are liable to the penalty for a re- fusal — in this instance, it would seem that the same act may at one time be judicial and at another ministerial. In the case of Hammond v. Howell, 2 Mod. 218, the Court of Oyer and Terminer improperly imprisoned a juror, but the Court of Common Pleas held that no action lay against the Court of Oyer and Terminer, for it was a judicial act ; that Court had power to punish a juror for misconduct, but they were mis- taken in deciding what was misconduct or misdemeanor. The recording of force under the statute is a judicial act : 8 Johns. R. 50. A justice of the peace is liable in an action to the in- jured party, where he acts without jurisdiction : Case v. Shep- herd, 2 Johns. Cas. 27 ; Adkins v. Brewer, 3 Cow. 206. A justice acts ministerially in issuing executions, and if in doing so, he acts irregularly and officiously, he is liable ; though if he had committed the irregularity as the agent of the jmrty. 130 JUDICIAL OFFICERS. and was acting within bis jurisdiction, he would be excused : Percival v. Jones, 2 Johns. Gas. 49 ; Taylor v. Trask, 7 Cow. 249. There may be cases, I apprehend, when magistrates or others are entrusted with a discretion, where it would be diffi- cult to say that they acted either judicially or ministerially. Such are the acts of the commissioners of excise in the several cities and towns, in granting or refusiiig licenses. Such also are the acts of inspectors of elections ; and in both these cases there have been decisions declaring the liability of such offi- cers in case of a willful, corrupt, and malicious exercise of their authority ; but if they have acted honestly, though erroneously, no action lies. In the case of Rex v. Young & Pitts, 1 Burr. 556, a motion was made for an information against two justices of the peace, for arbitrarily, obstinately, and unreasonably re- fusing to grant a license to one H. D. to keep an inn at Eversley. In the several discussions upon the motion. Lord Mansfield stated that though this was a matter left to the discretion of the justices, yet if their conduct appeared to be partial, oppressive, corrupt, or arbitrary, they might be called upon to show the reasons which guided their discretion. " Discretion," he said, " does mean, and can mean nothing else, but exercising the best of their judgment upon the occa- sion that calls for it ; yet if this discretion be willfully abused, it is criminal, and ought to be under the control of this Court." And again : " That this Court had no power or claim to review the reasons of the justices of the peace, upon which they form their judgments in granting licenses, by way of appeal from their judgments, or overruling the discretion entrusted to them ; but if it clearly appears that the justices have been partially, maliciously, or corruptly influenced in the exercise of this discretion, and have consequently abused the trust re- posed in them, they are liable to prosecution by indictment or information ; or even possibly by action, if the malice be very gross and injurious." That a justice will not be punished for an error of judg- ment, is again reiterated in Rex v. Cox, 2 Burr. 785. In TOMPKINS V. SANDS. 137 Hammon v. Tappenden and Others, 1 East. 556, it was held that without maUce no action would lie against the members of a corporation, who had excluded a fellow corporator from the benefit to which he was entitled, the act having been done erroneously, but not maliciously. So for refusing the vote of a person entitled to vote at an election, no action lies unless malice be shown, either express or implied : 2 Ld. Ray. 938, 957 ; 1 East. 562 ; 11 John. 114, 120. In Ashley v. White, it was agreed by three Judges that the returning officers were not judges, but ministerial officers. In Jenkins v. Waldron, Mr. Justice Spexcee admits that an action lies, if the vote be refused fraudulently or maliciously. He considers the in- spectors of elections as officers called upon to exercise their deliberative judgments, and says it would be opposed to all principles to allow them to be answerable for a mere mistake in law, when their motives are pure and untainted with fraud or malice. In Smith v. Trawl, 1 Root. 165, an action was held to lie against a justice of the peace in Connecticut, for granting a writ of replevin without requiring security. The plaintiff re- corded in the County Court and the judgment was reversed in the Superior Court, on the ground that the law had made the justice the judge of the sufficiency of the security. The judgment of the Superior Court was reversed in the Supreme Court of Errors, on the ground that the party's bond was no security, aud the act of the justice was compared to a sheriff letting a man to bail on his own bond. But in Phelps v. Sill, 1 Day, 315, it was held that an action will not lie against a Judge of Probate for neglecting to take security from the guardian of an infant, although the infant had personal estate, and the guardian was a bankrupt. The Court place his in- demnity from damages upon his judicial character, and that the omission on his part was by mistake. On a review of these cases, the principle must be considered settled, that for a judicial act no action lies, but for an injury arising from the misfeasance or non-feasance of a ministerial officer, the party has redress in an action on the case ; but in 138 JUDICIAL OFFICERS. all cases where the defendant is sued for an act in which he was boui^id to exercise his discretion, the action will not be sustained unless it appears that the act complained of was done willfully and maliciously. The strongest charge in the declaration in this case is, that the defendant, acting as justice of the peace, has unjustly and oppressively prevented the plain- tiff from appealing, and thereby reversing a judgment ren- dered by him, etc. I incline to think this equal to a charge of corruption. I am of opinion also that a justice, in approving or refusing to approve an appeal bond, does not act judicially ; he does indeed exercise his discretion, but it is the same discretion exercised by every ministerial officer who takes bail. The taking security in such cases is rather a ministerial than a judicial act, and if he has acted corruptly an action lies. I am therefore of opinion that the judgment of the Court of Common Pleas ought to be reversed, and that a venire de novo should be issued by Delaware Common Pleas ; costs to abide the event. Briggs V. Wardwell, 10 Mass. 356 ; Fergusson v. Earl of Kinnwall, 9 CI. & Fin. 215 ; Grider v. Tally, 77 Ala. 422. When the acts are part judicial and part ministerial the rule of protection applies : Tozer v. Child, 7 El. & B. 377, 90 E. C. L. ; Linford v. Fitzroy, 13 Q. B. 240, 66 E. C. L. As to what constitute ministerial acts : Wood v. Farnell, 50 Ala. 546 ; Christopher v. Van Liew, 57 Barb. 17 ; Hall v. Tuttle, 6 Hill, 38 ; Sibley v. Howard, 3 Denio, 72 ; Houghton v. Swarthout, 1 Denio, 589 ; Kerns v. Schoonmaker, 4 Ohio, 331 ; Percival v. Jones, 2 John. Cas. 49 ; Jaggard, 124 ; Bishop, 784 ; Cooley, 378 ; Pollock, 148. WASSON V. MITCHELL ET AL. 13J) 6. Conduct of Quasi Judicial Officers. When the law commits to an officer the duty of looking into the facts and acting upon them not in a -way ■which it specially directs but after a discretion, in a nature judicial, the function is termed quasi judicial and the officer a quasi judicial officer. Such officer is responsible to one injured by his wrongful doings only if it be negligent, malicious, or both. Wasson v. Mitchell et al. Supreme Court of Iowa, 1864. . 18 la. 153. Demurrer to petition. The defendants constituted the board of supervisors of Polk County in 1861. The petition alleges that, as such board, the defendants, at their regular meeting in January, 1861, " carelessly and negligently required, accepted, and approved the official bond of one H. H. Helton as constable for the township of Des Moines, in Polk Countj% given for the year 1861, said bond not being such as was reasonable and necessary for the faithful discharge by the said Helton of his official duties, nor such as was required by law, for that the said bond did not have any sureties thereon, the names of ' A. N. Marsh ' and ' C. C. Van ' having been forged thereto, they never having signed the said bond or authorized their names to be placed thereon." " That the said A. N. Marsh was notoriously insolvent at the time, and known to be so by the defendants." The petitioner then alleges his injury in this : that Helton collected money for him on execution, converted the same to his own use and died insolvent ; that Marsh has absconded, and that in an action by the plaintiff against said C. C. Van on said bond, the latter was adjudged not liable thereon because his name had been forged thereto. The defendants demurred to the petition because they were not per- sonally liable for acts done in their official capacity ; that no cause of action was stated against them, etc. Demurrer sustained, and the plaintiff appeals. 140 QUASI JUDICIAL OFFICERS. Dillon, J. The allegations-of the petition are not as precise and clear as they ought to be, when questioned by demurrer. Upon a fair construction, the petition may be taken to allege, in substance, that the names of both sureties on the official bond of Helton, as constable, were forged, and that the de- fendants approved of it, carelessly and negligently — that is, the defendants would have known of the forgery, had it not been for their neglect or want of care. And it is also alleged that one of the persons whose names appeared on the bond as surety was notoriously insolvent, and known to be so by the defendants, when they approved the bond. Upon the assumption that this is the true construction of the petition, we place our decision. The statute is imperative in requiring that the official bond of a constable " shall be given with at least two sureties," and in requiring that these sureties shall be freeholders : Rev., §§ 558, 592. " The surety in every bond," it is further provided, " must be a resident of the State, worth double the sum to be secured beyond the amount of his debts, and have property liable to execution in this State equal to the sum to be secured. Where there are two or more sureties in the same bond, they must, in the aggregate, have the qualifications prescribed in this section :" Rev., § 4126. Constables must give bonds in a penal sum, to be fixed by the board of supervisors, by an order of record : Rev., § 557. This board has power to require con- stables " to give such bonds and additional bonds as shall be reasonable or necessary for the faithful performance of their several duties ;" and may remove any county officer who neg- lects or refuses to give such bond : Rev., § 312, cl. 10. And the board are charged by law with the duty of approving the bonds of constables : Rev., § 560. These various provisions evince the care and solicitude of the Legislature to protect the public by requiring ample and sufficient bonds from public officers. How useless these provisions, and how unavailing these intended safeguards, if the approving board or officer could, under no circumstances and in no possible event, be held liable for omission or neglect of duty. As to the general rules of the law, there is no great dispute. ■\VASSOX !'. MITCHELL ET AL. 141 Thus, a judicial officer is not liable civilly for judicial acts, unless it may be (a point on which the authorities are not in accord) where he acts willfully, nialiciousl}', or corruptlj^ : Howe V. Mason, 14 Iowa, 510 ; Weaver v. Devendorf, 3 Denio, 117, and cases collected on page 120, by Beardsley, J. ; Hill V. Selick, 21 Barb. 207 ; 2 Hilliard on Torts, ch. 28, passim ; Chickering r. Robinson, 3 Cush. 543 ; and see, particularh^, the able judgments of Mr. Chief Justice Kent, in Yates v. Lansing, 5 Johns. 282 : 9 lb. 395 ; and Chief Justice Shaw, in Pratt V. Gardner, 2 Cush. 63, 68 ; Tyler v. Alford, 38 Maine, 530 ; Harmon v. Brotherson, 1 Denio, 537 ; Tomkins v. Sands, 8 Wend. 462, 467. And these authorities show that this ex- emption from civil responsibility extends to all public officers who are charged with deciding upon matters of a quasi judicial nature ; and we have no doubt that it extends, in general, to a body, such as the board of supervisors, under our statute. The ground of this exemption is, that the public good can best be secured by allowing officers charged with the duty of deciding upon the rights of others, " to act upon their own free, unbiased convictions, uninfluenced by any apprehensions." On the other hand, the rule is equally well settled that, for the misfeasance or nonfeasance of a ministerial officer, the party injured may have redress bj' civil action. This broad distinction hetweeji judicial and ministerial acts, however plain in theory, is, in many cases, very difficult of application. Thus, is the act of approving of a bond judicial or ministerial? The only way to reconcile the cases is to hold that it may be either ; depending, perhaps, upon the general nature of the duties of the approving officer. For example, it is " a well- settled rule of American law and practice that an action lies against a sheriff for taking insufficient bail :" 2 Hilld. on Torts, 276, § 4, and cases cited. But it is held that a justice of the peace is not liable, who acts in good faith, for misdeciding that a married woman is competent to contract and sign a bond as surety : Howe v. Mason, 14 Iowa, 510, or for error of judgment ; there being no intentional fault in taking a recognizance to prosecute an appeal in a form not authorized by law, and. 142 QUASI JUDICIAL OFFICERS. therefore, invalid — the proper form having been rendered by the course of legislation, a diflficult and perplexing question : Chickering v. Robinson, 3 Cush. 543. We would not hold the board of supervisors to be absolute guarantors of the genuineness of the signatures to official bonds. They may, in the course of business, refer such mat- ters to a committee to examine and report. It is only neces- sary that they or their committee shall act in good faith and with reasonable care and prudence. If, in the fair exercise of their judgment, they are of opinion that the sureties on a bond are solvent, they are not civilly liable if they should be mis- taken ; but would be thus liable if they approved a bond whose sureties were known to them to be worthless. So they would have no right to approve a bond without any sureties whatever. Such an act, knowingly or carelessly done, could not be regarded as a judicial act, in such a sense as to exempt them from civil liabilities to any person thereby injured : Smith V. Trawl, 1 Eoot (Conn.), 165 ; with which Phelps v. Sill, 1 Day, is not inconsistent. Without extending our remarks, we may observe that this Court has given the subject much con- sideration ; and we believe this to be the true rule, viz., exempting the board of supervisors, in the approval of bonds, from honest mistakes and errors of judgment, whether of law or fact, but holding them at the same time personally liable for negligence, carelessness, and official misconduct, such as are alleged in the petition. This rule is the only one that will protect the public, and at the same time occasion no injury or embarrassment of which a conscientious and faithful public officer will or can justly complain. If the plaintiff can establish the allegations of his petition, we are of the opinion that he ought to recover; wherefore the judgment of the Dis- trict Court sustaining the demurrer thereto is reversed. Bevard v. Hoffman, 18 Md. 479 ; Baker v. State, 27 Ind. 485 ; Muscatine W. R. R. V. Horton, 38 la. 33 ; Gregory v. Brooks, 37 Conn. 365 ; Tompkins V. Sands, 8 Wend. 462 ; Jones v. Brown, 54 la. 74 ; East R. Gas Co. v. Don- nelly, 93 N. Y. 557 ; Stewart v. Southard, 17 Ohio, 402 ; Minn. Stat. 1894, J 4958 ; Jaggard, 135 , Bishop, 746, 785 et seq.; Cooley, 407 ; Pollock, 145. losee v. buchanan et al. 143 7. Damage Incident to Authorized Act. An action does not lie for " damages incident to an authorized act " be the authority received. a By the common laTv. (1) In the use of property. LosEE V. Buchanan et al. Court of Appeals of New York, 1873. 51 N. Y. 476. Appeal by defendants, Coe S. Buchanan and Daniel A. BuUard, from an order of the General Term of the Supreme Court in the fourth judicial district, reversing a judgment en- tered in their favor upon a verdict. (Reported below, 61 Barb. 86.) The action was brought to recover damages occasioned by an explosion of a steam-boiler, while the same was owned and being used by the Saratoga Paper Company, at their mill, situated in the village of Schuylerville, Saratoga County. The boiler exploded on the 13th day of February, 1864, by means whereof it was projected and thrown on to the plaintiff's premises, and through several of his buildings, thereby injur- ing and damaging the same, and destroying personal property therein. Buchanan and BuUard were joined with the paper company as defendants in the action, on the ground that they were trustees, stockholders, and agents of the corporation, and superintending its business as such, and therefore jointly liable with the company in the action. The Clutes, who man- ufactured the boiler, were also made defendants, on the ground that they made it in a negligent manner, in consequence of which negligence the boiler exploded. The case was twice tried. Upon the first trial the com- plaint was dismissed as to the Clutes, and a verdict rendered against the other defendants for |3,420. 144 DAMAGE INCIDENT TO AUTHORIZED ACT. The General Term set aside the verdict and granted a new- trial, ou the ground that the Judge at the Circuit erred in excluding evidence to show that the defendants were not guilty of any negligence in procuring or in the use of the boiler in question. Upon the second trial (reported in 42 How. 385) a verdict was rendered against the paper company for $2,703.36 dam- ages, and in favor of the defendants, Buchanan and Bullard. The plaintiff moved for a new trial on the minutes of the Judge, as to the defendants, Buchanan and Bullard ; the mo- tion was denied, and judgment entered on the verdict in favor of Buchanan and Bullard. Further facts appear in the opinion. Earl, C. Upon the first trial of this action, the Presiding Judge dismissed the complaint as against the defendant, Clute, who manufactured the engine, and held that the other defendants were liable irrespective of negligence, and excluded all evidence to show that they were not guilty of negli- gence. For this error, upon appeal to the General Term, the judgment was reversed and a new trial granted, the Court holding that the defendants could be made liable only by proof against them of negligence. Upon the second trial, the Presiding Judge held in accordance with the law as thus laid down by the General Term, and upon the question of negligence the jury decided against the Saratoga Paper Com- pany and in favor of the other two defendants. The plaintiff claimed, as he did upon the first trial, that the defendants were liable without proof of any negligence, and requested the jus- tice so to rule, and the refusal of the justice to comply with this request raises the principal question for our consid- eration upon this appeal. Upon the last appeal, the majority of the Court held the law to be as it had been held upon the first appeal, but a new trial was granted for certain alleged errors in the charge of the justice, which will hereafter be considered. The claim on the part of the plaintiff is, that the casting of LOSEE V. BUCHANAN ET AL. 145 the boiler upon his premises by the explosion was a direct trespass upon his right to the undisturbed possession and occu- pation of his premises, and that the defendants are liable just as the}' would have been for any other wrongful entry and trespass upon his premises. I do not believe this claim to be well founded, and I will briefly. examine the authorities upon which mainly an attempt is made to sustain it. In Farrand v. Marshall, 21 Barb. 409, it was held that a man may dig on his own land, but not so near that of his neighbor as to cause the land of the latter to fall into his pit, thus transferring a portion of another man's land to his own. This is upon the principle that every man has the natural right to the use of his land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. He has a right to the support of the adjoining soil, and to that extent has an easement in his neighbor's soil, and when the soil is removed his easement is directly in- terfered with. "When one adjoining owner thus removes the soil, he is not doing simplj- what he may with his own, but he is interfering with the right which his neighbor has in the same soil. This rule, however, as stated by Judge Bronson, in Radcliff' s Executors v. Mayor, etc., of Brooklyn, 4 Comst. 203, must undoubtedly be somewhat modified in its applica- tion to cities and villages. In Hay v. The Cohoes Company, 2 Comst. 159, the defendant, a corporation, dug a canal upon its own land for the purposes authorized by its charter. In so doing it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's dwelling upon lands adjoining. It was held that the defend- ant was liable for the injury, although no negligence or waM of skill in executing the work was alleged or proved. This decision was well supported by the clearest principles. The acts of defendant in casting the rocks upon plaintiff's premises were direct and immediate. The damage was the necessary consequence of just what the defendant was doing, and it was just as much liable as if it had caused the rocks to be taken 10 146 DAMAGE INCIDENT TO AUTHORIZED ACT. by hand, or any other means, and thrown directly upon plain- tiff 's land. This is far from an authority for holding that the defendants, who placed a steam-boiler upon their laud and operated the same with care and skill, should be liable for the damages caused by the explosion, without their fault or any direct or immediate act of theirs. It is true that Judge Gaed- NEK, in writing the opinion of the Court, lays down broadly the principle that " every individual is entitled to the undis- turbed possession and lawful enjoyment of his own property," citing the maxim, sic utero tuo, etc. But this principle, as well as the maxim, as will be seen, has mauy exceptions and lim- itations, made necessary by the exigencies of business and society. In BeUinger v. The New York C. R. R. Co., 23 N. Y. 47, it was decided that where one interferes with the current of a running stream, and causes damage to those who are entitled to have the water flow in its natural channel, but such inter- ference is in pursuance of legislative authority granted for the purpose of constructing a work of public utility, upon making com'pensation, he is liable only for such injury as results from the want of due skill and care in so arranging the necessary works as to avoid any danger reasonably to te antici- pated from the habits of the stream and its liability to floods. Judge Denio, in his opinion referring to the maxim aqua currit et debet currere, says it " absolutely prohibits an individual from interfering with the natural flow of water to the prejudice of another riparian owner upon any pretense, and subjects him to damages at the suit of any party injured without regard to any question of negligence or want of care." The liability in such cases is based upon the principle that the interference is an immediate and direct violation of the right of the other riparian owners to have the water flow in its natural channel. No one has an absolute property in the water of a running stream. He may use it, but he must not, by his use of it, interfere with the equal right which other riparian owners have also to use it, and have it flow in its natural way in its natural channel. LOSEE V. BUCHANAN ET AL. 147 In Pixley v. Clark, 35 N. Y. 520, it was held that if one raises the water in a natural stream above its natural banks, and to prevent its overflow constructs embankments which answer the purpose perfectly, but by the pressure of the water upon the natural banks of the stream percolation takes place so as to drain the adjoining lands of another, an action will lie for the damages occasioned thereby and that it matters not whether the damage is occasioned by the overflow of or the percolation through the natural banks, so long as the result is occasioned by an improper interference with the natural flow of the stream. This decision was an application of the maxim aqua currit et debet cim'eo'e to the facts of that case. It was held that the liability was the same whether the water was dammed up and caused to overflow or to percolate through the banks of the stream. It was a case of flooding lands by damming up the water of a stream, and the liability of a wrong-doer in such a case has never been disputed. In the case of Selden v. The Delaware & Hudson Canal Co., 24 Barb. 362, it was held that the defendant had the power, under its charter, to enlarge its canal ; but that, though it possessed this power, and upon making compensa- tion therefor to take private property for that purpose, it was liable to remunerate individuals in damages for anj"- injuries they might sustain as the consequence of such improvement ; and that, if by means of the enlargement, a lawful act in itself, the lands of an individual were inundated, even though the work may have been performed with all reasonable care and skill, it was a legal injury, for which the owner was entitled to redress. It may well be doubted if this decision can stand in view of the principles laid down in the case of Bellinger v. The New York Central Railroad Companj'^, supra. Within the principles of that case, if the Delaware & Hudson Canal Company exercised a power conferred upon it by law in a lawful and proper manner, it could not be held liable for the consequential damages necessarily occasioned to the owners of adjoining lands. But if we assume, as was assumed at the General Term in that case, the defendant did not have the pro- 148 DAMAGE INCIDENT TO AUTHORIZED ACT. tection of the law for the damages which it occasioned, then it was clearly liable. Its acts were necessarily and directly injurious to the plaintiff. It kept the water in its canal when it knew that the necessary consequence was to flood the plain- tiff's premises. The damage to plaintiff was not accidental, but continuous, direct, and necessar3^ In such case the wrong- doer must be held to have intended the consequence of his acts, and must be treated like one keeping upon his premises a nuisance doing constant damage to his neighbor's property. In the case of McKeon v. Lee, 4 Rob. Sup. Court R. 449, it was held that the defendant had no right to operate a steam engine and other machinery upon his premises so as to cause the vibration and shaking of plaintiff's adjoining buildings to such an extent as to endanger and injure them. This case was decided upon the law of nuisances. It was held that the engine and machinery, in the mode in which they were oper- ated, were a nuisance, and the decision has been affirmed at this term of this Court. The decision in this case, and in scores of similar cases to be found in the books, is far from an authority that one should be held liable for the accidental explosion of a steam-boiler which was in no sense a nuisance. "We are also cited to a class of cases holding the owners of ani- mals responsible for injuries done by them. There is supposed to be a difference as to responsibility between animals mansuetse nature^ and ferse naturse. As to the former, in which there can be an absolute right of property, the owner is bound at common law to take care that they do not stray upon the lands of an- other, and he is liable for any trespass they may commit, and it is altogether immaterial whether their escape is purely acci- dental or due to negligence. As to the latter, which are of a fierce nature, the owner is bound to take care of them ancj keep them under control, so that they can do no injury. But the liability in each case is upon the same principle. The former have a known, natural disposition to stray, and hence the owner, knowing this disposition, is supposed to be in fault LOSEE V. BUCHANAN ET AL. 149 if he do not restrain them and keep them under control. The latter are known to be fierce, savage, and dangerous, and their nature is known to their owner, and hence the owner, for the same reason, is bound to keep them under control. As to the former, the owner is not responsible for such injuries as they are not accustomed to do, by the exercise of vicious propensi- ties which they do not usually have, unless it can be shown that he has knowledge of the vicious habit and propensity. As to all animals, the owner can usually restrain and keep them under control, and if he will keep them he must do so. If he does not, he is responsible for any damage which their well-known disposition leads them to commit. I believe the liability to be based upon the fault which the law attributes to him, and no further actual negligence need be proved than the fact that they are at large unrestrained. But if I am mis- taken as to the true basis of liability in such cases, the bodj^ of laws in reference to live animals, which is supposed to be just and wise, considering the nature of the animals and the mutual rights and interests of the owners and others, does not furnish analogies absolutely controlling in reference to inani- mate property. Blackstone (vol. 3, p. 209) says : " That whenever an act is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie ;" for " the right of meum and tuum or property in lands being once established, it follows as a necessary consequence that this right must be exclusive ; that is, that the owner may retain to himself the sole use and occupation of his soil. Every entry, therefore, thereon without the owner's leave, and especially contrary to his express order, is a trespass or transgression." The learned author was here laying down the distinction between an action of trespass and trespass on the case, and asserting the rule that in the former action the injury must be direet and immediate, and accompanied with some force, whereas in the latter action it could be indirect and consequential. He was also manifestly speaking of a direct entrance by one upon 150 DAMAGE INCIDENT TO AUTHORIZED ACT. the lands of another. He was laying down a general rule that every unauthorized entrance upon the land of another is a trespass. This was sufficiently accurate for the enunciation of a general rule. Judges and legal writers do not always find it convenient, practicable, or important, in laying down general rules, to specify all the limitations and exceptions to such rules. The rule, as thus announced, has many ex- ceptions, even when one makes a personal entry upon the lands of another. I may enter my neighbor's close to succor his beast, whose life is in danger ; to prevent his beasts from being stolen or to prevent his grain from being consumed or spoiled by cattle ; or to carry away my tree which has been blown down upon his land, or to pick up my apples which have fallen from my trees upon his land, or to take my per- sonal property which another has wrongfully taken and placed there, or to escape from one who threatens my life. Bacon's Abridgment, Trespass, F. Other illustrations will be given hereafter. By becoming a member of civilized society, I am com- pelled to give up many of my natural rights, but I receive more than a compensation from the surrender by every other man of the same rights, and the security, advantage, and pro- tection which the laws give me. So, too, the general rules that I may have the exclusive and undisturbed use and possession of my real estate, and that I must so use my real estate as not to injure my neighbor, are much modified by the exigencies of the social state. We must have factories, machinery, dams, canals, and railroads. They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization. If I have any of these upon my lands, and they are not a nuisance, and are not so managed as to become such, I am not responsible for any damage they may accidentally and unavoid- ably do my neighbor. He receives his compensation for such damage by the general good in which he shares, and the right which he has to place the same things upon his lands. I may not place or keep a nuisance upon my laud to the damage of my neighbor, and I have my compensation for the surrender LOSEE V. BUCHANAN ET AL. 151 of this right to use my own as I will by the similar restriction imposed upon my neighbor for my benefit. I hold my prop- erty subject to the risk that it may be unavoidably or acci- dentally injured by those who live near me ; and as I move about upon the public highways, and in all places where other persons may lawfully be, I take the risk of being accidentally injured in my person by them without fault on their part. Most of the rights of property, as well as of person, in the social state, are not absolute but relative, and they must be so arranged and modified, not unnecessarily infringing upon nat- ural rights, as upon the whole to promote the general welfare. I have so far found no authorities and no principles which fairly sustain the broad claim made by the plaintiff, that the defendants are liable in this action without fault or negli- gence on their part to which the explosion of the boiler could be attributed. But our attention is called to a recent English case, decided in the Exchequer Chamber, which seems to uphold the claim made. In the case of Fletcher v. Rylands, 1 Exchequer, 265, Law Reports, the defendants constructed a reservoir on land separated from the plaintiff's colliery by intervening land. Mines, under the site of the reservoir and under part of the intervening land, had been formerly worked, and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication be- tween his colliery and the old workings under the reservoir. It was not known to the defendants, nor to any person em- ployed by them in the construction of the reservoir, that such communication existed, or that there were any old workings under the site of the reservoir, and the defendants were not personally guilty of any negligence ; but, in fact, the reservoir was constructed over five old shafts, leading down to the work- ings. On the reservoir being filled, the water burst down these shafts and flowed, by the underground communication, into the plaintiff's mines. It was held, reversing the judg- ment of the Court of Exchequer, that the defendants were liable for the damage so caused, upon the broad doctrine that 152 DAMAGE INCIDENT TO AUTHORIZED ACT. one who, for his own purposes, brings upon his land, and col- lects and keeps there, anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Mr. Justice Blackburn, writing the opinion of the Court, says : •' The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escapes out of his land ? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbors; but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ;" and he reaches the con- clusion that it is an absolute duty, and that the liability for damage from the escape attaches without any proof of negli- gence. This conclusion is reached by the learned Judge mainly by applying to the case the same rule of liability to which owners are subjected by the escape of their live animals. As I have shown above, the rules of law applicable to live animals should not be applied to inanimate property. That case was appealed to the House of Lords and affirmed 3 H. L. Law Rep., 330, and was followed in Smith v. Fletcher, 20 W. R. 987. It is sufficient, however, to say that the law, as laid down in those cases, is in direct conflict with the law as settled in this country. Here, if one builds a dam upon his own premises and thus holds back and accumulates the water for his benefit, or if he brings water upon his premises into a reservoir, in case the dam or the banks of the reservoir give away and the lands of a neighbor are thus fiooded, he is not liable for the damage without proof of some fault or negligence on his part : Angell on Water-courses, § 336 ; Taphan -y. Curtis, 5 Vt. 371 ■ LOSEE V. BUCHANAN ET AL. 153 Todd V. Cochell, 17 Cal. 97 ; Everett v. Hydraulic, etc., Co., 23 lb. 225; Shrewsbury i;. Smith, 12 Gushing 177; Livingston v. Adams, 8 Cowen, 175 ; Bailey v. Mayor, etc., of New York, 3 Hill, 531 ; s. c, 2 Denio, 433 ; Pixley v. Clark, 35 N. Y. 520, 524 ; Sheldon v. Sherman, 42 lb. 484. The rule is laid down in the case of Livingston v. Adams as follows: "Where one builds a mill-dam upon a proper model, and the work is well and substantially done, he is not liable to an action though it break away, in consequence of which his neighbor's dam and mill below are destroyed. Neg- ligence should be shown in order to make him liable." In conflict with the rule as laid down in the Euglish cases is a class of cases in reference to damage from fire communi- cated from the adjoining premises. Fire, like water or steam, is likely to produce mischief if it escapes and goes beyond control ; and yet it has never been held in this country that one building a fire upon his own premises can be made liable if it escapes upon his neighbor's premises and does him damage without proof of negligence : Clark v. Foot, 8 J. R. 422 ; Stuart v. Hawley, 22 Barb. 619 ; Calkins v. Barger, 44 lb. 424 ; Lansing v. Stone, 37 lb. 15 ; Barnard v. Poor, 21 Pick. 378 ; Tourtellot v. Rosebrook, 11 Metcalf, 460 ; Batch^ elder v. Heagan, 18 Maine, 32. The rule, as laid down in Clark V. Foot, is as follows : " If A. sets fire to his own fallow ground, as. he may lawfully do, which communicates to and fires the woodland of B., his neighbor, no action lies against A. unless there was some negligence or misconduct in him or his servant." And this is the rule throughout this country except where it has been modified by statute. Tourtellot v. Rosebrook was an action to recover damages caused by a fire communicated to the plaintiff's land from a coal-pit which the defendant law- fully set on fire upon his own land, and it was held that the burden was on the plaintiff to prove negligence on the part of the defendant. In Hinds v. Barton, 25 N. Y. 544, and Teall v. Barton, 40 Barb. 137, sparks were emitted from a steam dredge used upon the Erie Canal, and they set fire to neighboring buildings, 154 DAMAGE INCIDENT TO AUTHOKIZED ACT. aud, although the sparks were thrown directly upon the buildings, it was held that the defendants could be made liable only by proof of negligence. In Cook v. The Champlain Transportation Co., 1 Denio, 91, the buildings of the plaintifi" were fired by sparks thrown thereon from defendant's steam- boat upon Lake Champlain, and it was held that the defend- ant could be made liable only by proof of negligence. All these cases, and the class of cases to which they belong, are in conflict with the rule as claimed by the plaintiff. A man may build a fire in his house, or his steam-boiler, and he does not become liable without proof of negligence if sparks accidentally pass directly from his chimney or smoke-stack to the buildings of his neighbor. The maxim of sic utere tuo, etc., only requires in such a case the exercise of adequate skill and care. The same rule applies to injuries to the person. No one in such case is made liable without some fault or negligence on his part, however serious the injury may be which he may acci- dentally cause ; and there can be no reason for holding one liable for accidental injuries to property when he is exempt from liability for such injuries to the person. It is settled in numerous cases that if one driving along the highway acci- dentally injures another, he is not liable without proof of negligence : Center v. Finney, 17 Barb. 94 ; Hammock v. White, 103 Eng. Com. Law, 587. In Hussey v. Dunlap, Lalor's Supplement, 193, the action was for throwing a stone at the plaintiff's daughter and put- ting out her eye. It did not appear that the injury was in- flicted by design or carelessness, but did appear that it was accidental, and the Court held that the plaintiff could not re- cover, laying down the broad rule that no liability results from the commission of an act arising from inevitable accident, or which ordinary human care and foresight could not guard against. In Dygert v. Bradley, 8 Wend. 469, the action was for running one boat against another in the Erie Canal and the Court held that if the injury was occasioned by unavoid- able accident, no action would lie for it ; but if any blame was imputable to the defendant, he would be liable. In Brown v. LOSEE V. BUCHANAN ET AL. 155 Kendall, 6 Gushing, 292, the defendant having interfered to part his dog and the plaintiff's, which were fighting, in raising his stick for that purpose, accidentally' struck the plain- tiff and severei}' injured him ; it was held that he was not liable. In writing the opinion of the Court, Chief Justice Shaw says : " It is frequently stated by Judges that where one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question whether trespass and not case will lie, assuming that the facts are such that some action will lie. These dicta are no authority, we think, for holding that damage received by a direct act of force from another, will be sufficient to maintain an action of tres- pass, whether the act was lawful or unlawful, and neither willful, intentional, or careless." " We think, as the result of all the authorities, that the rule is that the plaintiff' must come prepared with evidence to show that the intention was un- lawful, or that the defendant was in fault ; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be held liable. If, in the prevention of a lawful act, a casualty, purely accidental, arises, no action can be supported for an injury arising therefrom." So, too, contrary to what was held in an early English case, if one raise a stick in self-defense to defend himself against an assault and accidentally hit a third person, he cannot, in my opinion, be made liable for the injury thus, without fault or negligence, inflicted. In Rockwood v. Nelson, 11 Cushiug, 221, Mr. Justice Thomas says : " Nothing can be better settled than that if one do a lawful act upon his own premises he cannot be held re- sponsible for injurious consequences that may result from it,, unless it was so done as to constitute actionable negligence." In Bissell v. Booker, 16 Ark. 308, it was held that one who is hunting in a wilderness is not bound to anticipate the pres- ence, within range of his shot, of another man, and that he is not liable for an injury caused unintentionally by him to a person of whose presence he was not aware. (See, also, the cases of DriscoU v. The Newark & Rosendale Co., 37 N. Y. 637.) 156 DAMAGE INCIDENT TO AUTHORIZED ACT. lu Spencer v. Campbell, 9 Watts & S. 82, a man drove a horse to defendant's steam grist-mill to get some grist which he had had ground, and he was thus lawfully upon defend- ant's premises, and was just as much entitled to protection there as if he had been upon his own premises. While there the steam-boiler exploded and killed his horse, and the action was brought for the value of the horse ; and it was held that, to entitle the plaintiff to recover, he was bound to show the want of ordinary care, skill, and diligence. I am unable to see how that case differs in principle from the one at bar. To sustain the broad claim of the plaintiffs here, it should have been held in that case that the owner of the steam-boiler was absolutely liable, irrespective of any care, skill, or diligence on his part for any damage which the boiler by its explosion occa- sioned to any property lawfully in the vicinity. Within the rules laid down by these authorities, the defendants in this case could not, without proof of negligence, be made liable for injuries caused to the persons of those who were near at the time of the explosion ; and it would be quite illogical to hold them liable for injuries to property, while they were not liable for injuries to persons by the same accident. In support of the plaintiff's claim in this action the rule has been invoked, where one of two innocent parties must suffer, he who puts in motion the cause of the injury must bear ' the loss. But, as will be seen by the numerous cases above cited, it has no application whatever to a case like this. This examination has gone far enough to show that the rule is, at least in this country, a universal one, which, so far as I can discern, has no exceptions or limitations, that no one can be made liable for injuries to the person or property of another without some fault or negligence on his part. In this case the defendants had the right to place the steam- boiler upon their premises. It was in no sense a nuisance and the jury have found that they were not guilty of any negligence. The judgment in their favor should, therefore, have been affirmed at the General Term, unless there were errors in the charge, or refusal to charge, of the Judge who LOSEE V. BUCHANAN ET AL. 157 presided at the trial, and these alleged errors I will now briefly examine. It is alleged that the Judge erred in charging the jur}- that " defendants are not liable for negligence or want of skill on the part of the manufacturers of the boiler in question and not known to them ;" " that defendants are not liable except upon proof of negligence or unskillfalness on the part of the authorized servants or agents of the company;" "that there is no proof of any relation between the plaintiff and defend- ant, Buchanan, creating any obligation or duty on the part of the latter toward the former ;" " that defendant, Buchanan, is not liable for any negligence or unskillfulness on the part of the Saratoga Company or on the part of the manufacturers of the boiler in question." These are not found in the charge, but were decisions made upon the motion for a non-suit, and were not excepted to. The Judge charged the jury "that if they were of opinion that the reduction by Goddard (the engineer and agent of the paper company, who had charge of the boiler) of the steam pressure from 120 to 110 was a proper, prudent, and sufficient exercise of care and skill under the circumstances, that the defendants were not liable on account of leakage ;" " that the cold shut in the head that previously gave out was no evi- dence of the cold shut in the head that did give out ;" " that if Goddard told Bullard that it would be prudent to run the steam-boiler at 110, and if Bullard believed that and acted upon it, then he was not liable ;" " that if the jury found from the evidence that Goddard came to the conclusion that to re- duce the pressure from 120 to 110 would render the use of the boiler prudent and safe, and communicated that idea to Bul- lard, he, Bullard, was not personally liable." These charges were excepted to by plaintiff's counsel. These were requests to charge on the part of the defendants acceded to by the Judge. Some of them should properly have been somewhat qualified and explained, and are therefore liable to some criti- cism. But we must look at the whole charge, and judge of it from its whole scope, and if, taking it altogether, it presented 158 DAMAGE INCIDENT TO AUTHORIZED ACT. the questions of law fairly to the jury so as not to mislead them, exceptions to separate propositions in it, or to detached portions of it, will not be upheld. As said by Chief Justice Church, in Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, " If the charge as a whole conveyed to the jury the cor- rect rule of law, on a given question, the judgment will not be reversed although detached sentences may be erroneous ; and if the language employed is capable of different constructions, that construction will be adopted which will lead to an affirm- ance of the judgment, unless it fairly appears that the jury were, or at least might have been, misled." The Judge in his charge submitted the whole question of negligence to the jury. He charged that the defendants were liable for the omission of such care as men of ordinary pru- dence engaged in the use of such a steam-boiler in such busi- ness would exercise, and that they were liable for any imper- fections in the boiler, which contributed to the explosion, which were known to them ; but that if the explosion was caused by the cold shut in the head of the boiler which were imperceptible to the defendants or undiscoverable on examina- tion or by the application of known tests, they were not liable. He charged the jury fully in reference to the leakage of the boiler, and his charge upon that subject was fully as favorable to the plaintiff as he could claim. He called the attention of the jury to all the facts connected with it, and to what God- dard had told BuUard about it, and stated to them that they had a right to say, from all the facts, whether or not BuUard was chargeable with negligence in the use of the boiler, under the circumstances. I think, from the charge as made, the jury could not have failed to understand that the defendants were to be held liable for any defects in the manufacture of the boiler which they knew or ought to have known, and for any negligence in the use of the boiler which could be attributed to them. The plaintiff requested the Court to charge " that the de- fendants cannot excuse or justify themselves in the use of the boiler in question, on the ground that the same was purchased TOWN V. STETSON. 159 of reputable manufacturers." This the Judge refused to charge, and the plaintiff excepted. The principle of law in- volved in this request was fairly covered by the charge as made, and j^et it may well be doubted whether the Judge would have been justified in charging in the language of the request. The fact that the defendants bought the boiler of reputable manufacturers was one of the facts tending to a jus- titication which the jury were to consider. It was not of itself a conclusive justification, and the Judge did not charge that it was. If he had refused to charge that they could not justify on the sole ground that they had purchased it of reputable manufacturers, it would have been error. A charge in the very language of the request might have misled the jury by taking from their consideration the fact that the boiler was bought from reputable manufacturers upon whose judgment, skill, and integrity the defendants had the right to place some reliance. I have, therefore, reached the conclusion that no error was committed upon the trial of this action, and it follows that the order of the General Term must be reversed, and the judg- ment entered upon the verdict must be afiirmed, with costs. All concur. Order reversed and judgment accordingly. Thurstoii V. Hancock, 12 Mass. 220 ; Ocean Grove Camp Meeting Asa'n -v. Asbnry Park, 40 N. J. Eq. 447 ; Jaggard, 147 ; Bishop, 156 et seq.; Cooley, 81 ; Pollock, 152. (2) In the exercise of a common right. Where one in the exercise of a common right injures another, no action lies. Town v. Stetson. New York Court of Common Pleas, 1868. 5 Abb. Pr., N. S. 218. Motion to dissolve an injunction. This action was brought by Charles M. Town against James A. Stetson and others, for an injunction against an alleged violation of trade-mark. Both parties were dealers in salt 160 DAMAGE INCIDENT TO AUTHORIZED ACT. fish, aud the plaintiff claimed priority of invention of the article known as desiccated codfish, and of the use of that word on his labels, etc. The defendants denied these claims, and alleged the priority of invention to rest with other parties. A temporary injunction had been granted, and the cause now came before the Court on a motion to dissolve it. Barrett, J. The present is distinguishable from that class of cases of which Messerole v. Tynberg, 4 Abb. Pr. N. S. 410, and Newman v. Alvord, 40 Barb. 588, are the most recent, as well as the most distinctively advanced in principle, in this, that the popular word " desiccated," here sought to be bur- dened with a new and exclusive use, is specially descriptive of the article sold ; in fact, it is the only word which correctly describes the process whereby this particular preparation of codfish is produced. No manufacturer can acquire a special property in an ordi- nary term or expression, the use of which as an entirety is es- sential to the correct and truthful designation of a particular article or compound. The Courts have gone a long way, and with plain justice, in protecting the honest and enterprising manufacturer of any good and useful article from the unscru- pulous pirating of his special reputation ; but they have been equally careful to prevent any attempted monopoly of that which is common to all : Corwin v. Daly, 7 Bosw. 222 ; Bin- iuger V. Wattles, 28 How. Pr. 206 ; Wolfe v. Goulard, 18 lb. 64 ; Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599 ; Brooklyn White Lead Co. v. Masury, 25 Barb. 417 ; Burgess V. Burgess, 17 Eng. L. & Eq. 257 ; Perry v. Pufiit, 6 Beav. 66 ; Singleton v. Bolton, 3 Doug. 293 ; Millington v. Fox, 3 Mylne & C. 388. Here each party has as much right to desiccate codfish as he has to dry or preserve fruits, or to pickle or spice oysters and salmon ; and it is a sequence to this right that he may sell the article thus produced, under the designation which is strictly appropriate to the altered or modified condition of the principal ingredient. Indeed, the use of such designation is in my judgment a moral obligation upon the manufacturer, TOWN V. STETSON. 161 for to desiccate codfish and then sell it as a preparation pro- duced by other means, would be a concealment of fact, and a species of trade charlatanism. The Court will certainly neither prevent people from calling things by their right names nor force a misnomer upon them. The plaintiif may distinguish his " desiccated codfish " as the " Bismarck " (see Messerole v. Tyuberg, supra), or the " Von Beust," or by the pre- fix of any other proper name or common word not previously applied in that connection, and not essential to the truthful designation of the article produced, and he will be protected in its exclusive use. But he can no more acquire a special property in the word " desiccated," as applicable to an article which has undergone that process, than he can to the words " dried," "preserved," or "pickeled," as applied to that which has, in fact, been thus treated. It should be added that no attempt has been made to de- ceive the public, or to palm ofi" the defendants' desiccated codfish as that of the plaintiff' 's manufacture. On the con- trarj', pains seem to have been taken to render the two articles as dissimilar as possible. The one is put up in boxes, the other in packages ; the labels are of opposite colors and de- signs, and the types of different sizes, and the reading matter varied ; while for the codfish which is engraved upon the plain- tiff's label, and which constitutes, as indeed the stamp ex- pressly indicates, " his real trade-mark," the defendants have substituted something which bears a feeble resemblance to a soft-shell crab. No purchaser can mistake the one prepara- tion for the other, and the defendants' intention is perfectly clear. It is, while using the word desiccated, as we have seen is their right, to sell the article produced as codfish of their own, and not of the plaintiff's desiccation. The motion to dissolve the injunction must therefore be granted. Chase V. Silverstone, 62 Me. 175 ; Mosier v. Caldwell, 7 Nevada, 363 ; Delhi V. Youmans, 50 Barb. 316 ; 45 N. Y. 362 ; S. R. Bank v. S. Bank, 27 Vt. 505 ; Glendon v. Uhler, 75 Pa. St. 467 ; Wolfe v. Goulard, 18 How. Pr. 64 ; Jag- gard, 154 ; Pollock, 174. 11 162 DAMAGE INCIDENT TO AUTHOKIZED ACT. (3) In the exercise of domestic discipline. Parental. HiNKLE V. State. Supreme Court of Indiana, 1891. 127 Ind. 490 ; 26 N. E. 777. Olds, C. J. The appellant was indicted by the grand jury at the November Term, 1889, of the Hamilton Circuit Court, for assault and battery upon one Edith Hinkle. The appellant filed an answer in abatement, challenging the jurisdiction of the Circuit Court, on the ground of the ap- pellant being the father of the said Edith Hinkle, and at the time of the alleged assault and battery she was about twelve years of age, and was under the custody of her father, the ap- pellant. It is contended that in such cases the Circuit Court has no jurisdiction, the jurisdiction having been conferred on justices of the peace, mayors, police judges, and criminal courts by virtue of § 1 of an Act approved March 9, 1889 : Acts of 1889, p. 363. A demurrer was filed to this answer and sustained. In this there was no error. The Circuit Court has jurisdic- tion of prosecutions for assault and battery, and the section of the statute referred to does not attempt to deprive the Circuit Court of such jurisdiction. Indeed, said section of the statute does not even confer or attempt to confer jurisdiction of the misdemeanor defined in it on the Courts named in the section, but simply provides that upon conviction in such Courts the punishment shall be as stated in the section. If the Courts named therein do not have jurisdiction of the misdemeanor defined and created independent of the section, it may well be doubted whether such section gives the Courts therein named jurisdiction in such prosecutions. If jurisdiction is created by the section it is by mere inference ; certainly no jurisdic- tion of the Circuit Court is taken or attempted to be taken from it. HINKLE V. STATE. 163 The appellant was convicted, and he filed a motion for a new trial, which was overruled, and he excepted, and assigns the ruling as error. The first contention is that the verdict is not sustained by sufficient evidence. We have read and considered the evi- dence, and we think no good would be accomplished by set- ting it out in the opinion or by giving a lengthy synopsis of it. It relates to the treatment of a little girl, about twelve years old, by her father fastening her to a sewing-machine by a chain attached to the girl's ankle, and allowing her to re- main chained during the day except at meal-times, and un- loosing her at bedtime. The fact as to the treatment of the child became known ; the cit}' officers were informed of it, and she was released by them. When found she was thus chained in the house with her little brother, about two or three years old, there being no older person at the house ; the father (the appellant) was ab- sent at his work, and his wife, the mother of the little boy and the step-mother of the little girl, was at the time absent at a neighbor's. It is contended on behalf of the appellant that the child was incorrigible ; that he had punished her in other ways, resulting in no good, and he resorted to this method of punishment to work a reformation in her. If there is evi- dence tending to support the verdict of the jury, under the long line of decisions of this Court, we cannot disturb it. That there is evidence tending strongly to support the verdict cannot be questioned. The father has the right to administer proper and reasonable chastisement to his child without being guilty of an assault and battery, but he has no right to ad- minister unreasonable chastisement or to be guilty of cruel and inhuman treatment of his child, and if he does adminis- ter unreasonable chastisement, and treats the child cruelly and inhumanly, his acts become unlawful, and if they are such as to constitute an assault and battery, he may be prosecuted and con\acted. The law has very wisely left it for the Court or jury trying the case to determine whether the chastisement is reasonable 164 DAMAGE INCIDENT TO AUTHORIZED ACT. and lawful or unreasonable and unlawful, and when they have passed upon the acts and found them to be unwarranted, un- reasonable, and unlawful, this Court will not disturb the ver- dict or finding if there be evidence to sustain it. And, as we have said, the evidence in this case clearly supports the ver- dict. Indeed, it is a case in which this Court feels more like commending than condemning the verdict. Parents bringing children into the world owe to them and to the community the duty of caring for and properly training them in infancy, and curbing the evil tendencies at a time and at an age when it can be done without resorting to excessive punishment and cruel and inhuman treatment, and if the parent neglects the proper training of his child, and permits it to go unrestrained until its vicious habits are so fixed as not to yield to reasona- ble chastisement, it is his duty to adopt some other method for the reformation of his child than brute force and abuse. Indeed, it is questionable whether the latter does not tend rather to engender malice and develop a malignant spirit in a child than an obedient and kindly disposition. It is next contended that the Court erred and was guilty of an abuse of discretion in refusing to allow a change of venue from the county. This motion was submitted on affidavits and counter-affidavits, and we cannot say that there was any abuse of discretion. The mode by which the jury arrived at a verdict, the facts relating to the association and boarding-place of a juror dur- ing the trial, and that the punishment is excessive, are each set out as causes for a new trial. We have examined these questions, and think they constitute no cause for a reversal of the judgment. Judgment affirmed, with costs. Johnson v. State, 2 Hump. 283 ; Fletcher v. People, 52 III. 395 • State ». Jones, 95 N. C. 588 ; State v. Alford, 68 N. C. 322 ; People v. Cooper, 8 How Pr. 288 ; Minn. Stat. 1894, ? 6477 (4). As to quasi parental, etc. : Anderson v. State, 3 Head, 455 ; Heritage v. Dodge, 64 N. H. 297 ; Lander v. Seaver, 32 Vt. 114 ; Hathaway v. Rice, 19 Vt. 102 ; Commonwealth v. Randall, 4 Gray, 36 ; Stevenes v. Fassett 27 Me. PAXTON V. BOYEE. 165 266 ; Sheehan v. Sturges, 53 Conn. 481 ; State v. Vanderbuilt, 116 Ind. 11 ; Minn. Stat. 1894, ? 6477 (4) ; Ja^ard, 148 ; Bishop, 545 ; Cooley, 170 ; Pollock, 149. (4) In the exercise of private defense. (a) Of Person. Paxton v. Boyee. Supreme Court of Illinois, 1873. 67 111. 132. Appeal from the Circuit Court of Edgar County ; the Hon. James Steele, Judge, presiding. This was an action of trespass, brought by George W. Boj'er against James Paxton, for an assault and battery committed upon his person by the defendant. The declaration was in the usual form. The defendant pleaded the general issue, with which was filed a stipulation that all matters might be given in evidence that could be specially pleaded. A trial was had, and the jury returned the following verdict : " We, the jury, find the defendant guilty, and assess the plaintifl^s damages at $450. We, the jury, find from the evi- dence that the blow complained of was struck by the defend- ant without malice, and under circumstances which would have led a reasonable man to believe it was necessary to his proper self-defense." It appeared that the plaintifTs brother and defendant, at the time of the infliction of the injury, had a difficulty, and that defendant was knocked down on the floor. On rising, he struck the plaintiff with a knife, inflicting a wound in his arm. The defendant testified that he thought it was the brother who had knocked him down, and that the plaintiff" had hold of him when he got up. Mr. Justice Beeese. This is an action of trespass assault and battery, and verdict for the plaintiff for $450 damages. 166 DAMAGE INCIDENT TO AUTHORIZED ACT. The jury further found this special verdict : That, from the evidence, the blow complained of was struck by the defend- ant without malice, and under circumstances which would have led a reasonable man to believe it was necessary to his proper self-defense. This verdict was found under the in- struction of the Court, that the jury might, in addition to a general verdict, find a special verdict embracing this propo- sition, or its converse, as permitted by the Act of February 22, 1872, § 51. The testimony shows the trespass was committed by the de- fendant against an unoffending party — against one who had given no cause or provocation of any kind. The defendant asked this instruction, which was refused : " The defendant cannot be found guilty in an action of this kind unless, in inflicting the injury complained of, he has been guilty of some wrong, evil intent or want of care ; and if you find, from the evidence, he struck the blow without any fault, you will find for the defendant." On coming in of the verdict, the defendant moved for judg- ment on the special verdict, which the Court denied. This is the first point made by appellant. He insists judgment should have been rendered for the defendant upon the special verdict, as that ignores malice and unlawful intent, and finds that the act was done under circumstances which would have led a reasonable man to believe it was necessary to his proper self- defense. Appellant's theory is, that he mistook plaintiff for his brother, with whom he was in conflict, and who had felled him to the floor by violence. The Court, for the plaintiff, instructed the jury that it was no defense, so far as actual damages are concerned, that the defendant had been violently assaulted by persons other than the plaintiff, or was then being assaulted by such other per- sons, or that he may have honestly believed he was striking Peter Boyer when he struck the plaintiff, or that he may have honestly believed it was necessary for his self-defense to assault the plaintiff, if the jury find, from the evidence, that PAXTON r. BOYEK. 167 the plaintiflf was not a party to such assault upon the defend- ant ; such evidence of mistake of facts, or good intentions on the part of the defendant, can only be considered in this case by the jury as a defense against the infliction by the jury of vindictive damages, and not as a defense against such actual damages as the evidence may show the plaintiff has suffered from such assault, or as naturally resulted from such assault. These instructions involve the merits of this controversy. Appellant relies, in support of his theory, upon Morris v. Piatt, 32 Conn. 75, and Brown v. Kendall, 6 Gushing, 292. These cases are fully discussed, and sustain appellant. The facts in both cases are similar to those in this case, and were actions of assault and battery. The principle is announced in those cases, that a person is not liable for an unintentional in- jury resulting from a lawful act, where neither negligence nor folly is imputable to him who does the act, and that the burden of proving the negligence or folly, where the act is lawful, is upon the plaintiff. This cause was tried on the general issue, with leave to give all matters in evidence which could be specially pleaded. That the plea of self-defense could have been pleaded is not questioned ; in fact, the plaintiff, in his second instructions, so put it to the jury, and they, by their special finding, have said the act was done in necessary self-defense, or under circum- stances which would have led a reasonable man to believe it was necessary to his proper self-defense. This finding was not excepted to by the plaintiff, nor did he object that the jury should be instructed on that point. It, therefore, stands as the verdict of the jury, that there was no malice in the act, and that it was done in necessary self-defense. This brings the case within those relied on by appellant, supra. Can it be a question that, for an act done under such circumstances, the party doing the act is liable either civiliter or criminaliter? The rule is well established that, in an action of assault and battery, the plaintiff must be pre- pared with evidence to show, either that the intention was un- 168 DAMAGE INCIDENT TO AUTHORIZED ACT. lawful, or that the defendant was in fault : 2 Greenleaf on Ev., § 85. The jury, by their special finding, have ignored the un- lawful intention, and have said the defendant was not in fault. On what principle, then, can he be made chargeable ? If a person, doing a lawful act in a lawful manner, with all due care and circumspection, happens to kill another, without any intention of doing so, he is not liable criminally. How, then, can it be said he shall be responsible in a civil case, when, in doing a lawful act with due care, and an in- jury happens, he shall be deemed in fault, and mulcted in damages ? It is said by appellee that the rule is different in civil cases ; that the motive (quoting from Chitty), intent or design of the wrong-doer toward the plaintiff is not the criterion as to the form of the remedy, for when the act occasioning the injury is unlawful, the intent of the wrong-doer is immaterial ; but appellant here is no wrong-doer, as the jury have said by the special verdict. We do not deny the principle contended for by appellee, that, where a tort is done, intention is no element to be con- sidered. The special verdict out of the way, we should not have much difficulty in coming to the conclusion appellee's counsel have reached, but, with that at the threshold of the case, we are unable to see the force of them. The authority cited from 2 Greenleaf Ev., § 94, by appellee, keeping the special verdict all the time in view, is decisive of ■ the question. It finds, substantially, appellant " free from fault," and therefore not responsible. The special finding must override the general verdict, be- cause both cannot stand, there being such an irreconcilable antagonism, and this is the provision of § 51, supra. It may be answered to the argument of appellee, that he was assaulted while in the enjoyment of a legal right which he had not for- feited by any act of his ; that the jury have found the act done by appellant was done in the exercise of his legal right, with- out any design to injure appellee. WALKER V. WETHERBEE. 169 We have thought much on this case, and are constrained to hold, on the authority of Morris v. Piatt, and Brown v. Ken- dall, supra, and on principle, that judgment should have been pronounced for the defendant on the special verdict, for that justified him. This renders it unnecessary to consider any other question made on the record. The judgment must be reversed and the cause remanded, with directions to enter judgment for the defendant on the special verdict. Judgment reversed. Shorter i: People, 2 N. Y. 193 ; Morris v. Piatt, 32 Conn. 75 ; Scribner v. Beach, 4 Denio, 448 ; Dole v. Erskine, 35 N. H. 503 ; Close v. Cooper, 34 Ohio St. 98 ; Barnard v. State, 88 Tenn. 183 ; Eibinson v. Hawkins, 4 T. B. Mon. 134 ; Putnam v. Payne, 13 Johns. 312 ; Livermore v. Batchelder, 141 Mass. 179 ; Paxton v. Boyer, 67 111. 132 ; Jaggard, 151 ; Bishop, 942 et seq.; Cooley, 49 ; Pollock, 201. (b) Of Property. Walker v. Wetherbee. Supreme Court of New Hampshire, 1874. 65 N. H. 658 ; 23 Atl. 621. Trover, for two horses. The plaintiff's father and one Humphrey formerly owned farms in Langdon adjoining each other, the line between them extending some one hundred rods ; and they divided the fence on this line, Humphrey tak- ing the north half and Walker the southerly half to make and keep in repair. This division was in writing, was in proper form, and no objection was made to its validity as be- tween the original parties. The plaintiff now occupies the farm which his father then owned. But Humphrey sold to one person the northerly half of his farm, which is now oc- cupied by the defendant, and the southerly half of his farm to another person, who now occupies it ; and Humphrey is dead. If the division remains in force, the defendant was bound to keep in repair all the fence between him and the 170 DAMAGE INCIDENT TO AUTHORIZED ACT. plaintiff. The Court ruled that the division of the fence was not binding between these parties, and the plaintiff excepted. The plaintiff 's two horses jumped over the fence, from the plaintiff's land into the defendant's; the defendant turned them into the road — but they returned and troubled him fur- ther, and he took them and put them into his barn, and sent word to the plaintiff to come and get them, but he did not go ; and the defendant kept them in the barn two weeks, until after suit was brought, and then sent them to the plaintiff. The defendant had no intention of impounding them. The Court ruled that the defendant was liable for converting the property, and the defendant excepted. The defendant offered to prove that the plaintiff's two horses had repeatedly trespassed upon his premises during that season ; that on one occasion he took one of them from his pasture and put it into his barn for safe keeping, and gave notice to the plaintiff, who took it away without objection, expressing no dissatisfaction with what the defendant had done ; that on the day of the alleged conversion, the same horses wrongfully came into the defendant's pasture, and were driven into the highway and started toward their home by the defendant's servants, but they soon returned, and got into the defendant's mowing and soon after into his pasture, which was well fenced, and began to kick and strike with their fore feet the defendant's breeding mares and young colts then kept in his pasture, and the plaintiff's horses were taken from the pasture and put into the defendant's barn for the safety of the mares and colts and for the convenience of the plaintiff, and with no purpose or intention of doing anything to which the plaintiff would object, or of exercising any further control over them than their own safety and that of the defendant's animals required ; and that he immediately notified the plaintiff of what had been done with the two horses, that he might find them without trouble and take them away. The Court ex- cluded the testimony, and the defendant excepted. Verdict for the plaintiff. WALKER V. WETHERBEE. 171 Smith, J. 1. Any division of fence by the owners of ad- joining lauds under improvement, in writing, and recorded in the town records, is made forever binding upon the parties and all succeeding owners and occupants of the land : E. S., c. 136, § 2. This provision of the statute refers to the state of things existing when the fence was divided, and before the land of one adjoining owner is sold in different parcels to different persons ; otherwise, when new coterminous proprietors are introduced, each one extending over part only of the line so divided, the burden of maintaining the fence as divided originally by the adjoining owners of the whole line will be unequally distributed. The plaintiff, by buying the south half of the Humphrey farm, would not throw upon the owner of the north half the burden of maintaining more than one half of their partition fence : Jones v. Perrj^, 50 N. H. 134 ; Adams v. Van Alstyue, 25 N. Y. 236 ; Wright v. Wright, 21 Conn. 329. This view of the construction of the statute is strengthened by the fact that in the revision of the statutes in 1867 the word "forever" is omitted: G. S., c. 128, § 2. A reasonable construction of the statute is, that the division fence made by owners of adjoining lands under improvement, in writing, and recorded in the town records, is binding upon the parties and all succeeding owners and occupants of the land until the line is severed by a conveyance of a part of the land on one side, when new divisions of the severed line are au- thorized. If the defendant is bound to maintain all the fence between his land and the plaintiff's until a new division is made, he is not shown to have neglected that duty. It does not appear that the fence was insufficient, or that the plaintiff's horses were in the defendant's land through any fault of the defendant. The obligations of the parties as to maintaining the fence or keeping their horses on their own land after the line was severed by change of title and before a new division, is a question we do not decide. 2. The plaintiff contends that the defendant is liable because he did not proceed in the manner prescribed by G. S., c. 129, by impounding the horses taken in his inclosure. The de- 172 DAMAGE INCIDENT TO AUTHOKIZED ACT. fendant offered to show that he took the horses into his pos- session for the protection of his own stock and for the conveni- ence of the plaintiff, with no purpose or intention of exercising any further control over them ; and he contends that in carry- ing out this purpose he was not guilty of a conversion. At common law the aggrieved party was personally empowered to seize and impound beasts found doing damage in his inclosure, both because it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage, and that he might hold them as a pledge for the satisfaction of the damages done. The same right is given by statute : G. S., c. 129, § 1. If the defendant had sought to recover for the damage done by the plaintiff 's horses, he might have proceeded according to the statute by impounding them, or by his action of trespass at common law. He might also waive his claim for damages, as he has done. What, then, was he to do when the plaintiff's horses broke into his pasture and began to injure his mares and colts? His remedy by impounding or by action was not exclusive. He had the legal right to remove them. In protecting his own animals, it was his right and duty to do with the plain- tiff 's whatever was reasonably necessary to be done under the circumstances : Aldrich v. Wright, 53 N. H. 398. When the goods of another are taken under the pressure of what is called a moral necessity, a license will sometimes be presumed, and the taking will not be a conversion ; as, where a thing is taken to do a work of charity, or to do a kindness to the owner, with no intention to do an injury to it, or of converting it to the use of another : 2 Gr. Ev., § 643 ; Clarke V. Clarke, 6 Esp. 61 ; Drake v. Shorter, 4 Esp. 165 ; Plumer -y. Brown, 8 Met. 578. If the plaintiff's horses had been taken by the defendant into his possession upon a sudden emergency like shipwreck or fire, or had been taken up as estrays to pre- vent their becoming lost or stolen or to insure their safety from danger, the taking would not have amounted to a con- version. If the circumstances under which they were re- moved, as stated in the defendant's offer, do not show an SUROCCO V. GEAEY. 173 emergency much like that where property is taken possession of to insure its safety, the plaintiff cannot for that reason complain, if the defendant did not do more than was reason- ably necessary. They were taken doing damage in the de- fendant's inclosure. They were removed from the defendant's pasture to protect his property, and put in his barn for their safety and the plaintiff's convenience. If the defendant did no more than was reasonably necessary under the circum- stances, he was not guilty of a conversion, and it is not material that he waived his claim for damages by not pursuing his statutory remedy by impounding, or common-law remedy by suit in trespass. Whether what he did was reasonably necessary to be done under the circumstances, or whether he went beyond the line of reasonable necessity, was a question which should have been submitted to the jury. For error in excluding the testimony offered, the verdict should be set aside. Hinckley i: Emerson, 4 Cow. 351 ; Aldrich v. Wright, 53 N. H. 398 Bowditch V. Boston, 101 U. S. 16 ; Russell v. Mayor of N. Y., 2 Denio, 461 Stone V. Mayor of X. Y., 25 Wend. 157 ; Livermore v. Batchelder, 141 Mass 179 ; Pamot v. Hartsfield, 4 Dev. & B. 110 ; Boescher v. Lutz, 13 Daly, 28 Dunning r. Bird, 24 111. App. 270 ; Lipe v. Blackwelder, 25 111. App. 123 Brown v. Brooks, 55 N. W. 395 ; Walker v. Wetherbee, 65 N. H. 666 ; Jag- gard, 151 ; Bishop, 942 et seq.; Cooley, 49 ; Pollock, 201. (5) In performing an act of necessity. SuROCCO V. Geary. Supreme Court of California, 1853. 3 Cal. 69. Murray, Chief Justice. This was an action, commenced in the Court below, to recover damages for blowing up and de- stroying plaintiff's house and property, during the fire of the 24th of December, 1849. Geary, at that time Alcalde of San Francisco, justified, on the ground that he had authority, by virtue of his office, to destroy said building, and also that it had been blown up by him to stop the progress of the conflagration then raging. 174 DAMAGE INCIDENT TO AUTHORIZED ACT. It was in proof that the fire passed over and burned beyond the building of the plaintiff's, and that at the time said build- ing was destroyed they were engaged in removing their property, and could, had they not been prevented, have suc- ceeded in removing more, if not all of their goods. The cause was tried by the Court sitting as a jury, and a verdict rendered for the plaintiffs, from which the defendant jDrosecutes this appeal under the Practice Act of 1850. The only question for our consideration is, whether the person who tears, down or destroys the house of another, in good faith, and under apparent necessity, during the time of a conflagration, for the purpose of saving the buildings ad- jacent, and stopping its progress, can be held personally liable in an action by the owner of the property destroyed. This point has been so. well settled in the Courts of New York and New Jersey, that a reference to those authorities is all that is necessary to determine the present case. The right to destroy property, to prevent the spread of a conflagration, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. " It is referred by moralists and jurists to the same great principle which justifies the exclusive appropria- tion of a plank in a shipwreck, though the life of another be sacrificed ; with the throwing overboard goods in a tempest, for the safety of a vessel ; with the trespassing upon the lands of another to escape death by an enemy. It rests upon the maxim, necessitas inducit privilegium quod jura privata." The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious pre- cisely on the same ground of necessity. See 1st Zabriskie, American Print Works v. Lawrence, and the cases there cited. This principle has been familiarly recognized by the books from the time of the saltpetre case, and the instances of tearing down houses to prevent a confiagration, or to raise bulwarks for the defense of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. SUROCCO V. GEARY. 175 At such times the individual rights of property give way to tlie higher laws of impending necessity. A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes a nuisance, which it is lawful to abate, and the private rights of the individual yield to the considerations of general convenience and the in- terests of society. Were it otherwise one stubborn person might involve a whole city in ruin by refusing to allow the destruction of a building which would cut off the flames and check the progress of the fire, and that, too, when it was per- fectly evident that his building must be consumed. The respondent has invoked the aid of the constitutional provision which prohibits the taking of private property for public use, without just compensation being made therefor. This is not " a taking of private property for public use," within the meaning of the Constitution. The right of taking individual property for public purposes belongs to the State by virtue of her right of eminent domain, and is said to be justified on the ground of State necessity; but this is not a taking or a destruction for a public purpose, but a destruction for the benefit of the individual or the city, but not properly of the State. The counsel for the respondent has asked, who is to judge of the necessity of the destruction of property. This must, in some instances, be a difficult matter to de- termine. The necessity of blowing up a house may not exist, or be as apparent to the owner, whose judgment is clouded by interest, and the hope of saving his property, as to others. In all such cases the conduct of the individual must be regulated by his own judgment as to the exigencies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be liable in an action of trespass. But in every case the necessity must be clearly shown. It is true, many cases of hardship may grow out of this rule, and property may often in such cases be destroyed without necessity, by irresponsible persons, but this difiiculty would not be obviated by making the parties 176 DAMAGE INCIDENT TO AUTHORIZED ACT. responsible iu every case, whether the necessity existed or not. The Legislature of the State possesses the power to regulate this subject by providing the manner in which buildings may be destroyed, and the mode in which compensation shall be made ; and it is to be hoped that something will be done to obviate the difficulty and prevent the happening of such events as those supposed by the respondent's counsel. In the absence of any legislation on the subject we are com- pelled to fall back upon the rules of the common law. The evidence in this case clearly establishes the fact that the blowing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot re- cover for the value of the goods which they might have saved ; they were as much subject to the necessities of the occasion as the house in which they were situate ; and if in such cases a party was held liable, it would too frequently happen that the delay caused by the removal of the goods would render the destruction of the house useless. The Court below clearly erred as to the law applicable to the facts of this case. The testimony will not warrant a verdict against the defendant. Judgment reversed. McDonald v. Redwing, 13 Minn. 38 ; Hyde Park v. Gay, 120 Mass. 590 ; American Print Works v. Lawrence, 23 N. J. L. 590 ; Metallic Co. v. Rail- road, 109 Mass. 277 ; Taylor v. Plymouth, 8 Met. 465 ; Respublica v. Spar- hawk, 1 Dallas, 357 ; Field v. Des Moines, 39 la. 575 ; White v. Charleston, 2 Hill (S. C. ), 571 ; Dunbar v. Alcalade, 1 Cal. 355 ; Russell v. The Mayor, 2 Denio, 461 ; Stone v. The Mayor, 25 Wend. 157 ; Mouse's Case, 12 Coke, 63 ; Keller v. Corpus Christi, 50 Tex. 614. Recovery is in some States allowed by statute : Bowditch v. Boston 101 TT. S. 16 ; Coflan v. Nantucket, 5 Cush. 269 ; Keller v. Corpus Christi, 50 Tex. 614. MOSES V. PITTSBURGH, FT. W. & C. R. R. 177 b By Statu):e or Municipal Ordinance. Moses v. Pittsburgh, Ft. W. & C. R. R. Supreme Court of Illinois, 1859. 21 111. 517. Caton, C. J. By its charter this company was authorized to bring its road to Chicago, and to acquire property within the city. By this it was intended to allow the road to run into the city. It was not the intention that it should be com- pelled to stop so soon as it touched the city limits, and thus render the road comparatively useless both to the public and the company. The language of the charter requires no such limited construction, and the objects of the law would be evi- dently frustrated by so illiberal an interpretation. But the complainant is the owner of property on Beach Street, and the Common Council of the city have authorized the defendant to lay down its track through the centre of that street, and to run its cars and locomotives over it ; whereby the complainant's property will be injured, for which he has re- ceived no compensation; and he asks an injunction to restrain the defendant from exercising the right thus granted. By the city charter the Common Council is vested with the exclusive control and regulation of the streets of the city, the fee simple title to which we have already decided is vested in the munici- pal corporation. The city charter also empowers the Com- mon Council to direct and control the location of railroad tracks within the city. In granting this permission to locate the track in Beach Street, the Common Council acted under an express power granted by the Legislature, so that the de- fendant has all the right which both the Legislature and the Common Council could give it, to occupy the street with its track. But the complainant assumes higher ground, and claims that any use of the street, even under the authority of the Legislature and the Common Council, which tends to de- 12 178 DAMAGE INCIDENT TO AUTHOKIZED ACT. teriorate the value of his property on the street, is a violation of that fundamental law which forbids private property to be taken for public use without just compensation. This is manifestly an erroneous view of the constitutional guarantee thus invoked. It must necessarily happen that streets will be used for various legitimate purposes, which will, to a greater or less extent discommode persons residing or doing business upon them, and just to that extent damage their property, and yet such damage is incident to all city property, and for it a party can claim no remedy. The Common Council may appoint certain localities, where hacks and drays shall stand waiting for employment, or where wagons loaded with hay or wood or other commodities shall stand waiting for purchasers. This may drive customers away from shops or stores in the vicinity, and yet there is no remedy for the damage. A street is made for the passage of persons and property ; and the law cannot define what exclusive means of transportation and pas- sage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly com- port with the advancement and enlightenment of the present age. Steam has but lately taken the place, to any extent, of animal power for land transportation, and for that reason alone, shall it be expelled the streets ? For the some reason camels must be kept out, although they might be profitably introduced. Some fancy horse or timid lady might be fright- ened by such uncouth objects. Or is the objection not in the motive power used, but because the carriages are larger than were formerly used, and run upon iron, and are confined to a given track in the street ? Then street railroads must not be admitted — they have large carriages which run on iron rails and are confined to a given track. Their momentum is great and may do damage to ordinary vehicles or foot passengers. MOSKS V. PITTSBURGH, FT. W. <& C. K. E. 179 Indeed, we may suppose or assume that streets occupied by them are not so pleasant for other carriages or so desirable for residences or business stands, as if not thus occupied. But for this reason the property-owners along the street cannot expect to stop such improvements. The convenience of those who live at a greater distance from the centre of a city require the use of such improvements, and for their benefit, the own- ers of property upon the streets, must submit to the burthen when the Common Council determine that the public good requires it. Cars upon street railroads are now generally, if not universally, propelled by horses, but who can say how long it will be, before it will be found safe and profitable to propel them with steam, or some other power beside horses ? Should we say that this road should be enjoined, we could advance no reason for it which would not apply with equal force to street railroads ; so that consistency would require that we should stop all. Nor would the evil which would re- sult from the rule we must lay down stop here. We must prohibit every use of a street which discommodes those who reside or do business upon it, because their property will else be damaged. This question has been presented in other States, and in some instances where the public only have an easement in the street, and the owner of the adjoining property still holds the fee of the street, it has been sustained, but the weight of authority, and certainly in our apprehension all sound reason- ing, is the other way. The bill was properly dismissed and we affirm the decree. Decree affirmed. Atchison & N. R. E. v. Garside, 10 Kans. 553 ; Slatten v. Des Moines V. E. E., 29 la. 148 ; Milburn v. Cedar Eapids, 12 la. 246 ; Porter v. North Mo. E. E., 33 Mo. 128, 138 ; Lackland v. North Mo. E. E., 34 Mo. 259, 274 ; City Clinton v. G. E. & M. E. E. Co., 24 la. 455; Fertilizing Co. v. Hyde Parle, 97 TJ. S. 659 ; Eakowsky v. Duluth, 44 Minn. 188 ; B. & P. E. E. v. Fifth Baptist Church, 108 U. S. 317 ; Cardwell v. American Bridge Co., 113 U. S. 205 ; Losee v. Buchanan, 51 N. Y. 476 ; Hamilton v. Vicksburg E. E., 119 U. S. 280; Escanaba v. Chicago, 107 U. S. 678; Jaggard, 140; Minn. Statutory Provisions on Eminent Domain ; Stat. 1894, U. S., ? 4092; State, 4085 ; Village, 1240 ; Corporation, 2604. ■ 180 INFANTS. c T0ET-FEAS0E8. Liability may depend upon conditions or relations of the parties. 1. Persons. a Natural. (1) Infants. ^ (a) Infants are liable for their tortuous acts not connected with contracts — i. e., there must be a tort performed inde- pendent of their contract. HUCHTING V. EnGEL. Supreme Court of Wisconsin, 1863. 17 Wis. 230. Error to the Circuit Court for Dane County. Huchting brought an action before a justice of the peace against Moirtz Engel for breaking and entering the plain- tiff's premises, and breaking down and destroying his shrubbery and flowers therein standing and growing. The answer, after a general denial, stated that if the defendant ever committed the alleged trespass, " he did so through the want of judgment and discretion, being an infant of about six years of age." On the trial before the justice, the plaintiff proved the alleged trespass and damages ; and on the part of the defense it was shown that the defendant, at the time of the trespass, was but little more than six years old. A mo- tion to dismiss the action, on the ground that the defendant was "of such tender years that a suit at law could not be HUCHTING V. ENGEL. 181 maintained against him, nor execution issued on a judgment against him," was overruled. The justice rendered judgment against the defendant for $3.00 damages, with costs. The Circuit Court, on appeal, reversed the judgment; and the plaintiff sued out his writ of error. Dixon, C. J. " Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds :" 2 Kent's Com. 241. " Where the minor has committed a tort with force, he is liable at any age; for in case of civil injuries with force the intention is not regarded ; for in such a case a lunatic is as liable to compensate in damages as a man in his right mind :" Eeeve's Dom. Eel. 258. " The privilege of infancy is purely protective, and infants are liable to actions for wrong done by them ; as to an action for slander, an action of trover for property embezzled, or an action grounded on fraud committed :" Macpherson on In- fants, 481 (41 Law Lib. 305). " Infants are liable for torts and injuries of a private nature, as disseisins, trespass, slander, assault, etc. :" Bingham on In- fancy, 110. " All the cases agree that trespass lies against an infant :" Hartfield v. Roper, 21 Wend. 620. This is the language of a few of the many writers and Courts who have spoken upon the subject. All agree, and all are supported by the authorities, with no single adjudged case to the contrary : Jennings v. Randall, 8 Term. 335 ; Sikes V. Johnson, 16 Mass. 389 ; Homer v. Thwing, 3 Pick. 492 ; Campbell v. Stokes, 2 Wend. 137; Bullock v. Babcock, 3 Wend. 391 ; Neal v. Gillett, 23 Conn. 437 ; Humphrey v. Douglass, 10 Vermont, 71. In the latter case the minor was held answerable for a trespass committed by him, although he acted by command of his father. The authorities cited by the counsel for the defendant in error have no bearing upon the question. They relate to the criminal responsibility of infants; to the question of 182 INFANTS. negligence on their part, as whether it can be imputed to them so as to defeat actions brought by them to recover damages for personal injuries sustained in part in conse- quence of the negligence or unskillfulness of others ; and to the liability of parents and guardians for wrongs committed by infants under their charge by reason of the neglect or want of proper care of such parents or guardians. The case at bar is none of these. The defendant is not prosecuted criminally ; the action is not by him to recover damages for personal in- jury occasioned by the joint negligence of himself or his parents, and another ; nor is the liability of the parents in- volved. The suit is brought to recover damages for a tres- pass committed by him ; not vindictive or punitory dam- ages, but compensation ; ' and for that he is clearly liable. If damages by way of punishment were dernanded, undoubt- edly his extreme youth and consequent want of discretion would be a good answer. Judgment of the Circuit reversed, and that of the justice of the peace affirmed. Peterson v. Heffner, 59 Ind. 130 ; 26 Am. Eep. 81 ; Bullock v. Babcock, 3 Wend. 391 ; Sikes v. Johnson, 16 Mass. 389 ; Humphrey v. Douglass, 10 Vt. 71 ; 33 Am. Dec. 177 ; Fits v. Hall, 9 N. H. 441 ; Vasse v. Smith, 6 Crancb, 22"6 ; Campbell v. Stakes, 2 Wend. 139 ; Jennings v. Rundall, 8 T. E. 335 ; Homer v. Thwing, 3 Pick. 492 ; Peigne v. Sutclife, 4 McOord, 387 ; 17 Am. Dec. 756 ; Conklin v. Thompson, 29 Barb. 218 ; Conway v. Reed, 66 Mo. 346 ; Neal u. Gillett, 23 Conn. 437 ; Baxter v. Bush, 29 Vt. 465 ; School Dis- trict V. Brandon, 23 N. H. 507 ; Badger v. Phinney, 15 Mass. 359 ; Wallace V. Morss, 5 Hill, 391 ; Kilgore v. Jordan, 17 Tex. 341 ; Lewis v. Littlefield, 15 Me. 233 ; Jaggard, 158, 159 ; Bishop, 560 ; Cooley, 103 ; Pollock, 60. Note. — Intention or absence of care being an essential element in the tort, lack of years may exempt the infant from liability, or prevent his being guilty of contributory negligence : Chicago & Alton R. R. v. Gregory, 58 111. 226 ; R. R. Co. v. Gladmon, 15 Wall. 401; Shaw*. Coffin, 58 Me. 254*; Jaggard, 161 ; Bishop, 564 ; Cooley, 104. EATON V. HILL. 183 (b) That an infant may be liable for a wrong arising in connection with a contract, the duty violated must have been created and imposed by law upon the contract obligation. Eaton v. Hill. Supreme Judicial Court of New Hampshire, 1870. 50 N. H. 235. BEtLOws, C. J. The substance of the declaration is that the defendant, having hired the plaintiff's horse for a short jour- ney, drove him so carelessly and immoderately as to cause his death. No promise is alleged to drive him moderately and with due care, but the plaintiffs put their case upon the ground of a breach of duty by the defendant, and the doing of a tortious act ; and the question is whether a minor is liable in such case. On this point the authorities are not altogether harmonious. In Fitts r. Hall, 9 N. H. 441, the cases were examined, and this principle deduced from them in the opinion by Parker, C. J., that " if the tort or fraud of an infant arises from a breach of contract, although there may have been false repre- sentations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable." In that case it was decided that an infant was liable for deceit in falsely representing himself to be of age, and thereby inducing the plaintiff to sell him goods on credit, and afterward avoid- ing his promise to pay by pleading infancy. The general doctrine of Fitts v. Hall is fully approved in Prescott v. Norris, 32 N. H. 103, per Perley, C. J., and is supported by the reasoning of the Court in "Woodman v. Hubbard, 25 N. H. 67, 73. Indeed, it would seem to be too clear to admit of contro- versy that an infant bailee must be liable for the injury or de- 184 INFANTS. struction of the thing bailed, by his positive, willful, and torti- ous act, even although it was part of the contract, express or implied, that the goods should be safely returned. As if, in the case of the bailment of a horse, he willfully beat him to death, or willfully drove him so immoderately as to endanger his life, and knowing that he did so, and actually causing his death. Such acts, indeed, would be wholly unauthorized by the contract of bailment ; and in respect to them the infant would stand as if no such contract existed. So that an action of trover might be maintained against him on the ground that the bailment was thereby determined : Wentworth v. McDuffie, 48 N. H. 402. It does not follow from this that for every case of immoderate driving for which an adult would be liable, an infant bailee would also be liable. The bailee in these cases is understood to stipulate for ordinary care and skill in the use of an animal so bailed, and for any injury caused by the want of it, he is liable. In the case of the infant, however, his promise to use due care and skill does not bind him, but he is still liable for positive tortious acts, willfully committed, whereby the thing bailed is injured or destroyed. If, through want of skill and experience, the animal is unintentionally in- jured by the infant, it might well be contended that he would not be liable because he has made no binding promise to exer- cise such skill. There are cases which hold that an infant, who hires a horse for a journey, is not liable for an injury caused by immoderate driving. The case of Jennings v. Rundall, 8 T. R. 335, is of this character, and the Court held that the cause of action arose out of a contract, and that the infant could not be made liable by changing the form of action to tort. This case is criticised and doubted by Parker, C. J., in Fitts v. Hall, upon the ground that Lord Kenyon seemed to regard the injury as resulting from an accident, without adverting to that part of the declaration which might, with proper proof, have made a case of ■ con- version. It is very true that Lord Kenyon, in his opinion, assumes that the injury to the horse was accidental, although the declaration alleges that the defendant wrongfully drove EATON V. HILL. 185 the mare immoderately, and so caused the injury. The other Judges also assume that the cause of action was substantially a breach of contract; and if this were so the decision was clearly right, and would not conflict with the doctrine of Fitts V. Hall. There are other authorities that accord with Jennings v. Eundall. See 1 Am. Lead. Cases, 4th ed., 261-263, and cases cited. In Schenk v. Strong, 1 Southard, 87, infancy was held to be a good bar to an action on the case alleging that a chair was lent to defendant for a particular journey, to be used carefully and returned at a specified time, yet that he went on a different journey, carelessly broke it, and did not return it at the time agreed, thereby violating his engagement in every particular. In all respects except the going a different jour- ney, this has the character of a mere breach of contract, for which the infant cannot be made liable by changing the form of action. The using the chair for a different journey was not a mere breach of contract, but a positive tortious act for which the infant was liable in some proper form of action : Homer V. Thwing, 3 Pick. 492 ; Towne et al. v. Wiley, 23 Vt. 353. In such cases the infant stands like an adult, and is liable on the ground that using the thing bailed for another purpose is a conversion. In such case an adult is clearly liable : Wood- man V. Hubbard, 25 N. H. 72, where it was held by Perley, J., that driving a hors6 to a place beyond the limits for which he was hired was a wrongful invasion of the plaintiff's right of property, and not a mere breach of contract ; and the case Homer v. Thwing is cited and approved. The Judge says that this case, and Vasse v. Smith, 6 Cranch, 231 ; Campbell v. Stakes, 2 Wend. 137, and Mills v. Graham, 1 Bos. & P. New, 140, are strong authorities to the point that an infant who re- ceives goods on a contract, and disposes of the property with- out right, is liable in trover. In Mills V. Graham, 1 B. & P. New, 140, it was held that an infant who had received of the plaintiff skins to be dressed and returned, was liable in trover for refusing to return them on demand. In Parsons on Con. 264, it is laid down that for 186 INFANTS. a tort or fraud which is a mere breach of his contract, an in- fant is not liable ; but where the tort, though connected by circumstances with the contract, is still distinguishable from it, there he is liable — as, if he hires a horse for an unneces- sary ride, he is not liable for the hire ; but if, in the course of the ride, he willfully abuses and injures the horse, he is liable for the tort; and if he should sell the horse, trover would lie. In 2 Greenl. Ev., § 368, it is laid down that an in- fant bailee of a horse is not liable for treating him negligently or riding him immoderately, but is liable if he goes to a differ- ent place, or beats the animal to death. In Campbell v. Stakes, 2 Wend. 37, it was held that if an infant who has hired a horse willfully and intentionally injures the animal, trespass will lie against him, or if he does any willful or pos- itive act which amounts to a disaffirmance of the contract ; but if he neglect to use him with ordinary care, or to return him at the time agreed on, he is not liable. This case is cited with approbation in Fitts v. Hall. Campbell v. Stakes was an action of trespass ; and the Court held that infancy, with an averment that the injury occurred in driving the horse through the unskillfulness and want of knowledge, discretion, and judgment of the defendant, was a good plea. In Towne et al. v. Wiley, 23 Vt. 359, the doctrine is said to be that infants are held liable for positive and substantial torts, but not for violations of contracts merely, although by the rules of pleading a plaintiff might declare in tort or con- tract at his election ; and in this case Judge Eedfield in- dorses the doctrine of Fitts v. Hall. We think, then, that the doctrine is well established that an infant bailee of a horse is liable for any positive and willful tort done to the animal distinct from a mere breach of con- tract — as, by driving to a place other than the one for which he is hired, refusing to return him on demand after the time has eipired, willfully beating him to death, and the like ; so, if he willfully and intentionally drive him at such an im- moderate speed as to seriously endanger his life, knowing that it will do so. In Wentworth v. McDuffie, 48 N. H. 402,. EATON I'. HILL. 187 such driving by an adult was held to be a conversion ; and for aught we can see, the same principle would apply to the case of an infant. In all these cases it may be urged that the law implies a promise, on the part of the bailee, to drive the horse only to the appointed place, to return him at the end of the journey, not to abuse him or drive him immoderately, and that a fail- ure in either respect is merely a breach of contract. So it might be said that the law would raise a promise not to kill him ; and yet no one would fail to see that to kill him will- fully would be a positive act of trespass, for which an infant should be liable the same as if there were no contract. Between acts that are to be regarded as mere breaches of the contract of bailment and positive and willful torts, a line must be drawn somewhere ; and although it must often be difficult to discriminate between them, we think it is safe to hold that the acts we have named, and others of a like character, are positive torts for which an infant is liable, and not mere breaches of contract. When the infant stipulates for ordinary skill and care in the use of the thing bailed, but fails for want of skill and experience and not from any wrongful intent, it is in accordance with the policy of the law that his privilege, based upon his want of capacity to make and fully understand such contracts, should shield him. A failure in such a case, from mere want of ordinary care or skill, might well be re- garded as in substance a breach of contract for which the in- fant is not liable, even although in ordinary cases an action ex delicto might be sustained. But when, on the other hand, the infant wholly departs from his character of bailee, and by some positive act willfully destroys or injures the thing bailed, the act is in its nature essentially a tort, the same as if there had been no bailment, even if assumpsit might be main- tained in the case of an adult, or a promise to return the thing safely. In the case before us the declaration embraces a charge of immoderate driving whereby the plaintiffs' horse was killed, and, as we have seen, the proof might be such, under a proper 188 INFANTS. declaration, as to charge the infant ; and it might be such as to show that the immoderate driving was unintentional and wholly owing to want of experience and discretion, in which case he would not be liable. The question, then, is whether an action on the case, as this is, can be maintained for any cause of action that may be proved under this declaration. If it can be, the demurrer must be sustained. In some cases it is held that by a positive and willful tort the bailment is determined, and the remedy must be by action of trespass or trover, and that case will not lie. Such is the doctrine of Campbell v. Stakes, before cited ; and the Court put it upon the ground that the action on the case necessarily supposes the defendant to have a right to the possession of the property, under the contract of hiring, at the time the injury was committed, and that by declaring in case the plaintiff affirms the existence of such contract, and the plea of infancy would be a good defense to such action — citing Jennings v. Rundall, 8 T. R. 335, and Green v. Greenbank, 2 Marshall, 485, 4 Eng. Com. Law, 375. To the correctness of this view we are unable to subscribe. If a wrong has been done to the property bailed of such a na- ture that an action on the case would ordinarily be an appro- priate remedy, and at the same time an infant would be liable for it in any form of action, we perceive no reason for holding that case would not lie against him. If the declaration sets out a cause of action which is good against an infant bailee, by reason of its being a positive and willful wrong and not a mere breach of contract, and at the same time, according to the rules of pleading, an action on the case appears to be the appropriate remedy, we think it clear that such an action would be maintained. If it were necessary that the bailment should be determined in order to maintain the action, the facts stated would show it the same as it would be shown by stating a conversion in trover. In many cases trespass or trover will lie for injuries done by bailees, and to maintain those suits the bailment must have EATON V. HILL. 189 been determined ; and this is shown by proof of tortious acts inconsistent with the bailment — and from the bringing of these suits it may fairly be inferred that the plaintiff elects to con- sider the bailment at an end. In bringing an action on the case setting out such a positive and willful tort as is wholly inconsistent with the contract of bailment, and amounts to a disaffirmance of it, the same inference may be made. In all these cases the actions are based upon acts which disaffirm the contract of bailment, and the bringing the suits is an elec- tion by the bailor to consider the bailment terminated ; and this applies to an action on the case for a tort which dis- affirms the contract, the same as to trespass or trover; the latter is indeed but a subdivision of actions upon the case. AVe are brought then to the conclusion that case will lie against an infant bailee for a positive and willful tort of such a nature that, upon general principles of pleading, case is a proper remedy. Whether such a cause of action exists here remains to be seen. The declaration does not state such a cause. It states a bailment of the horse to defendant, and that he drove him so carelessly and immoderately as to cause his death. This, we think, does not go far enough to charge an infant bailee. It indeed goes no further than to charge him with what is in substance a breach of contract, and to that the plea of infancy is a good defense. In this respect it comes within the prin- ciple of Jennings v. Rundall, 8 T. R. 335, before cited. It is true that the immoderate driving may have been a positive and willful act so as to make the infant liable ; but we think that unless it is so stated, the plea of infancy is a good de- fense. If the facts will justify it, the plaintiffs may have leave to amend their declaration upon terms, which will be the costs of demurrer. Whether the facts will justify such an amendment of the count in case as will support it remains to be seen. That a count in case might under some circumstances be the appropriate remedy may be inferred from the case of Gilson V. Fisk, 8 N. H. 404, and the cases cited, as well as the case 190 INSANE PERSONS. of Waterman v. Hall, 17 Vt. 128, and numerous cases where it is held that a party may, at his election, sue in trespass, or waive the trespass and sue in case. Under some circumstances trover would lie as we have seen, and, as case and trover may be joined, there would seem to be no objection to adding a count in trover by way of amendment if the identity of the cause of action would be preserved. As it now stands, the conclusion is, the demurrer must be overruled. Homer v. Thwing, 3 Pick. 492 ; Towne v. Wiley, 23 Vt. 355 ; Burnard v. Haggis, 14 0. B. (N. S. ) 45, 108 E. C. L. ; Eaton v. Hill, 50 N. H. 235 ; 9 Amer. Eep. 189 ; Fish v. Ferris, 5 Duer, 49 ; Freeman v. Boland, 14 E. I. 39 ; 51 Amer. Eep. 340 ; Wilt v. Welsli, 6 Watts, 9 ; Fitz v. Hall, 9 N. H. 441 ; Studwell V. Shapter, 54 N. Y. 249 ; Conrad v. Lane, 26 Minn. 389 ; Elwell v. Martin, 32 Vt. 217 ; Schenk v. Strong, 4 N. J. L. 87 ; Livingston v. Cox, 6 Pa. St. 360 ; Penrose v. Curren, 3 Ea,wle, 351; 24 Am. Dec. 356 ; Eoot v. Stevenson, 24 Ind. 115; 1 Am. L. C. 262; Jaggard, 162; Bishop, 566; Cooley, 106. (2) Insane Persons. An insane person is liable for his torts, except 'when intention is an essential element and then no liability attaches. Jewell v. Colby. Supreme Court of New Hampshire, 1891. 24 Atl. 902. Bingham, J. In the agreed case it appears that the defend- ant is guilty of causing the death of Martha Fortier by his wrongful act, unless it is otherwise by reason of insanity. The question presented is whether the defendant is liable for his torts, and especially those committed when insane. The ex- ecutor or administrator of a deceased person whose death was caused by the wrongful act or neglect of another may recover damages of the wrong-doer for the injury to the deceased per- son and his estate caused by such act, although the death in law may be a felony. The cause of action survives, and may be prosecuted by an executor or administrator, the same as by JEWELL V. COLBY. 191 an injured person when death does not ensue : Laws 1887, c. 71 ; French v. Flannel Co., 20 Atl. Rep. 363 (Hillsborough, March 14, 1890). Generally, an insane person is liable for his torts to the extent of compensation for the actual loss sustained by the injured party, but when the wrong lies in the intent, and the intent is an impossibility, there can be no recovery : Cooler, Torts, 103 ; Sedg. Dam. "(5th ed.) 456, note 1 ; Hil. Torts, 228, § 4; Bank v. Moore, 78 Pa. St. 407; Jackson v. King, 15 Amer. Dec. note, 368 ; Morain v. Devlin, 132 Mass. 87 ; Bullock v. Babcock, 3 Wend. 391, 393. There may be an exception, however, in the case of an inevitable accident : Brown v. Collins, 53 N. H. 442, 451. On the facts stated in the case, evidence of the defendant's insanity is not admissible to defeat the right to recover, or at all, unless the plaintiff claims punitive, exemplary, or a greater sum in damages than compensation for the actual loss sustained, and the action may be maintained. If greater damages are sought on account of the intent or motive of the defendant, insanity is a good answer to the same, as an insane person has no will or motive, and the measure of damages is compensation for the actual loss : Krom v. Schoonmaker, 3 Barb. 647. Case dis- charged. Bryant v. Jackson, 6 Humph. 199 ; Morain v. Devlin, 132 Mass. 87 ; ilorse V. Crawford, 17 Vt. 499 ; Behrens v. McKenzie, 23 la. 333 ; Cross )-. Kent, 32 Md. 581 ; Yeates v. Reed, 4 Blackf. 463 ; Dickinson v. Barber, 9 Mass. 22.5 ; Lancaster Bank v. Moore, 78 Pa. St. 407 ; Ward v. Conatser, 4 Baxter, 64 ; Haycraft v. Creasy, 2 East. 92 ; Brown v. Howe, 9 Gray, 84 ; Homer v. Marshall, 5 Munf. (Va.) 466; Minn. Stat. 1894, ? 5147 (2); Jaggard, 155 ; Bishop, 505 ; Cooley, 99 ; Pollock, 58. 192 MARRIED WOMEN. (3) Married Worrvm. (a) A husband and wife cannot sue each other in tort. Abbott v. Abbott. Supreme Judicial Court of Maine, 1877. 67 Me. 304. Peters, J. The defendants forcibly carried the plaintiff to an insane asylum. The case assumes the act to have been wrongful and wanton. The plaintiff and one of the defend- ants, at the time, were husband and wife ; since then she was divorced. Can an action of tort, for such an injury, instituted after divorce, be sustained by her against her former husband? We have no doubt that it cannot be maintained. Precisely the same question was lately before the English Court, and the decision and the reasons on which the decision is grounded meet with our unqualified approval : Phillips v. Barnet, L. R., 1 Q. B. D. 436. It is there held that a wife, after being divorced from her husband, cannot sue him for an assault committed upon her during coverture. In the course of the discussion in that case. Lush, J., says : " Now I cannot ■ for a moment think that a divorce makes a marriage void ah initio; it merely terminates the relation of husband and wife from the time of the divorce, and their future rights with regard to property are adjusted according to the decision of the Court in each case;" Field, J., says: "I now think it clear that the real substantial ground why the wife cannot sue her husband is not merely;a difficulty in the procedure, but the general principle of the common law that husband and wife are one person ; " and Blackburn, J., states the objection to be " not the technical one of parties, but because, being one person, one cannot sue the other." The theory upon which the present action is sought to be maintained is that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the proposition is the supposition that a cause of ABBOTT V. ABBOTT. 193 action or a right of action ever exists in such a case. There is not only no civil remedy, but there is no civil right, during coverture, to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before divorce. The legal character of an act of violence by husband upon wife and of the consequeuces that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any. The doctrine advocated by the plaintiff finds no support from any of the principles of the common law. According to the oldest authorities, the being of the wife became, by mar- riage, merged in the being of the husband. Her disabilities were about complete. By the earliest edicts of Courts, he had a right to strike her as a punishment for her misconduct, and her only remedy was, that "she hath retaliation to beat him again if she dare." And Chancellor Kent lays down the doctrine, not contradicted or challenged in any of the editions of his commentaries, that, " as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority and control over her per- son, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce :" 2 Kent Com. 180. But there has been for many years a gradual evolution of the law going on, for the amelioration of the married woman's condition, until it is now, undoubtedly, the law of England and of all the American States that the husband has no right to strike his wife, to punish her, under any circumstances or provocation whatever. See, upon this subject, the cases collected in a learned and in- structive note to the case of Commonwealth v. Barry, in 2 Green's Cr. L. Eeports, 286. Still, the state of the old common law serves to show the basis upon which the marriage relation subsisted; and we do not perceive that there has been, either by legislative enactment or by the growth of the law in adapt- ing itself to the present condition of society, any change in 13 194 MAEKIED WOMEN. that relation which can afford the plaintiff a remedy. So to speak, marriage acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other. As said by Settle, J., in State v. Oliver, 70 N. C. 60, " it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive." We are not convinced that it is desirable to have the law as the plaintiff contends it to be. There is no necessity for it. Practically, the married woman has remedy enough. The criminal Courts are open to her. She has the privilege of the writ of habeas corpus, if unlawfully restrained. As a last resort, if need be, she can prosecute at her husband's expense a suit for divorce. If a divorce is decreed to her, she has dower in all his estate, and all her needs and all her causes of complaint, including any cruelties suffered, can be considered by the Court, and compensation in the nature of alimonj'- allowed for them. In this way, all matters would be settled in one suit as a finality. It would be a poor policy for the law to grant the remedy asked for in this case. If such a cause of action exists, others do. If the wife can sue the husband, he can sue her. If an assault was actionable, then would slander and libel and other torts be. Instead of settling, a divorce would very much un- settle all matters between married parties. The private mat- ters of the whole period of married existence might be exposed by suits. The statute of limitations could not cut off actions, because during coverture the statute would not run. With divorces as common as they are nowadays, there would be new harvests of litigation. If such a precedent was permitted, we do not see why any wife surviving the husband could not maintain a suit against his executors or administrators for defamation, or cruelty, or assault, or deprivations that she may have wrongfully suffered at the hands of the husband ; and this would add a new methed by which estates could be plundered. We believe the rule, which forbids all such oppor- tunities for lawsuits and speculations, to be wise and salutary and to stand on the solid foundations of the law. ABBOTT V. ABBOTT. 195 The plaintiff invokes the case of Blake v. Blake, 64 Maine, 177, as supporting her right to sue. That was a suit in as- sumpsit. In matters of contract there may be a cause of action during coverture, not enforceable by the ordinary methods until afterward. The common law has been so far abrogated by the force of various legislative acts as to allow contracts to be made by husband and wife with each other. And, to a certain extent, contracts between man and wife always were upheld in Courts of Chancery. That case, there- fore, differs from this. Then, if the husband is not liable, the question arises whether the co-defendants are liable in this action. We think it follows from the previous reasoning that they are not. The true test as to their liability is, whether an action could have been maintained against them at the time of the act com- plained of. It is clear that no action was then maintainable. If the co-defendants had been then sued, the action must have been in the name of the husband and wife, and the husband would have sued to recover damages for an injury actually committed by himself. Husband and wife must declare that the injury was ad damnum ipsorum. She cannot, at common law, sue in her own name alone, nor in his without his con- sent. She cannot appoint an attorney, ordinarily, but he must do it for her. His conduct and admissions can affect the suit. He can release the cause of action and she cannot. She could do no act to redress an injurj' to her without his concurrence. Nor has the common law been changed in any of these respects until 1876 ; which was after this action was commenced. Laws of 1876, c. 112. The damages recoverable in an action would have belonged to him and not to her. And, at the same time, if she had committed a tort, he would have been civilly liable for it. It is very certain, therefore, that no action could ever have been sustained against them in his name. They merely aided and assisted him. But if there was no injury to him there was none to her. They were one. Without doubt, after the death of the husband, a wife may maintain an action in her own name for a wrong committed upon her while her 196 MARRIED WOMEN. husband was alive, if no action was instituted nor the cause of action released during his lifetime ; and undoubtedly the same right follows after a divorce a vinculo matrimonii. But she can only recover for such a wrong as she and her husband could have recovered for in their joint names while the mar- riage relation subsisted. She succeeds after death or divorce to just such rights as existed before that time. The language of the law is that the right survives to her. But there must be some right in existence to survive. Here there was none. A thing cannot continue after an event which does not exist before. It would not be the survival of a claim, but would be one newly created : Norcross v. Stuart, 50 Maine, 87 ; Mar- shall V. Oakes, 51 Maine, 308 ; Ballard v. Eussell, 33 Maine, 196 ; Laughlin v. Eaton, 54 Maine, 156 ; West v. Jordan, 62 Maine, 484 ; Hasbrouck v. Weaver, 10 Johns. 247 ; Snyder v. Sponable, 1 Hill (N. Y.), 567 ; Bacon Ab., Baron and Feme, K. ; Shaddock u Chfton, 22 Wis. 114. Plaintiff non-suit. Phillips V. Barnet, L.E., 1 Q. B. D. 436 ; State v. Oliver, 70 N. C. 60 ; Peters V. Peters, 42 la. 183 ; Schultz v. Schultz, 89 N. Y. 644 ; Libby v. Berry, 74 Me. 286 ; Nickerson v. Nickerson, 65 Tex. 281 ; Corn v. Barry, 2 Green Cr. Eep. 285-288 ; Jaggard, 223 ; Bishop, 173, 513 ; Cooley, 114 ; Pollock, 59. (b) The husband is liable for his wife's torts. Morgan v. Kennedy. Supreme Court of Minnesota, 1895. 64 3Sf. W. 912. Collins, J. The paramount question presented by this ap- peal is whether a husband is liable for slanderous words uttered by his wife when he is not present, and in which he has not participated in any manner — in other words, has the common-law rule which makes the husband answerable in damages for the torts of his wife during coverture been abro- gated by statute ? Counsel for appellant does not claim that MORGAN V. KENNEDY. 197 this rule has been wiped out by direct enactment, but ear- nestly insists that this is the inevitable result of legislation re- specting married women and their property, their and its legal status. To determine this question, we are required to ex- amine statutory enactments from the days of territorial legis- lation, keeping in mind the well-selected rules of construction that the common law will be held no further abrogated than the clear import of the language used in the statutes requires, and that an intention to change the common law will not be presumed from doubtful statutory provisions. From the ex- amination, we find that the earliest of our statutes relating to married women and their property, and in any way changing the common-law rules which theretofore prevailed, is found in § 105, c. 71, Rev. St. 1851 — territorial legislation. This section appears in a chapter entitled " Issues, and the Mode of Trial," and as a part of the provisions respecting the issuance, lev)', and satisfaction of executions in civil proceedings ; and it seems to be a rearrangement and enlargement of the terms of chapter 375, Laws, N. Y. 1849. We are unable to say more than this of its origin. It provided that all real or personal estate acquired by a female before her marriage, or to which she became entitled after marriage by inheritance, gift, grant, or devise, should be and continue hers after marriage, not liable for her husband's debts or liabilities, but liable for all of her debts contracted before marriage. We need not spe- cially refer to the provisos, as they do not bear upon the ques- tion in hand. In Pub. St. 1848-59, this section, with a pro- viso added in 1858 (of no consequence here), appeared as § 106, c. 61, which chapter was also entitled " Issues, and the Mode of Trial." It is further to be noticed that it still retained its position among the provisions regulating the issuance, levy, and satisfaction of executions upon judgments in civil pro- ceedings. While this statute was in force, it was assumed by this Court that the common-law rule of a husband's liability still prevailed : Brazil v. Moran (1863), 8 Minn. 236 (Gil. 205). By chapter 122 of the General Statutes of 1866, all of the legislation we have referred to was expressly repealed ; and, in 198 MARRIED WOMEN. place thereof, there was enacted chapter 69, entitled " Married Women," which radically changed the status of married women, and greatly enlarged their rights, powers, duties, and liabilities. This was the first law upon the subject after state- hood. The 1st section provided when and how married women might hold property in their own right, and not to be disposed of without the consent of their husbands ; the record of a schedule of the property owned by them when married being necessary to protect it as against their husband's credit- ors. The next three sections are not pertinent to this discus- sion, but, by the fifth, provision was made for the transaction of any business or trade by a wife in her own name and for her own benefit when abandoned by her husband, or in case he neglected to properly care for his family. All contracts made by the wife in the usual course of the business or trade were declared to be as valid and binding upon her as if she were sole, and she was to be free from all interference by her husband and his creditors in relation to the business or trade. To this section was appended a proviso " that the husband shall not be liable for any contract, default, or tort of the wife made, done, or incurred in the course of transacting any such business or trade." Among the provisions of this chapter is one to the effect that a married woman may be sued upon any contract made or wrong committed before her marriage, the same as if she were single. In the order of legislation, we now come to Gen. Laws, 1869, c. 56, now incorporated into Gen. St. 1894, as § 5531 et seq. ; and this enactment en- tirely superseded the law of 1866, supra. By this statute, fur- ther innovations were introduced, and again were the rights, powers, and liabilities of a married woman extended and en- larged, and she was expressly charged with personal liability for her torts ; and it was enacted that the husband should not be held for her debts or contracts. Then, as if to emphasize the matter, and place the legislative intention beyond all doubt, it was provided (§ 5536) that nothing in the Act should be construed as exempting a husband from liability for torts committed by the wife. MOKGAN V. KENNEDY. 199 Counsel for appellant have not called our attention to any other legislation which, in their opinion, is pertinent, except Gen. Laws 1887, c. 207 (Gen. St. 1894, § 5530), and of that we shall hereafter speak ; nor have we been able to discover any, and we are justified in asserting that there is none. The argument of counsel is mainlj' rested upon an application of the maxim, Cessante ratione legis, cessat ipsa lex, to the terri- torial legislation found in Rev. St. 1851, c. 71, with the amendments in Pub. St. 1849-58, c. 61. Commenting upon the subsequent enactment. Gen. St. 1866, c. 69, and especially that part of it which absolves the husband from liability for a tort committed by the wife in the course of transacting a busi- ness or trade for herself, they argue that it cannot be allowed to have the effect of preventing the prior legislation or the re- maining sections of chap. 69 from having its and their legiti- mate and natural result ; namely, of relieving the husband from the burden imposed at common law. And, referring to the Act of 1869 (now found in Gen. St. 1894), they insist that, if the earlier statutes had the force and effect claimed for them — had actually changed the rule — the fact the Legisla- ture which incorporated § 5536 into the law did not compre- hend the situation and appreciate what had theretofore been accomplished is of no consequence, and that nothing less than a positive re-enactment of the common-law rule upon the sub- ject could overcome the effect of the prior statutes. It is evident from the provision found in Gen. St. 1866, c. 69, exempting the husband from liability for all torts com- mitted by the wife in the course of her separate business trans- actions, that it was then understood by the legislators that the common-law rule was still in force. If this had not been the understanding, and if it had not been the legislative intent to continue the liability as to other torts, this particular feal^ ure of the law would not have appeared. It is certain that there would have been no exemption from certain torts if it had been supposed that, under the earlier statutes, the hus- band had been absolved from all, and such legislation would have served no purpose whatsoever. The same thing can be 200 MARRIED WOMEN. said of the Act of 1869, and with greater force, for in that Act the Legislature expressly provided in one section that the husband should no longer be liable for the wife's debts or contracts, not mentioning torts at all, and in another it speci- fically declared that the prior sections of the statute should not be construed as exempting husbands from the common- law liability. Again do we find emphatic expression of the legislative understanding and its purpose and intent. We do not speak of the legislative understanding of the scope of some prior statutes, because it can be allowed to control such statutes, but simply in connection with the intent and purpose of the Legislatures enacting the laws of 1866 and 1869. The intent of both of these statutes is exceedingly clear ; and that believing the common-law rule still in existence, it was the fixed purpose of the lawmakers to retain it, is obvious. We are now brought to a consideration of the statute of 1851, which, in so far as affects the present question, stood unchanged until 1866. It is to be observed that § 105, c. 71, Rev. St. 1851, was not passed as a ''Married Woman's Act," as were its successors, and that it simply appeared among statutory provisions regulating procedure upon executions in civil actions. Its design was to protect the property of the married woman from seizure to satisfy a husband's debts. It did not purport to confer upon the wife any new duties, nor did it grant any rights not theretofore belonging to her, except as it declared in few words that her real and personal estate acquired before marriage by her personal industry, or before or after marriage by inheritance, gift, grant, or devise, should remain her own after marriage, and that none of it should be subjected to seizure to satisfy her husband's debts, engage- ments, or liabilities. She was prohibited from disposing of Such property during coverture, without the consent of her husband, except as might be ordered by the District Court. The object in view, and what was designed by the Legisla- ture, was to protect the wife's property from her husband's creditors. She was not empowered by this statute to enter into contracts as if she were unmarried. It gave her the right MORGAN V. KENNEDY. 201 to hold property, not as a feme sole, but as if it had been settled to her own separate use as a feme covert. The disabilities imposed upon the wife at common law were not removed except in one respect. There was no general removal, as has been the ex- press purpose and result of more recent legislation throughout this country. The right of the wife to retain the ownership of such real and personal estate as was hers at marriage, and such as might come to her during coverture by inheritance, gift, grant, or devise, was distinctly declared ; but there was nothing whatever to indicate that the husband should no longer be held liable for his wife's torts. "While the statute emancipated the woman in respect to her property, it did not emancipate the man from the duties and obligations assumed by him upon marriage. In the statutes of 1851, regulating pleadings or relating to parties, nothing can be found which suggests or requires any change where an action is brought based upon a tort com- mitted by the wife. Attention has been especially called to the fact that upon statutes changing the rights, duties, powers, and obligations of married women, wholly silent as to a removal of the husband's liabilities, it has been held that they must be construed as absolving the latter from liability for the torts of their wives : Martin v. Robson, 65 111. 129; Norris v. Corkill, 32 Kan. 409 ; 4 Pac. 862. The conclusion reached in these cases is based upon the maxim, before mentioned : " The reason of the law ceasing, the law itself ceases." But an ex- amination of the statutes referred to in these cases will show that they are much broader than the one we are now consider- ing. Again, the current of authority is opposed to the views expressed in these decisions, even in jurisdictions where statutes have been very sweeping, and have completely eman- cipated the wife and her property from the control or inter- ference of her husband. Without elaborating, we cite some of the cases: Kowing v. Manley, 57 Barb. 479 ; Fitzgerald v. Quann, 33 Hun, 652, affirmed 109 N. Y. 441, 17 N. E. 354 ; Quick V. Miller, 103 Pa. St. 67 ; Choen v. Porter, 66 Ind. 195 ; Ferguson v. Brooks, 67 Me. 251 ; McElfresh v. Kirkendall, 36 202 MARRIED WOMEN. Iowa, 224 ; Zeliflf v. Jennings, 61 Tex. 458. See, also, Seroka V. Kattenberg, 55 Law J. Q. B. 375. We are convinced that so radical a change of the common law cannot be upheld from the mere fact of the enactment of 1851, and that the language found in the Married Woman's Acts of 1866 and 1869 plainly and conclusively refutes the proposition, that by either the prevailing rule as to the husband's liability was abrogated. There is nothing whatever in the claim of counsel that § 6, c. 56, of the Law of 1869 (Gen. St. 1894, § 5536), is unconsti- tutional, because it was legislation upon a subject not ex- pressed in the title of the Act itself. But, if this fact really possessed merit, it would be of no benefit to appellant, the reason clearly appearing in what has already been said. We have heretofore adverted to Gen. St. 1894, § 5530, the law of 1887. Counsel urge that by reason of the language, " Women shall retain the same legal personality after mar- riage as before," the married female must alone be held respon- sible for her torts. We should feel gratified and relieved if the purpose and mission of this piece of legislation could be discovered, but it has no bearing upon the question now before us. We are willing to admit that its author, and possibly the Legislature, intended to confer upon married women some great blessing in the way of additional rights, but it does not follow that man was to be relieved of burdens previously fastened upon Mm. We suspect that, speaking in a general way, an exactly opposite intention was in the mind of, at least, the author. Certain it is that, by the legislation of 1887, the husband was not absolved from his common-law obligation, and to construe the Act as urged by counsel would prove a startling innovation. It would undoubtedly be opposed to the spirit of what was said in Althen v. Tarbox, 48 Minn. 18, 50 N. W. 428, and Kroessin v. Keller (Minn.), 62 N. W. 488. Finally, on this point, we have to say that perhaps counsel are right when asserting that the common-law rule should be wiped out of existence, and that, in the present condition of things, it ought not to be tolerated for a moment. The remedy MORGAN V. KENNEDY. 203 is -within easy reach, however, and the appeal must be to the Legislature, not to the Courts. It is further contended in appellant's behalf that the words set out in the complaint as those spoken by Mrs. Kennedy are not actionable per se. They were as follows : " He has been drunk throughout Thanksgiving week. He has not re- tired any night during that week other than in a state of drunkenness. He has drunken people in his room. He gets people in his room and makes them drunk. He was drunk during the early hours the morning after Thanksgiving." Drunkenness is a crime under the laws of this State : Gen. St. 1894, § 6949. It is punishable by indictment. It was held in St. Martin v. Desnoyer, 1 Minn. 166 (Gil. 131), and again in West v. Hanrahan, 28 Minn. 885, 10 N. W. 415, that the words spoken of another which, when taken in their plainest and most natural sense, and as they would be ordinarily understood, obviously import the commission of a crime pun- ishable by indictment, are actionable per se. It is barely pos- sible that, in view of the many indictable offenses in this State under the present statutes, some of which reflect very slightly, if at all, upon the moral character of a person indicted, the proposition so flatly laid down in these two cases will have to be qualified ; but here the misbehavior charged in the words alleged to have been used by the defendant's wife was not only indictable, but involved the element of moral turpitude, and was such as to injuriously affect the social standing of the plaintiff. In view of the moral sentiment of the people of this State on the subject of drunkenness, so pronounced as to lead to the enactment of the Scheffer law in 1889, we do not hesitate to say that moral turpitude is involved in the charge that a man has been getting other people drunk, and has him- self been on a drunken debauch lasting for a week. The words uttered, according to the complaint, were actionable per se. Order affirmed. McElfresh v. Kerkendall, 36 la. 224 ; Fowler v. Chichester, 26 Ohio St. 9 ; Heckle «. Lurvey, 101 Mass. 344 (3 Amer. Rep. 366) ; Griflin v. Reynolds, 17 How. 609 ; Miller v. Sweitzer, 22 Mich. 391 ; Rowe v. Smith, 45 N. Y. 204 MAKEIED WOMEN. 230; Vanneman v. Powers, 56 N. Y. 39 ; Handy v. Foley, 121 Mass. 259 (23 Amer. Rep. 270) ; Mead v. Stratton, 87 N. Y. 493 (41 Amer. Rep. 386) ; Ferguson v. Collins, 8 Ark. 241 ; Ball v. Benett, 21 Ind. 427 ; Quilty v. Battle, 135 N. Y. 201 ; Brazil v. Moran, 8 Minn. 236 ; Allen v. McCullough, 2 Heisk. 174 ; Clark v. Bayer, 32 Ohio St. 299 ; Starbird Frankfort, 35 Me. 89 ; Hinds V. Jones, 48 Me. 348 ; McKeown v. Johnson, 1 McCord, 578 (10 Amer. Kep. 346) ; Minn. Stat. 1894, U 5532 & 5536 ; Jaggard, 215, 218 ; Bishop, 537 ; Cooley, 115 ; Pollock, 63. (c) Some States impose an additional liability on the wife ; others place all the liability on her and relieve the husband entirely except for her personal torts. Baum v. Mullen. Court of Appeals of New York, 1872. 47 N. Y. 577. Appeal from judgment of the General Term of the , Supreme Court in the second judicial department, affirming judgment entered upon verdict in favor of plaintiffs, affirming order denying motion for new trial. This action was brought to recover damages for alleged fraud in the sale of land. The representations claimed to be fraudulent were made by the husband of the defendant, he acting as her agent in the sale of the premises, the title of which was in her. At the close of the evidence defendant's counsel moved for dismissal of complaint, on the ground that the action could not be maintained against defendant with- out joining her husband as defendant. Motion denied and defendant excepted. Church, C. J. The only question presented for our de- cision is whether the joinder of the husband with the wife is necessary in an action for fraud in a contract for the sale of the real estate of the latter made by the former as the agent of his wife. We are of opinion that such joinder is not neces- sary. The statutes of 1860 and 1862 provide that "the wife may sue and be sued in all matters having relation to her sole and separate property, the same as if she were sole," and judg- BAUM V. MULLEN. 205 ment maj' be enforced against her separate property as if she were sole: Laws of 1862, p. 344. The counsel for the appellant claims that at common law the husband is liable for the torts of the wife, and that this Act has never been changed. This position is correct. The statute has not altered the commou-law liability of the hus- band for the mere personal torts of the wife, but when such torts are committed in the management and control of her separate property, the rule is changed, and she is liable the same as if she was unmarried, and can be sued in the same manner. In this case it is found that by the fraudulent representa- tions of the husband, acting as the agent of the wife in con- tracting for the sale of her property, $200 was received, which it is presumed was paid to her. She is responsible for the fraud, and has had the avails of it. The action is clearly for " matters having relation to her sole and separate property."' The}'' relate to the management and disposition of her property. The circumstance that the fraud was committed by her husband, acting as her agent, does not impair her liability. She had a right to employ her husband as agent, and, while acting as such in relation to her separate property, her lia- bility for his acts are precisely the same as it would be for the liability of any other agent. The statute has in a great degree abrogated the respective common-law rights, obligations, and duties of husband and wife growing out of the marriage rela- tion, as it respects property which the wife is permitted to own. As to such property, she is to be treated as unmarried. All the rights of an unmarried woman are conferred upon her, and all correlative obligations are imposed. The statute has declared equality of rights and equality of obligations and duties, and Courts have no alternative but to enforce both. The wife is liable in the same manner and to the same extent for frauds or torts committed in the manage- ment of her property, as she is upon contracts relating to it, and just as liable for fraudulent representations upon the sale of it as upon a covenant for quiet enjoyment. 206 COKPOEATIONS. In Rowe v. Smith, 45 N. Y. 230, this Court held that the wife was liable for trespass committed by her hogs and cattle escaping from her lands upon the premises of another, and the same principle is applicable to this case. But the principle here decided does not affect the common-law liability of the husband for the mere personal torts of the wife disconnected from the management of her separate property. The judgment must be affirmed with costs. All concur. Folgee, J., absent. Judgment affirmed. Vanneman v. Powers, 56 N. Y. 39 ; Rowe v. Smith, 45 N. Y. 230 ; Graves V. Spier, 58 Barb. 348 ; Kowing v. Manly, 49 N. Y. 192 (10 Am. Eep. 346) ; Heckle v. Lurvey, 101 Mass. 344 ; Davison v. Smith, 20 la. 466 ; Mich. Comp. L., §§ 6129, 7382 ; Burt v. McBain, 29 Mich. 260 ; Eecci v. Mueller, 41 Mich. 214 ; Bovard v. Kettering, 101 Pa. St. 181 ; 111. Session Laws, 1861, 143 & 1869, 255 ; Martin v. Eobson, 65 111. 129 ; Norris v. Corkhill, 32 Kans. 409 ; Md. Acts, 1880, ch. 253, R 31, 32 ; Mass. P. S. 1882, p. 819, ? 9 ; Mich. E. S. 1882, ?2 7714, 8959 ; Minnesota Stat. 1894, ? 5536 ; Jaggard, 219. b Artificial ; Corporations. (1) Private. Corporations are liable for their torts, though they are those in 'Which malice is an essential ingredient. Lynch v. Metropolitan El. Ey. Co. Court of Appeals of New York, 1882. 90 N. Y. 77. Eael, J. In September, 1878, the plaintiff purchased a ticket for a passage upon defendant's railway from its Forty- second Street Station to its Rector Street Station and entered one of its cars. Before reaching his destination he lost his ticket, and when he attempted to pass from the station plat- form through the gate into the street he was prohibited by the gate-keeper, and told that he could not pass until he pro- LYNCH V. METROPOLITAN EL. EY. CO. 207 duced a ticket or paid his fare. He explained that he had paid his fare and lost his ticket, and insisted upon passing out. He was pushed back b}^ the gate-keeper, who refused to let him pass. He expostulated and insisted upon his right to pass, when the gate-keeper sent for a police officer and ordered his arrest. He was arrested and taken to a police sta- tion by the police officer, the gate-keeper going along and making complaint against him. He was locked up in the station-house over night. In the morning the gate-keeper appeared against him, and he was examined before a police magistrate and discharged. This action was afterward com- menced to recover damages for the false arrest and imprison- ment. He recovered a judgment, which has, upon appeal, been affirmed. We are of opinion that the trial Judge was right in holding, as matter of law, that the plaintiff's detention and arrest were illegal. The defendant had the right to make reasonable rules and regulations for the management of its business and the con- duct of its passengers. It could require every passenger, before entering one of its cars, to procure a ticket, and to produce and deliver up the ticket at the end of his passage or again pay his fare : The Northern R. R. Co. v. Page, 22 Barb. 130 ; Hibbard V. The N. Y. & Erie R. R. Co., 15 N. Y. 455 ; Vedder v. Fel- lows, 20 lb. 126 ; Townsend v. The N. Y. C. & H. R. R. R. Co., 56 lb. 295 ; 15 Am. Rep. 419. The defendant had such a regulation, and no complaint can be made of that. But it had no regulation, and could legally have none that a passen- ger, before leaving its cars or its premises, should produce a ticket or pay his fare, and if he did not, that he should then and there be detained and imprisoned until he did do so. At most, the plaintiff was a debtor to the defendant for the amount of his fare, and that debt could be enforced against him by the same remedies which any creditor has against his debtor. If the defendant had the right to detain him to en- force payment of the fare for ten minutes it could detain him for one hour, or a day, or a year, or for any other time until 208 CORPORATIONS. compliance with its demand. That would be arbitrary im- prisonment by a creditor without process or trial, to continue during his will until his debt should be paid. Even if a reasonable detention may be justified to enable the carrier to inquire into the circumstances, it cannot be to compel pay- ment of fare. The detention here was not to enable the gate- keeper to make any inquiry, but simply to compel payment. He was absolutely informed that he could not pass out with- out producing a ticket or paying his fare. This is not like the cases to which the learned counsel for the defendant has called our attention, where railroad conductors have been held justified in ejecting passengers from cars for refusing to pro- duce tickets or pay their fares. A passenger has no right to ride in a car without payment of his fare, and if he refuses to pay the railroad company is not bound to carry him, and may at a proper place and in a proper manner remove him from the car ; but it could not imprison him in a car until he paid his fare for the purpose of compelling payment. These views have the sanction of very high authority. In Sunbolf V. Alford, 3 M. & W. 248, it was held that an inn- keeper could not detain the person of his guest in order to secure payment of his bill. Lord Abinger said : " If an inn- keeper has a right to detain the person of his guest for the non-payment of his bill he has a right to detain him until the bill is paid, which may be for life ; so this defense supposes that by the common law a man who owes a small debt, for which he could not be imprisoned by legal process, may yet be detained by an inn-keeper for life. The proposition is monstrous. . . . Where is the law that says a man shall de- tain another for his debt without process of law?" In Chil- ton V. The London, etc., Railway Co., 16 M. & W. 212, the de- fendant was organized under an Act conferring much broader powers than are possessed by the defendant in this case, and yet it was held that it could not arrest a passenger for refus- ing to pay a fare which it was entitled to demand. In Standish v. Narragansett Steamship Co., Ill Mass. 512, the plaintiff purchased a ticket before going upon the defendant's LYNCH V. METROPOLITAN EL. EY. CO. 209 steamboat for a passage from Fall River to New York. The defendant's regulation was that the passenger should, upon leaving the boat at the end of his passage, deliver up his ticket or pay his fare. When the plaintiff reached New York he found he had lost his ticket, and when he attempted tO' leave the boat he was prohibited, and told that he could not pass until he produced a ticket or paid his fare. He was de- tained two hours, and then, under protest, paid his fare and was permitted to leave the boat. He sued the company for false imprisonment and recovered $50. The trial Judge charged the jury that " the law gave the defendant a lien on the baggage of the plaintiff, but not on his person ; that they had no right to detain him until he did pay his fare or give up a ticket, or to compel him to pay his fare or give up a ticket, but that, if he knew that he was to give up his ticket before leaving the boat, the defendant had a right, if he did not give it up or pay his fare, to detain him for a reasonable time to investigate on the spot the circumstances of the case ; and if the jury found that the defendant detained him for the purpose of compelling him to pay his fare or to give up his ticket, or detained him for the purpose of investigating his case an unreasonable time or in an unreasonable way he was entitled to recover." The plaintiff appealed, alleging for error that the Judge erred in charging the jury that the de- fendant had the right to detain him a reasonable time to in- vestigate the circumstances of the case. No portion of the charge was condemned, and the portion excepted to by the plaintiff was held to be correct. A municipal corporation, authorized to make by-laws and pass ordinances and inflict penalties for their violation, can- not enforce obedience to them by imprisonment unless ex- pressly authorized so to do by statute : Potter on Corp., § 81 ; Clark's Case, 5 Coke's Rep. 64. It was argued before us, on behalf of the defendant, that the ticket sold to the plaintiff was the property of the defend- ant, intrusted to him for a special purpose, and that it had the right to prevent him, at the end of the journey, from carrying 14 210 CORPORATIONS. away this property. I am not quite ready to assent that after the defendant sold the ticket to the plaintiff it retained any right of property therein. But even if it did, it did not de- tain him on that ground ; and he did not then have the ticket in his possession or under his control, and hence a detention to compel him to deliver it up could not, on that ground, be justified. There was no error in the charge of the Judge in reference to the branch of the case we have thus far considered. The counsel of the defendant excepted to that portion of the charge of the Judge wherein he said in substance that the defendant had no more right to detain plaintiff until he paid his fare than a lawyer would have to detain in his office a client who consulted him and refused to pay his fee. There was no error in this illustration. The detention in either case is unlawful, and is condemned in the law upon precisely the same principles. There was no error in refusing to charge the request made by defendant's counsel that " the regulation of the defendant requiring passengers to produce and surrender a ticket or pay the legal fare before leaving the station was a reasonable regu- lation." It is true, that whether a regulation is a reasonable one or not is a question of law for the Court, but this request reached too far. It implied that the passenger was to re- main in the station and submit to indefinite detention there until he paid his fare, and such a regulation would not be reasonable. It now remains only to be considered whether the defendant was responsible for the acts of the gate-keeper. When the plaintiff attempted to pass through the gate the gate-keeper told him that in resisting and detaining him he was simply doing his duty, and he testified that in all he did he considered that he was acting in the line of his duty. The defendant's president testified that there was a rigid rule of the company that passengers were required to show at the gate that they had paid their fare in order to be able to pass out ; that when they came to the gate the rule was that the gate-keeper was not to let them go out till they either paid LYNCH V. METKOPOLITAN EL. RY. CO. 211 their fare or showed a ticket, and that the instructions to the gate-keepers were to collect tickets or fares. From these facts and all the circumstances of the case, if it is not entirely plain, the jury could at least find that the company expected the gate-keeper would detain a passenger who could not or would not produce a ticket or pay his fare at the gate, and the gate-keeper clearly understood that it was his duty so to do. In anything that he did, he did not act for any purpose of his own, but to discharge what he believed to be his duty to his principal. It matters not that he exceeded the powers conferred upon him by his principal, and that he did an act which the principal was not authorized to do, so long as he acted in the line of his duty, or, being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain, to that service. He detained the plaintiff at the station, caused his arrest, went with the police officer to the police station, there made a complaint, and then the next morning appeared before the police magis- trate and renewed his complaint. These were successive steps taken by the gate-keeper to enforce the payment of the fare by the plaintiff or to punish him for refusing to pay it, and for all that he did the defendant is responsible. The princi- ples upon which the liability of a master rests in such a case have been so fully and plainly laid down in recent cases in this Court that a restatement of them now would serve no useful purpose : Rounds v. Del., Lack. & "West. E. R. Co., 64 N. Y. 129 ; 21 Am. Rep. 597; Mott v. The Consumers' Ice Co., 73 N. Y. 543 ; Devine v. Mills, decided Oct. 10, 1882. The judgment should be affirmed, with costs. All concur, except Finch, J., dissenting, and Rapallo, J., not voting. Judgment affirmed. (a) False Imprisonment : Standish ij. Naragansett S. S. Co., Ill Mass. 512 ; Krulevitz v. Eastern E. R., 140 Mass. 573 ; Am. Ex. Co. v. Patterson, 73 Ind. 430; Owsley v. Montgomery R. R., 37 Ala. 560; Murdock ii. B. & A. R. R., 133 Mass. 15 ; Frost v. Domestic, etc., 133 Mass. 563 ; Wheeler v. Boyce, 36 Kans. 350. (b) Libel : Fogg v. Boston & L. R. Co., 148 Mass. 513 ; Maynard o. Fire- 212 CORPORATIONS. man's Fund Ins. Co., 34 Cal. 48 ; Aldricht). Press Printing Co., 9 Minn. 133 ; Hewitt V. Pioneer Press Co., 23 Minn. 178 ; Johnson v. St. Louis Dispatch, 65 Mo. 539 ; 2 Mo. App. 565 ; Bacon v. Mich. C. E. R., 55 Mich. 224 ; Vinas V. Merchants' Ins. Co., 27 La. Ann. 367; Howe Machine Co. v. Sowder, 58 Ga. 64 ; Whitefield v. S. E. R. R, El. Bl. & El. 115, 96 E. C. L. 113. (c) Malicious Prosecution : Goodspeed !>. East Haddam Bank, 22 Conn. 530 ; Denver R. R. v. Harris, 122 U. S. 597 ; Hussy v. Norfolk R. R., 98 N. 0. 34 ; Vance v. Erie R. R., 32 N. J. L. 334 ; Iron Nat. Bank v. Mercantile Bank, 40 Mo. App. 505 ; Williams^. Planters' Ins. Co., 57 Miss. 759 ; Copley V. G. & B. Machine Co., 2 Woods, 494 ; Ricord v. C. P. E. R., 15 Nev. 167 ; Carter?;. Howe Machine Co., 51 Md. 290; Fenton v. Wilson Sm. Co., 9 Phila. Rep. 189 ; Reed v. Home Savings Bank, 130 Mass. 443 ; Morton v. Ins. Co., 34 Hun, 366 ; 103 N. Y. 645 ; Wheless v. Second National Bank, 1 Baxter, 469 ; Booger v. Lite Ass'n, 75 Mo. 319. (d) Assault and Battery : Denver R. G. R. R. v. Harris, 122 U. S. 597 ; Brokaw v. R. R., 32 N. J. L. 328 ; St, Louis, etc., R. R. v. Dalby, 19 111. 353 ; Frost V. Domestic, 133 Mass. 563 ; Hewitt v. Swift, 3 Allen, 420 ; Jackson v. 2d Ave. R. R., 47 N. Y. 274 ; Chicago, etc., R. R. v. Williams, 55 111. 185. (e) Conspiracy : Buffalo Oil Co. v. Standard Oil Co., 106 N. Y. 669 ; Jor- dan V. Alabama R. R., 74 Ala. 85 ; Morton v. Met. Life Ins. Co., 34 Hun, 366 ; Western News Co. v. Dilmarth, 33 Kans. 510. (f) Contempt : People v. Albany R. R., 12 Abb. Pr. 171 ; Mayor v. Ferry Co., 64 N. Y. 624 ; U. S. v. Memphis R. R., 6 Fed. 237 ; Golden Gate Co. v. Superior Court, 65 Cal. 187 ; 1st Cong. Church v. Muscatine, 2 la. 69. (g) Fraud : Craigie v. Hedley, 99 N. Y. 131 ; Butler v. Walking, 13 Wall. 456 ; N. Y. R. R. v. Schuyler, 34 N. Y. 30 ; Works v. Barber, 106 Pa. St. 125 ; Lann v. Port Deposit Co., 49 Md. 233 ; Peebles v. Guano Co., 77 N. C. 233 ; Jaggard, 16 ; Bishop, 735 ; Cooley, 119 ; Pollock, 66. (2) Municipal. Municipal corporations are not liable for damages sustained in the performance of governmental functions. ' Snider v. City op St. Paul. Supreme Court of Minnesota, 1892. 51 Minn. 466 ; 53 N. W. 763. Appeal by plaintiff, Jennie Snider, from an order of the District Court of Ramsey County, Kelly, J., made May 14, 1892, overruling her demurrer to the answer of the city of St. Paul. By her complaint the plaintiff stated that she was on No- vember 3, 1891, at 5 p. M., descending in one of the elevator SNIDER V. CITY OF ST. PAUL. 213 cabs from the fourth to the first floor of the Court-house and City Hall building, in St. Paul. When the servant opened the door for her exit the floor of the cab was six inches lower than the first floor of the building, and she stubbed her foot and fell out onto the floor. At the same time the servant neg- ligently raised the cab the six inches and caught her foot be- tween the floor of the building and the floor of the cab and crushing it, doing her great personal injury. She asked judg- ment for |2,000 damages. Mitchell, J. The complaint alleges that the city of St. Paul and the county of Ramsey owned and possessed, as ten- ants in common, a building known as the " Court-house and City Hall ;" that they negligently constructed the entrance to one of the elevator shafts in an unsafe manner ; also that their servant in charge of the elevator handled it negligently, whereby the plaintifl' was injured. As one of its defenses, the city pleaded the various statutes regulating the construction, custody, and use of the building, particularly Sp. Laws 1881, c. 376, and Sp. Laws 1889, c. 64. Briefly stated, the Act of 1881 created a special court-house commission, consisting of the mayor of the city of St. Paul (who was ex officio a member) and five other persons, to be ap- pointed by the Judges of the District Court of Ramsey County. This commission was to prepare plans for a building for the use of the city and county " for a city hall and county court- house, and for offices for the city and county officers, and such other public uses as may be deemed expedient," and submit the same, together with an estimate of the cost, to the Board of County Commissioners and the Common Council of the city for their approval. Upon their approval of the plans the commission was to proceed and construct the building, which was to be paid for out of the proceeds of a fund called "court- house and city hall building fund," which was to be raised by the issue and sale of bonds of the city and of the county. The Act further provided that the city and county " shall hold the land occupied and needed for said building, together with 214 CORPORATIONS. the building which may be erected thereon, iu common, and for the public uses aforesaid." The Act of 1889 provided that when completed the building should be placed in charge of a committee of seven, to be appointed as follows : Three annually by the president of the Common Council, three annually by the chairman of the Board of County Commissioners, and that the mayor of the city should be ex officio a member and the chairman of the com- mittee. This committee was to have entire charge of the building, with power to appoint such janitor, custodian, and other employees as they should deem necessary for the proper care and management of the building. The answer also alleges that the city has never had any control over either the construction or custody of the building, which have been en- tirely under the direction and control of the court-house com- mission and committee referred to. The Court overruled a demurrer to this defense, placing its decision on two general grounds : First, that the special court-house commission which constructed the building, and the committee which has charge of it, were independent bodies, and not the agents or servants of the city, and hence that the city was not liable for their negligence; second, that even if the city had controlled the construction and custody of the building, it would, in so doing, have been performing merely a governmental duty for the benefit of the public, for any negligence in the performance of which no private action would lie. The decision might per- haps be sustained on either ground, but, as we are clearly of opinion that the second is well taken, it is unnecessary to con- sider the first. The common-law rule is that no private action can be main- tained against a municipal corporation for the neglect of a public duty imposed upon it by law for the benefit of the public, and from the performance of which the corporation re- ceives no pecuniary profit. As respects what are sometimes called " qitasi municipal corporations," such as counties, town- ships, and school districts, this is the rule everywhere, without exception. SNIDER V. CITY OP ST. PAUL. 215 But as respects what are called " municipal corporations proper," such as cities and incorporated villages, the general current of the authorities is to the effect that, even in the ab- sence of an express statute, they may be impliedly liable for acts of misfeasance or neglect of duty on the part of its officers and agents, while for the same or a similar wrong there is no such liability resting on quasi municipal corporations. The most noted and familiar instance of this is the different rule applied to towns and counties as respects liability for negli- gence in not keeping highways in repair, and that applied to incorporated cities for negligence in failing to keep streets in repair. But respecting the principle upon which to rest this distinc- tion, or as to the nature of the duties to which it extends, the Courts seem to be much perplexed, and their decisions, often in conflict with each other, leave the subject in some confusion. The ground for the distinction is not to be found in the mere fact that one is created by special charter, while the other is not, for both are alike subdivisions of the State, created for public, although local, governmental purposes. Nor is it to be found in the fact that the one is given greater poAvers than the other, unless the power is, not for public governmental pur- poses but to engage in some enterprise of a quasi private nature, from which the municipality will derive a pecuniary benefit in its corporate or proprietary capacity ; as for example, power to build gas-works or water-works, to furnish gas or water to be sold to consumers, or to build a toll bridge, from each of which the city would derive a revenue. In this class of cases it is generally held that corporations are liable for wrongful or negligent acts, because done in what is termed their "private" or " corporate " character, and not in their public capacity as governing agencies, in the discharge of duties imposed for the public or general benefit. But it is also generally held that they are not liable for negligence in the performance of a public, governmental duty imposed upon them for public benefit, and from which the municipality in its corporate or proprietary capacity derives 216 CORPORATIONS. no pecuniary benefit. The liabilities of cities for negligence in not keeping streets in repair would seem to be an exception to this general rule, which we think the Courts would do better to rest either upon certain special considerations of public policy or upon the doctrine of stare decisis than to attempt to find some strictly legal principle to justify the distinction. And, as already suggested, as to what are public and gov- ernmental duties and what are private or corporate duties the Courts are not in entire harmony, and their decisions do not furnish a definite line of cleavage between the two. Nor shall we attempt to fix any such line of universal application. For a quite full discussion of the subject, see Dill. Mun. Corp, ch. 23 ; and for an exhaustive review of the authorities, see Hill V. Boston, 122 Mass. 344. In Dosdall v. County of Olmsted, 30 Minn. 96 (14 N. W. Rep. 458), we held that a county is not liable for the negli- gence of its Board of County Commissioners in failing to re- pair a court-house, the duty of maintaining a court-house being a public one, and for a wholly public purpose. In Bryant v. City of St. Paul, 83 Minn. 289 (23 N. W. Rep. 220), we held that the city was not liable for the neligence of the Board of Health in the discharge of its duties, the same being public and governmental, and not corporate, in their character. And for a like reason, in Grube v. City of St. Paul, 34 Minn. 402 (26 N. W. Rep. 228), we held that the city was not liable for the negligent acts of members of its fire depart- ment. We fail to discover any distinction in the character in this respect of the duty performed by the city in maintaining a board of health, a fire department, or a police department, and that performed in providing and maintaining a city hall for the use of the public officers of the city. The city, in its private or corporate capacity, derives no more pecuniary ben- efit from the one than it does from the others, and in each case alike the purpose is a public and governmental one. The duty which a city performs in providing a city hall for the use of the public officers of the city is exactly the same in its nature as that performed by a county in providing a court- KAY V. CITY OF ST. PAUL. 217 house for the use of the county officers. The inconsistency of holding that the county of Ramsey is not hable (as must be, under the Dosdall Case), but that the city is, would be forcibly illustrated by the special facts of this case. Our conclusion is that the city is not liable. Order affirmed. (a) Fire Department : Grube v. St. Paul, 34 Minn. 402 ; Hafford v. New Bedford, 16 Gray, 297 ; Jewett v. New Haven, 38 Conn. 368 ; Howard v. San Francisco, 51 Cal. 52 ; Wilcox r. Chicago, 107 111. 334 ; Smith v. Rochester, 76 N. Y. 506 ; Hayes !'. Oshkosh, 33 Wis. 314 ; Wheeler v. Cincinnati, 19 Ohio St. 19 ; Bigelow v. Randolph, 14 Gray, 541 ; Torbush v. Norwich, 38 Conn. 225 ; Ogg v. Lansing, 35 la. 495 ; Elliot v. Philadelphia, 75 Pa. St. 347. (b) Health Department: Bryant i'. St. Paul, 33 Minn. 289; Bamber v. Eochester, 63 How. Pr. 103 ; Ulrich v. St. Louis, 112 Mo. 138 ; Richmond v. Long, 17 Gratt. 375 ; Dargan v. Mobile, 31 Ala. 469 ; Stewart v. New Orleans, 9 La. Ann. 461 ; Murtkugh v. St. Louis, 44 Mo. 479 ; Sherbourne v. Yuba Co., 21 Cal. 113 ; Ogg v. Lansing, 35 la. 495 ; Barber v. Ellsworth, 67 Me. 294 ; 3Iitehell v. Rockland, 41 Me. 363 ; Condict v. Jersey City, 46 N. J. L. 157. (c) Public Charities: Benton v. City Hospital, 140 Mass. 13; McDonald !'. Mass. Gen. Hospital, 120 Mass. 432 ; Tindley v. Salem, 137 Mass. 171 ; Boyd I'. Ins. Patrol, 112 Pa. St. 269. (d) Police Department : Wilmington v. Vandegrift, 29 Atl. 1047 ; Buttrick ■V. Lowell, 1 Allen, 172 ; Kimball v. Boston, 1 Allen, 417 ; Bowditch v. Boston, 101 U. S. 16 ; Calwell v. Boone, 51 la. 687 ; Hafford v. New Bedford, 16 Gray, 297 ; Odell v. Schroeder, 58 111. 353 ; Elliot v. Philadelphia, 75 Pa. St. 347 ; Culver r. Streator, 22 N. E. 810 ; Jaggard, 173-188 ; Bishop, 738 ; Cooley, 122 ; Pollock, 69. Modification. Municipal corporations are liable for wrongs or damages consequent in connection with (a) Streets, (b) Sidewalks, (c) Sewers. Eay v. City of St. Paul. Supreme Court of Minnesota, 1889. 40 Minn. 458 ; 42 N. W. 297. GiLFiLLAN, C. J. The substance of the complaint is that the city deposited, and permitted others, in violation of its own ordinances, to deposit garbage, snow, ice, and other refuse material in the Mississippi River, close to and adjoining the end of Sibley Street, a public graded street of the city, which terminates at the river, so that the deposit appeared to be a 218 COKPOEATIONS. prolongation of the street, and a part thereof, but which was dangerous to any person stepping thereon, and that plaintiff, without any negligence on his part, supposing said deposit to be a part of Sibley Street, stepped upon it, and, by reason of its dangerous character, was thrown down, and his leg broken. This appeal is from an order overruling a demurrer to the complaint. It is undoubtedly true that a municipal corporation, having the duty of keeping public streets in repair and safe condi- tion, is not bound to go beyond their limits for the purpose nor is it generally bound to erect railings to prevent travelers straying off the street to adjoining land upon which there may be dangerous places ; but it is bound to provide such guards where the street itself is unsafe for travel by reason of the close proximity of excavations, embankments, deep water, etc. City of St. Paul v. Kuby, 8 Minn. 125 (154) was such a case. That was the case of a sidewalk, along one side of which was a dangerous declivity outside the limits of the street. This Court sustained a finding that the city was liable for neghgence in not having a sufficient railing along the sidewalk. Of course it could make no difference in the principle controlling that the dangerous place is at the end instead of alongside of the street, if the nearness of the dan- gerous place renders the street unsafe for public use. And certainly the case of the city is not any better from the fact that it contributed to create the dangerous place, and, by making it appear to be a part of the street, rendered the use of the street unsafe. The demurrer was properly overruled. Order affirmed. (a) Streets : Chicago v. Johnson, 53 111. 91 ; Hinckley v. Somerset, 145 Mass. 326 ; Dotton v. Albion, 50 Mich.129 ; Aurora v. Bitner, 100 Ind. 396 ; Wyandotte v. Gibson, 25 Kans. 236 ; Furnell v. St. Paul, 20 Minn. 117. (b) Sidewalks : Chicago v. Schmidt, 107 111. 186 ; Lavery v. Manchester, 5S N. H. 444 ; Eockford v. Hildebrand, 61 111. 155 ; Kellogg v. Janesville, 34 Minn. 132 ; Beazan v. Mason City, 58 la. 233. (c) Sewers : Lansing v. Toolan, 37 Mich. 152 ; Rowland v. Kalamazoo, 49 Mich. 553 ; Van Pelt v. Davenport, 42 la. 308 ; Smith v. N. Y., 66 N. Y. 295 ■ Spelman v. Portage, 41 Wis. 144 ; Rozell o. Anderson, 91 Ind. 591 ; Spring- field V. Le Claire, 49 111. 476 ; Bishop, 757 ; Pollock, 69. KINCAID V. HAKDING COUNTY. 219 (3) Quasi Municipal. Quasi manicipal corporations are not liable for torts except Tvhere expressly made by statute. KiNCAiD V. Harding County. Supreme Court of Iowa, 1880. 53 la. 430 ; 5 N. W. 589. It is averred in the petition that the defendant is the owner of a two-storj^ building in Eldora, Hardin County, which is used as a court-house, and in the upper story of which the sessions of the District and Circuit Courts are held. That on the 15th day of October, 1878, the plaintiff was in attendance as a witness upon a night session of the District Court in said building. That the said building was accessible only by a narrow and unguarded stairway, which at night was extremely dangerous and unsafe to pass down, unless lighted by a lamp, or other artificial light, as the defendant well knew. That when said evening or night session of said Court adjourned, plaintiff started to go down said stairway, using all possible care and diligence, but owing to the unskillful and negligent manner in which said stairway was constructed, and owing to the gross negligence of the defendant in not lighting and properly guarding said stairway, the plaintiff, without fault or negligence on his part, fell from the top of said stairway to the floor below, by reason of which he was severely injured ; and for which he asks judgment against the defendant for $10,000. There was a demurrer to the petition, which was sustained. Plaintiff appeals. RoTHROCK, J. We are required to determine in this case whether a county is liable in damages to a person injured by reason of the negligent construction of a court-house, and be- cause of negligence in not lighting an unguarded and danger- ous stairway leading to a court-room. If in the discussion of the question regard is to be had to adjudicated cases it must 220 CORPORATIONS. be held that no such liability exists. See Dillon on Muni- cipal Corporations, vol. 2, § 762 ; Cooley's Constitutional Lim., p. 246 ; Addison on Torts, vol. 2, p. 1298. A large number of authorities are cited by the learned authors, and in Addison on Torts it is said, "A plainly marked distinction is made, and should be observed, between municipal corpora- tions, as incorporated villages, towns, and cities, and those other organizations, such as to^'nships, counties, school dis- tricts and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi cor- porations, and the general rule of law is now well settled that no action can be maintained against corporations of this class by a private person, for their neglect of public duty, unless such right of action is expressly given by statute." That municipal corporations proper are liable to an action for damages in such cases is settled beyond all question. The question has generally arisen in actions for injuries caused by unsafe and defective streets, sidewalks and bridges upon pub- lic thoroughfares, and as is said in Soper v. Henry County, 26 Iowa, 264, " There may be found decisions in almost all, if not in every State of the Union, to the effect that such actions may be maintained." In the same case it is said, " On the other hand the decisions are almost (though not wholly) uniform, to the effect that counties and other quasi corpora- tions are not liable to private actions for the neglect of their officers in respect to highways, unless the statute has in so many words created the liability, specially giving the action to the party injured." The authorities cited in support of the proposition are in the main the same as those cited by the learned text-writers above quoted. We need but refer to a few of them, which closely resemble the case at bar. In Commissioners of Hamilton County v. Mighels, 7 0. St. 109, it was held that a county was not liable for an injury suffered by the plaintiff, who, when in attendance upon Court as a witness, was precipitated into the cellar of the court-house, in consequence of the negligent omission of the agents or officers KINCAID V. HARDING COUNTY. 221 of the county to guard or light a dangerous opening leading into the cellar. In Bigelow i). Randolph, 14 Gray, 541, it was held that a town in Massachusetts, which had assumed the duties of a school district, was not liable for an injury sus- tained by a scholar attending the public school, from a dan- gerous excavation in the school-house yard owing to the neg- ligence of the town officers. In Eastman v. Meredith, 36 New Hamp. 284, it was held that a town was not liable for an injury to a person received by the giving way of the floor of a town house at an annual town meeting, the building having been negligently and defectively constructed by those who built it for the town. The ground upon which it is held that quasi corporations, such as counties, towns, school districts and the like, are not liable for damages in actions of this character is that they are involuntary territorial and political divisions of the State, created for governmental purposes, and that they give no assent to their creation, whereas municipal corporations proper are either specially chartered, or voluntarily organized under general Acts of the Legislature. This Court years ago held that a county was liable for an injury to a person caused by a defective county bridge : Wil- son & Gustin V. Jefferson County, 13 Iowa, 181. That case has been followed in a number of other cases down to the present time, although exhaustive arguments have been made insisting that it should be overruled, as against not only the weight but the whole current of authority. As often as the question has been made, the rule has been adhered to without deviation. In Huston v. Iowa County, 43 Iowa, 456, it is said, "We have no inclination now to review, either for the purpose of fortifying or overturning, a case (referring to Wil- son & Gustin V. Jefferson County) which has for so long a time, in so many instances, and in so deliberate a manner, been sanctioned and followed." It is insisted by counsel for appellant that the defendant must be held liable in the case at bar, because such liability rests upon the same ground, and is controlled by the same 222 CORPORATIONS. principles, as the cases involving liability for injuries caused by defective bridges. It must be admitted that a distinction in principle between an injury resulting from a defective county bridge, and one caused by a defective and improperly constructed court-house, is not very plain nor easily demon- strated. But as the line of decisions in this State as to the liability for defective bridges stand almost if not quite alone, as we have seen, we have no disposition to carry the doctrine further than is necessary to sustain the decisions of the Court, which have stood so long that it may truthfully be said they have the implied sanction of the law-making power and the people of the State: Krause v. Davis County, 44 Iowa, 141. There is a recognized distinction, however, which we will proceed briefly to examine. An examination of the cases where it is held that quasi corporations are not liable in actions of this character will disclose that the reason of the rule is, as before observed, that they are involuntary political divisions of the State created for governmental purposes, and in Bigelow v. Randolph, supra, it is said that the rule holding these quasi corporations not liable is of limited application. " It is applied in the case of towns, only to the neglect of, or omission of, a town to perform those duties which are imposed upon all towns without their corporate assent, and exclusively for public purposes, and not to the neglect of those obligations which a town incurs when a special duty is imposed on it with its consent, expressed or implied, or a special authority is con- ferred on it at its request." The statutes of this State contemplate that every county shall be provided with the necessary county buildings, and to that end, by section 303 of the Code, the board of supervisors are empowered to build and keep in repair the necessary buildings for the use of the county and the Courts. Section 773 provides that " when a county is not provided with a reg- ular court-house, at the place where the Courts are to be held, they shall be held at such place as the board of supervisors provide." It will be seen that all counties are required, with- out their assent and exclusively for public purposes, to provide KINCAID V. HARDING COUNTY. 223 a room or place for holding the Courts. The counties have no option concerning this duty. It is an involuntary duty im- posed upon them by the State, and imposed upon all alike. The obligation to build bridges is different. The statute leaves it to the respective counties to determine what bridges shall be built. It is provided that the board of supervisors shall have power " to provide for the erection of all bridges which may be necessary, and which the public convenience may require within their respective counties, and to keep the same in re- pair :" Code, § 303, sub. 18. The respective counties are not absolutely required by this provision of the statute to build any particular bridge, or to build any bridge whatever. It is a question to be determined by the board of supervisors, taking into account the wants and convenience of the public. Now, when they elect to build a bridge, it may very properly be said that under the rule last above referred to the county incurs a duty by its consent, and should be liable for the negligent performance of it, or for negligently permitting the bridge built by its express consent to become out of repair. We are aware that this distinction has not been taken in any of the cases determined by this Court, but it seems to us to be sound, and unwilling as we are to extend the liability of these quasi corporations further than already obtains, which, if done, must inevitably lead to inex- tricable complications arising in actions for all possible negligent acts, we conclude that the ruling of the District Court should be affirmed. Lane v. Woodbury, 58 la. 462 ; Sherbourne v. Yuba Co., 21 Cal. 113 ; State V. Hudson Co., 30 N. J. L. 137 ; Wakefield v. Newport, 62 N. H. 624; Bas- dall V. Olmsted, 30 Minn. 96; Hollenbeck v. Winnebago Co., 95 111. 148; Carter v. Wilds, 31 Atl. 715 ; Field v. Albemarle Co., 20 S. E. 954 ; Reed v. Howell Co., 28 S. W. 177 ; Packard v. Voltz, 62 N. W. 757 ; Jaggard, 182 ; Bishop, 766-7 ; Pollock, 69. 224 LANDLORD AND TENANT. 2. Landlord and Tenant. Generally the tenant and not the landlord is liable for injuries sus- tained through failure to keep the premises in repair, Lowell v. Spaulding. Supreme Judicial Court of Massachusetts, 1849. 4 Cush. 277. Shaw, C. J. The city of Lowell, having been obliged to pay damages to a party injured through a defect in one of the highways therein, arising from the want of repair of a side- walk, now seek their remedy to recover single damages of the defendant, as the owner of the estate, the sidewalk of which was defective. This case would be similar in principle to the case of Lowell v. Short, next preceding, if the defendant was bound to repair. But it appears from the facts stated, that the defendant had only a reversion in the estate, and that the tenements were in the actual occupation of his tenants. By the common law, the occupier and not the landlord is bound, as between himself and the public, so far to keep buildings in repair, that they may be safe for the public ; and such occupier is prima facie liable to third persons for damages arising from any defect : Eegina v. Watts, 1 Salk. 357 ; s. c, 2 Ld. Raym. 856 ; s. c, 3 Ld. Raym. 18 ; Cheetham v. Hampson, 4 T. R. 318. If, indeed, there be an express agreement be- tween landlord and tenant, that the former shall keep the premises in repair,, so that in case of a recovery against the tenant, he would have his remedy over, then to avoid circuity of action, the party injured by the defect and want of repair, may have his action in the first instance against the landlord : Payne v. Rogers, 2 H. Bl. 850. But such express agreement must be distinctly proved. Judgment for the defendant. Bears v. Ambler, 9 Pa. St. 193 ; Pope v. Boyle, 11 S. W. 1010 ; Chicago v. O'Brennan, 65 111. 160; Perez v. Raybaud, 13 S. W. 177 ; Gridley v. Bloom- ington, 68 111. 47 ; Long v. Fitzimmons, 1 W. & S. 530 ; Clifford v. Atlantic JOYCE V. MARTIN. 225 Mills, 146 Mass. 47 ; Stewart v. Putnam, 127 Mass. 403 ; Sinton v. Butler, 40 Ohio St. 158 ; Hoy v. Holt, 91 Pa. St. 88 ; AVheeler v. Crawford, 86 Pa. St. 327 ; Burks v. Bnigg, 7 So. 156 ; Powell v. Beckley, 56 N. W. 974 ; Jaggard, 223 ; Bishop, 858. Note.— But if he undertakes to repair them whether pursuant to con- tract or as a volunteer he is liable if negligently done : Callahan v. Lough- ran, 36 Pa. St. 835 ; Gill v. Middleton, 105 Mass. 477 ; Glickauf v. Maurer, 75 111. 289 ; Leslie v. Pounds, 4 Taunt. 649. a Exception. But the liability rests on the landlord -when he has expressly cove- nanted to repair. Lowell v. Spaulding. Supreme Judicial Court of Massachusetts, 1849. 4 Cush. 277. (Ante, page 224.) Ward V. Pagan, 101 Mo. 669 ; Nelson v. Brewery Co., L. E. 2 C. P. D. 311 ; Benson v. Suarez, 43 Barb. 400; 28 How. Pr. 511 ; Chicago v. O'Brennan, 65 111. 160 ; Payne v. Rogers, 2 H. Bl. 350; Todd v. Flight, 9 0. B., N. S. 377, 99 E. C. L. ; Jaggard, 225 ; Bishop, 858 ; Pollock, 528. b Exception. And also 'when he leases the premises in a state of nuisance and for continuing the same landlord and tenant are jointly liable. Joyce v. Martin. Supreme Court of Rhode Island, 1887. 15 R. I. 558 ; 10 Atl. 620. DuRFEE, C. J. We think the second count of the plaintiff's declaration sets forth a good cause of action, and that the de- murrer to it must be overruled. Briefly stated, the case set forth is this : On February 15, 1881, the defendant Martin was, and for a long time had been, the owner of an estate in East 15 226 LANDLORD AND TENANT. Providence, bounding on Providence River, known as " Silver Spring," being a place of public resort and entertainment to which the public had long been in the habit of resorting, and of a wharf extending thereform into said river, over which the people were in the habit of coming and going in great num- bers to and from said " Silver Spring," and at which many- steamboats were accustomed to touch. This wharf was, at the time mentioned, and long had been, unfit for such use in this, that there was a large opening in the top of it which was ac- customed to close when the steamboats touched, to the great danger of persons standing there, the wharf being without proper protection against the resulting shock. On February 15, 1881, Martin, knowing this, leased said "Silver Spring" and wharf to defendant Bliss, who was then ignorant of it, for the term of eight years, at $1,500 per annum, " Silver Spring " being let to be used as a place of public entertainment and resort, and said wharf as a suitable landing-place and place of egress for the numerous visitors thereto. Bliss soon became acquainted with the condition of the wharf, but left it un- repaired until after July 31, 1886, while he continued to invite the public to his resort, both he and Martin meanwhile de- riving great gains and profits therefrom. On July 31, 1886, the plaintiff's son, Henry D. Joyce, a boy of eleven years, was on the wharf as a visitor, at the invitation of Bliss, and, while in the exercise of due care, got his foot caught in the opening and crushed by the closing thereof when a steamboat touched the wharf. The plaintiff sues for damages for loss of the boy's services, etc. In Owings v. Jones, 9 Md. 108, the plaintiff sued for dam- ages for injuries received by falling into a vault appurtenant to the property of the defendant, and built under the sidewalk of a public street. It was shown in defense that the property had been leased by the defendant for the term of seven years, the lessee agreeing to pay an annual rent therefor, but not in any manner stipulating to keep the demised premises in repair, nor to have the sink kept clean, and that the lessee was in possession at the time of the accident. But the Court held JOYCE V. MARTIN. 227 that the defendant was not reheved from habihty if the vault was so constructed as to be unsafe for passers-by when the premises were let, or as to be liable to become unsafe in the nec- essary opening for the purpose of cleaning it. The Court, in giving its opinion, laid down the two following doctrines, re- lying on the authority of Rich v. Basterfield, 4 C. B. 784, and the cases cited there, to wit : First, Where property is demised and at the time of the demise is not a nuisance, and becomes so only by act of the tenant while in his possession, and in- jury happens during such possession, the owner is not liable. Second, But where the owner leases premises which are a nuisance, or must in the nature of things become so by their use, and receives rent, then, whether in or out of possession, he is liable for injuries resulting from such nuisance. Numerous cases support this view : Rosewell v. Prior, 1 Salk. 460 ; also, 12 Mod. 635, 639 ; The King v. Pedley, 1 A. & E. 822 ; The King V. Moore, 3 B. & Ad. 184 ; Todd v. Flight, 9 C. B. N. S. 377 ; Nelson v. The Liverpool Brewery Co., L. R. 2 C. P. Div. 311 ; Pretty v. Bickmore, L. R. 8 C. P. 401. In the last named case the lessor was held to be exempt from liability because he let the premises by lease in which the tenant covenanted to keep them in repair. See, also, the following American cases : Staple V. Spring, 10 Mass. 72 ; Fish v. Dodge, 4 Denio, 311 ; Davenport v. Ruckman, 37 N. Y. 568 ; Anderson v. Dickie, 26 How Pr. 105 ; House v. Metcalf, 27 Conn. 631. In Godley v. Haggerty, 20 Pa. St. 387, affirmed in Carson v. Godley, 26 Pa. St. Ill, it was held that when the owner of real estate erected thereon a row of buildings with the inten- tion of renting them to the government as bonded warehouses, and with the knowledge that they would be obliged as such to sustain very great weights, he was liable in damages for an in- jury to a person employed in one of the stores occasioned by its fall, after having been so rented, though the immediate cause of the accident was the storage of heavy merchandise in an upper story, it appearing that the building had been con- structed on a defective plan and of insufficient strength. In Swords v. Edgar, 59 N. Y. 28, it was held that the lessors 228 LANDLORD AND TENANT. of a pier, which was in possession of their lessee from whom they were receiving rent from it, were liable for an injury re- ceived by a ^longshoreman engaged in discharging a cargo thereon ; the cause of the injury being a danger or defect which existed at the date of the demise. The pier, though private property, was kept for use by all vessels which might come to it for the purpose of loading and unloading, and the Court held that the 'longshoreman, being in the employ of such a vessel, was to be regarded as there by invitation, and therefore as entitled to the protection which would result from having the pier in an ordinary state of security and strength. The Court also held, that though the lease contained a covenant binding the lessee to keep the pier in good order and repair, the lessors were not exonerated thereby, dissenting from Pretty V. Bickmore, supra. In Edwards v. New York & Harlem R. R. Co., 98 N. Y. 245, the plaintiff was injured by the falling of a gallery in a build- ing let to be used for public exhibitions ; and it was held that the lessors were not liable, there being no evidence that they either knew, or had reason to know, that the gallery would be used in such a way as to endanger its security. The Court, however, in delivering judgment, said : " If one builds a house for public amusements, or entertainments, and lets it for those purposes, knowing that it is so imperfectly or carelessly built that it is liable to go to pieces in the ordinary use for which it was designed, he is liable to the persons injured through his carelessness." A vigorous dissenting opinion, arguing that the lessors ought to be held to respond in dam- ages, was drawn up by Rugee, C. J., and concurred in by Danfokth and Finch, JJ. See, also, Camp v. Wood, 76 N. Y. 92. The case of Albert v. State, to use of Ryan, Court of Appeals, Maryland, January 4, 1887, 6 Central Reporter, 447, issue of April 7, 1887, appears to have been almost identical in its cir- cumstances with the case at bar. It was an action brought by or for a minor for damages sustained by him by the death of his parents, who were drowned by reason of the defectiveness JOYCE V. MARTIN. 229 of a wharf in the occupation of the defendant's tenant. The instruction given on trial to the jury was, that " if the jury- found that the defendant was the owner of the wharf, and that he rented it out to a tenant, and that at the time of the rent- ing the wharf was unsafe, and the defendant knew, or by the exercise of reasonable diligence could have known, of its un- safe condition, and the accident happened in consequence of such condition, then the plaintiff was entitled to recover." On appeal this instruction was approved by the Court of Appeals as correct. Several of the cases above cited are cases in which the lessors were held to respond in damages because the premises from which the injuries were received were in such a state as to be nuisances, public or private, when let ; but others are cases in which the lessors were held to respond because the premises let by them for a rent or profit were let to be used for purposes for which they were not fit, or safe to be used, and because the lessors knew when they let them the purposes for whicli they were to be used, and also knew, or ought to have known, that they were not fit or safe to be so used. The latter class includes Godley v. Haggerty, Swords v. Edgar, Albert v. State, to use of Ryan ; the liability which it proclaims being of special application where the premises are let to be used for popular resort or entertainment, or for other public or quasi public purposes. And, indeed, a disposition appears to exist on the part of some Judges to limit the lessor's liability, ex- cept for nuisances, to cases in which the injuries complained of are attributable to defective or dangerous premises let to be so used. The case at bar plainly falls within this class, even when so limited. The defendants cite Leonard v. Storer, 115 Mass. 86. In that case the plaintiff was injured while passing along a public street in Boston by the falling of snow and ice upon her from a house belonging to the defendant, but leased by him nearly twelve years before for the term of fifteen years to a tenant, who, by the terms of the lease, was " to make all needful and proper repairs, both external and internal." The plaintiff 230 LANDLORD AND TENANT. sought to charge the defendant because the roof was so con- structed that the snow and ice collecting upon it would nat- urally slide into the street. The Court held that it did not appear that the tenant " might not have cleaned the roof by the exercise of due care, or that he could not by proper pre- cautions have prevented the accident," nor that " any neglect of duty or wrongful act on the part of the defendant was the cause of the injury," and affirmed the judgment for the de- fendant. The ground of decision is not very clearly set forth, but it would seem that the defendant was discharged because the injury was attributable to the negligence of the tenant in- stead of to any defect in the structure of the house, or, if there was any defect, because it was for the tenant alone under the lease to remedy it. It will be observed that the de- fendant, if charged, would have been charged on the ground that the house when let was a public nuisance, and the case would have belonged to the first class of cases as above. The defendants also cite Mellen v. Morrill, 126 Mass. 546. In that case the defendant was the owner of a dwelling-house, which he let by parol to a tenant who occupied it for a dwelling- house and market. The walk from the street to the door led along an embankment, and was unsafe for want of a railing. The plaintiff, in going to the house along the walk in the night- time for the purpose of settling an account with the tenant, fell down the embankment and was injured., The Court held that the defendant was not liable, but that it was the duty of the tenant, if he used the premises so as impliedly to invite people to visit them in the night, " to make them safe by a raihng, or by a light, or by other warning." It did not appear that the defendant let the premises to be used as a market. Moreover, it would seem that they might have been safely used if the tenant had simply set out a light or other warning. See Rich V. Basterfield, 4 C. B. 784, 56 E. C. L. We think the action is maintainable against the lessor and lessee jointly. The case of Irvine v. Wood et al., 51 N. Y. 224, is exactly in point. There the cause of the injury was a coal- hole excavated in a city sidewalk and defectively covered WARREN V. WESTRUP. 231 which was used by the lessees of the premises. The lessor did not contest his liability. The Court held that the lessees were liable jointly with him. The Court, in giving judgment, said : " The landlord rented the nuisance and took rent for it. The tenants used it and paid rent, and hence they must all be con- sidered as continuing and responsible for the nuisance." Citing The King v. Pedley, 1 A. & E. 822 (28 E. C. L. 380) ,- Anderson v. Dickie, 26 How. Pr. 105 ; The People v. Erwin, 4 Denio, 129. See, also, The King v. Moore, 3 B. & Ad. 184 (23 E. C. L. 88). Demurrer overruled. Irvine v. Wood, 51 N. Y. 224 ; Harris v. James, 45 L. J., Q. B. 545 ; 9 East. 82; Durant v. Palmer, 29 N. J. L. 544; Stephani v. Brown, 40 III. 430; Moody M. Mayor, 34 How. Pr. 288 ; Clark v. Fry, 8 Ohio St. 358 ; Swords v. Edgar, 59 N. Y. 28 ; Owings v. Jones, 9 Md. 108 ; Bishop, 858 ; Cooley, 607-8. 3. Joint Tokt-Feasoes. a Definition. Persons uniting in common plan and execution to commit a tort are called joint tort-feasors, and all are liable Mvithout regard to de- gree of culpability or extent of participation. Warren v. Westrup. Supreme Court of Minnesota, 1890. 44 Minn. 237 ; 4& N. W. 347. Action for assault and battery, brought in the District Court for McLeod County against defendants John and Joseph Westrup, Stephen and Conrad Fink, Frank Klaus, and Joseph Otto. At the trial before Edson, J., the action was dismissed as to all the defendants except Joseph Westrup and Conrad Fink, and the jury returned the following verdict: "We, the jury in the above-entitled action, find for the plaintiff and against defendants Joseph Westrup |550, and Conrad Fink $150, and assess the plaintiff's damages at the sum of total $700." Plaintiff's counsel thereupon, in open Court, with 232 JOINT TORT-FEASORS. consent of defendant Conrad Fink, remitted the verdict and dismissed the action as to him. The defendant Joseph Westrup objected to the verdict when rendered, and thereafter moved to set it aside and for a new trial. The motion was granted and the plaintiff appealed. Collins, J. From the order made by the Trial Court, whereby it set aside the verdict herein, it appears that in an action brought against several persons to recover damages for an assault and battery the jury returned a verdict in plain- tiff 's favor against two, but undertook to apportion the amount thereof by assessing about four-fifths of the total against re- spondent, Westrup, and the remainder against a co-defendant, Fink. As against the latter, plaintiff dismissed his action and remitted the verdict immediately upon its rendition. There- upon the respondent moved the Court to set aside and vacate the verdict as to him. This being done, upon the ground that having remitted as to a co-defendant the verdict could not be sustained as to Westrup alone, plaintiff appeals. The Court below was in error, and its order must be reversed. In cases of this character the question is, what damages have been sus- tained by the injured party, and for the full amount of these damages each of the participants in the tort is liable. There can be no degrees of culpability as between joint wrong-doers, and joint or entire damages must be assessed. All of the legal consequences of being jointly guilty must necessarily follow, one being that each is liable for all the damages : Halsey v. Woodruff, 9 Pick. 555 ; Beal v. Finch, 11 N. Y. 128 ; Currier v. Swan, 63 Me. 323. The plaintiff' could have maintained his action against either, or a part, or against all, of the persons engaged in the trespass. As the action is several as well as joint, and as the plaintiff could have originally proceeded against Westrup solely, holding him for the full amount, so after the verdict he had a right to elect to take the damages awarded from the respondent alone. It is well set- tled that the jury should estimate the damages against all guilty defendants according to the amount which they think JACOBS V. POLLARD. 233 the most culpable should pay ; but where a Jury have improp- erly apportioned and severed such damages between defend- ants, the plaintiff may cure the irregularity by entering a nolle 'prosequi as to all but one, taking judgment against him only : Mitchell v. Millbauk, 6 Term E. 199 ; Salmon v. Smith, 1 Saund. 206 ; Dale v. Eyre, 1 Wils. 306 ; Fleming v. Langton, 1 Strange, 532; 3 Bac. Abr. "Damages," 4; 1 Tidd. Pr. 682; 1 Suth. Dam. 825 ; 2 Sedg. Dam. (7th ed.) 624 ; Allen v. Craig, 13 N. J. Law, 294 ; Crawford v. Morris, 5 Grat. 90 ; Eochester V. Anderson, 1 Bibb, 439 ; HoUey v. Mix, 3 Wend. 350. The respondent cannot complain of the dismissal, for there is neither indemnity nor contribution as between those who engage in a known and meditated wrong ; Spalding v. Oakes, 42 Vt. 343 ; Churchill v. Holt, 131 Mass. 67; Bailey v. Bussing, 28 Conn. 455 ; Miller v. Fenton, 11 Paige, 18 ; Arnold v. Clifford, 2 Sum. 238. Order reversed. Westbrooke v. Mize, 35 Kan. 299 ; 10 Pa. St. 881 ; Gilson v. Wood, 20 111. ,38 ; Miller v. Highland Ditch Co., 87 Cal. 430 ; Harley v. Brick Co., 83 la. 73 ; Bird V. Lynn, 10 B. Mon. 422 ; Allen v. Crary, 10 Wend. 349 : Acker v. Campbell, 23 Wend. 372 ; Olsen v. Upsahl, 69 111. 273 ; Elder v. Frevert, 18 Xev. 446 ; Wise. C. R. R v. Ross, 142 111. 9 ; Chicago v. Babcock, 143 111. 358 ; Sheldon v. Kibbe, 3 Conn. 214 ; Keegan v. Hayden, 14 R. I. 175 ; Jag- gard, 209-213 ; Bishop, 518 et seq.; Cooley, 124 et seq.; Pollock, 230. b Contribution. No contribution exists among joint tort-feasors except when they neither kno-w nor can be presumed of law to know that a legal wrong -was being committed. Jacobs v. Pollard. Supreme Judicial Court of Massachusetts 1852. 10 Cush. 287. Assumpsit brought originally in this Court for money had and received, being the receipts for certain cattle sold by the 234 JOINT TOKT-FEASOKS. defeudant. At the trial before Bigelow, J., it appeared that the plaintiff took certain cattle belonging to one Jacob Pol- lard, alleged to be damage feasant, and put them in his yard, and thereupon sent for the defendant, a field driver in the town of Groton, and delivered said cattle to him to be taken charge of and sold ; the defendant took the cattle from the plaintiff, kept them in his possession, and sold them at public auction according to law, in pursuance of an advertisement, stating that he did so acting under the orders of the plaintiff, and said defendant received the entire proceeds of said sale ; to recover the amount of which this action is brought. The said Jacob Pollard, to whom said cattle belonged, com- menced an action against the plaintiff and this defendant for trespass in taking and carrying away said cattle, and recov- ered judgment against them as joint trespassers for the value of said cattle and costs of suit ; and upon the execution on said judgment, the property of the plaintiff was taken, and the execution was paid by him in full. Upon the foregoing facts, the plaintiff claimed that the defendant acted as his agent in the sale of said cattle, and that he was entitled to recover in this action for money had and received, the full amount of the sales of said cattle at auction. But the Judge suggested a doubt whether, on the foregoing facts, the plaintiff could maintain his action, and he thereupon became non-suit, subject to the opinion of the whole Court. If the whole Court should be of opinion that the plain- tiff is not entitled to recover on the foregoing facts, judgment is to be entered for the defendant ; otherwise the non-suit is to be taken off and the case sent to a jury for trial. Bigelow, J. It was supposed at the trial of this cause that the facts relied on by the plaintiff to maintain his action brought it within the familiar and well-established rule of law that there can be no contribution or indemnity among tort- feasors. But upon consideration of the principle upon which this rule is founded, and the authorities bearing upon it we are of opinion that it does not apply to the case at bar. JACOBS V. POLLARD. 235 It is undoubtedly the policy of the law to discountenance all actions in which a party seeks to enforce a demand originating in a willful breach or violation, on his part, of the legal rights of others. Courts of law will not lend their aid to those who found their claims upon an illegal transaction. No one can be permitted to relieve himself from the consequences of hav- ing intentionally committed an unlawful act, by seeking an indemnity or contribution from those with whom or hy whose authority such unlawful act was committed. But justice and sound policy, upon which this salutary rule is founded, alike require that it should not be extended to cases where parties have acted in good faith, without any unlawful design or for the purpose of asserting a right in themselves or others, although they may have thereby infringed upon the legal rights of third persons. It is only when a person knows, or must be presumed to know that his act was unlawful, that the law will refuse to aid him in seeking an indemnity or contri- bution. It is the unlawful intention to violate another's rights, or a willful ignorance and disregard of those rights, which de- prives a party of his legal remedy in such cases. ,It has, therefore, been held, that the rule of law, that wrong-doers cannot have redress or contribution against each other, is con- fined to those cases where the person claiming redress or contribution knew or must be presumed to have known, that the act for which he has been mulcted in damages was un- lawful. Lord Kenyon, in the leading case of Merryweather v. Nixan, 8 T. R. 186, suggests this distinction, which the recent cases have more fully developed, and the rule is now always held subject to the limitations above stated : Bettsv. Gibbins, 2 A. & E. 57, 65 (29 E. C. L. 47); Pearson v. Skelton, 1 M. & W. 504 ; Adamson v. Jarvis, 4 Bing. 72 (13 E. C. L. 403) ; Wooley V. Batte, 2 C. & P. 417 (12 E. C. L. 649) ; Humphrys v. Pratt, 2 Dow & CI. 288 ; 2 Saund. Plead. & Ev. (2d ed.), 413, 414 ; Coventry v. Barton, 17 Johns. 142 ; Avery v. Halsey, 14 Pick. 174. See, also, Battersey's Case, Winch, 49. There is nothing in the facts of the present case from which it can fairly be inferred that the parties to this suit willfully 236 JOINT TOKT-FEASORS. committed the original trespass, with a knowledge, either actual or to be presumed, that they were thereby violating the rights of the owner of the cattle. They seem to have acted in good faith in seizing and selling the cattle, for the purpose of asserting a legal right in the plaintiff to take them on his land damage feasant, and to commit them to the defendant as field driver, who, virtute officii, was supposed to have the right to sell them under the plaintiff's authority. Although in these proceedings the parties grossly misconceived their legal rights and remedies, and committed an aggravated trespass on the property of a third person, yet it does not appear that they acted wantonly, with an intent to infringe on the rights of the owner of the beasts. Their only error was in the mode of enforcing their own rights, and being thereby guilty of an encroachment upon the rights of another. Upon the prin- ciples already stated, therefore, it is quite clear that there is nothing in the transaction to deprive either of the parties to this suit of their legal remedies against each other. There can be no doubt that the present defendant, if he had not received the proceeds of the sale of the cattle and retained them in his possession, and had been compelled to pay the amount of the judgment in the action of trespass, could have well maintained his suit against the present plaintiff for indemnity or contribution. The same rule applies, now that the parties are reversed. The defendant has in his hands the proceeds of the cattle, which he seized and sold by the order and as agent of the plaintiff. The plaintiff has paid the judg- ment recovered in the action of trespass in full, and thereby relieved the defendant from all liability on account thereof. He can now, therefore, well maintain an action for money had and received, to recover of the defendant the proceeds of the sale of the cattle, as money in his hands, which, in equity and good conscience, belongs to the plaintiff. Such recovery must of course be subject to such reasonable deductions there- from as will compensate the defendant for his costs and charges, incurred in consequence of committing the act of trespass by the authority and request of the plaintiff. The VAN HORN V. VAN HORN. 237 action being an equitable one, the plaintiff can be allowed to recover only what, under all the circumstances, is justly due. It was urged by the defendant that this action could not have been maintained by the plaintiff against the defendant immediately after the sale of the cattle and the receipt of the proceeds by the defendant, and therefore it cannot be main- tained now. Admitting, for the sake of the argument, the correctness of the first branch of this proposition, we do not think the latter follows as a legitimate conclusion from it. The relations of the parties have changed by the payment by the plaintiff of the judgment in the action of trespass ; until such payment, the defendant might have claimed to hold the proceeds as an indemnity against the claim for damages made by the owner of the cattle. He had then no money in his hands which equitably belonged to the plaintiff. The pay- ment of that judgment by the plaintiff has not only relieved the defendant from all liability, but has vested in the plaintiff an equitable right to the proceeds of the sale of the cattle. Non-suit taken off. Armstrong v. Clarion Co., 66 Pa. St. 218 ; Lowell v. E. R., 23 Pick. 24; Coventry v. Barton, 17 John. 142 ; Acheson v. Miller, 2 Ohio St. 203 ; Bailey V. Bussing, 23 Conn. 455 ; Peck v. Ellis, 2 John. Ch. 131 ; Nichols v. Nowling, 82 Ind. 488 ; Churchill v. Holt, 131 Mass. 67 ; Westfleld v. Mayo, 122 Mass. 100 ; Farwell v. Becker, 129 111. 261 ; Warren v. Westrup, 44 Minn. 237 ; Spaulding v. Oakes, 42 Vt. 343 ; Simpson v. Mercer, 114 Mass. 413 ; T. & P. R. R. V. Doherty, 15 S. W. 44; Gray v. Boston Light Co., 114 Mass. 149; Jaggard, 215 ; Bishop, 56, 535 ; Cooley, 147-8 ; Pollock, 231. 4. Conspirators. They are liable for wrong done in pursuance of a conspiracy inflictingr injury. Van Horn v. Van Horn. Supreme Court of New Jersey, 1890. 52 N. J. L. 284 ; 21 Atl. 1089. On demurrer. Case certified from the Essex Circuit. The defendants, Amos H. Van Horn and Casper Soer, Jr., 238 CONSPIRATOES. were summoned to answer James Van Horn and Emma D. Van Horn, his wife, in tort, for a conspiracy or combination to break up the wife's separate business of selling fancj"^ goods, on consignment at Newark. Two firms of wholesale jobbers in fancy and millinery goods had agreed, verbally, to supply her on credit with a stock of such goods, to be sold by her on commission, limiting the total amount to |2,500. One of said firms had, in pursuance of the agreement with her, sent $500 worth of goods, which were received and placed in her store for sale, and she was daily expecting the balance. With this prefatory statement, the declaration charges, that the de- fendants, maliciously intending to injure and drive the said Emma D. Van Horn out of business, and into public scandal, shame, and disgrace, and to injure her in her credit and busi- ness, and to prevent her from acquiring any profit or gain therefrom, or from continuing the same, did maliciously con- spire, combine, and agree to prevent her from enjoying and continuing her business, and in pursuance of said conspiracy, etc., did entice into their store, in Newark, one of the plaintiff's employees, and, by artful persuasion and threats, induced her to tell where the plaintiff's stock of goods was purchased, tell- ing her the stock would be taken from her and the business closed up ; and in pursuance and in further performance of their unlawful intent and combination, endeavored to prevent the customers and friends of the plaintiff from dealings with her, by falsely and fraudulently representing to them that she would not be able to carry on her business, but would have to close up, as she was selling goods that did not belong to her, and living off the proceeds, instead of accounting therefor, and by sending threatening notes and messages to them, de- signed to intimidate them from having any dealings with her, and did threaten to pursue her until she was ruined; that in further pursuance of such combination, and by means of fraud and deceit, they did persuade the said firm in New York to decline to complete their contract, and did prevail on them, by means of corrupt, fraudulent, and deceitful representations and statements as to the personal and business character and VAN HORN V. VAN HORN. 239 standing of the plaintiff, to remove the stock already supplied her, and refuse to deliver her other goods as agreed for, leav- ing her entirely without any stock to sell, or customers to purchase from her ; by means whereof she was left without stock and credit with the said firms, and could not obtain goods from other parties, and was driven out of her business and occupation and deprived of the profit and livelihood which she was making and daily increasing. To this declaration a general demurrer was filed, and joinder added. ScuDDER, J. The merely formal parts of this declaration will not be considered on the general demurrer, but the whole will be examined to determine whether it sets forth, in sub- stance, a legal cause of action. The case has been elaborately discussed by counsel, because the principles involved may affect other cases of even greater importance than this, and lead to serious complications where actions are brought be- tween rivals in business, or those who interfere with the ordi- nary course of trade to the detriment of others. A careful consideration of the subject has led me to the conclusion, that this case is readily distinguishable from many that have been cited in the argument, and does not involve many of the questions that have been presented. It is not necessary to consider the office of the ancient writ of conspiracy, and the process by which, in time, it was super- seded by the later and more efficacious action on the case for conspiracy, and the still more modern action for malicious prosecution. Nor will it now be advantageous to show how long and difficult it was to separate the idea of a criminal con- spiracy at common law, where the agreement or conspiracy was the gravamen of the offense, from the real complaint in a civil action, that the combination of two or more persons has enabled them to inflict a great wrong on the plaintiff. The combination or conspiracy in the latter case was, therefore, a matter of aggravation or inducement only, of wliich one or all might be found guilty, while in the former, it was essential 240 CONSPIRATORS. to show that two or more had joined in an agreement to do an unlawful act, or to do a lawful act in an unlawful manner. The distinction is now well established, that in civil actions the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover against all as joint tort-feasors. If he fails in the proof of a conspiracy or concerted design, he may still recover damages against such as are shown to be guilty of the tort without such agreement : Poll. Torts, 267; Gary v. Frazer, 76 Me. 37; Hutchins v. Hutchins, 7 Hill, 104 ; Jones v. Baker, 7 Cow. 445 ; Barker v. Huntingdon, 2 Gray, 124. The declaration begins in this form, and is unexceptionable in this particular. It is an action on the case, setting forth a malicious conspiracy or confederation, with the means em- ployed to effect its purpose, and the resulting damages to the plaintiff. No further specification is required than the gen- eral terms in which it is pleaded in the declaration. "We have not presented for determination in this pleading the vexed question, whether an action will lie against a third person for the malicious procurement of the breach of a con- tract, if by such procurement damage was intended to result, and did result, to the plaintiff: Lumley v. Gye, 2 El. & B. 216 (75 E. C. L.) ; Brown v. Hall, 9 Q. B. Div. 333. In the opinion of Mr. Pollock (ubi supra), the difficulties in such cases disappear, or are greatly reduced, when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill will, is a necessary element. Here the whole pleading is based on the malicious conduct of the defendants, in destroying the plaintiff's credit and patron- age, and breaking up her business and means of livelihood. The case is, however, farther distinguished from the cases cited above, and separated from the questions of difficulty involved in some of them, because here no breach of contract is alleged. There was no binding contract between the New York firms and the plaintiff, upon which they could be- sued for a breach. Where there is a suable contract between a con- VAN HOEN V. VAN HORN. 241 tractor and contractee, there is difficulty, in principle, in show- ing privity in another, or to make the person who procures a breach of the contract the proximate cause of injury. The party who breaks the contract, for whatever cause, whether by procurement of others or of his own volition, is primarily responsible to the other party; and the procurer, it would seem, can only be held responsible for the breach where there is malice shown to the sufferer, giving a distinct cause of action for the malice which caused the breach of the contract, resulting in damages to him. The plaintiff, Emma D. Van Horn, it is alleged, was sell- ing goods on consignment from others, with the expectation of greater consignments in the future. If the consignors refuse to send the goods to her, it does not appear that she could have any remedy against them. They could send or recall them at pleasure. The complaint here is, that the goods in the plaintiff's possession were recalled, and her advantageous arrangement for credit with the consignors ended, b\' the fraudulent and malicious act of the defendants. If she have no remedy against the defendants, she can have none against others for the wrong which she claims she has suffered. The difference between this action and slander, is well stated in Riding v. Smith, 1 L. R., Exch. Div. 91, where a slander against the wife was charged as having injured the husband's business. Her name was stricken from the record, as a joint plaintiff, and the action was allowed to proceed by the hus- band, as a trader, carrying on business, founded on an act done by the defendant which led to loss of trade and custom by the plaintiff. It was maintainable on the ground that the injury to the plaintiff's business was the natural consequence of the words spoken, which would prevent persons resorting to the plaintiff 's shop. Upon the whole case presented in the declaration, Mogul Steamship Co. v. McGregor, etc., 21 Q. B. Div. 544 ; s. c, 23 Q. B. Div. 598, is important to aid in preserving the distinc- tion between injuries caused by mere rivalries in business, 16 242 CONSPIKATORS. without the intention of ruining the trade of the plaintiflf, and those where such intent is shown with personal malice toward him. In the first report, Lord Chief Justice Coleridge says : " It is too late to dispute, if I desired to do so, as I do not, that a wrongful and malicious combination to ruin a man in his trade may be ground for such an action as this." In the later report, Lord Justice Fey, after a full statement of cases, says, that no mere competition carried on for the purpose of gain, and without actual malice, is actionable, even though intended to drive the rival in trade away from his place of business, and though that intention be actually carried into effect. Lord EsHER, M. R., dissented. It was decided that the exclu- sion of the plaintiffs, rival freighters, from participation in a five per cent, rebate on freight on teas from China, not being through malice, but in competition to increase their own busi- ness, was not actionable. The basis of action seems here to be, as stated in the decla- ration, the fraudulent and malicious acts of the defendant in driving the plaintiff, Emma D. Van Horn, out of her busi- ness ; the statement of the means used to effect this purpose all combine to produce a single cause of action, and are not objectionable for duplicity. But, if there were duplicity in the pleadings, this is not ground for a general demurrer. The demurrer should be overruled. Bohn Mfg. Co. v. Hollis, 54 Minn. 223 ; Robertson v. Parks, 76 Md. 118 ; Kimball v. Harman, 34 Md. 407 ; Hutchins v. Hutchins, 7 Hill. 104 ; Stevens V. Rowe, 59 N. H. 578 ; Laverty v. Vanarsdale, 65 Pa.-St. 507 ; Peroival v. Harres, 142 Pa. St. 369 ; Russell v. Post, 138 U. S. 425 ; People v. Plack, 125 N. Y. 324 ; Allen v. Kirk, 81 la. 658 ; Hablechtel v. Yambert, 75 la. 539 ; Minn. Stat. 1894, § 6423, Subds. (2, 3, 4, 5) ; Jaggard, 637-640; Bishop, 353 et seq.; Cooley, 124 et seq.; Pollock, 401 ; Bigelow, 91-96. POWELL V. CONSTRUCTION CO. 243 5. Independent Contractors. a Definition. An independent contractor is one w^ho, exercising an independent employment, contracts to do a piece of ■work according to his o'wn methods and -without being subject to the control of his employer except as to the result ; and one employing an independent con- tractor is not responsible for the -wrongful acts or omission of the contractor, sub-contractor or servants of either. Powell v. Construction Co. Supreme Court of Tennessee, 1890. 88 Tenn. 692 ; 13 S. W. 691. LuKTON, J. The defendant is a corporation engaged in the business of doing rail'n'ay construction under contract. It had a contract for the construction of the Tennessee Midland Road from Memphis to Jackson. It sub-let a portion of the track-laying to a firm of contractors known in the record as Meredith & Horton. The plaintiff, while the general servant of defendant, and while acting as a brakeman, was injured in making a coupling, and sustained the loss of an arm. The negligence alleged was that of Meredith, one of the sub-con- tractors, and the case turns upon the question of the liability of defendant for his negligence. The contract between Mer- edith & Horton and defendant was in the following words and figures : VIRGINIA CONSTRUCTION COMPANY. Articles of Agreement. (Signed in Triplicate.) Made and concluded this 15th day of November, 1887, by and between J. P. Meredith and J. R. Horton, under the firm name of Meredith & Horton, parties of the first part, and the Virginia Construction Company, party of the second part, witnesseth : That the party of the first part does hereby agree 244 INDEPENDENT CONTEACTORS. to lay the track of the Tennessee Midland Eailway Company east from a connection with the Memphis & Charleston Rail- road tracks, at or near McGhee's Junction, as far as the chief engineer of the party of the second part may determine and order, for the sum of four hundred and seventy-five dollars (|475) per mile, including all handling and rehandliug of ma- terials, to wit : For unloading rails, ties, and fastenings on arrival, per mile, . . . $15 00 Reloading and unloading same during progress of work, 60 00 Distribution of ties, 125 00 Laying and surfacing track • 275 00 Total — Laying and surfacing, per mile, complete, including all handling of materials of every kind $475 00 It is understood that the party of the second part will furnish push-cars, locomotives, flats, and engineer, fireman, and one brakeman ; that there shall be two thousand eight hundred and sixteen (2,816) ties to the mile, full spiked; that the fishplates shall have four (4) bolts to the joint, care- fully adjusted ; and that the track shall be surfaced with the best material found contiguous to the road-bed ; but material for surfacing is not to be taken from the embankments, but procured outside of the slopes, and where necessary said material shall be hauled. In crossing the river bottoms, or at other places where surfacing material is difficult to get, such extra allow- ances may be made as the chief engineei; seems equitable. The parties of the first part hereby agree to put in the cattle-guards upon that part of the road where the track is laid by them, as per plan furnished, including excavation of pit and all materials for guard and fencing, for $45 each. The lumber used in cattle-guards to be of heart white oak, or heart yellow pine, free from all defects calculated to impair strength ; the whole to be done in a thorough and workmanlike manner, to the satisfaction of the chief engineer of the party of the second part. Approved as being in accordance with proposal of parties of the first part. R. H. Temple, Chief Engineer. Witness the following signatures : MeEEDITH & HORTON. Witness— T. T. Talley, C. L. PowEBS, Jr. Virginia Construction Company, By V.-P. and G. M. No question is made as to the competency of the several members of the crew of the train for the posts to which they POWELL V. CONSTRUCTION CO. 245 ■were assigned by defendants, in whose general service they were. The negligence alleged is that Mr. Meredith tempo- rarily displaced the engineer on one of the construction en- gines, and ordered his fireman to act as engineer, while plaintiff, a brakeman on same train, did some necessary coupling. By the negligent and unskillful conduct of this acting engineer in the management of the engine while making this coupling, plaintiff's arm was crushed. It is charged that the unfitness of this fireman to manage an engine was known to Meredith and unknown to plaintiff. Plaintiff's suit was originally against both the Tennessee Midland Road and the Virginia Construction Company. There has been two trials of the cause. The first resulted in a verdict and judgment in favor of plaintiff, but against the Construction Company alone. This verdict, as against defendant, was set aside and a new trial granted. Upon the second trial there was a verdict and judgment for defendant. Both records are before us, but no error is assigned upon the failure of the Circuit Judge to set aside the verdict in the first trial in favor of the railway company. Was Meredith the agent or servant of the Virginia Con- struction Company in the management of this construction train ? If he was, defendant is responsible for his negligence. If, however, he was not the agent or servant of defendant, but an independent contractor with reference to the work he had contracted to do, and in the management and control of this train, and the defendant had no right to control his conduct in the particular matter complained of, then plaintiff's remedy would be against Meredith & Horton, the sub-contractors, and not against defendant. An independent contractor is one who, exercising an inde- pendent 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. The employer of such a contractor, if he be a fit and proper person, and the work be not in itself unlawful, or a nuisance in itself, or neces- sarily attended with danger to others, will not be responsible 246 INDEPENDENT CONTRACTORS. for his negligence or that of his sub-contractors or his servants. Mr. Thompson, in his work upon Negligence, says that " in every case the decisive question is. Had the defendant the right to control in the given particular the conduct of the person doing the wrong?" Thompson on Negligence, 909. The fact that the general contractor sub-lets a part of the work embraced in his own contract, and stipulates, as in the contract under consideration, " that the work is to be done in a ^thorough and workmanlike manner, to the satisfaction of its chief engineer," will not be such an assumption of a right to control as to the details or methods of doing the work, as will make him responsible for wrong of such sub-contractor or his servants. Such a provision is nothing more than is usual and necessary in order to enable the employer to see that the work contracted for is carried out, and neither implies or authorizes any such control of the details as would make the contractor his servant : Thompson on Negligence, 913 ; Pack v. New York, 8 N. Y. 222 ; Erie v. Caulkins, 85 Pa. St. 247 ; Clark v. Hannibal R. Co., 36 Mo. 202. The fact that this contract provided that the track was to be paved as far as it should be ordered by the chief engineer of defendant, does not take it out of the rules applicable to in- dependent contractors : Hughes v. Railroad, 15 Am. & Eng. R. R. Cases, 100. There can be no serious doubt that, upon the face of this contract, Meredith & Horton were independent contractors within the rule we have stated, in so far as their engage- ment applies to the surfacing and laying of track. The diffi- culty presented arises upon that provision by which the de- fendant contracted to furnish them with " push-cars, locomo- tive, flats, and engineer, fireman and-one brakeman." Now, if this be construed as an engagement whereby the defendant agreed to do part of the work — such part as required the use and services of a train — and that it was to do this part with its own cars, engine and train servants, so that this part of the work was to be done by it independent of Meredith & Horton, or in conjunction or co-operation with them, then POWELL ('. CONSTRUCTItiX CO. 247 the defendant would be in the control of this train, and its crew- would be not only their general servants, but their special serv- ants, engaged in the special work of defendants. In such case, if Meredith & Horton were permitted by defendants to manage and control this train, exclusively or in co-operation with it, they would be their agents and servants with respect to such control and management, although as to the other work to he done by them they would be independent con- tractors. But upon looking to this contract in all its parts, we do not think that it was contemplated that any part of the work in- volved in it should be done or carried on by defendant, either independently or in co-operation with the sub-contractors. The contract requires Meredith & Horton to unload the rails, ties, and fastenings. Now, this clearly contemplated the delivery of these materials to them, and presumably at the point where the track to be laid made connection with some completed railway over which this material had been shipped. Having unloaded the material at the place of arrival from the cars of the carrier, the contract then plainly requires : First. The reloading upon their own train for distribution along the line of the progressing work. Second. The unloading at points convenient for use or re- distribution. Third. The distribution of ties in advance of track-laying. Fourth. The laying of the track and its surfacing. It is manifest that this work would require one or more con- struction trains, with crews necessary for operation. Now, in view of the situation and the work to be done, the meaning of the contract seem to be this : That, inasmuch as in the transportation of materials from point of beginning to points along the advancing way, and in the distribution there- of, it would be necessary, in order to do their work, that the contractors for track-laying should have the use of push and flat cars, and an engine, and the services of an engineer, fire- man, and brakeman familiar with the management of trains ; and, inasmuch as the defendant owned and had upon the 248 INDEPENDENT CONTRACTORS. ground such engine and cars, and in its service competent men to operate sucli a construction train, it was therefore agreed that defendant should furnish such construction train and crew to Meredith & Horton, to be under their control, to aid them in doing their work, and that defendant should, on this account, pay them as much less for the work they were to do as such appliances and servants would cost them if they had to find the engine and cars and pay the men themselves. Obvious economic reasons would require that the train dis- tributing materials should be under the control of the men who had contracted to lay the track. But it is urged very earnestly that, inasmuch as this con- tract implies that the servants operating this train were to be selected and paid by the defendants, therefore they con- tinued to be the servants of the defendant, and that no power to control them or this train could be vested by contract in another, save by way of delegation, and that, as matter of law, the person exercising control would be the agent of the general master. This argument seems very plausible, and furnishes the real point of difficulty in the case. The question which is thereby raised is, for the most part, a new one, and the decisions, few in number, show a diversity of judicial opinion. After careful consideration, we think the weight of opinion, as well as of reason, is that the fact that one is the general servant of one employer will not, as matter of law, prevent him from becom- ing the particular servant of another. The question as to who originally employed the servant, or who pays him, is not always a conclusive test as to who was his master in and about a particular work upon which he was engaged. The better test would seem to be : Was he, in regard to the particular matter in which he was employed, doing the work of a general master, or was he engaged in doing the work of another, over whom the general master had no control ? If he was performing a special service for another, who, with reference to the details of such work, was an independent con- tractor, then the servant will, as to that particular service, be POWELL V. CONSTRUCTION CO. 249 the servant of the one for whom such service was performed, although he may be the general servant of another. The cases of Eailroad v. Norwood, 62 Miss. 565, and of Burton v. Railroad, 61 Texas, 526, have been pressed upon us by counsel. They are not in harmony with the view we have reached, in so far as they seem to rest the question upon the power of emplo3anent and discharge and the duty of pay- ing. These tests would prevent the general servant of one from becoming the particular servant of another under any circumstances. The general master would always stand re- sponsible for his negligence, although engaged in doing the work and under the control of another. We think the better rule, and the better supported rule, to be that announced by Chief Justice Cockbuen in Rourke v. Whitemap Colliery Company, Law Rep. Common Pleas Div., vol. 11, 208. In that case the learned Judge said : " When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he was lent, although he remains the general servant of the person who lent him." The case in which this principle was applied was this: The colliery company contracted with one Whittle to sink a shaft and remove the soil. The services of an engine and engineer were necessary to the accomplishment of this work. The colliery company having such an engine and an engineman in its service, contracted to let Whittle have this engine and engineman to aid him in doing his work, and to be under his control ; and that it should pay Whittle as much less for his job as he would have had to pay if he had had to find the engine and pay the engineer himself. By the negli- gence of this engineman, the general servant of the colliery company, the plaintiff, Rourke, sustained an injury, for which he sued the colliery company. It was held that the engine- man, being under the control of Whittle, an independent con- tractor, and being engaged in doing his work, was, while thus engaged, the particular servant of Whittle ; though he had been selected and paid by the colliery company, and was its 250 INDEPENDENT CONTRACTORS. general servant, yet the latter were not liable for his negli- gence while thus engaged. The same principle was applied in the following cases, the facts of which brought them within the same general princi- ples as are decisive of the case now Under consideration : Miller v. Railroad, 38 Am. & Eng. R. R. Cases, 234 ; Cun- ningham V. Railroad, 51 Texas, 503 (s. c, 32 Am. Rep. 632) ; Central Railroad v. Grant, 46 Geo. 417 ; Vesy v. Railroad, 42 Iowa, 246 ; Joslin v. Grand Rapids Ice Co., 50 Mich. 516 (s. c, though with erroneous head-note, 45 Am. Rep. 54). The construction of this contract by the learned Circuit Judge was in accord with the view we have taken of it. It was, of course, competent for the plaintiff to show that, as matter of fact, the parties had put a different construction upon it by their conduct, and that defendant had, in fact, ex- ercised a supervision and control over the work in its details inconsistent with the presumed character of Meredith & Hor- ton as independent contractors, thus making a liability outside of the contract. It was also competent to show that, with reference to the control of the construction train, Mr. Meredith was, in fact, the agent and servant of defendant, either by express authority or by implication arising from the conduct of the parties and the uses to which the train was put. All proof which tended to show any of these things was admitted, and the jury prop- eriy and clearly instructed as to its legal effect. There is an abundance of evidence to support, under our rule, the finding of the jury for defendant, and there was no error in the charge. There was no error in setting aside the first verdict in this case, and none in refusing to set aside the last. Judgment affirmed. R. R. V. Hanning, 15 Wall. 649 ; Carlson v. Stocking, 65 N. W. 58 ; Singer Mfg. Co. V. Rahn, 132 U. S. 518 ; Linnehan v. Rollins, 137 Mass. 123 ; Waters V. Pioneer Fuel Co., 52 Minn. 474; Hughes v. R. R., 15 Am. & Eng. R. R. Oas. 100; Miller i>. R. R., 38 Am. & Eng. R. R. Cas. 234; Morgan v. Smith, 35 N. E. 101 ; Quarman v. Burnett, 6 M. & W. 499, 510 ; Hobbit v. R. R., 4 Exch. 254 ; Easton v. R. R., 59 Me. 520 ; Tibbetts v. R. R., 62 Me. 437 ; Kep- perley v. Ramsden, 83 111. 354 ; Kans. R. R. v. Fitzsimmons, 18 Kans. 34 ; WILLIAMS V. FRESNO C. & I. CO. 251 Hale V. Johnson, 80 111. 185 ; King v. N. Y. C. R. R., 66 N. Y. 181 ; Wray v. Evans, 30 Smith (Pa. ), 102 ; Slater v. Mersereau, 64 N. Y. 138 ; Reed v. Alle- gheny City, 29 Smith (Pa.), 300; Jaggard, 228; Bishop, 604 ; Cooley, 546 ; Pollock, 87 ; Thompson on Negligence, 909, 913. b Exceptions. Bat such employer is liable. (1) When he contracts for a thing to be done which is neces- sarily injurious to others. Williams v. Fresno C. & I. Co. Supreme Court of California, 1892. 96 Cal. 14 ; 30 Pac. 961. McFarland, J. This action was brought to recover dam- ages for wrongfully digging, plowing, and scraping away the soil of plaintiflfs' land, and for an injunction against continuing the said alleged trespasses. The jury returned a verdict for plaintiffs in the sum of |750, for which judg- ment was entered. Defendant appeals from an order denying a motion for a new trial. 1. The main point urged by appellant is that the trial Court erred in denying a motion for a non-suit, made upon the ground " that no evidence has been adduced connecting the Fresno Canal and Irrigation Company with the alleged tres- pass set out in the complaint." The appellant, a corporation, owned a canal running along the northern side of respondents' land ; and for the purpose of raising and otherwise improving the canal, the top soil of respondents' land was plowed up to an average depth of about one foot, and over a space about sixty feet wide and a quarter of a mile long, and scraped off and piled up on the bank of said canal. The work by which this was accom- plished was actually done by one Applegarth, and appellant contends that it was not responsible for the result of such work. 252 INDEPENDENT CONTRACTORS. But it sufficiently appears from the evidence that one Manuel was the surveyor of the appellant, regularly employed at a monthly salary, and that it was his business to have the work done on the canal ; that he made some kind of contract (the particulars of which do not appear) with said Applegarth to do said work, and that by said contract said Applegarth was to take the soil from respondents' land. When A. makes an in- dependent contract with B., by which the latter is to do for the former a piece of work in itself harmless, and B. does the work so carelessly or unskillfully as to injure a third party. A., as a general rule, is not liable. But when the contract is in its very nature necessarily injurious to a third party, then the doctrine of respondeat superior applies. In such a case the in- jury does not result from the manner in which the work is done, but from the fact that it is done at all. In Boswell v. Laird, 8 Cal. 469, 68 Am. Dec. 345, frequently cited as a strong case against the liability of principals, the Court, by Judge Field, says : " If the mode and manner which constituted the defect by which the injuries complained of were occasioned had been inherent in the plan, and this plan had been devised by Laird and Chambers, which the contractors were engaged to carry out, then liability would attach to Laird and Cham- bers." In the case at bar, the carrying away of respond- ents' soil was the very thing contracted for; and it inher- ently and necessarily caused the injury complained of. "Without reviewing the evidence here at length, it is sufficient to say that, in our opinion, the agency of Manuel to act "for the appellant in the matter of repairing and enlarging the canal clearly appears. It was not necessary that his employ- ment for that purpose should have been in writing. 2. The second point made by appellant is that the verdict is not sustained by the evidence. This, however, is sub- stantially the same as the one made about the non-suit, and is not tenable. 3. The third and last point made by appellant is that the Court erred in allowing respondent to ask the witness Shipp the following question : " Would you give as much for that CONGREVE V. MORGAN. 25S eighty acres of land since the digging and scraping as you would have given for that eighty acres of land before?" As- suming that this question was not in proper form, still it is im- possible to see how it could have prejudiced appellant. Before the question was asked the witness had testified at consider- able length to the effect that he was a land-owner, and well acquainted with the nature of the soil and the value of land where the premises described in the complaint were situated ; and that the digging and scraping had taken away from the value of the land. He was afterward examined minutely, and testified that the land was worth $250 per acre before the scraping ; and he said : " I think this digging and scraping has damaged that part dug and scraped to the extent of its whole value," and that the acres thus injured " would not be worth anything now." In the face of this testimony, it was of no importance whether or not he said he would not give as much for the land after the scraping as before ; of course, he would not. The order appealed from is affirmed. Creed v. Hartman, 29 N. Y. 591 ; Curtis r. Kiley, 153 Mass. 123 ; Brannock I'. Elmore, 114 Mo. 55 ; Crenshaw v. Ullman, 113 Mo. 633 ; Jaggard, 233. (2) When an absolute duty rests upon him with respect to the thing to be done. CoNGREVE V. Morgan. Superior Court of New York, 1856. 5 Duer, 495. Woodruff, J. It appears, by the admissions in the plead- ings herein — by the defendants' admission, on the trial, and by the written contract, given in evidence on behalf of the de- fendants — that the defendants are owners of the house and lot situated on the northeast corner of Thirty-first Street and the Sixth Avenue, in the city of New York ; that they purchased the same when the house was in progress of erection, and pro- ceeded to finish it, and, for that purpose, entered into a con- 254 INDEPENDENT CONTRACTOES. tract with W. B. & R. Barton for the performance of the work requisite to its completion, according to plans referred to in and specifications annexed to the contract. Without the line of the lot, and within the lines of Thirty-first Street, on the southerly side of the house, an excavation was made for the construction of a vault, or covered area to be used as a vault, under the sidewalk, near the wall of the house, the covering of which, of a uniform surface with the rest of the sidewalk, formed a part of the walk along the southerly side of the house. The defendants' contract with the Bartons provided for the flagging of the sidewalk, and described the flags, to be laid over the area, or vault, referred to ; and it may be as- sumed, for the purposes of the present appeal, that the flags provided for in the contract were sufficient and proper for such a purpose, and, had they been used, would have protected all persons passing over them, or standing thereon, from falling into the area or vault beneath. The plaintiff', an infant, residing with his father, in one of the apartments in the said house, on the 7th day of July, 1853, more than a year after its completion, was standing, or ran, upon the sidewalk, over this area or vault, when the flag- stone, which formed the covering thereof at that place, gave way, and the plaintiff, with the broken stone, fell into the area or vault beneath. His leg was so broken that amputation be- came necessary. This action is brought to recover damages for the injury thus sustained. The complaint, in substance, denies that the defendants had any right or lawful authority to construct such vault, and cover the same ; and also avers that whether the same was done with or without lawful authority, it was the duty of the defendants to put and construct, over and above such excava- tion, a safe and sufficient covering of stone, or other proper material, to render the same safe and secure to the public and persons lawfully traveling upon the said sidewalk and upon and over the said excavation. On the trial, after proof of the circumstances attending the injury and its consequences, the description of the place CONGEEVE V. MORGAN. 255 -where it occurred, the breaking of the stone, etc., evidence was given tending to show not only that the stone used as a covering was not such nor so good as was required by the contract, but that the stone was an insufficient, unsuit- able, defective, and improper stone to be used for such a purpose ; and also that it was not properly supported at the ends, and that it was negligence to cover the area or vault with such a stone, set in the manner in which this stone was placed. On these points there was a conflict of evidence, and the Judge, at the trial, stated to the jury that the great weight of the testimony was that there was no objection to the manner of placing the stone, and left to the jury the ques- tion whether the stone was such as a prudent and discreet mechanic would use. The questions raised, upon the defendant's motion for a non- suit, and by his objections to evidence, are sufficiently em- braced in the question created by exception to the charge of the Judge, and need not be separately considered, for, if no error was committed in the charge, of which the defendants can complain, the other objections are either groundless or have no application to the facts, upon which the rights and liability of the parties depend. The defendants insisted that, having made a contract with the Bartons — skillful and competent architects and mechanics — which called for the best materials, to be applied in a good and workmanlike manner, they were not responsible for the contractors' negligence, or for defects in the construction, but that the liability, if any, rested upon the builders, and not upon the owners. Upon the doctrine of Blake v. Ferris, 1 Selden, 48 ; Peck v. The Mayor, etc., 4 Selden, 222, and see Peasley v. Rowland et al, 16 Eng. L. & Eq. R. 442, and cases cited, and in note, p. 444. Also that, at most, the evidence showed only an error in judgment in respect to the sufficiency of the stone and the mode of setting it, which would not make the defendants, nor even the contractors, liable in this action. 256 INDEPENDENT CONTRACTORS. The Judge charged the jury, among other things, that the defendants, having made a contract for the construction of the house, and the covering of this area, are responsible for the Bartons, the contractors, or any one employed by them, and they were bound to use the skill and judgment of prudent and discreet men, and that the question seems to be narrowed down to this — whether this stone was such as a prudent and discreet mechanic would use. We are of opinion that there was nothing in this instruction of which the defendants can complain. The cases to which we are referred, whereiil it is held that where one, in the exercise of his lawful rights, and for the doing of that which he has full right and authority to do, con- tracts with another, exercising an independent employment, to perform the work, he is not responsible for the negligence of the servants of the latter in the manner of its performance, such as Blake v. Ferris and other cases, we think, do not apply to the present case. Here the vault or area was constructed in a public street and highway, and no warrant or authority therefor whatever is shown. It was kept and maintained by the defendants for their private gain and advantage. Whether done through the instrumentality of a contractor, or by the defendants' own hands, it was done by them, and they had no right or author- ity, as owners of the contiguous house and lot, to make any use of the street, in front or of any part of it, inconsistent with the safe and convenient use of it by the public, or so as to hazard the safety of individuals passing and repassing along the same. If, under such circumstances, they undertake to construct and maintain a vault under the sidewalk, it is a very light measure of responsibility which charges them with the consequences of negligence in the manner of doing it. Where the act done is not lawful, whether it is done by the defendant, directly, or by his servant, or by a person employed by him in any other form, it is his act, and he is responsible, even though himself ignorant of the precise manner of its performance : Rex v. Medley, 6 Carr & Payne, 292. And clearly so if, the work COXGREVE V. MORGAN. 257 being unlawful, it is negligently done, and damages are caused by the negligence. In Ellis v. The Sheffield Gas Consuming Company, 22 Eng. L. & Eq. R. 198 ; 2 Ellis & Blackburn, 767, the defendants were sued for digging a trench in a public street, and heaping up stones and earth so as to obstruct it, whereby the plaintiff, lawful^ passing, etc., fell and broke her arm. The work having been done by persons contracting with the defendants, the latter insisted upon the doctrine above alluded to — that a man is not responsible for the acts of the servants of their contractors, and relied upon the English cases to that effect ; but tbe Court held that the defendants had no right to break up the streets at all, and if they employed the persons who did it to break up the streets, and, in so doing, to heap up earth, etc., they were liable ; and this, not- withstanding it might be that if the workmen employed had been careful, in the way in which they heaped up the earth and stones, the injury would not have been sustained. The unqualified duty of one who makes an area abutting upon a pubUc road, to fence it so as to protect passers-by, is adverted to in Barnes v. Ward, 2 Carr & Kir. 661, at nisi prim, and 9 Com. Bench R. 392, at bar, and the defendant in that caseM'as held liable, though the excavation was no part of it within the limits of the road ; and in Stone and Wife v. Jackson, 32 Eng. L. & Eq. R. 349, that case is approved. But in the case of Dygert v. Schenck, in our own State, 23 Wend. 446, the principle established seems to us to go even further than is required in this case to show that the defend- ant is not prejudiced by the charge. In that case the defend- ant, for his own private use, had dug a raceway across a high- way, the fee in which was vested entirely in himself, subject only to the public uses, and had covered the raceway by a bridge which, after ten years, became out of repair, and the plaintiff's horse fell through and was injured. The right of the public to require that he should keep the road as good as it was before he dug his ditch is made the ground of holding the defendant liable. The Court say : " Any act of an indi- vidual done to a highway, though performed on his own soil, 17 258 INDEPENDENT CONTRACTORS. if it detract from the safety of travelers, is a nuisance. A ditch dug in a highway was specifically pronounced a nuisance. Special damage arising from it, therefore, furnishes ground for a private action, without regard to the question of neg- ligence in him who did it. The utmost care to prevent mischief will not protect him if the injury happen without gross carelessness on the side of the sufferer." See the cases there cited. We apprehend that it would not have been erroneous had the Judge, upon the authority of the cases above cited, gone even further, and charged that the defendants could not (without showing some authority for that purpose) construct and leave such an excavation under the sidewalk, in the public street, except at the peril of being held responsible for all in- juries resulting from its want of entire safety and sufficiency for all the purposes for which the public have a right to use such sidewalk, and that they were bound to keep and main- tain the covering in a secure and safe condition, at their peril. And such rule does not involve the inquiry in whom is the fee in the land forming the street (though it is not claimed here that the fee is in the defendant). If this be so, then surely the defendant cannot complain of being held responsible, when the rule was so far relaxed as to make their liability arise only when it was found that there was negligence in the construction or covering of the excavation, done by their express contract, and maintained by them for their own profit. We do not intend to deny the power of the corporation of the city of New York over the subject of the excavation and construction of vaults, areas, etc., within the lines of the public streets, nor to say that an authority, procured by the defend- ants from them to construct the vault in question, might not have changed the whole question of liability into one of negli- gence only. In which case, whether they would have been liable for the insufficiency of the stone in question, placed there without any knowledge by them of its insufficiency, or any means of knowledge, we do not intend to say. No such au- CITY OF CIN'CINXATI V. STONE. 259 thority was shown, and no ordinances of the corporation, general or special, were given in evidence. One of my brethren suggests that the defendants are liable, upon a ground stated by Mr. Justice Beonson, in The Mayor, etc., of Albany r. Cudliff, 2 Comstock, 174. That the con- tractors having done their work and delivered over the house, with its appurtenances, many months before this injury to the plaintiff occurred, the defendants are liable for the negligence in the construction of an insufficient covering for the vault. That the owners are liable to third persons for the sufficiency of the work, whether the builders be or be not liable, in turn, to him, for the negligence in the construction, which caused the injury. That had an injury to the plaintiff happened from the negligence of the contractors, while en- gaged in the work, they would have been liable, and the owners not, in accordance with Blake v. Ferris, and other cases above referred to ; but after the work is completed, and the owners have been for months in possession, third persons may look to them for damages, if injured by reason of negligence, even in the construction, and the owners must seek their in- demnity from their contractors. AVe think that the judgment should be entered for the plain- tiff upon the verdict, with costs. Khron )•. Brock, 144 :\Iass. 516 ; R. R. Co. v. Moores, 30 Atl. 643 ; Gorham r. Gross, 125 Mass. 232 ; Blessington v. Boston, 153 ]Masg. 409 ; Babbage v. Powers, 130 :X. Y. 281 ; Mattise v. Ice Co., 16 So. 400 ; Jaggard, 234. (3) When he in any way interferes with the contractor's work. City of Cincinxati v. Stone. Supreme Court of Ohio, 1855. 5 Ohio St. 38. Bartley, J. The city of Cincinnati having given a con- tract to a person to regrade and repave a street, providing in the contract for, " the work to be done under the direction of the city civil engineer, or agent appointed by the city council 260 INDEPENDENT CONTRACTORS. for the same, who shall have entire control over the manner of doing and shaping all, or any part of the same, and whose directions must be strictly obeyed," etc., the contractor care- lessly and improperly left piles of stone and materials for the work at a place near or about the gutter of the street, where a nuisance was likely to be created, whereby, at the time of a rain, ) the water being obstructed, flowed back and over the pavement, on the premises and building of the defendants in error, doing the damage complained of. The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of respondeat superior, is confined in its application to the relation of master and servant, or principal and agent, and does not extend to cases of independent contracts not creating the rela- tion of principal and agent, and where the employer does not retain the control over the mode and manner of the perform- ance of the work under the contract. But where the employer retains the control and direction over the mode and manner of doing the work, and an injury results from the negligence or misconduct of the contractor, or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent. In addition to the fact, in this case, that the city of Cincin- nati retained the entire control and direction over the work, under the contract, it was a public duty enjoined on the city to remove all nuisances from the streets of the city, and to make no contracts for the improvement of the streets by which any nuisance would be created on the premises of the adjacent proprietors ; the city was, therefore, clearly liable for the injury sustained by the negligence of the contractor or of any of his subordinates in the performance of the work. Judgment affirmed. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 ; Chicago v. Dermody, 61 111. 431 ; Chicago v. Joney, 60 111. 383 ; Rourke v. White Moss Co L R ' 2 C. P. D. 205 ; Cuff v. N. Y. C. R. E., 35 N. J. L. 17 ; Kimball r. Cushmani 103 Mass. 194 ; Appeal of Braithwaite, 18 Atl. 1110 ; Jaggard, 232. CHURCH V. CHICAGO, M. & ST. P. R. R. 261 6. Master and Servant. a Relationship. A servant is one who, for a valuable consideration, engages in the service of another and undertakes to obey his directions in a lawful business. Church v. Chicago, M. & St. P. R. R. Supreme Court of ilinnesota, 1892. 50 Minn. 218 ; 52 N. W. 647. Mitchell, J. Taking the admissions in the pleadings, the evidence admitted, and accepting as true all the plaintiff offered to prove, the facts in this case were as follows : Plaintiff had been in the employment of the defendant as a brakeman on a freight train running east of Calmar, Iowa. Having been taken ill, he had gone, on a leave of absence, to his home in Northfield, Minn. On the day in question he went down to defendant's depot in Northfield for the purpose of writing or telegraphing to Austin for a pass over defend- ant's road to go back to his work. While he was at the depot a wrecking train came into the station in charge of a conductor, and with an engineer, fireman, and two brakemen, one of whom is called " head brakeman." This train was on its way to pick up a wreck, and, in addition to an engine and tender, consisted of two or more flat cars, upon one of which was loaded a derrick and on another two pair of heavy car trucks. After the train pulled into the station the train- men proceeded to switch the cars and transpose them so as to put the " derrick car " in the rear, and place the "truck car " next in front of the derrick. On its arrival the conductor left the train to attend to his other usual duties at the station while this switching was being done, the head brakeman being in charge of the switching movements of the train. While this switching was going on, the head brakeman being on the cars and the other brakeman at the switch, and a 262 MASTER AND SERVANT. third man being necessary (as plaintiff offered to prove) to do the switching, the head brakeman, seeing plaintiff standing by, requested him to get onto the cars and assist. The plain- tiff did so, and while thus engaged sustained the injuries com- plained of, caused, as claimed, by reason of the trucks on the flat car not being properly blocked. It was necessary for the plaintiff to establish, as the essen- tial foundation of his right to recover, the existence of the relation of master and servant between himself and the defend- ant company, and this in turn depended upon the authority of the head brakeman to employ him to assist in the switching. In our opinion, none of the evidence introduced or offered had any tendency to prove any such relation between plaintiff and defendant, or any such authority on the part of the head brakeman. The fact that plaintiff had been or was in the employment of the defendant elsewhere is wholly unimportant. He was not at the station on defendant's business. He was not an employee of defendant at that place or as to the switch- ing of that wrecking train. The case stands precisely as if the head brakeman had called on any other bystander at the station to assist. While the head brakeman had charge of the movements of the train in doing this switching during the temporary absence of the conductor from the cars on other business, yet this was the entire scope and extent of his au- thority. The conductor had not abdicated the general charge and control of the train, or turned it over to the brakeman. The latter had no authority, actual or apparent, express or im- plied, either from custom or from any present pressing emer- gency, to employ additional brakemen, either permanently or temporarily. It was wholly immaterial whether two brake- men were or were not sufficient to do the switching. Even if they were not, that fact would not, under the circumstances, give a mere brakeman authority to employ an additional force. If any one on the ground had any implied authority to do so it was the conductor, who had charge and control of the train. In doing what he did the plaintiff was, therefore, a mere vol- unteer, and, as such, assumed all the risks incident to the posi- CHURCH V. CHICAGO, M. & ST. P. K. E. 263 tion. The defendant did not bear to him the relation of master or emploj'er, and owed him no duty as such : Flower V. Pennsylvania Railroad Co., 69 Pa. St. 210 ; Sherman v. Hannibal & tSt. J. R. Co., 72 Mo. 62 ; Sparks v. East Ten- nessee,V. & G. Ry. Co., 82 Ga. 156 (8 S. E. Rep. 424) ; Everhart v. Terre Haute & I. Ry. Co., 78 Ind. 292; Rhodes i). Georgia Railroad & Banking Co., 84 Ga. 320 (10 S. E. Rep. 922) ; Atchi- son, T. & S. F. Ry. Co. v. Lindley, 42 Kan. 714 (22 Pac. Rep. 703). Counsel for plaintiff has cited no case which sustains his contention in this case. Many of those which he cites have no bearing whatever upon the question here involved. There are cases which hold that where a regular brakeman is absent, and the proper and safe management of the train so requires, the conductor in charge has authority to supply the place of the absent brakeman. Such, for example, are the cases of Sloan V. Central Iowa Ry. Co., 62 Iowa, 728 (16 N. W Rep. 331), and Georgia Pac. Ry. Co. v. Probst, 83 Ala. 518 (3 SoiTth. Rep. 764). And if any sudden or unexpected emergency should arise, such that the safety of the train demanded an extra force of brakemen, probably it would be held that it was within the implied authority of the conductor to employ them. But such cases are clearly distinguishable from the present, where a mere brakeman, without the knowledge of and with- otit authority from the conductor in charge of the train, and in the absence of any sudden emergency, assumed to call upon a bystander to assist in switching. Another line of cases cited by counsel is also clearly dis- tinguishable from the present one. They are those where one assists the servants of another at their request for the purpose of expediting his own business or that of his master. Such is the case of Eason v. S. & E. T. Ry. Co., 65 Tex. 577. The case of Street Ry. Co. v. Bolton, 43 Ohio St. 224 (1 N. E. Rep. 333), is also referable to the same class. See, also, Holmes v. North Eastern Ry. Co., L. R., 4 Exch. 254, affirmed L. R., 6 Exch. 123. The decisions in this class of cases are placed upon, the ground that, though performing a service beneficial 264 MASTER AND SERVANT. to both, the party is doing so in his own behalf, and not as the servant of the company, and is entitled to the same pro- tection against its negligence as if attending to his own pri- vate affairs. See, also, Thomp. Neg. 1045, and cases cited. Neither is the case of Johnson v. Ashland Water Co., 71 "Wis. 553 (37 N. W. Rep. 823), so much rehed on by counsel, particularly in point. The question there arose merely on demurrer to the complaint, and the decision is merely made to rest upon the fact that the complaint alleged that the person who employed the plaintiff to assist was at the time the super- intendent having charge and control of the work. There was no error in excluding the evidence offered by plaintiff, and consequently the order appealed from must be affirmed. Gravatt v. State, 25 Ohio St. 162 ; M. C. Paint Co. v. Conlon, 92 Mo. 221 ; Waters v. Pioneer Fuel Co., 52 Minn. 474 ; Campbell i). N. P. E. E., 51 Minn. 488 ; Jaggard, 239 ; Bishop, 599. b Liabilities. (1) Liability of servant to master. The servant is liable to the master for breach of duty incident to the service. Hence the servant. (a) Must be loyal to his trust. Grand Trunk Ry. Co. v. Latham. Supreme Judicial Court of Maine, 1874. 63 Me. 177. On exceptions. Assumpsit to recover the amount of a judgment recovered by David W. Benson and wife against the Grand Trunk Railway Company, together with the costs and expenses of the corporation in defending against that suit, which was brought to obtain damages for the maltreatment of the female GKAXD TRUNK RY. CO. V. LATHAM. 265 plaintiff, and the misconduct of the defendant's intestate, Addi- son A. Latham, tlien a conductor upon said railroad, having charge of the train upon which Mrs. Benson was a passenger. The verdict there was in favor of Mr. and Mrs. Benson for |475. The whole expense of that case to the Grand Trunk Railwaj' Company, including the verdict, costs, its counsel and witnesses' fees, etc., was |792.20. Upon the trial of the present action, the judgment in that case was put in evidence, and the only witness called upon the stand (the attorney for the railway company) detailed substantially the evidence upon which it was obtained ; that it was on account of Latham's gross misbehavior toward Mrs. Benson, repeatedly calling her a liar, etc., etc. The witness added that he told the deceased that the company would hold him liable to reimburse them, and advised him to settle, but Latham 'thought this could not be done for any reasonable sum, and requested that a defense be made, which was done, he attending the trial, suggesting questions to be asked, testifying himself, etc. The contro- versy between him and Mrs. Benson arose from her claimiug the right to ride to West Paris upon a ticket which, he said,. only entitled her to be carried to South Paris, the difference in distance being nearly ten miles. The jury returned a verdict for the whole expense incurred by the railway company rela- tive to the Benson suit, including counsel fees, costs, etc. Appleton, C. J. A judgnlent was recovered against the plaintiff corporation for the misconduct of the defendant's intestate — a servant in their employ. This suit is brought to recover compensation for the loss and injury by them sus- tained in consequence of such misconduct. The Presiding Justice instructed the jury that an employer might recover in an action against his servant for all loss and damage caused by the servant's breach of duty, and that it was the duty of Latham (the defendant's intestate), in the exercise of his vocation as conductor, to treat all passengers civilly and respectfully ; and if he failed to do so, and in consequence of such failure his employer sustained loss 266 MASTER AND SERVANT. and damage, he is liable for all the loss and damage so sustained. Every servant is bound to take due care of his master's property entrusted to him. If guilty of gross negligence, whereby it is injured, he is liable to an action. So, too, if guilty of fraud or misfeasance, whereby damage has accrued to his master. A servant is liable to an action at the suit of his master, when a third person has brought an action, and recovered damages against the master for injuries sustained in conse- quence of the servant's negligence or misconduct ; and in such action against the servant, the verdict against the master, in the action brought against him, is the evidence as to the quantum of damages, though not, according to some of the English authorities, as to the fact of the injury : Smith's Master and Servant, 66. The evidence shows that Latham was notified of the pen- dency of the suit against the 'plaintiffs; that he was present and a witness at the trial ; that he was advised and requested to settle; and that the defense was made by the plaintiffs at his request, and that he was fully informed that he would be held responsible for the amount recovered against the plain- tiffs. The principles established in Veazie v. Penobscot R. R. Co., 49 Maine, 119, and in Portland v. Richardson, 54 Maine, 46, are applicable to the case at bar. The defendant's counsel requSsted the Court to instruct the jury that the plaintiffs could not recover for counsel fees and disbursements in conducting the suit against the plaintiffs; or necessarily, the amount of the judgment paid by them, but the only actual damages to Mrs. Benson (the plaintiff in that suit) caused by the improper conduct of Latham, if there was any. This instruction the Court declined to give. The defendant's intestate had been guilty of gross mis- conduct. It was his duty to settle the suit brought against his employer for damages caused by such misconduct. In- stead of doing so, he requested that a defense should be made. MOBILE & MONTGOMERY RY. CO. V. CLANTON. 267 Having requested the plaintiff to defend, and being present at the trial as a witness, he cannot object to the costs and expenses which accrued in consequence of complying with his request. The instruction, as requested, should not have been given. It is unnecessary to consider the other portion of the re- quested instruction, for it is not the duty of the Court to dis- sect a request and eliminate its errors. It is sufficient there- fore, that the request, in its totality, was erroneous. It is not, therefore, important to discuss the residue. Exceptions overruled. Singer V. :\IoCormick, 4 W. & S. 265 ; Libhai-t .-. Wood, 1 W. & S. 265, 267 ; Bixby i: Parsons, 49 Conn. 483 ; Jaggard, 282 ; Bishop, 629. (b) Must exercise due care. Mobile & ^Montgomery Ry. Co. v. Gl.\:s'ton. Supreme Court of Alabama, 1877. 59 Ala. 392. Maxxixg, J. Appellee, Clanton, who was plaintiff in the City Court, was conductor of freight trains on the railroad of appellant. The cab-car, or caboose, at the end of a train under his charge, got damaged, without his fault, on its passage to Mobile. The cord also was broken by which communication was maintained between it and the engine at the front. And when a train was made up for him, for the return trip, to come up at night, he was not furnished according to his re- quest, with a cord that should connect the rear car with the locomotive, and was obliged to take a place with the engineer in the locomotive at the head of the train. One of the hooks, also, by which lamps with red lights are fixed to the two sides, at the rear end of the hindmost car, that it may among other reasons, be seen from the engine in front whether the train is complete or not, was broken off. Plaintiff, therefore, attached but one lamp to that car, and hung the other on the hook upon the side of the next car before the last one, and on the opposite 268 MASTER AND SERVANT. side of the train. This was the same side which the engineer occupied in the locomotive, while Clanton sat on the other side, where only the light on the hindmost car could he seen from the locomotive. He did not inform the engineer that the light which the latter could see was not on the hindmost car, but on the next in front of it. And the engineer was thus justified in considering the train complete as long as he could see that light. It was a duty of the conductors as well as the engineer, to look well to his train and keep it together. On the way up, this hindmost car, loaded with freight and locked, got detached from the train, which proceeded thirteen or fourteen miles further before this fact was discovered. Be- hind it, as Clanton knew, a fast passenger train was coming up from Mobile. And his train stopped five minutes at a station seven miles distant from the place at which the detached car was left upon the track ; and while there, it being his duty to report by telegraph from that point for the train following him, the condition of his train, he dispatched a message back that it was all right. A short time afterward the upward bound passenger train, without any fault of its engineer or conductor, ran into the detached car, damaged it to an amount of nearly $200, and broke off the pilot to the engine of that train, causing a still further loss. Clanton asked of the yardmaster in Mobile, whose business it was to make up the freight trains, for a cord, which was not furnished him. He was told that he must apply for it in Montgomery, and that if he declined to conduct the freight train up, another conductor would be directed to do so, and he came with it to avoid losing his place. There was some evidence that the application for a cord was not made to the right person. Having been discharged by the company Clanton sued it for his wages in arrear, and by pleas of set-off and recoupment,, the defendant insisted that he should be charged with the loss it had sustained by the collision which was produced, it is contended, by his negligence. MOBILE & MONTGOMERY RY. CO. V. CLANTON. 269 The Court, among other charges to the jury, gave the fol- lowing, which was excepted to on the part of the company : " The Mobile & Montgomery Railway Company is bound to furnish and maintain suitable instrumentalities for the dis- charge of the duties it requires of its employees, and if the jury believe from the evidence that the company did not prop- erly equip the train on which the accident happened on the 17th of December, the defendant cannot recoup, and the jury must find for the plaintiff." The fault of this charge is that it relieves the plaintiff of responsibility for all the consequences of his own negligence, as an employee of the company, if he was guilty of any, on this occasion. The law is justly very strict in requiring rail- road companies, in behalf of their customers and the public who depend upon them for transportation of persons and property, to be provided to the utmost of their power, with the means of safely performing their duties as carriers. Among the most important of the instrumentalities to this end, are faithful, competent, and vigilant employees. More accidents are probably occasioned by their inattention than in any other manner. Now and then, when a great disaster with the loss of many lives is caused by the carelessness or recklessness of a railroad engineer or conductor, the public become, perhaps, unreasonably furious, and clamor to have him hanged. But except on such occasions, they are apt to forget that negligence on the part of such agents, while running railroad trains, is almost always but little less than a crime. A score or more of persons might probably have been killed or maimed by the collision in question if it had happened at a place a hundred or two yards from that at which it occurred, and a loss of thousands of dollars, instead of hundreds, might have been thereby cast upon the company. Is it not evident then that if this collision was caused by a plain neglect of duty on the part of the conductor, and could have been avoided by a due degree of watchfulness, that it was manifest error to say that because the train was not perfectly equipped he is not responsible ? Moreover the charge in question ignores the well-established 270 MASTER AND SERVANT. difference between the liability of a railroad company to its employers and its liability to its employees — its responsibility to its customers the public, and that to the persons in its service. As we said in the Mo. & Montg. R. R. Co. v. Smith (in manuscript), the former pay the company to perform services for them ; the latter are paid by the company to perform work for it. Their skill and diligence are bargained for, because needed for the purpose of making repairs, completing equip- ment, and preventing accidents, to the end of enabling the company safely and efficiently to fulfill its engagements. And they are paid according to the character and exactions of the service. Generally, also, there must be co-operation with them on the part of other employees of the company in the work to be performed. Wherefore it has often been ruled that as between their employers and themselves employees assume the ordinary risks and perils of the service, including those arising from the negligence of their fellows in the same work. Whether, however, the fault of not having the freight train, on this occasion, fully equipped, be chargeable upon the com- pany or its servant, the yardmaster of Mobile, is a matter of no consequence here. If it was the fault of either, and that was the cause of the collision and damage complained of, and these are not attributable to the negligence of Clanton, he is not liable for the loss occasioned thereby ; but if they are attrib- utable to his negligence, he is liable. It may often happen, by accident or otherwise, that a com- pany's railroad, or trains on it, are out of order and cannot immediately be perfectly equipped, while at the same time it has duties to perform as a carrier which cannot well be delayed until everything is in perfect order. The consequences of delay may be more serious than the probable consequences of send- ing a train forward without being completely equipped. There may, indeed, be very little risk in doing the latter under careful management. And unquestionably, a conductor who, knowing the deficiencies, undertakes to carry such a train through, is bound to use all the diligence and watchfulness. MOBILE & MONTGOMERY RY. CO. V. CLANTOX. 271 that are reasonably necessary to do so successfully. And it fol- lows that he is responsible for the damages that may happen by reason of his negligence. His vigilance should be propor- tioned to the importance and delicacy of the task assumed. We have referred to some of the facts in this case and the possible deductions from them, only in explanation of the law on the subject. It must not be inferred that we are of the opinion that the accident complained of was caused by the fault of Clanton. Whether it was or not, is a question to be answered only by a jury. It seems to be admitted that he was in no wa}' responsible for the uncoupling of the hindmost car. And, perhaps, he was not to be blamed for not having found out that it was uncoupled in time to prevent the accident that followed. There was evidence that the night was foggy, and that the smoke of the locomotive hung low, and, perhaps, sometimes, prevented the lamps from being seen. It is a case for a fair and just inquiry by the jury, whether the damage produced by the accident is to be ascribed to Clanton's negli- gence or not. But the jury should be informed that if it is chargeable on him, he is not to be exonerated from liability, merely because when he undertook the service there were de- ficiencies which were not concealed from him, in the equip- ment of the train, but not such as should have prevented a conductor, who was duly careful, from carrying it safely through. If the jury should find Clanton chargeable with the dam- ages, there is no doubt that the company may be allowed to recoup them against his wages. In respect to set-off, the law now is that " mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties at the time of suit brought, may be set off one against the other :" Code of 1876, § 2991. Whenever the defendant can maintain a cross action at law because of matters arising out of the plaintiff's breach of the contract sued on, and the damages recoverable are fixed by a legal standard, such damages may be insisted on as a set- off in an action upon the contract : Eads v. Murphy, 62 Ala. 272 MASTER AND SERVANT. 526, and cases cited. If Clanton is liable for anything in this case, it is, for not performing, with due vigilance and diligence, his contract to serve as conductor. And if the loss resulting from such negligence consists only of the damage done to cars or other property, the amount of which depends upon the ex- pense of making them good by repairs, or of putting the de- fendant in these particulars in as good a condition as it was in before, such damages may be considered as " fixed by a legal standard." The computation is founded on the ascertainable values of material things, as it would be in an action of as- sumpsit concerning the same values. And where such damages are set off by a defendant and ex- ceed the amount of plaintiff's claim, according to § 2992 of the Code of 1876, a verdict and judgment for the excess may be rendered upon a proper plea of set-off in favor of the defendant. Let the judgment of the Circuit Court be reversed and the cause remanded. Smith V. Foran, 43 Conn. 244 ; Zulkee v. Wing, 20 Wis. 408 ; G. T. Ry. v. Latham, 63 Me. 177 ; Jaggard, 282 ; Bishop, 629. (2) Liability of servant to servant. One servant is liable to another for torts committed in the coarse of their common employment. Daves et al. v. Southern Pac. R. R. Supreme Court of California, 1893. 98 Cal. 19 ; 32 Pac. 708. Fitzgerald, J. This action is brought by the widow and minor daughter of James Daves, deceased, to recover damages for loss suffered by his death through the alleged negligence of the defendants. The case was tried by a jury, and a general verdict rendered against the defendants, the Southern Pacific Company and Bresnahan, for $9,000. It was also specially found by the DAVES ET AL. V. SOUTHEEN PAC. E. E. 273 jury that the defendcant, Bresnahan, did not close the switch after he opened it to let the hand-car upon the side track. This appeal is taken by both defendants from the judgment and the order denying their motion for a new trial. It appears that the corporate defendant owns and operates a line of railroad between the cities of Los Angeles and Colton, in this State ; that the defendant, Bresnahan, was its section foreman, and, as such, had charge of a portion of its track, with power to employ and discharge the men employed to woi'k under him ; that James Daves, the deceased, was a section hand employed by Bresnahan to work under him, and was engaged in the performance of his duty as such at the time of the accident which caused his death ; that on the morning of the accident, and shortly before it occurred, Bresnahan, with eight of the section men, one of whom was Daves, placed a hand-car on the main track for the purpose of going to a point on the section to make repairs. The hand-car was then run by them some three hundred feet to a switch, which was un- locked and thrown open by Bresnahan, and the hand-car passed onto the side-track to clear the main track for the west-bound passenger train, then nearly due and in sight ; that immediately thereafter, Daves was engaged in doing some- thing about the hand-car, and was under the west end of it when the train came up, and the switch being open, the train ran onto the side-track, colliding with the hand-car and killing Daves. Whether the switch was closed after it was opened by Bres- nahan was a controverted point at the trial and was submitted specially to the jury. The jury found that he did not close the switch, and as there is evidence to support the verdict, it follows that the accident was caused by the negligence of Bres- nahan, and the verdict against him cannot be disturbed. As to whether the verdict will be permitted to stand as to the defendant corporation depends upon whether Bresnahan and Daves were fellow-servants within the meaning of § 1970 of the Civil Code, which reads as follows : " An employer is not bound to indemnify his employee for losses suffered by 18 274 MASTfIR AND SEEVAXT. the latter in consequence of the ordinary risks of the business in whicli he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee." This section was con- strued by this Court in Collier v. Steinhart, 61 Cal. 116, and in McLean v. Blue Point Gravel Min. Co., 51 Cal. 255. In the latter case it appears that the defendant was engaged in blast- ing rock on its mine. Plaintiff was in its employ as a work- man, and one Kegan was its " foreman of all work," with au- thority to employ and discharge the men working under him. Plaintiff was injured while at work by being struck with a rock thrown from a blast, through Kegan's negligence in fail- ing to notify him that the blast was to be fired. The Court, in the application of this section to these facts, say : " The in- jury to the plaintiff was caused by the negligence of Kegan, the foreman of defendant, who was a fellow-servant with the plaintiff, ' another person employed by the same employer in the same general business,' that is, the business of working the mine of the defendant, Kegan being in the blasting, and the plaintiff in the hydraulic department of the ' general busi- ness.' The section of the Civil Code already cited declares that to such a case the rule of respondeat superior shall not apply, unless there has been want of ordinary care upon the part of the defendant in the selection of tlie culpable employee^ But the fact was, as found by the Court below, that there had been no such want of ordinary care on the part of the defend- ant ; Keegan, the ' foreman,' being found to be ' skillful, com- petent,' and a proper person to perform the duties with which he was charged. ' The law of this State respecting this sub- ject, as set forth in the Code referred to, recognizes no distinc- tion growing out of the grades of employment of the re- spective employees ; nor does it give any effect to the circum- stance that the fellow-servant, through whose negligence the injury came, was the superior of the plaintiff in tlie general service in which they were, in common, engaged, and the alleged distinction in this respect insisted upon by the appel- DAVES ET AL. V. SOUTHEUN PAC. R. R. 275 lant's counsel, founded, as he claims, on the general principles of law and the adjudged cases, requires no examination at our hands : Collier v. Steinhart, 51 Cal. 116." In Congrave v. 8. P. R. R. Co., 88 Cal. 360, it was said by Justice :McFarland, that § 1970 "not only restates the rule first established by judicial decision as to injury received through the negligence of a fellow-servant, but it clears away to a great extent the difficulties which may have existed as to the meaning of ' fellow-servants.' It declares them to be those employed ' in the same general business.' " And in citing with approval McLean r. Blue Point Gravel Min. Co., 51 Cal. 255, he uses the following language : " It is clear that in de- ciding this case the Court determined that the Code swept away the distinctions which appear in some of the ' adjudged cases ' on the subject of fellow-servants. Collier v. Steinhart, 51 Cal. 116, referred to in the opinion, is still stronger to the point decided. Both of these cases were approved in McDonald V. Hazeltine, 53 Cal. 35, which was also a case where an em- ployee was injured through the carelessness of a foreman. These cases were again followed and approved in Stephens v. Doe, 73 Cal. 26, where it was held that ' the foreman of a mine, and a miner employed to work under his directions, are fellow- servants ; and the owner of the mine is not liable for injuries caused to the latter through the negligence of the foreman, un- less he failed to use ordinary care in the selection of the fore- man.' The same doctrine was announced in Brown v. Central Pacific R. R. Co., 72 Cal. 523 ; and Fagundes v. Central Pacific R. R. Co., 79 Cal. 97." In the Fagundes Case, just cited, plaintiff's intestate was a laborer employed by the defendant to work on its track. The offending servants were, respectively, the conductor of a train and a track-walker, whose duty it was " to see that the track was clear of obstructions and to signal when they existed." The deceased lost his life through the track-walker's negligent interference with a switch, and the conductor's negligence " in not being sufficiently on the alert to prevent " such inter- ference. In that case the Court held that as " there is nothing 276 MASTER AXD SERVANT. in the evidence tending to show any negligence on the part of the defendant in the selection of the employees whose careless- ness caused the casualty," it could not be held responsible. The principle declared in the section of the Code referred to, and upon which the decisions in the foregoing cases rested, was settled by the highest judicial authority in this country long j before the adoption of the Code ; but the remarkable con- trariety of judicial decisions upon the subject in other States has arisen out of the great difficulty met with in the applica- tion of it to the facts of the particular case to be decided. But in the consideration and application of this principle to the case before us, we do not propose to enter into a discussion of the relation which the section foreman of a railroad cor- poration sustains toward his employer with respect to the duties pertaining to his employment, except in so far as the subject of such relation is necessary to be considered in con- nection with the character of the particular act itself by which the accident was caused, for the purpose of determining whether such act was a personal duty which the defendant corporation owed to the deceased as its employee, or whether the loss caused by the act complained of was " in consequence of the negligence of another person employed by the same employer in the same general business." This must be deter- mined not from the grade or rank of the section foreman, but from the character of the act performed by him. If the act was one which it was the duty of the employer to perform toward its servants, and one of them negligently performed it to the injury of another servant in the same common employ- ment, then the offending servant in the performance of such duty acted as the representative or agent of his employer, for which the employer is responsible ; if it was not, then they were fellow-servants, and the offending servant is alone responsible. The duties which a railroad corporation owes to its servants, and which it is required to perform, are to furnish suitable machinery and apphances by which the service is to be per- formed, and to keep them in repair and order ; to exercise ordinary care in the selection and retention of sufficient and DAVES ET AL. V. SOUTHERN PAC. E. R. 277 competent servants to properly conduct the business in which the servant is employed, and to make such provisions for the safety of employees as will reasonably protect them against the dangers incident to their employment. The performance of these duties cannot be shifted by it to a servant so as to avoid responsibility for injury caused to another servant by its omis- sion ; nor is their negligent performance one of the ordinary risks of the service impliedly assumed by the employee by his contract of emploj'ment. Was then the act or omission which caused the injury a per- sonal duty which the defendant corporation owed to the de- ceased while he was engaged in the performance of his duties as its employee ? If it was, and the deceased was not at fault, then the corporate defendant is liable, otherwise not. It appears that Bresnahan, through whose negligence it is clear that Daves was killed, was the section foreman of the de- fendant corporation, and, as such, had charge of about eight miles of its track, including that portion of it where the acci- dent occurred. It was his duty to keep the track and switches in repair and order, and free from obstructions, so as to prac- tically insure the safety of trains passing over it. He had un- disputed control of the section men employed to work under him, and was vested with authority to employ and discharge them. As to whether he was the representative of the em- ployer, with respect to the performance of these duties, we are not called upon, in view of the facts, to decide, for the reason that the act which caused the injury, out of which this action arises, is clearly not embraced within them. It is not claimed that the corporation did not exercise ordi- nary care in the selection of Bresnahan as foreman, or that the switch, which he negligently left open, and by which the loss was suffered, was unsuitable or defective. But it is insisted that the corporate defendant violated a duty which it owed to Daves by not providing him with a reasonably safe place to perform his work. That the place was not safe because " a train was coming when the switch was open," in consequence of which he lost his life. 278 MASTER AND SERVAIST. The place, as we have seen, where the accident occurred, was the side-track on which the hand-car had been run from the main track to avoid the passenger train, then almost due, and in sight. The place was, of itself, in the first instance, a reasonably safe one, and was resorted to, under the circum- stances, for that very reason. The track and switches on Bres- nahan's section, in so far as anything appears to the contrarj^, were in good condition, and so was the hand-car, with the ex- ception of some disarrangement in the brake, which, however, had nothing to do with the injury. The servants were suffi- cient in number and competent for the purposes of the em- ployment. It is plain, therefore, that the death of Daves was not caused by the violation of any duty which the master owed to him, but by the negligent act of Bresnahan, who, with respect to the performance of that particular act, was the fel- low-servant of Daves. If a brakeman, or trainman, who it appears were intrusted with keys to the switch, or one of the section men had been guilty of the negligent act complained of, we do not think that it would be seriously contended here that such act was the act of the master ; and such would un- doubtedly be the case if a switchman had been regularly em- ployed to attend that switch, and he negligently performed the act referred to instead of Bresnahan; for a switchman in using and operating a switch is no more the agent of the master than an engineer who is engaged in running a loco- motive. It is the duty of the master to provide a suitable switch and competent servants for its operation ; when he has done this his duty is at an end, and his liability ceases. The keeping of it in position, and its use and operation, is a duty belonging to the servant, the negligent performance of which, to the injury of another servant employed. in the same general business, is a risk which the injured servant assumed when he took the employment, and for which the master is not liable. It is not denied that Bresnahan- was a competent and ex- perienced foreman, so that there was no neglect of duty by the master with respect to his selection. But the negligent .act complained of was performed by him in the course of the DAVES ET AL. V. SOUTHKRX PAC. E. R. 279 work upou which they were all engaged, and by one who, so far as the particular act was concerned, was clearly not the agent of the master, but the fellow-servant of Daves. The place was therefore made dangerous by the culpable negli- gence of a fellow-servant, and this, notwithstanding the fact that his grade or rank at the time happened to be superior to that of Daves. It therefore follows that the consequences flow- ing from a place made unsafe under such circumstances are not chargeable to the master. The duty violated did not re- late to the place of work, but the negligent use of an appliance or instrumentality which was proper and suitable for the pur- pose for which it was furnished b}^ the master, and such use of it was simplj' a detail of the work or management of the business, therefore a duty of the servant, which he, and not the master, was bound to perform. From these views, it is clear that the negligence of Bres- nahan in leaving the switch open in the manner, and with the unfortunate result indicated, was, notwithstanding his superior rank, the negligence of a fellow-servant within the meaning of § 1970 of the Civil Code, therefore a risk impliedly assumed by Daves when he took the employment, for which the corporate defendant cannot be held responsible. As this disposes of the controlling question in the case, the others discussed in relation to the instructions are not neces- sary to be considered. Let the judgment and order be affirmed as to the defendant Bresnahan, and reversed as to the corporate defendant, and the cause remanded for a new trial. Rehearing denied. Osborne r. ^Morgan, 1.37 Mass. 1 ; Steinhauser v. Spraul, 21 S. W. 859 ; Hinds V. Harbou, 58 Ind. 121 ; Hinds v. Overacker, 66 Ind. 547 ; B. & O. R. R. V. Baugh, 149 U. S. .368 ; T. & P. E. R. v. Leighty, 32 S. W. 799 ; San An- tonio & A. P. E. E. V. Keller, 32 S. W. 847. But see Minn. Stat, 1894, ? 2701. Who are fellow-servants discussed : 30 C. L. J. 504 and note 162 ; Jaggard, 280, 281 ; Bishop, 687 ; Cooley, 541 et seq.; Pollock, 115 et seq. 280 MASTER AND SERVANT. (3) Liability of servant to third persons. The servant is liable to third persons to the same extent as if he vrsis not a servant ; except in the case of non-feasance. Harriman v. Stowe. Supreme Court of Missouri, 1874. 57 M^o. 93. Wagner, Judge. The plaintiff, a married woman, in con- junction with her husband, brought this action for damages against the defendant for injuries sustained by her in faUing through a hatchway which, it was alleged, was constructed by defendant, and by him negligently, carelessly, and wrongfully left insecure and unprotected. The answer denied the allegation of negligence, and as a further defense, set up that the house where the hatchway was built was the property of defendant's wife, and that de- fendant in doing ' the work was acting as her agent. There was a replication as to negligence and carelessness, but it was admitted that the property belonged to defendant's wife. The instructions given by the Court submitted the case with unquestionable fairness. For the defendant the Court declared the law as follows : First. Before the jury can find for the plaintiffs it devolves on the plaintiffs to prove that the defendant constructed the trap-door and hatchway mentioned in plaintiffs' petition, carelessly, negligently, and unskillfuUy, or so left it ; and that Maggie M. Harriman, the plaintiff, fell through the trap-door and hatchway, and that such falling was occasioned by the care- less, negligent, and unskillful construction of said trap-door and hatchway by the defendant, or by so leaving it. Second. If the jury believe from the evidence that the de- fendant, in the construction of said hatchway and trap-door and in leaving it, exercised such care as an ordinarily prudent man would exercise, in doing similar work, to prevent injuries HARRIMAN V. STOWE. 281 to persons passing over the same, then they will find for the- defendant ; and it devolves on the plaintiffs to prove that de- fendant failed to exercise such care. These instructions were sufficiently favorable to the defend- ant, and there is nothing in those given by the Court on the- part of the plaintiff which in anywise conflicts with or mili- tates against them. But it is urged with great pertinacity here that the defend- ant, in doing the work, was acting as the agent of another,, and that, therefore, he is responsible to his principal only and not to the plaintiff. The well-settled principle of law is, that where an agent is employed to perform or superintend work, the principal is responsible to third persons for injuries caused by the neglect or non-feasance of the agent in doing the work : Morgan v.. Bowman, 22 Mo. 538. And this principle obtains, though the agent exceeds his powers or disobeys his instructions, pro- vided he does the act in the course of his employment : Doug- las V. Stephens, 18 Mo. 362 ; Minter v. Pacific Railroad, 41 Mo. 503 ; Garretzen v. Duenckle, 50 Mo. 104. In such cases the doctrine of respondeat superior applies, and the liability is cast upon the master who employed the agent and caused the work to be done : Barry v. St. Louis, 17 Mo. 121 ; Clark v. H. & St. Jo R. R., 36 Mo. 202. Judge Story says the distinction ordinarily taken is between acts of mis-feasance, or positive wrongs, and non-feasance, or mere omissions of duty by private agents. The law on this subject as to principals and agents, is founded upon the same analogies as exist in the case of masters and servants. The master is always liable to third persons for the mis-feasances and negligences and omissions of duty of his servant, in all cases within the scope of his employment. So the principal in like manner, is liable to third persons for the like mis- feasances, negligences, and omissions of duty of his agent, leav- ing him to his remedy over against the agent in all cases- where the tort is of such a nature that he is entitled to com- pensation. The agent is personally liable to third persons,, 282 MASTER AND SERVANT. for his own mis-feasances and positive wrongs, but he is not in general liable to third persons for his own non-feasances or omissions of duty, in the course of his employment. His lia- bility in these latter cases, is solely to his principal, there be- ing no privity between him and such third persons ; and the privity exists only between him and his principal. There- fore, the general maxim as to all such negligences and omis- sions of duty is, in cases of private agency, respondeat superior : Story on Agency, § 308, and such is the general doctrine : 2 Kent Com., 10th ed. 878, note; Pars. Cont., 5th ed. 66 ; Cal- vin V. Holbrook, 2 Comst. 126 ; Denny v. Manhattan Co., 2 Denio, 118 ; 1 Bl. Com. 413. The true distinction, as stated by Story, is between acts of mis-feasance, or positive wrongs, and non-feasance, or mere omissions of duty. In the latter case, the master or principal is alone liable to third persons ; whilst in the former, the re- sponsibility rests upon both the principal and agent. Thus, in Wright v. Wilcox, 19 Wend. 348, Cowen, J., speaking for the Court, says : " In a case of strict negligence by a servant, while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both guilty of the same negligence, at the same time and under the same circumstances ; the servant in fact, and the master con- structively, by the servant, his agent." Lord Holt, in his celebrated judgment in Lane v. Colton, 12 Mod. 488 ; s. c, Ld. Raymond, 646, 655, says that for the neglect of the serv- ant, third persons can have no remedy against him, but that the master is alone chargeable ; but for a mis-feasance, or actual tort, an action will lie against the servant, because he is a wrong-doer. The same views are confirmed in numerous adjudged cases : Cary v. Webster, 1 Strange, 480 ; Montfort v. Hughes, 3 E. D. Smith, 591 ; Suydam v. Moore, 8 Barb. 358 ; Phelps V. Wait, 30 N. Y. 78. The present case seems to be one, not of mere non-feasance or omission, but of strict negligence or wrong. The agent undertook and proceeded to build the trap-door, but did it so negligently as to cause the injury ; under such circumstances BECK V. COOPER 283 ihe action would be maintainable against the agent and the principal also. The answer states, aud the pleadings admit, that the house, upon which the work was done, was the prop- erty of defendant's wife, and that he was acting as her agent. But it is not averred, nor does the case anywhere show, that it was her separate estate. If she simply owned the fee simple, as is inferable from the pleading, then the defendant, in con- structing the trap-door, was acting for himself as well as for his wife, for the uses, rents, and profits of the wife's realty be- long to the husband during coverture. Under any view that we can take of the case, we think that the action was properly brought, that the judgment was right and should be affirmed ; the other Judges concur. McPheters v. Page, 83 Me. 234; Hewitt v. Swift, 3 Allen, 420; Wright ?'. Compton, 53 Ind. 337 ; Breen i: Fifeld, 157 ^lass. 277 ; Lee v. Bayes, 18 C. B. 599, 18 E. C. L. ; Silver i: ilartin, 59 N. H. 580 ; Blaen Avon Coal Co. v. JlcCulloh, 59 Md. 403. But see Hill v. Caverly, 7 N. H. 215 ; Jaggard, 286- 291 ; Bishop, 623. (4) Liability of master to servant. See Negligence. Post, page (5) Liability of master to third persons. Relationship being show^n the master is liable to third persons for the -wrong of his servant, by virtue of the fact : (a) That he authorized the act by a previous express or im- plied assent. Beck v. Cooper. Supreme Court of Illinois, 1884. 112 111. 192. Mr. Justice Walker. This action was brought to recover for damages claimed to have been sustained by plaintiff by being forcibly ejected from an omnibus controlled ''and oper- ated by defendant in Chicago. There have been several trials, 284 MASTER AND SERVANT. in the Superior and Appellate Courts. On the last trial the- jury found, and the Court rendered a judgment, against de- fendant for $2,600, and the case comes to this Court by appeal from the Appellate Court for the First District. The " People's Omnibus and Baggage Line " was organized and became a corporation in 1871, and before the injury of which complaint is made. The horses and omnibus belonged to, and the driver was employed by, the company. Appellant was the president of the company, and was sued individually in this action, and was held liable for the injury. The law conferred oh appellee the right to travel in the- omnibus, and if he, in the exercise of that right, was injured by the order of appellant, the latter is liable to respond for the injury in damages. The fact that appellant was the president of the corporation is no protection to him in the commission of an illegal act, and where an officer of an incor- poration performs an illegal act resulting in an injury to- another, he is liable. Nor does it exonerate him from such liability because the corporation may also be liable. The only question, therefore, is, did appellant give the order to the- drivers of omnibuses of the company to exclude colored per- sons from traveling therein ? That is a question of fact that was submitted to a jury, and they found appellant gave the general order under which appellee was expelled and injured by the driver. The Appellate Court have, by affirming the judgment, approved of the finding, and we are precluded from reviewing the evidence on that question. There being no semblance of authority to justify the promulgation of such an order, appellant was properly held liable on proof of the fact,, unless the Trial Court has committed some error as to the law in trying the case. We will proceed to determine whether any- such error was committed. It is urged that the Court erred in permitting evidence to be- introduced that appellant was a stockholder in the corporation, that he and his brothers held a majority of the stock, and to inquire as to their disposition of the stock. This was clearly irrelevant to the issue, as whether they were stockholders, or BECK V. COOPER. 285 not, was wholly immaterial. Appellant was the president of the company, and if he had control of its management and the direction of its affairs, it was wholly immaterial whether he owned its stock, or what amount, or what he did with it. But, notwithstanding the evidence in question was irrelevant, we are unable to perceive how it could have prejudiced appel- lant before the jury. If we were to reverse in every case where immaterial evidence is admitted, but few judgments would ever be sustained. It is only when we can see that the admission of such evidence worked, or probably did work, an injury to the party complaining, that we reverse. There is an objection that the Court erred in admitting the evidence of Young and Collins, who were drivers for the com- pany at that time, that they had received from the assistant superintendent orders not to permit colored persons to ride in their omnibuses. If they received such orders, it was from a superior officer in the management of the affairs of the cor- poration. It may be it was inadmissible under the strict rules of evidence, but it was, under the circumstances of this case, irrelevant, and could have done no harm. It is also urged that the Court erred in admitting evidence that the driver was retained in the employment of the com- pany after appellee was injured. Such evidence has been held admissible, when the fact was known to the officer or agent of the company having power to discharge the negligent servant, as characterizing the animus of those controlling the company, and as an ingredient in the measure of the damages. Inasmuch as we are precluded from considering the evi- dence, we must hold there is no error for which the judgment of the Appellate Court should be disturbed, and it is affirmed. Judgment affirmed. Gregory v. Piper, 9 B. & C. 591 ; Wiltse v. Bridge Co., 63 Mich. 639 ; Minn. Stat. 1894, U 401, 402, 1947, 1950, 2693, 2700, 2702 ; Wood, ? 279, note 2 ; Jaggard, 239 ; Bishop, 608 ; Cooley, 531 ; Pollooli, 84. 286 MASTER AND SERVANT. (b) That the wrongful act done is within the scope of his authority. Maier v. Randolph & Randolph. Supreme Court of Kansas, 1885. 33 Kans. 340. Valentine, J. This action was commenced by W. A. Ran- dolph and A. G. Randolph, partners as Randolph & Randolph, against Frank Maier, before a justice of the peace, and, after judgment, the case was appealed to the District Court, in which Court it was again tried, before the Court and a jury, and judgment was rendered in favor of the plaintiffs and against the defendant, for the sum of |144, and for costs. The defendant, as plaintiff in error, now brings the case to this Court. 1. The case was tried in the District Court upon the bill of particulars filed in the Justice's Court, which alleges, in sub- stance, as follows : The plaintiffs owned a two-year-old thorough- bred Shorthorn bull, and the " defendant, by his employee and agent, without the knowledge and consent of the said plaintiffs, killed said bull ; that said plaintiffs were damaged by the kill- ing of said bull, in the sum of $250." We think the bill of particulars states a cause of action. 2. On the trial, the plaintiffs, for the purpose of enhancing their damages, attempted to prove that the bull had an ex- cellent pedigree, and for this purpose they introduced in evi- dence, by the permission of the Court, but over the objections and exceptions of the defendant, a little book issued by pri- vate individuals as an advertisement of animals which they, the- individuals, had for sale, and containing what purported to be a pedigree of the plaintiffs' bull. The book, as read in evidence, proved that the plaintiffs' bull was of the very best Shorthorn blood, both upon his father's and mother's side. We think the Qourt below erred in permitting this book to be intro- duced in evidence. It was not original evidence, but merely a printed statement of what the parties who published it said MAIER V. RANDOLPH & RAXDOLPH. 287 about the bull's pedigree. It was merely hearsaj^ testimony. It is admitted that the bull in the present case was not regis- tered in either the American Herd Book or the Canadian Herd Book, and neither of such herd books, nor any herd book, was offered in evidence. 3. One of the plaintiffs was permitted to testify in narra- tive form, and not in answer to questions put to him. This is permissible within the discretion of the trial Court, and we do not think that the trial Court abused its discretion in this case. 4. A witness cannot usually be cross-examined upon matters brought out for the first time upon the cross-examination, and which are not justified by the examination-in-chief. 5. We think the evidence showed liability on the part of the defendant. A principal, or master, or employer is usually liable to third parties for the acts or negligence of his agent or servant while acting within the scope of his employment. Here the defendant instructed his servant to go to a certain place at a certain time and kill a beef. The servant went to such place, at such time, and, finding no animal tbere except the plaintiff's bull, killed the bull, skinned him, dressed him, and hung his carcass up in the slaughter-house as a beef. Evidently the servant was honestly attempting to obey the master's order, and evidently the servant thought that he was doing so ; but he was honestly mistaken. A " beef," accord- ing to Webster's Dictionary, may be either a bull, a cow, or an ox. The servant was all the time acting for the master, and he killed this bull while in the execution of his master's busi- ness, and within the scope of his employment ; and therefore his master is liable. 6. It is claimed, however, that the plaintiffs in this action were guilty of contributor}^ negligence ; that they themselves wrongfully placed the bull in a corral, or pen, connected with the slaughter-house, where no person except the defendant had any right to place animals, where no animals except such as were brought there for the purpose of being slaughtered should have been placed, and where the bull was liable to be killed 288 MASTER AND SERVANT. as a beef. We hardly think that we are called upon to decide this question ; for if the plaintiffs' evidence is true, and prob- ably it is, there is no foundation for this claim of the defendant. According to the plaintiffs' evidence, they had the entire pri- mary right to the place where the bull was killed ; they owned it, and the defendant, at most, had only a secondary right thereto, and that right was merely by the sufferance of the plaintiffs, a mere license ; and this secondary right or license was not exclusive, but in subordination to the plaintiffs' supe- rior right ; and others as well as the defendant were allowed to put animals in such corral or pen. Under the facts as shown by the plaintiffs' evidence, and as would, in all probability, be found by the jury, we would think that the defendant was liable. A master and his servants must know the master's property, and must not mistake other people's property for his to the injury of the other people. For the error committed by the Court below in permitting the little book above mentioned to be introduced in evidence, the judgment of the Court below will be reversed, and a new trial ordered. Potulini V. Saunder, 37 Minn. 517 ; Rounds w. E. E., 64 N. Y. 129 ; Cohen V. E. E., 69 N. Y. 170 ; AValker v. Johnson, 28 Minn. 147. Acts within scope of authority : Com. v. Briant, 8 N. E. 339 and note ; Pike V. Brittan, 11 Pac. 890 and note ; T. & P. E. E. v. Mother, 24 S. W. 79 ; D. S. P. & P. E. E. V. Conway, 5 Pac. 142 ; So. Kans. E. E. v. Eice, 16 Vae.. 817 ; Eailway v. Kirk, 1 N. E. 849 and note ; Cleveland v. Newsom, 7 N. W. 222 ; Driscoll V. Carlin, 11 Atl. 482 ; State v. Smith, 4 Atl. 412 ; Heenrich v. Car Co., 20 Fed. 100; Jaggard, 251; Bishop, 609-611, 614; Cooley, 533 etseq.; Pollock, 103. (c) That the wrongful act done is within the course of his employment. Ellegard v. Ackland. Supreme Court of Minnesota, 1890. 43 Minn. 352 ; 45 N. W. 715. Action brought in the District Court for Freeborn County to recover damages for the destruction of plaintiff's growing trees MORIER V. ST. P., M. & M. RY. CO. 289 hj a fire negligently kindled by defendant on his own adjoin- ing land. At the trial before Farmer, J., it appeared that the fire was set by defendant's son, and the plaintiff had a verdict of $200. The defendant appeals from an order refusing a new trial. GiLFiLLAX, C. J. The only point made by appellant is as to the sufficiency of the evidence to charge him with the negli- gence of his son in setting the fire which destroyed plaintiff's property. There was enough to show that the son was em- ployed by him, not merelj^ to do some one specified thing, as to plough a particular field, but as a general farm hand, and that within the scope of his employment was to do the grub- bing, to facilitate which he set the fire. Where a master authorizes a servant to work for him, the former is liable for injury to another caused by the latter's negligent manner of doing the work, or by some negligent act of his done in the course of and for the purpose of performing the work, even though the master ma}- have forbidden him to be negligent or to do the negligent act. Authority to the servant to be negli- gent is not required to make the master liable. The evidence was sufficient. Order affirmed. MoRiER V. St. p., M. & M. Ry. Co. Supreme Court of Minnesota, 1884. 31 Minn. 351 ; 17 N. W. 952. Mitchell, J. All the evidence in this case tends to prove that some section men, under the charge of a section foreman, were, in the employment of defendant, engaged in repairing its railroad track near defendant's farm on the 21st of Octo- ber, 1882. While engaged in such work they usually returned to their boarding-house for dinner, but on this day, their work being at some distance, they took their dinner with them. At noon, when they quit work to eat, they built a fire, or rekin- dled one which some other person had kindled, on defendant's 19 290 MASTER AND SEKVAXT. right of way for the purpose of warming their coffee. After eating dinner they resumed their work, negligently leaving the fire unextinguished, which spread in the grass and ran on to plaintiff's land and burned his hay. There is no evidence that the defendant was boarding these men, or that it was anj'- part of its duty to prepare or cook their meals. Neither is there anything tending to show that the defendant either knew of or authorized the kindling of a fire for any such purpose, either on this or on any other occasion. Nor is there any evi- dence that it was the duty of these section men to exercise any supervision over the right of way, or to extinguish fires that might be ignited on it. So far as the evidence goes, their employment was exclusively in repairing the railroad track. The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims, respondeat superior and quifacit per alium facit per se. In fact, it rests upon the doctrine of agency. Therefore, the universal test of the master's liability is whether there was authority, express or implied, for doing the act; that is, was it one done in the course and within the scope of the servant's emj^loyment? If it be done in the course of and within the scope of the employment, the master will be liable for the act, whether negligent, fraudulent, deceitful, or an act of positive malfeas- ance : Smith on Master and Servant, 151. But a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master 's business. It does not arise when the servant steps outside of his employment to do an act for him- self not connected with his master's business. Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsi- ble so long as the servant can be said to be doing the act, in the doing of which he is guilty of neghgence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected M'ith the business in which he serves him and does not happen in the MORIER V. ST. P., M. & M. RY. CO. 291 course of his emploj'ment. And in determining whether a particuLiT act is done in the course of tlie servant's employ- ment, it is proper hrst to inquire wliether the servant was at the time engaged in serving liis master. If tlie act be done Avhile tlie servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master pro tempore, the master is not liable. If the servant step aside from his master's busi- ness,/Lir however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities : 2 Thompson on Negli^ gence, 885, 886 ; Sherman & Redf. on Negligence, §§ 62, 63 ; Cooley on Torts, 533 et seq. ; Little Miami E,. Co. v. Wetmore, 19 Ohio St. 110 ; Storey v. Ashton, L. R., 4 Q. B. 476 ; Mitchell I'. Cras^weller, 13 C. B. 237 ; McClenaghan v. Brock, 5 Rich. (Law) 17. It would seem to follow, as an inevitable conclusion, from this, that on the facts of this case the act of these section men in building a fire to warm their own dinner was in no sense an act done in the course of and within the scope of their em- ployment or in the execution of defendant's business. For the time being the}'- had stepped aside from that business, and in building this fire they were engaged exclusively in their own business, as much as they were when eating their dinner, and were for the time being their own masters, as much as when they eat their breakfast that morning or went to bed the night before. The fact that they did it on defendant's right of way is wholly immaterial, in the absence of any evidence that defendant knew of or authorized the act. Had they gone upon the plaintiff's farm and built the fire, the case would have been precisely the same. It can no more be said that this act was done in the defendant's business, and within the scope of their employment, than would the act of one of these men in lighting his pipe, after eating his dinner, and care- lessly throwing the burning match into the grass. See Wil- 292 MASTER AND SERVANT. liams V. Jones, 3 Hurl. & C. 256. The fact that the section foreman assisted in or even directed the act does not alter the case. In doing so he was as much his own master and doijig his own business as were the section men. Had it appeared that it was part of his duty to look after the premises gen- erally, and extinguish fires that might be ignited on them, his omission to put out the fire might possibly, within the case of Chapman v. N. Y. C. E,. Co., 33 N. Y. 369, be considered the neg- ligence of the defendant. But nothing of the kind appears, and the burden is upon plaintiflf to ' prove affirmatively every fact necessary to establish defendant's liability. Order reversed, and new trial granted. Croker v. C. & N. W. R. E., 36 Wis. 659 ; N. E. G. E. Co. v. Gause, 76 Ind. 142 ; Morier v. St. P., M. & M. Ey., 31 Minn. 351 ; Eosenbaum v. E. E., 38 Minn. 173 ; Goddard v. G. T. Ey., 57 Me. 202 ; West v. AVright, 98 Ind. 335 ; Pa. E. R. V. Derby, 14 How. 468; Campbell v. Pull. Car Co., 42 Fed. 484; Mobile & O. Ey. v. Seals, 13 So. 917 ; Eeinke v. Bentley, 63 N. W. 1055 ; Chicago, etc., Co. v. McGinnis, 51 111. App. 325; Eidge v. Transfer Co., 56 Mo. App. 133 ; T. & P. E. E. v. Scoville, 62 Fed. 730 ; Ft. W. & N. O. E. E. V. Smith, 25 S. W. 1032 ; Eitcher v. Walker, 63 Conn. 155 ; A. G. S. E. E. v. Harris, 14 So. 263 ; Railway v. Hackett, 58 Ark. 381 ; Fitzsimmons v. E. E., 98 Mich. 257 ; Keating v. E. R., 97 Mich. 154 ; Smith v. L. & N. E. E., 23 S. W. 652 ; Jaggard, 257-259 ; Bishop, 612 ; Cooley, 533 et seq.; Pollock, 97. (d) That the master was in the possession of dangerous in- strumentalities, and the wrongful act was not for his benefit nor within the scope of his employment. Pittsburg, C. & St. L. Ry. Co. v. Shields. Supreme Court of Ohio, 1890. 47 Ohio St. 387 ; 24 N. E. 658. MiNSHALL, C. J. The suit below was an action by Shields, a small boy, prosecuted by his next friend, against The Pittsburg, Cincinnati & St. Louis Railway Company for an injury caused by the explosion of a torpedo, wantonly and negligently left on its track by one of its servants, at a point where the children and inhabitants living along the line of PITTSBURG, C. & ST. L. RY. CO. V. SHIELDS. 293 the track were daily in tlie habit of passing with the knowl- edge and acquiescence of the company. The torpedo, a dan- gerous instrument, used by the company as a signal in the operation of its road, was picked up by a companion of the plaintiff, carried some distance away, and caused to explode by one of them hitting it. They were ignorant of its char- acter, and, at the time, trying to satisfy their curiosity about it. The same accident caused the injury for which the origi- nal action in Harrimau v. Railroad Company, 45 Ohio St. 11, was brought, the judgment in which was reversed by this Court, for error in sustaining a demurrer to the petition ; and the petition in the Harriman case is substantially the same as in this case. ' . . . After the decision in the Harriman case, the defendant below filed an answer in this case, the second defense, of which and to which a demurrer was sustained, is as follows : " The defendant, for its second defense, says that it carries ■ upon its trains signal torpedoes to be used in addition to its regular signals, when, from fog or other cause, the other signals cannot be seen or relied upon, and that if said torpedo was placed upon the track, as alleged in said amended petition, by the employees of this defendant (a fact which defendant wholly denies), that then said employees placed the same upon the track, at a time and place in broad daylight, when and where there was no necessity for the use thereof, or of any sig- nals of any kind whatsoever, and that said use was without the knowledge or consent or authority, express or implied, of the defendant ; was against and contrary to its rules and reg- ulations, as said employees well knew, and that said torpedo was so used by them outside and beyond the scope of their employment, and in no wise connected with the control, man- agement, or operation of said train of cars or railroad, and was so placed for the accomplishment of an independent and wrongful purpose of their own, in this, to wit : that said em- ployees, or one of them, while said train was taking water at said water-tank, for the purpose of having sport with some lady passengers who were upon said train, took torpedoes from the 294 MASTER AND SERVANT. place where kept on said train, and without the knowledge of said lady passengers, with whom said employees were well ac- quainted, placed the same upon the iron rails of the track, in front of the wheels of the caboose in which said lady passen- gers were riding, with the intention to frighten them by the sudden and unexpected explosion of said torpedoes, which would result with a loud noise by the passage of the caboose over them ; when said train started forward, one of said tor- pedoes failed to explode, and was found as stated in said amended petition." The sustaining of the demurrer to this defense is assigned for error. There is also an exception to the ruling of the Court in refusing to charge as requested. But this ruling need not be noticed, as it presents simply the same question as is pre- sented by the demurrer to the answer. It would seem that the question raised by this defense was presented by the demurrer to the petition in the Harriman case, and determined by the decision of this Court therein. The fourth proposition of the syllabus being, in substance, that the railroad company was liable for the negligence of its servant, in placing and leaving the torpedoes on its track at a point where the public, including children, were permitted to pass, " notwithstanding such negligent acts of the servant were wanton, reckless, and needless." But the counsel for the plaintiff in error think that it was not, and claim that there is clear error in the case for the reason that the act of the conductor in placing the torpedoes on the track was a mere caprice of his own, outside of his em- ployment as a servant, and contrary to the rules of the com- pany ; and that, therefore, the company is not liable. We do not adopt this view, and shall show that the negli- gence of the conductor in this regard, though wanton and con- trary to the rules of the company, occurred within his employ- ment, and is, therefore, imputable to the company. The law requires of persons having in their custody instru- ments of danger that they should keep them with the utmost care : 1 Hilliard on Torts, 3d ed., 127. " Sometimes," says Pol- PITTSBUKG, C. A ST. L. RY. CO. V. SHIELDS. 295 lock, "the term 'consummate care' is used to describe the amount of caution required, but," he says, "it is doubtful whether even this is strong enough. At least, we do not know an}- English case of this kind (not falling under some recog- nized head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him :" Pollock on Torts, 407. ^ee, also, Wharton on Negligence, § 851. And it stands to reason that one charged with a duty of this kind cannot devolve it upon another so as to exonerate him- self from the consequences of injury being caused to others by the negligent manner in which the duty in regard to the custody of such an instrument may be performed. Speaking of the absolute duty imposed by statute in certain cases, and also of the duties required b}' common law " of common car- riers, of owners of dangerous animals or other things involv- ing, by their nature or position, special risk or harm to neigh- bors," Pollock observes, " the question is not by whose liand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an ' independent contractor,' but whether the duty has been adequately performed or not :" Pol- lock on Torts, 64. We in no way limit nor question the soundness of the gen- eral rule, whicli exonerates the master from liability for the acts of his servant done outside of his employment. AVhat has been stated is strictly within the reason and principle of the I'ule, which is, that wliatever the servant is entrusted by the master to do for him must be done with the same care and prudence that would be recjuired of the master, acting in that regard for him.self ; if it be the custody of dangerous instru- ments, he must observe the utmost care. The inability of the master to shift the responsibility con- nected with the custody of dangerous instruments, employed in his business, from himself to his servants entrusted with their use, is analogous to, and may be said to rest upon the same principle as that wliich disenables him from shifting to an independent contractor liability for negligence in the per- formance of work that necessarily tends to expose others to 296 MASTER AND SERVANT. danger, unless the work is carefully guarded. It seems by the great weight of authority and reason that this cannot be done. See Kailroad Company v. Morey, 47 Ohio St. 207, and cases there cited. Also see Lawrence v. Shipman, 39 Conn. 586, 589, and Cooley on Torts, 2d ed., 644, 646. And the relation of master and servant and that of em- ployer and independent contractor are, in this regard, treated in one view by Pollock in his work on Torts, as will appear from consulting his work at page 64. Now, in this case, it must be observed that the duty en- trusted by the railway company to the conductor in regard to these torpedoes was not only to use them as signals with the requisite care and caution, but to observe like care and caution in the custody of them, when not in use. The servant's cus- tody of them, when not in use, was as much a part of his em- ployment as was the use of them as signals when required. In taking them from the place where thej' were carried when not in use, and, in mere caprice, placing them on the track for the purpose of frightening the ladies, he was not, it is true, within his employment as to the use of them ; but in so doing he violated the duties connected with his employment as the custodian of them, and thereby made his master liable for the consequences of his neglect, in the same manner and to the same extent as if it had been done by the company itself. It is necessary in this, and in all similar cases, to distin- guish between the departure of a servant from the employment of the master and his departure from, or neglect of, a duty connected with that employment. A servant may depart from his employment without making his master liable for his neg- ligence when outside the employment of the master ; and he so departs whenever he goes bej'ond the scope of his employment and engages in affairs of his own. But he cannot depart from the duty entrusted to him, when that duty regards the rights of others in respect to the employment of dangerous instru- ments by the master in the prosecution of his business, with- out making the master liable for the consequences ; for the PITTSBl-RG, C. & ST. L. RY. CO. V. SHIELDS. 297 first step in that direction is a breach of tlie duty entrusted to him by the master, and liis negligence in tliis regard becomes at once the negUgeuce of tire master ; otherwise the duty re- quired of the master in respect to the custody of such instru- ments employed in his business maj^ be shifted from the master to the servant, which cannot be done so as to exonerate the master from the consequences of a neglect of the duty. To better illustrate the ground of this distinction, we may, for example, suppose a servant, with others under his con- trol, employed with a construction-train repairing the track of his master. He may, for a time, quit his employment, and, with his men, go off on affairs of his own. Whilst thus out of the master's employment he may build a. fire, which, through his negligence, may consume the property of another ; and, in the meantime, loss of life and property may result from a collision with the train negligently left standing on the track. Now whilst, as has been held, the master would not be liable for the loss resulting from the fire, because the act was done outside the servant's employment (Morier v. Railway Company, 31 ]\Iinn. 351), yet it is equally certain that for the loss occasioned by the servant's negligence in leaving the train on the track the master would be liable in damages ; for the plain reason that in abandoning the custody of the train he was guilty of negligence in the employment of the master, whilst in building the fire he was not. That what was done by the conductor contravened the pur- pose and instructions of the company, in regard to the use of these torpedoes, does not vary its liability for the negligence of the conductor in the custody of them. In discussing the master's liability for his servant, it is said by Professor Whar- ton, " It is not necessary, in order to make the master liable, that there should be specific directions as to the particular act. It is enough if the general relation of master and servant, within the range of such act, exists. The question is simply whether the wrong inflicted was incidental to the discharge of the servant's functions. It may have been capricious. It may have contravened the master's purposes or directions. But a 298 MASTER AND SERVANT. master who puts in action a train of servants, subject to all tlie ordinary defects of human nature, can no more escape liability for injury caused by such defects than can a master, who puts machinery in motion, escape liability on the ground of good intentions, for injury accruing from defects of machin- ery. Out of the servant's orbit, when he ceases to be a serv- 1 ant, his negligences are not imputable to the master. But within that orbit they are so imputable, whatever the master may have meant :" Wharton on Negligence, § 160. See, also, Wood on Master and Servant, § 283 ; and Cooley on Torts, 632 (539). The custody of these torpedoes was within the servant's orbit. Negligently leaving them on the track was a negli- gence within that orbit, and therefore imputable to the master. If a master has a duty to perform and entrusts it to a servant, who disregards it to the injury of another, it is im- material, so far as the liability of the master is concerned, with what motive or for what purpose the servant neglects the duty. This is illustrated by the case of Wood v. Railroad Company, 17 N. Y. 362, which was an action against .the com- pany for failure to carry the plaintiff to her destination with reasonable dispatch. The delay was caused by the willful act of the conductor in wrongfully detaining the train at a sta- tion ; and which the defendant claimed exonerated it from liability. But the Court held otherwise, it being observed, among other things, in the opinion, that " The obligation to be performed was that of the master, and delay in perform- ance, from intentional violation of duty by an agent, is the negligence of the master." We do not see that this in any way conflicts with the de- cision in Railroad Company v. Wetmore, 19 Ohio St. 110. There the plaintiff got into a quarrel with the baggage-master of the company about checking his baggage ; and, under the influence of anger, the latter struck the plaintiff with a hatchet, and it was held that the company was not liable for the injury. A hatcliet is not an instrument of danger, within the rule above stated — it includes only such instruments as are such CALDWELL V. SACRA. 299 within themselves. The danger of a hatchet is in the hand and spirit of tlie man who maj' use it. If, in this case, the in- strument left on the track had been a hatchet the companj^ would not have been liable to a child who might afterward have picked it up and been injured by it. For the company would have been under no such duty as to its custody as it was under in regard to this dangerous explosive. Judgment affirmed. T. "\V. "\V. R. E. v. Harmon, 47 111. 298 ; Bmnner ?'. Tel. Co., 25 Atl. Rep. 29 ; 151 Pa. St. -U7 ; s. c, 160 Pa. St. 300 ; Jaggard, 264. (e) That he ratified or adopted the wrongful act. Caldwell v. Sacra. Court of Appeals of Kentucky, 1811. Littell's Selected Cases (Ky.), 118. LoGAX, J. In an action of trespass against Caldwell, upon the allegation that he had, or caused to be, tied to the tail of a certain horse of the plaintiff, large sticks of wood, and had so beat and caused the said horse to run as thereby to occasion his death. Upon the plea of not guilty, the plaintiff proved the death of the horse occasioned by the sticks whicli had been tied to his tail, and the confession of Caldwell, that his negro boy had tied sticks to the horse's tail, the horse having fre- quently broken into his wheat-field. Upon being then in- formed by the witness that he had understood the horse had died from the abuse occasioned by the sticks which had been tied to his tail, Caldwell replied that he was glad of it. Upon this evidence the counsel for the defendant moved the Court to instruct the jury that it was not sufficient to support the declaration. Whereupon the Court instructed the jury that if they were of opinion, from the testimony, that the defendant had eitlier directed or sanctioned the conduct of his servant in tying the sticks to the horse's tail, or if he were present at the time, and 300 MASTER AND SERVANT. did not prevent the servant from doing the same, that then, he, the defendant, was hable to the action. The jury found for the plaintiff |100 in damages, the value of the horse proved upon the trial. The defendant also moved for a new trial upon these grounds : 1st. That the verdict was contrary to evidence ; 2d, that it was against law ; and 3d, that the Court erred in the instructions to the jur}^ Which motion the Court over- ruled, and the defendant upon this case has appealed to this Court. There is no point of difficulty in the cause. For whether the conduct of the slave was under the direction or sanction of the master, is not material ; or whether the master's direc- tion or sanction thereof, is tested by his express command, or by his presence and not forbidding the act, or by other cir- cumstances evincing his approbation, is equally immaterial. He is in either case liable. For the law is, if one agree to a trespass which has been committed by another for his benefit, this action lies against him, although it was not done in obe- dience to his command, or at his request: Bac. Abr. 185, § 4, title Trespass. A fortiori ought the master of a slave to be liable in such case for the trespass of the slave. "Whether in point of fact the defendant had directed, or en- couraged the slave in the commission of the trespass, was a question proper for the determination of the jury from the circumstances and evidence of the case ; and with whose find- ing the Court ought not to interfere, unless it was obviously and clearly unwarranted from the evidence and circumstances of the case. And surely in this case, there is no room for an inference against the finding of the jury. The Circuit Court, therefore, very properly overruled the motion for a new trial. Judgment affirmed. E. C. E. K. V. Broom, 6 Exch. 314; Coal Co. v. McCulloh, 59 Md. 403; Byram v. McGuire, 3 Head. 530 ; R. R. v. Donahue, 56 Tex. 162 ; Byne v. Hatcher, 75 Ga. 289 ; Coomes v. Houghton, 102 Mass. 211 ; Jaggard, 47 • Bishop, 616 ; Cooley, 127. CAMPBELL V. XOETHEEN PACIFIC K. K. 301 C Modification. The master is not liable for the independent torts of his servant. Campbell v. Northern Pacific R. R. Supreme Court of Minnesota, 1892. 51 Minn. 488 ; 53 N. AV. 758. Appeal by defendants, Northern Pacific Railroad Company and Northern Pacific Beneficial Association, from an order of the District Court of Crow Wing County, Holland, J., made March 5, 1892, overruling their demurrers to the complaint. The plaintiff, Frances M. Campbell, complained that on January 15, 1892, at Brainerd, one John McGregor, a phy- sician, employed bj' the above-named defendants, did mali- ciously strike, beat, and bruise her, another servant, while both were in the performance of their several duties at a hospital, caring for the injured brought in from a railroad accident. The complaint further stated that his acts done while in the performance of his duty as a physician were the acts of his principals, and that he was then and there a vice-principal. For a second count the plaintiff complained that on the next day McGregor, while in the performance of his duty, called her a slut, a sneak, an eavesdropper, and liar, and threatened to have her arrested. She alleged her damages to be $2,000, for which sum she demanded judgment. The defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action as against either of them. The demurrers were overruled, and the defendants appeal. Vanderburgh, J. The defendant Northern Pacific Bene- ficial Association is alleged in the complaint to be an agency of the defendant railway company for the care of persons in- jured in the operation of the railroad. The defendant McGregor was one of the physicians and surgeons employed for such purpose, having the charge and oversight of this special 302 MASTER AND SERVANT. service, and was the representative of the association and rail- way company in and about the same. The plaintiff also alleges that while the defendant McGregor was so in the line and in the course of the discharge of his said duty as such authorized agent and servant of said association and of said railway company as aforesaid, and on, to wit, January 16, 1892, in said county, said defendant McGregor did willfully and maliciously assault said plaintiff, and then and there strike, beat, bruise, and batter, insult and injure the plaintiff, for which she claims damages. She also sets up a cause of action for alleged defamatory and slanderous language used by McGregor in the course of his employment of and concerning the plaintiff. To these separate causes of action the defendant interposed demurrers, which were overruled by the Court, and this appeal brings before us the sufEciencj' of the complaint. The nature of the employment of the defendant association and of McGregor is stated, and also the fact that plaintiff was a servant employed by such association, and was under the direction and subject to the orders of McGregor. It will be observed that the business in which McGregor was employed was superintending the care of sick and injured per- sons, and it is alleged generally that any and all acts done and performed by him as such physician, etc., were the acts of his principal. But there is clearly nothing in the complaint to warrant the inference or conclusion that the abusive language of McGregor was the act of his superiors, nor do we see that the alleged assault can be considered in any other light than an independent tort, which it presumptively was ; and the bald statement that it was the act of the principal, or simply done while in the course of his employment, or while in the dis- charge of his duty, is hardly sufficient to charge the master. The case is quite different from that of an assault upon a patient in charge of the defendants, and to whom they owed the duty alleged, in which case the rule stated in McGord v. Western Union Tel. Co., 39 Minn. 181 (39 N. W. Rep. 315), would apply. An assault upon a patient to whom the defend- ants owed a special duty, and alleged to have been done in the BEACH V. HANCOCK. 303 course of the emploj'ment, would present an entirelj' different case. But it does not appear that there was a breacli of any duty owed by defendant corporations to the plaintiff which their steward, McGregor, violated in the acts alleged, or that the wrong complained of was expressly or implicitly author- ized by the railway company, or how it could be committed in the course of ilcGregor's employment, or in furtherance of the master's business. Order reversed. Miami t'. Wetmore, 19 Ohio, 110 ; Cofield r. McCabe, 59 N. W. 1005 ; Mott V. Ice Co., 73 X. Y. 542 ; Mulligan v. R. R., 129 N. Y. 506 ; Palmeri v. R. R., 133 N. Y. 261 ; AV. U. Tel. Co. r. MuUins, 62 N. W. 880 ; G. R. R. v. Wood, 21 S. E. 288 ; Collins .'. Ala. R. R., 16 So. 140 ; Jaggard, 276 ; Bishop, 622. D SPECIFIC WEONGS. I WRONGS TO PERSON. 1. Assault and Battery. a Definition. (1) Assault. An assault is an attempt with force or violence to inflict corporal injuries on another, accompanied -with apparent means to carry the attempt into effect. Beach v. Hancock. Supreme Judicial Court of New Hampshire, 1853. 27 N. H. 223. Trespass, for an assault. Upon the general issue it appeared that the plaintiff and 304 ASSAULT AND BATTERY. defendant, being engaged in an angry altercation, the defend- ant stepped into his office, which was at hand, and brought out a gun, wliich he aimed at the plaintiff in an excited and threatening manner, the plaintiff being three or four rods distant. The evidence tended to show that the defendant snapped the gun twice at the plaintiff, and that the plaintiff did not know whether the gun was loaded or not, and that, in fact, the gun was not loaded. The Court ruled that the pointing of a gun, in an angry and threatening manner, at a person three or four rods distant who was ignorant whether the gun was loaded or not, was an assault, though it should appear that the gun was not loaded, and that it made no difference whether the gun was snapped or not. The Court, among other things, instructed the jury that, in assessing the damages, it was their right and duty to consider the effect which the finding of light or trivial , damages in actions for breaches of the peace would have to encourage a disregard of the laws and disturbances of the public peace. The defendant excepted to these rulings and instructions. The jury having found a verdict for the plaintiff, the de- fendant moved for a new trial by reason of said exceptions. Gilchrist, C. J. Several cases have been cited by the counsel of the defendant to show that the ruling of the Court was incorrect. Among them is the case of Eegina v. Baker, 1 Carr. & Kirw. 254. In that case the prisoner was indicted under the statute of 7 Will. IV and 1 Vic. ch. 85, for attempt- ing to discharge a loaded pistol. Rolfe, B., told the jury that they must consider whether the pistol was in such a state of loading that, under ordinary circumstances, it would have gone off, and that the statute under which the prisoner was indicted would then apply. He says, also, " if presenting a pistol at a person and pulling the trigger of it be an assault at all, certainly in the case where the pistol is loaded it must be taken to be an attempt to discharge the pistol with the in- tent of doing some bodily injury." BEACH V. HANCOCK. 305 From the manner in which this statement is made, the opinion of the Court must be inferred to be tliat presenting an unloaded pistol is an assault. There is nothing in the case favorable to the defendant. The statute referred to relates to loaded arms. Tlie case of Regina v. James, 1 Carr. & Kirw. 529, was an indictment for attempting to discharge a loaded rifle. It was shown that the priming was so damp that it would not go off. TixDAL, C. J., said : " I am of opinion that this was not a loaded arm within the statute of 1 Vic. ch. 85, and that the prisoner can neither be convicted of the felony nor of the assault. It is only an assault to point a loaded pistol at any one, and this rifle is proved not to be so loaded as to be able to be discharged." The reason why the prisoner could not be convicted of the assault is given in the case of Regina v. St. George, 9 C. & P. 483, where it was held that on an indictment for a felony, which includes an assault, the prisoner ought not to be con- victed of an assault, which is quite distinct from the felon j^ charged, and on such an indictment the prisoner ought only to be convicted of an assault, which is involved in the felony itself. In this case Paeke, B., said " if a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent." So if a person present a pistol, purporting to be a loaded pistol, at another, and so near as to have been dangerous to life if the pistol had gone off; semble that this is an assault, even though the pistol were, in fact, not loaded : lb. In the case of Blake v. Barnard, 9 0. & P. 626, which was trespass for an assault and false imprisonment, the declaration alleged that the pistol was loaded with gunpowder, ball and shot, and it was held that it was incumbent on the plaintiff' to make that out. Lord Abinger then says : " If the pistol was not loaded it would be no assault," and the prisoner would be entitled to an acquittal, which was undoubtedly correct, under 20 306 ASSAULT AND BATTERY. that declaration, for the variance : Regina v. Oxford, 9 C. & P. 525, 38 E. C. L. 309. One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. With- out such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to entertain a fear of personal injury when a pistol is pointed at him in a threaten- ing manner, when, for aught he knows, it may be loaded, and maj'^ occasion his immediate death. The business of the world could not be carried on with comfort if such things could be done with impunity. We think the defendant guilty of an assault, and we per- ceive no reason for taking any exception to the remarks of the Court. Finding trivial damages for breaches of the peace, damages incommensurate with the injury sustained, would certainly lead the ill-disposed to consider an assault as a thing that might be committed with impunity. But, at all events, it was proper for the jury to consider whether such a result would or would not be produced : Flanders v. Colby, post. Judgment on the verdict. Mitchell V. Mitchell, 45 Minn. 50 ; Chapman v. State, 78 Ala. 463 ; Mortin V. Shoppe, 3 C. & P. 373, 14 E. C. L. 616 ; U. S. v. Myers, 1 Cranch C. Ct. 310 ; Johnson v. State, 35 Ala. 363 ; State v. Martin, 85 N. C. 508 ; Hayes v. People, 1 Hill, 351; Newell & Whitcher, 53 Vt. 589 ; Alexander v. Blodgett, 44 Vt. 476 ; Stephens v. Meyers, 4 C. & P. 349, 19 E. C. L. 548 ; Reg. v. St. George, 9 C. & P. 483, 38 E. C. L. 285; Minn. Stat. 1894, § 5136 (1) ; Bishop, 190, 191 ; Cooley, 160 ; Pollock, 249. KIEKLAND I'. STATE. 307 (2) Battery. ■When the physical force causing the apprehension of immediate contact comes in contact with the body a battery results. KiEKLAND V. State. Supreme Court of Indiana, 1873. 43 Ind. 146. BusKiRK, J. This was a prosecution for an assault and bat- terj' commenced before a justice of the peace. The affidavit charges the appellant -n-ith having, at INIarion County, on the 28th day of Februarj^, 1873, unlawfully and in a rude, inso- lent, and angry manner, touched, etc., Charles Bein. The appellant was tried and found guilty by the justice. The case was appealed. It was tried on appeal in the Marion Criminal Court, where the State again obtained a verdict. The appellant moved for a new trial, which was overruled, and the judgment was rendered on the verdict. The error assigned is the overruling of the motion for a new trial. A reversal of the judgment is asked mainly upon the ground that the Court gave an erroneous instruction to the jury. The instruction complained of as erroneous is as follows : " 2. To constitute a battery the touching need not be of great force ; a mere touching is sufficient if it be unlawful and be done in a rude, or insolent, or angry manner. But this touch- ing must be unlawful. A man may defend the possession of his estate and of his chattels by such reasonable force as may be necessary to that end ; and if, in this case, you believe from the evidence that at the time of the alleged assault and bat- tery Charles Bein was trespassing upon the lands of the de- fendant, and engaged in carrying away without right the corn of the defendant, the defendant had the right, after requesting Bein to depart, and a refusal on his part to leave the prop- ertj' and premises, to use such reasonable force as was neces- sary to eject him from the premises and protect his personal 308 ASSAULT AND BATTERY. property ; and if the defendant, in thus protecting his prop- erty and possession, touched Bein or assaulted him only so much as was reasonably necessary to secure the object afore- said, he is not guilty, and you should so find. But if the jury believe from the evidence that defendant rented the fields re- ferred to in the evidence, no certain time being fixed for the termination of the lease to Charley Bein, to be cultivated in corn, upon the shares, to be gathered by Bein, one-half to be delivered to defendant, and the other to be retained by the renter or tenant for his share, the mere fact that an agreement was made in the fall after, by which it was agreed that the tenant (Bein) take for his share of the corn the south field and defendant the north field as his share, except three acres in the south field, this would not terminate the lease of itself, unless it was agreed between the parties that the lease should terminate. Nor would such facts authorize the defendant to forcibly eject Bein from the field because he was gathering more corn for his own use than he was entitled to by such agreement ; and if, under such circumstances, the defendant struck or beat Bein while he was gathering corn in the field, or while Bein was driving his team in the field in the act of gathering the corn, the defendant struck and beat his horses in a rude and angry manner with a stick, the defendant is guilty of an assault and battery." The statute says : " Every person who, in a rude, insolent, or angry manner shall unlawfully touch another, shall be deemed guilty of an assault and battely," etc. : 2 G. & H. 459. It is quite clear, therefore, that no assault and battery can be committed, unless one person touches another person un- lawfully and in a rude, or insolent, or angry manner. The affidavit charges that the appellant thus touched Charles Bein. To sustain this charge the evidence must show the unlawful touching, etc., of Charles Bein. The charge excepted to, how- ever, instructs the jury that if the defendant struck Charles Bein's horses with a club, in a rude and angry manner, -while Bein was driving his team, in the act of gathering corn, etc., the defendant is guilty of assault and battery. In this in- KIEKLAND V. STATE. 309 struction the Court deems the touching of Bein wholly imma- terial and unimportant ; to strike Bein's horses is to strike him — that is, if they were struck with a club, and it was done while he was driving his team in the field, in the act of gath- ering corn. To strike tlae horses of Bein was in no legal or logical sense to strike him. True, if the blow touched both Bein and his horses, the touching would be an assault and battery on Bein, not because of the touching of his horse, how- ever, but for the reason that it touched him. And if the appellant struck and drove Bein's horse, or any other horse, against him violently, unlawfully, and in a rude, etc., manner, then he would be guilty, not because he struck the horse, but for the reason that he struck Bein by running or pushing the horse against him. If Bein was so connected with his horses when they were struck that the blow took effect on his person as well as that of the horses, then the person striking the blow would be guilty. Bishop, in his work on Criminal Law, in § 72, vol. 2, says : " The slightest unlawful touching of another, especially if done in anger, is sufficient to constitute a batter3^ For exam- ple, spitting in a man's face or on his body, or throwing water on him, is such. And the inviolability of the person, in this respect, extends to everything attached to it." Russell on Crimes, vol. 1, p. 751, says : " The injury need not be effected directly by the hand of the party. Thus there may be an assault by encouraging a dog to bite. . . . And it seems that it is not necessary that the assault should be immediate ; as where the defendant threw a lighted squib into a market- place, which, being tossed from hand to hand by different per- sons, at last hit the plaintiff in the face and put out his eye, it was adjudged that this was actionable as an assault and battery. And the same has been holden where a person pushed a drunken man against another." Greenleaf on Evidence, in discussing the question of bat- tery, says : " A battery is the actual infliction of violence on the person." This averment will be proved by evidence of 310 ASSAULT AND BATTERY. any unlawful touching of the person of the plaintiff, whether by the defendant himself or by any substance put in motion by him. The degree of violence is not regarded in the law ; it is only considered by the jury in assessing the damages in a civil action or by the Judge in passing sentence upon in- dictment. Thus, any touching of the person in an angry, re- vengeful, rude, or insolent manner ; spitting upon the person ; jostling him out of the way ; pushing another against him ; throwing a squib or any missile or water upon him ; striking the horse he is riding, whereby he is thrown ; taking hold of his clothes in an angry or insolent manner, to detain him, is a battery. So, striking the skirt of his coat or the cane in his hand is a battery. For anything attached to his person partakes of its inviolability. Blackstone defines a battery as follows : " 3. By battery, which is the unlawful beating of another. The least touching of another's person willfully, or in anger, is a battery ; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it ; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner:" 3 Cooley's Blackstone, 120. Note 4, by Judge Cooley, on same page, reads as follows : " A battery is an unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him : 1 Saund. 29, b. n. 1 ; lb. 13 and 14, n. 3. Taking a hat off the head of another is no battery : 1 Saund. 14. It must be either willfully committed, or proceed from want of due care: Stra. 596; Hob. 134; Plowd. 19; otherwise it is damnum absque injuria, and the party aggrieved is without remedy : 3 Wils. 303 ; Bac. Ab. Assault and Battery, B.; but the absence of intention to commit the injury constitutes no excuse, where there has been a want of due care : Stra. 596 ; Hob. 134; Plowd. 19. But if a person unintentionally push against another in the street, or if without any default in the rider a horse runs away and goes against another, no action KIEKLAXD V. STATE. 311 lies: 4 Mod. 405. Every battery includes an assault : Co. Litt. 253 ; and the plaintiff may recover for the assault only, though he declares for an assault and battery : 4 Mod. 405." Counsel for appellee have referred us to the follo-n'ing ad- judged cases as supporting the instruction under examination : Respublica v. De Lougobamps, 1 Dallas, 111 ; The State ■«. Davis, 1 Hill S. C. 46; Dubuc De iMareutille v. Oliver, Benning,379 ; The United States v. Ortega, 4 Wash. C. C. 531. The case referred to in Dallas was a prosecution under the laws of nations for an assault and battery upon the Minister of the French Government residing in this country. It was proved upon the trial that the defendant struck with a cane, the cane of the French Minister. The Court says : " As to the assault, this is, perhaps, one of the kind in which the insult is more to be considered than the actual damage ; for though no great bodily pain is suffered by a blow on the palm of the hand, or the skirt of the coat, yet these are clearly within the legal definition of assault and battery, and among gentlemen, too often induce duelling, and terminate in murder. As, therefore, anything attached to the person partakes of its in- violability ; De Longchamps' striking Monsieur Marbois' cane, is a sufficient justification of that gentleman's subsequent conduct." The case referred to in Pennington, supra, was a civil action for a trespass committed by the defendant on the property of the plaintiff, by striking with a large club the plaintiff's horse, which was before a carriage in which the plaintiff was riding. The Court say : " To attack and strike with a club, with vio- lence the horse before a carriage in which a person is riding, strikes me as an assault on the person, and if so, the justice had no jurisdiction of the action. But if this is to be consid- ered as a trespass on property, unconnected with an assault on the person, I think it was incumbent on the plaintiff' below to state an injury done to the horse, whereby the plaintiff suffered damage ; that he was in consequence of the blow bruised or wounded, and unable to perform service or that the plaintiff had been put to expense in curing him, or the like." 312 ASSAULT AND BATTERY. The above case being an action of trespass for an injury to the horse of the plaintiff and not a prosecution for an assault, or an assault and battery upon the person of the plaintiff, we think that but little importance should be attached, or weight given to the loose remark of the Judge, that the striking of a horse attached to a carriage was an assault upon the person riding in the carriage. The case of The State v. Davis, supra, was a prosecution for an assault upon an officer in releasing from his custody a negro. The facts will sufficiently appear from the quotation which we make from the opinion of the Court. The Court say : " The general rule is that anj^ attempt to do violence to the person of another, in a rude, angry, or resentful manner, is an assault ; and raising a stick or fist, within striking distance, pointing a gun within the distance it will carry, spittii^g in one's face, and the like, are the instances usually put by way of illustration. No actual violence is done to the person in any one of these instances, and I take it as very clear that it is not necessary to an assault. It has, therefore, been held that beat- ing a house in which one is, striking violently a stick which he holds in his hand, or the horse on which he rides, is an assault ; the thing in these instances partaking of the person's inviolability : Respublica v. De Longchamps, 1 Dall. 114 ; Wambaugh v. Shank, Penning. 229, cited in 2 part Esp. Dig. 173. " What was the case here ? Laying the right of property in the negro out of the question, the prosecutor was in posses- sion, and legally speaking, the defendants had no right to re- take him with force. As far as words could go their conduct was rude and violent in the extreme. They broke the chain with which the negro was confined to the bed-post in which the prosecutor slept, and cut the rope by which he was con- fined to his person, and are clearly within the rule. The rope was as much identified with his person as the hat or coat which he wore, or the stick which he held in his hand. The convic- tion was therefore right." We are incUued to the opinion that the chain and rope so KIRKLAXD V. STATE. 313 connected together the prosecutor and negro as to make the identification as complete as the hat or coat on the person, or the stick in the hand. The ruling in the above case was based upon the close and intimate connection which existed between the prosecutor and the negro ; but no such identitj-- or con- nection between the prosecutor and his horses in the case in judgment is shown. The case of The United States v. Ortega, supra, was a pros- ecution instituted by the United States for the purpose of vin- dicating the law of nations and of the United States, offended, as was alleged, in the person of a foreign minister, bj^ an as- sault committed on him by the defendant. The proof was that the defendant seized hold of the breast of the coat of ]\Ir. Salmon, the prosecuting witness, and retained his hold while he enumerated his cause of grievance, and until a third person came up and compelled him to release his hold. The Court said : " It was argued by the counsel for the de- fendant that to constitute an assault it must be accompanied by some act of violence. The mere taking hold of the coat, or laying the hand gently upon the person of another, it is said, does not amount to this offense ; and that nothing more is proved in this case, even by Mr. Salmon. It is very true that these acts may be done, very innocently, without offend- ing the law. If done in friendship, for a benevolent purpose, and the like, the act would certainly not amount to an assault. But these acts, if done in anger, or a rude and insolent manner, or with a view to hostility, amount not only to an assault, but to a battery. Even striking at a person, though no blow be inflicted, or raising the arm to strike, or holding up one's fist at him, if done in anger, or in a menacing manner, are con- sidered by the law as assaults." It is very obvious that the above cases do not support the position assumed by the counsel for appellee, but are in entire accord with the elementary writers from whom we have quoted. The most accurate and complete definition of a battery that we have met with is that given by Saunders, and which has 314 ASSAULT AND BATTERY. been adopted by most subsequent writers, and that is : "A battery is an unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him." By this definition it is an essential prerequisite that the person must either be touched by the aggressor himself or by the substance put in motion by him. There must be a touch- ing of the person. One's wearing apparel is so intimately connected with the person as in law to be regarded, in case of a battery, as a part of the person. So is a cane when in the hand of the person assaulted. But in the case under consideration, the Court ignores all these things and instructs the jury to convict on proof alone of the striking of the horses of the prosecuting witness. It is not even necessary, according to this charge, that the prosecut- ing witness should have been in the wagon or holding the lines, or connected with, or attached to the horses in any way. That Bein was driving his team, and gathering his corn, does not necessarily so connect him with the horses that the touch- ing of the horses would be an assault and battery on him. He may have been, as is frequently done, driving his horses from one pile of corn to another, by words of command, without being in the wagon or having hold of the lines. The law was correctly stated by the Court in the first charge given to the jury. It was as follows : " Before you will Ibe justified in finding the defendant guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant at, etc., ... in a rude, or an insolent, or an angry manner, touched Charles Bein." In placing a construction upon the instruction complained of, it is our duty to look at all the instructions given on the same subject, and if the instructions taken together present the law correctly, and are not calculated to mislead the jury, we should affirm the judgment. On the other hand, if the two charges are inconsistent with each other, if they were calculated to confuse and mislead the jury, or if they must have left the jury in doubt or uncer- tainty as to what was the law as applicable to the facts of the KIEKLAXD V. STATE. 315 case, then the judgment should be reversed : Somers v. Pumphrey, 24 Ind. 231. The above rules have been .applied by this Court in civil cases. The rule laid down in criminal causes is as follows : " An erroneous instruction to the jury in a criminal case cannot be corrected by another instruction, which states the law accurately, unless the erroneous in- struction be thereby plainly withdrawn from the jury :" Bradley V. The State, 31 Ind. 492. Construing these charges together, how do they stand? The jury are first told that to justify a finding of guilty they must be satisfied beyond a reasonable doubt that the defendant touched Charles Bein ; and then, in the second charge, the Court continues, that the defendant might lawfully employ reasonable force, etc., in defense of his possession or property', but that under circumstances hypothetically put by the Court, Charles Bein had the right to be on the defendant's premises gathering corn, " and, if under such circumstances, etc., while Bein was driving his team in the field, in the act of gathering the corn, the defendant struck and beat his horses in a rude and angry manner, with a stick, the defendant is guilty of an as- sault and battery." Plainly, then, the charge is that the evidence must show the touching of Charles Bein by the defendant, but that if Bein is driving his team, etc., and the defendant strikes his horses (that is, Bein's horses) with a stick, in a rude and angry manner, then such touching of the horses is, in law, a touching of Bein, and the defendant is guilty of an assault and battery. Logi- cally, the charge states the law thus : Generally, to sustain a charge of assault and battery on A., it is essential to prove a touching of A. by the defendant, but under certain circum- stances, such as if A. is driving his team, etc., and the defendant touches the horses of A., then, in that case, such touching of the horses is a touching of A., and if such touching of the horses is unlawfully done, and made, etc., then the defendant may be found guilty of an assault and battery on A. There was evidence tending to prove that the defendant 316 ASSAULT AND BATTERY. struck Charles Bein. He and his two sons, Edward and Frank, so swear. The defendant swears he did not. The following is briefly the evidence tending to prove the assault and battery upon the horses : Charles Bein testified : " Pie hit my horses on the head with a big club about three feet long. . . . He struck my horses two or three times. . . . He was mad. ... I was loading corn out of the piles ; was loading up corn when he struck the horses." Same witness on cross-examination testifies : " When he struck the horses, he struck them on the head and they stopped, etc. Don't know who held the lines. Maybe my little boy held one and me the other. . . . He struck the horse next to me. . . . The team was made to stand when defendant struck th§ horses. ... I was not in the wagon when he struck them." Edward Bein testified : " Kirkland hit the horses on the head and they stopped. We were just going to drive out. My father was then standing on the ground near the wagon. Defendant put his hand on the horses to unhitch them from the wagon ; tried to unhitch the traces. Just before that he struck the horses, when father was standing on the other side of the wagon." Frank Bein testified : " At the time the horses were struck, father was in the wagon." The defendant testifies, that he " didn't touch the horses, except that he attempted to unhitch them from the wagon." It is apparent that there was evidence in the case to which the second instruction was applicable. The verdict, being general, we are unable to determine whether he was convicted for touching the person of Bein or for striking his horses. It may be that the jury found the defendant guilty of striking the horses of Bein, for the defendant admitted that he attempted to unhitch the horses from the wagon, and consequently must have touched them, while he positively denies that he touched the person of the pros,ecuting witness. Besides, there was evidence tending to impeach the character of Bein. The jury BARHOLT V. WEIGHT. 317 may, therefore, have doubted reasonably the guilt of the de- fendant iu the striking of Bein, and found him guilty only of having " in a rude and angry manner struck the horses of Bein with a stick," while " he was driving his team in the act of gathering corn." The second instruction was inapplicable to the evidence and was calculated to mislead the jury, and, being erroneous, the judgment should be reversed. The judgment is reversed, and the cause is remanded for a new trial in accordance with this opinion. Cole r. Turner, 6 Mod. 149 ; Queen r. Cotes worth, 6 Mod. 172 ; Mercer v. Corbin, 117 Ind. 450 ; Com. v. Stratton, 114 Mass. 303 ; Cole v. Fisher, 11 Mass. 137 ; Engelhardt v. State, 88 Ala. 100 ; Munter v. Bande, 1 Mo. Ap. 484 ; Minn. Stat. 1894, § 5186 (1) ; Jaggard, 434 ; Bishop, 192; Cooley, 162 ; PoUock, 247 ; Bigelow, 101. b Effect of Consent. If the assault and battery would constitute a breach of the peace, then consent to it is not a defense, Barholt v. Wright. Supreme Court of Ohio, 1887. 45 Ohio St. 177 ; 12 N. E. 185. Error to the Circuit Court of Portage County. The plaintiff below brought suit against the defendant to re- cover damages for an assault and battery committed upon his person. The answer was a general denial. Upon the trial of the issue, the jury, under the charge of the Court, rendered a verdict for the defendant. A motion for a new trial, assigning error in the charge, was overruled by the Court, and a bill of exceptions taken. Upon error the judgment was reversed in the Circuit Court, and the cause remanded for a new trial ; and the defendant below now prosecutes error in this Court to re- verse the judgment of the Circuit Court. 318 ASSAULT AND BATTEKY. The evidence is not set out in the bill of exceptions ; but it appears from the bill, that, upon the trial, the plaintiff offered evidence tending to show that he and the defendant went out to fight by agreement, and did fight, and was severely injured by the defendant; among other injuries inflicted upon him, one of his fingers was so bitten by the defendant that it had to be amputated. By reason of the injuries so received he be- came ill, was disabled for work for a long time, and was put to considerable expense in being cured. The Court, however, charged the jury that if the parties went out to fight by agree- ment, and the plaintiff received the injuries complained of from the defendant while the fight was going on, and in the course of it, he could not recover. The accuracy of this charge is the question presented by the record. MiNSHALL, J. It would sccm at first blush contrary to cer- tain general principles of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defend- ant in a combat of his own seeking ; or where, as in this case, the fight occurred by an agreement between the parties to fight. Thus in case for damages resulting from the clearest negli- gence on the part of the defendant, a recovery is denied the plaintiff, if it appear that his own fault in any way contributed to the injury of which he complains. And a maxim, as old as the law, volenti non fit injuria, forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented ; for, in judgment of law, that to which a party assents is not deemed an injury : Broom's Leg. Max. 268. But as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the in- juries resulted from the use of excessive and unnecessary force by the defendant in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. BAKHOLT V. WRIGHT. 319 From considerations of this kind it no more regards an agree- ment by which one man may have assented to be beaten, than it does an agreement to part with liis liberty and become the slave of another. But the fact that the injuries were received in a combat in which the parties had engaged by mutual agree- ment, may be shown in mitigation of damages : 2 Greenleaf Ev., § So ; Logan v. Austin, 1 Stewart, 476. This, however, is the full extent to which the cases have gone. We will notice a few of them. In Boulter v. Clark, an early case, an offer was made, under the general issue, to show that the plaintift' aud the defendant fought by consent. The offer was denied ; the Chief Baron saying, " the fighting being unlawful, the consent of the plaintiff to fight, if proved, would be no bar to his action :" BuUer's Nisi Prius, 16. A number of earlier cases were cited, and among them that of Mathew v. Ollerton, Comb. 218, where it is said " that if a man license another to beat him, such license is void, because it^is against the peace." It will be found upon examination ,that this case was not for an assault and battery ; it was on an award that had been made by the plaintiff on a submission to himself The remark, how- ever, made in the reasoning of the Court, is evidence of the common understanding of the law at that early day. In 1 Stephen's Nisi Prius, 211, it is said : " If two men engage in a boxing-match, an action can be sustained by either of them against the other, if an assault be made ; because the act of boxing is unlawful, and the consent of the parties to fight can- not excuse the injury." So in Bell v. Hansley, 3 Jones, N. C. 131, it was held that " one may recover in an action for assault and battery, although he agreed to fight with his adversary ; for such agreement to break the peace being void, the maxim volenti non fit injuria does not apply." The following cases are to the same effect : Stout v. Wren, 1 Hawks, 420 ; Adams V. Waggoner, 38 Ind. 531 ; Shay v. Thompson, 59 Wis. 540; Logan V. Austin, 1 Stewart, 476. And so it was held in Com- monwealth V. Collberg, 119 Mass. 350, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no 320 ASSAULT AND BATTERY. anger or mutual ill-will. Champer v. State, 14 Ohio St. 437, is not in conflict with this, as will be explained here- after. No case has been cited that can be said to be to the contrary. What is said by Peck, J., in Smith v. State, 12 Ohio St. 466, that " an assault upon a consenting party would seem to be a legal absurdity," must be applied to the facts of that case. The Judge was discussing the sufficiency of a count in an in- dictment for assault with intent to commit a rape, without an averment that it was made forcibly and against the will of the female. The absence of consent is essential to the crime of rape, or of an assault with intent to commit a rape, where the female has arrived at the age at which consent may be given. Intercourse, because illicit, does not amount to an assault where the female consents, however wrong it may be in morals. This is all that was meant by the learned Judge in using the language quoted from his opinion. In all such cases the consent of the female would, without doubt, be a bar to any right she would otherwise have to main- tain an action for an assault and battery. It is said by Judge CooLBY in his work on Torts, p. 163, that "consent is gener- ally a full and perfect shield when that is complained of as a ci.vil injury which was consented to. ... A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the dishonor of his bed the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone." " But," he adds " in case of a breach of the peace it is different. The State is wronged by this and forbids it on public grounds. . . . The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The excejition to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order." See, also to like effect, Pollock on Torts, 139. Neither is the case of Champer v. State, 14 Ohio St. 437 at variance with the principle upon which the plaintiff below seeks BAEHOLT V. WRIGHT. 321 a recoverJ^ The case seems to have been somewhat misappre- hended by the Courts of some of the States, as well as by some text-writers. By the statutes of this State a distinct offense is made of an affray or agreement to fight ; and the effect of the holding is that where such an offense is committed, the indict- ment must be for an affray, and not for an assault and battery. The civil right of eitlier party to recover of the other for in- juries received in an affray is not affected by the statute nor by the decision just referred to. Such seems to have been the view taken by Boyntox, J., in the subsequent case of Darling V. Williams, 35 Ohio St. 63. The case of Fitzgerald v. Gavin, 110 Mass. 153, is to the ef- fect that consent is no bar to that which occasions bodily harm if the act was intentionally done. It is upon the same principle of public policy that one, who is the first assailant in a fight, may recover of his antagonist for injuries inflicted by the latter, where he oversteps what is reasonably necessary to his defense, and unnecessarily injures the plaintiff, or that, with apparent want of consistency, per- mits each to bring an action in such case, the assaulted party for the assault first committed upon him, and the assailant, for the excess of force used beyond what was necessary for self- defense : Dole V. Erskine, 35 N. H. 503, criticising Elliott v. Brown, 2 Wend. 499 ; Cooley on Torts, 165 ; Darling v. Williams, 35 Ohio St. 63 ; Gizler v. Witzel, 82 III. 322. And see, also. Commonwealth v. Collberg, supra. It would seem that under the Code the right of each com- battant to damages might be determined and measured in the same action : Swan's Plead. Prec. 259, n. a. And upon like principle it has been ruled that the doctrine of contributory negligence has no application to an action to recover damages for an assault and battery : Ruter v. Foy, 46 Iowa, 132 ; Steinmetz v. Kelly, 72 Ind. 442 ; Whitehead v. Mathaway, 85 Ind. 85. Negligence of the plaintiff con- tributing to the injury of which he complains, is taken into consideration only in those cases where the liability of the de- fendant arises from want of care on his part, occasioning in- 21 322 ASSAULT AND BATTERY. jury to the plaintiff; it does not apply to the commission of an intentional wrong. A question was made as to the admissibility of the evidence of an agreement to fight under the issue made by the plead- ings — the answer being a general denial. If the evidencehad been competent for any purpose, other than in mitigation of damages, it would have been under the issue as made. It was insisted on in denial of the right of action, and not as an avoid- ance of it ; so that it was not necessary to be pleaded as new matter. If it had been so pleaded it would have been subject to a demurrer. We think the Court erred in its charge to the jury. The injury inflicted, the loss of a finger, was a severe one ; it amounted in fact to a mayhem. " Where the injury" (a mayhem), says the author of a recent and quite valuable work on criminal procedure, " takes place during a conflict^ it is not necessary to a conviction that the accused should have formed the intent before engaging in the confiict. It is suffi- cient, if he does the act voluntarily, unlawfully, and on pur- pose :" Maxwell's Grim. Proc. 260. It was permissible to the defendant to show the agreement to fight in mitigation of damages, but not as a bar to the action. Judgment affirmed. Shay V. Thompson, 59 Wis. 540 ; Com. v. CoUberg, 119 Mass. 350 ; Fitz- gerald V. Gavin, 110 Mass. 153 ; Stout v. Wren, 1 Hawks (N. C. ), 420 ; Bell V. Hansley, 3 Jones (N. 0. ), 131 ; Adams v. Wagoner, 33 Ind. 531 ; Mathew V. Alberton, Combs, 218 ; Logan v. Austin, 1 Stew. (Ala. ) 476 ; Dole v. Erskine, 35 N. H. 503 ; Exodus xxi, 18, 19 ; Bishop, 196 ; Cooley. 162 ; Pollock, 186. THOMASON V. GBAY. 323 C Justifiable and Excusable Assault and Batteries. One commits a justifiable assault ■who opposes violence, and the limit to his privilege to do this is that he must not apply a force not called for in self-defense, (a) Nor use violent force in repelling slight force, (b) Nor take life unless life and limb are in danger, (c) And by retreating he cannot avoid such extremity, (d). Thomason v. Gray. Supreme Court of Alabama, 1886. 82 Ala. 291 ; 3 So. 38. Appeal from the Circuit Court of Calhoun. Tried before the Hon. Leeoy F. Box. This action was brought by Roland B. Gray, against Robert P. Thomason, to recover damages for an assault and battery, and was commenced on the 22d March, 1886. The cause was tried on issue joined on the plea of not guilty, and resulted in a verdict for the plaintiff, "for $200, compensatory damages," on which judgment was rendered in his favor. On the trial, as appears from the bill of exceptions, the evidence showed that the difficulty between the parties occurred in December, 1885, at the defendant's store, or place of business, in the town of Oxford ; that the plaintiff had gone to town in a wagon, with a load of apples and other produce for sale, and, having bargained Avith the defendant for the sale of some apples, went to his house, or place of business, to deliver them ; that a dis- pute there arose between them, in which each used abusive words toward the other, and which resulted in a personal ren- contre, the plaintiff being struck in the back with a piece of a scantling, and badly cut in the neck. As to the circumstances attending the difficulty the evidence was conflicting, the testi- mony of each party tending to show that the other was the aggressor. ' The plaintiff, according to the evidence adduced by him, "was a youth fifteen or sixteen years old, and weighed about one hundred and eight pounds, while the de- 324 ASSAULT AND BATTERY. fendant was a good-sized man." " For the purpose of showing that no punitive damages ought to be recovered against him," the defendant offered in evidence an indictment found against him on account of this same assault and battery on the plaintiff, which prosecution was still pending and undeter- mined, and he duly excepted to the ruling of the Court ex- cluding this evidence. The Court gave the following charges to the jury, on the re- quest of the plaintiff: (1.) "Even if the jury believe, from the evidence, that the plaintiff was in fault in bringing on the difficulty ; yet, if they believe from the evidence that the de- fendant's retaliation was disproportionate to, and excessive of the necessity, or provocation received, they must find for the plaintiff." (2.) " If the jury believe, from all the evidence, that the defendant brought on the difficulty, then he cannot invoke the doctrine of self-defense." (3.) " If the jury believe from all the evidence that the defendant, unlawfully, wantonly, and intentionally, assaulted the plaintiff with a knife, and cut him, they may, in addition to actual damages, assess ex- emplary or punitive damages, as a punishment to the defend- ant, if the assault was attended with circumstances of aggra- vation." (4.) " The jury may look to the size and age of the parties, if proved, in determining the amount of force neces- sary to be used by the defendant in putting plaintiff out of the house." The defendant duly excepted to each of these charges, and he here assigns them as error, together with the exclusion of the evidence offered and excluded. SoMERViLLE, J. There may, no doubt, be cases of assault and battery, as well as mere assault, which would sustain a civil action for damages, and yet not be punishable criminally by indictment. An assault with an unloaded gun or pistol might be one of this character ; as would also a battery re- sulting from the fault or negligence of the defendaht, without any criminal intent : 2 Green. Ev., § 85 ; Chapman v. The State, 78 Ala. Rep. 463. The only difference as to proof would THOMASOX V. GEAY. 325 be, that a civil action might be sustained by a preponderance of the evidence, producing the proper conviction in the mind of the jurj^, and a criminal indictment only by proving the defendant's guilt beyond a reasonable doubt. But, however this may be, it is very clear that in all cases where a defendant is guilty of a criminal or indictable assault and battery, a civil action for damages would, on the same state of facts, lie against him in favor of the party assaulted and beaten. Self-defense is an excuse for the one as much as the other, and this must be so under precisely the same principles. In civil actions, as well as in criminal, the rule obtains that if the defendant was the aggressor and brought on the difficulty, he cannot invoke the doctrine of self-defense, because it would be allowing him to take advantage of his own wrong. So, the doctrine being based on necessity, the party resorting to it can go no further in doing damage or violence to his adversar^^, than what is reasonably necessary and unavoidable. His retaliation can- not innocently be disproportionate to the necessities of the occasion, or excessive of the provocation received. It could only lead to confusion and uncertainty to attempt laying down a different rule for these two classes of cases. The first and second charges given by the Court, at the request of the plaintiff, were in full harmony with these views, and were properly given. It was competent for the jury to look at the age and relative size of the parties, if satisfactorily proven, in determining the amount of force which was necessary to be used by the de- fendant in putting the plaintiff off his premises. The jury might more readily conclude that a man of proportionally large size would be more culpable in resorting to the use of a knife for such a purpose than a relatively small man might be under like circumstances. The Court did not err in giving the fourth charge to the jury. The other rulings of the Court affect only the recovery of ex- emplary damages ; and these we need not consider, for the reason that the verdict of the jury and judgment of the Court show expressly a recovery only for compensatory damages. If 326 ASSAULT AND BATTERY. error, therefore, which we do not decide, such rulings would be error without injury. Affirmed. (a) Fisher v. Bridges, 4 Blackf. 518 ; Philbrick v. Foster, 4 Ind. 442 ; Dole V. Erskine, 35 N. H. 503 ; Adams v. Wagoner, 33 Ind. 531 ; Curtis v. Carson, 2 N. H. 539 ; Talmage v. Smith, 59 N. W. 656 ; Hulse v. Tollman, 49 111. Ap. 490 ; Gates v. Lounsbury, 20 John. 427 ; Soribner v. Beach, 4 Denio, 448 ; Higgins V. Minaghan, 78 Wis. 602 ; Bell v. Martin, 28 S. W. 108. (b) Cockcraft v. Smith, 2 Salk. 642 ; Hale v. Wood, 1 Bay, 351 ; Hoyd v. Clark, 3 Harr. 22 (Bel. ). (c) Grainger v. State, 5 Yerg. 459; U. S. v. Wiltberger, 3 Wash. C. Ct. 515. (d) Creek v. State, 24 Ind. 151 ; People v. Sullivan, 3 Seld. 396 ; Oliver v. State, 17 Ala. 587 ; U. S. v. Mingo, 2 Curt. C. Ct. 1; Farris v. Com., 14 Bush. 362 ; Com. v. Drum, 58 Pa. St. 9 ; Minn. Stat. 1894, ? 6477 ; Jaggard, 439 ; Bishop, 198 ; Cooley, 165-9 ; Pollock, 252. Note. — Man may defend his family (a) with the same force as he may himself, and his property real (b) and personal (c) with an equal force ; save that he cannot take life in defense of property aside from his home. Such acts of defense are justifiable though under other circumstances they would constitute assault and batteries. (a) Com. V. Malone, 114 Mass. 295 ; Patten v. People, 18 Mich. 314 ; State V. Greer, 22 W. Va. 800, 819. (b) Abt V. Burgheim, 80 111. 92 ; Parsons v. Brown, 15 Barb. 590. (c) Souther v. State, 18 Tex. Ap. 352 ; Anderson v. State, 6 Bax. 608 ; FilkinsD. People, 69 N. Y. 101, 106; 25 Am. Eep. 143; Jaggard, 440, 441, 442. Note. — Upon refusal to pay fare one may be expelled from a railroad train, provided no unnecessary force is used and no inconvenient place is selected : 111. C. P. R. V. Whittemore, 43 111. 420; Rounds v. R. E., 64 N. Y. 129; McClure v. R. R., 34 Md. 532 ; State v. Chovin, 7 la. 204 ; Crocker v. R. E., 24 Conn. 249 ; Downs v. R. E., 36 Conn. 287 ; C. B. & Q. E. E. r. Parks, 18 111. 460 ; Hilliard v. Goold, 34 N. H. 230 ; Church v. E. E., 60 N. W. 854 ; I. C. E. R. V. Sutton, 53 111. 397 ; 0. R. I. & P. R. R. v. Herring, 57 111. 59 ; T. P. & W. Ry. V. Patterson, 63 111. 304 ; Pierce on E. R., 492 ; Rorer on R. R. 960. Note. — Public officers in the performance of official duties can use such force as is necessary for a proper discharge of the same : Hager v. Danforth, 20 Barb. 16 ; Hull v. Bartlett, 49 Conn. 64 ; Jaggard, 443. SAVACOOL V. BOUGHTON. 327 2. False Imprisonment. a Definition. False imprisonment is the unlawful and total detention through force or fear of the liberty of the person of another. Lynch v. Metropolitan El. Ry. Co. Court of Appeals of New York, 1882. 90 N". Y. 77. (Ante, page 206.) Comer v. Knowles, 17 Kan. 436 ; Pike v. Hanson, 9 N. H. 491 ; Smith v. States, 7 Humph. 43 ; Bird v. Jones, 7 Q. B. 742, 53 E. C. L. 741 ; Marshall V. Heller, 55 Wis. 392 ; Teuney r. Harvey, 63 Vt. 520 ; Fortheringham v. Express Co., 36 Fed. 252 ; Fischer v. Langbein, 103 N. Y. 84 ; Floyd v. State, 12 Ark. 43 ; ^Mitchell r. State, 12 Ark. 50 ; State v. Rollins, 8 N. H. 550 ; State V. Hunter, 106 N. C. 796 ; Johnson v. Boulton, 35 Neb. 898 ; Minn. Stat. 1894, ? 51.38 (1); Laws 1895, ch. 30 and 33; Jaggard, 417; Bishop, 206 ; Cooley, 169 ; Pollock, 259 ; Bigelow, 113. XoTE. — One by directing an arrest resulting in or ratifying an act consti- tuting a false imprisonment becomes liable as a joint tort-feasor : Callahan V. Series, 2S X. Y. Sup. 904 ; Ball c. Horrigan, 19 N. Y. Sup. 913 ; Hopkins V. Crowe, 4 Ad. & E. 774, 31 E. C. L. 341 ; Coffin v. Varila, 27 S. W. 956 ; Jaggard, 421. b Justification. (1) Judicial Writ. An officer proceeding to make an arrest upon a process regular upon its face will be justified. Savacool v. Boughton. Supreme Court of New York, 1830. 5 Wend. 170. Demurrer to replication. The plaintiff declared in trespass for an assault, battery, and false imprisonment. The defendant pleaded, 1. The general issue ; 2. A justification, for that he as 328 FALSE IMPRISONMENT. a constable, by virtue of an execution issued by a, justice of the peace, on a judgment rendered against the plaintiff in assumpsit for $7.38, arrested tlae plaintiff and committed him to jail ; and 3. A similar justification, setting forth the judgment. The plaintiff replied to the second and third pleas pfecludi non, because, previous to the rendition of the judgment set forth by the defendant, the justice who rendered the same did not issue any process for the appearance of him (the plaintiff) in the suit in which the judgment was rendered, and that he (the, plaintiff) did not, direct or authorize the justice to enter a judg- ment by confession in favor of the plaintiffs in the suit, against him (the plaintiff in this cause,) nor did the parties in the said suit appear before the justice and johi issue, pursuant to the provisions of the |50 Act ; and this, etc., wherefore, etc. To this replication the defendant demurred, and the plaintiff joined in demurrer. Makcy, J. What an officer is required to show to justify himself in the execution of process, is not very clearly settled. There is considerable contrariety of authority on the subject. Where it appears on the face of the process that the Court or magistrate that issued it had not jurisdiction of the subject- matter of the suit, or of the person of the party against whom it is directed, it is void, not only as respects the Court or magis- trate and the party at whose instance it is sued out, but it affords no protection to the officer who has acted under it. Where tlie Court issuing the process has general jurisdiction, and the process is regular on its face, the officer is not, though ,the party may, be affected by an irregularity in the proceed- ings. Where a judgment is vacated for an irregularity, the party is liable for the acts done under it ; but the officer has a protection by reason of his regular writ: 1 Lev. 95; 1 Sid. 272 ; 1 Strange, 509. More strictness has been required in justifying under pro- cess of Courts of limited jurisdiction. Many cases may be found wherein it is stated generally that when an inferior Court ex- ceeds its jurisdiction, its proceedings are entirely void, and SAVACOOL V. BOUGHTON. 329 afford no protection to the Court, the party, or the officer who has executed its process. This proposition is undoubtedly true in its largest sense where the proceedings are coram nonjudice, and the process by which the officer seeks to make out his justification shows that the Court had not jurisdiction ; but I apprehend that it should be qualified where the subject-matter of the suit is within the jurisdiction of the Court, and the alleged defect of jurisdiction arises from some other cause. A Court may have jurisdiction of the subject-matter, but not of the person of the parties. If it does not acquire the latter, its proceedings de- rive no validity from the former. A justice of the peace who should give judgment against a person on a promissory note under §50, without having issued process of any kind against him, or taken his confession, or without his voluntary appear- ance in Court, would exceed his jurisdiction and be respon- sible to the party injured ; so would the party who procured the Court to exceed its authority. But would the officer to whom an execution on this judgment had been issued be liable for acts done in obedience to it, if nothing appeared to show that the justice had not jurisdiction of the defendant's person ? This is the question presented by the demurrer in this case. A distinction has long existed in cases of this kind between the Court which exceeds its jurisdiction and the party at whose instance it takes place, and a mere ministerial officer who executes the process issued without authority. This pre- vails, as we have seen, where a judgment has been obtained in a Court of general jurisdictio7i which is subsequently set aside for irregularity. The officer has a protection that the party has not, and that whether the Court from which the process issues is a Court of general or limited jurisdiction. The right of a mere ministerial officer to justify under his process where the Court or party cannot, was considered but not settled in the case of Smith v. Bancker and others, decided in 1734. This case is found in 2 Strange, 993, 2 Barnard, 331, Cunu. 89, 127, cases temp. Hardwicke, 62, 2 Kelyn. 144, p]. 330 FALSE IMPRISONMENT. 123. The reports agree as to the facts, but not as to some points in the opinion of the Court. Process was issued from the Chancellor's Court, of Oxford, against Smith, who was arrested and committed to jail. The proceedings were insti- tuted without proving what was requisite to give the Court jurisdiction. The plaintiff who procured the proceedings, the Vice-Chancellor who held the Court, and the officers who exe- cuted the process, were all sued by the defendant Smith for false imprisonment. They united in their plea of justification and were all pronounced guilty. Sir John Strange makes the Court say that some of the defendants, namely, the officer and gaoler, might have been excused if they had justified without the plaintiff and Vice-Chancellor. The Court of Common Pleas in England, in their opinion in the case of Perkin v. Proctor and Green, 2 Wilson, 382, say that Lord Hardwicke denied that such could have been the case. It appears from the case as reported in Hardwicke's Cases, 69, that the point of the" officers' liability was not settled ; for it is there said that there was no need of giving a distinct opinion as to the action lying against them. In Hill V. Bateman, 2 Strange, 710, the distinction in favor of the officer is clearly taken. The plaintiff had been fined under the game laws, and was immediately sent to Bridewell, without any attempt to levy the penalty upon his goods. This the justice had not a right to do, and was held liable for the imprisonment ; but the constable was justified, because the matter was within the jurisdiction of the justice. I understand by this case that the justice had not authority, or in other words, had not jurisdiction, to issue process to commit the party until he had attempted to levy the fine upon his goods ; but, that after he had made that attempt without success, he had authority to commit him. The process, though unauthor- ized by the circumstances of the case, would, under other cir- cumstances, have been proper. The issuing of the process was a matter within the justice's jurisdiction. This was enough for the officer's justification. It is further said in this case, if the justice makes a warrant which is plainly out of his juris- SAVACOOL V. BOUGHTON. 331 diction, it is no justification. This I understand to mean a warrant which appears on its face to be such as the justice could in no case issue. The views I have of this case are confirmed by that of Shergold v. Holloway, 2 Strange, 1002. There the justice issued a warrant on a complaint for not paying wages, and the defendant, a constable, arrested Shergold on it. Pie was sued for this arrest. The Court said the justice had no authority in any instance to proceed by warrant ; a summons being the onl}' process. The constable could not therefore justify ; he was presumed to know tliat under no circumstances could a warrant be issued in such a case ; therefore the Court say there was " no pretense for such a jurisdiction." This decision would doubtless have been different if it had appeared that under any state of things a proceeding by warrant was allowable in such a case ; for then the Court would assume for the officer's pro- tection that such a state of things did exist, or at least, he should not be required to judge whether it did or not. His duty and his protection both depend upon the assumption that the justice had determined correctlj^, that those circum- stances had happened which called for a warrant, if under any circumstances a warrant could issue. In the case of Moravia v. Sloper, Willes, 30, the same distinction which has been noticed in the cases before referred to is still more dis- tinctly put forth. It is there said that " though in case of an officer who is obliged to obey the process of* the Court, and is punishable if he does not, it may not be necessary to set forth that the cause of action arose within the jurisdiction of the Court, it has always been holden, except in one case (the cor- rectness of which Ch. J. Willes controverted in another part of his opinion), and we are all clearly of opinion that it is necessary in the case of a plaintiff himself." Lord Kexyon says, in the case of the King v. Danser, 6 T. R. 242, " a distinction indeed has been made with respect to the persons against whom an action may be brought for taking the defendant's goods in execution by virtue of the process of an inferior Court, where the cause of action does not arise to 332 FALSE IMPRISONMENT. ■witbin its jurisdiction; the plaintiff in the cause being con- sidered a trespasser, but not the officer of the Court." A Court of Admiralty, I apprehend, will not be considered a Court of general jurisdiction. In relation to its proceedings, Buller, J., says, in the case of Ladbroke v. Crickett, 2 T. R. 653, if upon their face " the Court had jurisdiction, the officer was bound to execute the process, and could not examine into the founda- tion of them ; and that will protect him." There are several cases in our own reports which are sup- posed to militate against the distinction recognized in the fore- going cases ; I apprehend, however, that most of them may be reconciled with those decisions which support it. The deci- sion in the case of Borden v. Fitch, 15 Johns. R. 121, was that a Court must not only have jurisdiction of the subject-matter, but of the person of the parties, to render its proceedings valid ; and if it has not jurisdiction of the person, its proceedings are absolutely void. It will be recollected that the person who wished to avail himself of the proceedings of the Court whose jurisdiction was impeached was a party to them. There was no occasion or opportunity afforded by that case of consider- ing the question involved in this, the liability of the officer who, as a minister of the Court, has executed its process issued on such proceedings. The case of Cable v. Cooper, 15 Johns. Rep. 152, deserves a more minute consideration. One Brown was committed on a ca. sa. to the custody of the defendant, who was sheriff of Oneida County, and discharged by a Supreme Court Commis- sioner under the habeas corpus Act. The defendant, when prosecuted for the escape of Brown, offered to justify by show- ing the discharge; but a majority of the Court decided that the proceedings under the habeas corpus Act before the com- missioner were coram non judice and therefore void. The principle of this decision is, that the power to discharge under that Act does not apply to the case of a prisoner who " is con- vict or in execution by legal process." Brown was in execution by legal process, and this was well known to the defendant, for he had the ca. sa. and held the prisoner. ^Vhatever ap- SAVACOOL V. BOUGHTON. 333 peared upon the face of the discharge, he knew, if he rightly understood the powers of the commissioner, it was no authority for him to release Brown. If the discharge did not relate to the imprisonment on the ca. sa., it was certainly no authority to release him from confinement thereon; and if it did relate to that imprisonment, then it showed on its face a want of jurisdiction in the officer who granted it; for he could not discharge a person in execution by legal process. Again, the sheriff who held the prisoner might well be regarded as a party to the proceeding before the commissioner for the dis- charge ; for the habeas corpus must have been directed to him, and his return thereto showed the true cause of Brown's detention. The cases of Smith v. Shaw, 12 Johns. R. 257, and Suydam & "Wyckoff V. Keys, 13 lb. 444, have a tendency to obliterate or at least confound the distinction which the other cases seem to me to raise in favor of the officer. I am free to confess that the reasoning and conclusion of the Judge who delivered the dissenting opinion in the former case are more satisfactory to me than those contained in the opinion adopted by a majority of the Court. Smith, in that case, was not looked upon in the light of a mere ministerial officer. He was superior in author- ity to HopJcins and Findley, who had illegally imprisoned the plaintiff, and his liability was put expressly upon the ground that he had ratified and confirmed their acts, and exercised other restraint over the plaintiff than merely continuing the original im prisonment. If he had only refused to disch arge the prisoner, he would not, as is strongly intimated by the Court, have been held liable. This case was not considered by the Court as pre- senting the question which arises in the one now before us, and therefore it can afford but little authority to guide our present determination. It seems to me somewhat difficult to reconcile the decision in the case of Suydam & Wyckoff v. Keys, with the doctrine I am endeavoring to establish, or with the principles of some other cases which have been decided here. The defendant was a collector of a tax which had been voted by a school 334 FALSE IMPRISONMENT. district in Orange County, and assessed by the trustees. They had authority to assess, but were confined in their assessments to the resident inhabitants of the district. The plaintiffs hav- ing property in the district, but actually resident in New York, were included among the persons assessed, and designated on the warrant issued to the defendant as inhabitants of the district. He took their property by virtue of this warrant, and was held liable in an action of trespass. It appears to me the defend- ant, acting merely as a ministerial officer, should have been allowed the protection of his warrant, which did not show upon the face of it an excess or want of jurisdiction in the trustees. I cannot distinguish this case from a whole class of cases, beginning with the earliest reports and coming down to this, holding that such a warrant is a protection to the officer executing it, unless it is to be distinguished from cases other- wise similar, by the fact that the want of jurisdiction in the trustees to make the assessment on the plaintiffs was to be pre- sumed to be within the knowledge of the officer, and that he \vas bound to act on this knowledge, in opposition to the statements of his warrant. The decision, however, is not put on such ground, but upon the broad principle that the officer must see that he acts within the scope of the legal powers of those who commanded him. This principle requires a minis- terial officer to look beyond his precept, and examine into ex- trinsic facts beyond the fact of jurisdiction of the subject- matter generally, or under certain circumstances. Such, I ap- prehend, was not the doctrine applied to the case of Warner V. Shed, 10 Johns. R. 138. There the officer was justified by his process, as that showed the justice's jurisdiction of the subject-matter. "He was not bound," the Court say, "to ex- amine into the validity of the proceedings and of the process." The collector's warrant in the former case, as well as the con- stable's mittimus in the latter, showed jurisdiction of the sub- ject-matter in the officers issuing the process. In the former case, it appeared upon the face of the process that the plain- tiffs were resident inhabitants, and as such they were liable to be assessed ; and I should think that the collector was no more SAVACOOL V. BOUGHTON. 335 bound to examine into the fact of residence M-liich had been passed on by the trustees, than the constable was to look into the proceedings of the special sessions under whose authority he acted. I find still greater difficulty in reconciling the case of Suy- dam & Wickoff v. Keys, with that of Beach v. Furman, 9 Johns. R. 229. The Court assume, though they do not di- rectly decide, that Sarah Furman was not, by reason of being a female, liable to be assessed to work on the highways, yet they held that the justice who issued, at the instance of the overseer of the highways, the warrant on which her property was taken and sold for this illegal assessment, and the consta- ble who executed it, both protected, because they acted min- isterially and in obedience to the commissioners and overseers of highways, who had jurisdiction over the subject-matter, the assessment of highw^ay labor. Let us compare this case wath that of Suydam & Wickoff v. Keys, and see if they can stand together. The commissioners had jurisdiction of the subject- matter, the assessment of labor. The trustees had jurisdiction of the subject-matter, the assessment of a district tax. The commissioners assessed a person who, by reason of her sex, was not liable to be assessed, as the Court in giving their opinion conceded. The trustees assess persons who, by reason of their residence out of the district, were not liable to be assessed ; the justice and constable who enforce -the comission- ers' assessment by taking the property of the person illegally assessed are protected ; the constable wdio enforces the illegal assessment of the trustees, by taking the property of the per- sons illegally assessed, is held liable as a trespasser. I think these cases cannot well stand together, and if one must be given up, I do not hesitate to say it should be Suydam & Wyckoff V. Keys. The remark of this Court in the case of Gold v. Bissell, 1 Wendell, 213, " that where a warrant cannot legally issue without oath, but is so issued, all the parties concerned in the arrest under such process are trespassers," was not intended, I presume, to apply to an officer who had no knowledge, from 336 FALSE IMPRISONMENT. the warrant or otherwise, that it had not been duly sued out. A remark somewhat similar is made by TpaMBLE, J., in Elliott V. Peirsall, 1 Peters' U. S. Rep. 340 ; but the decision of that case did not call for any such distinction as is raised in the one now under consideration. I have felt that the case of Wise V. Withers, 3 Cranch, 331, is a direct authority against giving to the officer the protection that is now claimed for him. The plaintiff in that case was a magistrate in the District of Columbia, and, as such, not subject to do military duty. He was fined for neglect of such duty, and a warrant for the col- lection of the fine issued to the defendant, who seized his property thereon ; for this act he was prosecuted. The only point much considered in that case was that which involved the question as to the plaintiff's exemption from military duty ; but that which related to the defendant's protection under his warrant was only glanced at in the argument of the counsel and in the decision by the Court. The distinction contended for in this case was scarcely raised there, and the attention of the Court does not appear to have been drawn to a single case in which it has ever been noticed. The Chief • Justice, in the opinion of the Court, merely observes, that it is * a principle that a decision of such a tribunal (a tribunal of limited jurisdiction), clearly without its jurisdiction, cannot protect the officer who executes it. I would, with deference, ask whether there is not an error in the application of the principle which the Chief Justice lays down to the case then before the Court. He must mean, by a decision being clearly without the jurisdiction of the Court, a sentence or judgment on a matter not within its cognizance. Was the subject-matter of that cause beyond the cognizance of a court martial ? It appears to me that it was not. The power and duty of the Court was to punish and fine delinquents ; consequently, it had jurisdiction over the subject-matter, but not over the per- son. There was nothing in the process which the ministerial officer executed to apprize him that the Court had not juris- diction of the perso7i. It seems to me that it was not a case to which the principle laid down by the Court was applicable ; SAVACOOL V. BOUGHTON. 337 but it would have been such a case if there had been a want of jurisdiction over the subject-matter. I can scarcely con- sider, therefore, the determination of the Supreme Court of the United States in the case of Wise v. Withers a deliberate decision on the question now before us. If it was to be viewed in that light, we should be called upon, by the great learning and high character of that Court, to hesitate long aiid examine carefully before we decided a point conflicting with such de- cision. There is certainly high authority for the distinction which I am disposed to recognize in this case ; and, in my judgment, the same principle which gives protection to a ministerial offi- cer who executes the process of a Court of general jurisdiction should protect him when he executes the process of a Court of limited jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears on the face of the pro- cess to show that the person was not also within it. The following propositions, I am disposed to believe, will be found to be well sustained by reason and authority : That where an inferior Court has not jurisdiction of the subject-matter, or having it has not jurisdiction of the person of the defendants, all its proceedings are absolutely void ; neither the members of the Court, nor the plaintiff (if he pro- cured or assented to the proceedings) can derive any pro- tection from them when prosecuted by a party aggrieved thereby. If a mere ministerial ofiicer 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 jurisdiction as to the person or place, the officer who executes process issued in such suit is no trespasser, unless the want of jurisdiction appears by such process : Bull. N. P. 83 ; Willes, 32, and the cases there cited by Lord Ch. J. Willes. .22 338 FALSE IMPRISONMENT. I am therefore of opinion that the execution issued by the justice to the defendant, it being on proceedings over the subject-matter of which he had jurisdiction, and the execu- tion, not showing on its face that he liad not jurisdiction of the plaintiff's person, was a protection to the defendant for the ministerial acts done by him in virtue of that process. Judgment on demurrer for the defendant, with leave to the plaintiff to amend his replication on payment of costs. Stewart v. Hawley, 21 Wend. 551 ; Gelzenleuchter v. Niemeyer, 64 Wis. 316 ; Grumon v. Raymond, 1 Conn. 39 ; Lewis v. Avery, 8 Vt. 287 ; Clayton V. Scott, 45 Vt. 386 ; Payne v. Barnes, 5 Barb. 465 : People v. Hicks, 15 Barb. 153 ; Minn. Stat. 1894, R 7111, 7120 ; Jaggard, 424-426 ; Bishop, 211 ; Cooley, 172 ; Pollock, 262 ; Bigelow, 115. (2) Authorized arrest without warrant. (a) Felony. A fehny having been committed any one is justified in arresting for the same upon reasonable grounds of suspicion. Reuck v. McGregor. Supreme Court of New Jersey, 1866. 32 N. J. L. 70. Bedle, J. The chief ground upon which a new trial is asked in this case is that the damages are excessive. In these actions of tort the Court has, unquestionably, the power to grant a new trial for that reason. It is a delicate, yet neces- sary power, and should be exercised whenever it appears that the damages are so exorbitantly high, and so far exceed the injury sustained, as to make it manifest to the Court that the minds of the jury have been controlled by passion, partiality, predjudice, or intemperance : Cowper, 230 ; 1 South. 338 ; Taylor v. Vanderveer, 4 Harr. 22 ; McConnell v. Hampton, 12 Johns. 234. In applying this rule, each case must rest upon its own peculiar circumstances. The case on the part of the plaintiff EEucK V. m'grkgor. 339 shows that he was a resident of Newark, and engaged, amongst other things, in furnishing silver-platers with remnants of cloth for polishing purposes ; that he went to the clothing store of the defendant, in Newark, and offered to sell him a piece of felt cloth of ahout three yards, which he had pur- chased in New York for a Mr. Wheeler, for polishing purposes, and which Mr. Wheeler did not take ; that he laid it upon the counter at defendant's store, and told him he would sell it to him reasonablj' for him to make up ; that the defendant turned up the end of it, examined it, and said that he thought he had seen that piece before ; that the plaintiff then told him he was mistaken — that he had purchased it in New York. The defendant then laid his yardstick upon the cloth, and said there were not three yards. The plaintiff then said he had purchased it for three yards, and paid for three yards. The defendant said that cloth had been in his store. The plain- tiff «nid to defendant it was strange how that cloth could get out of his store and get into New York, and be cut off a piece there. The defendant then said that cloth was not purchased in New York, but was stolen out of his store. Other words then followed, both becoming a little angry, the plaintiff, by his remarks, insisting that he had bought it, the cloth, in New York, and was cut off a piece there, and the defendant insist- ing that it was not so, and that the cloth had been stolen out of his store. The plaintiff then left, and went to Brown & Osborn's clothing store, opposite, but, before leaving, remarked to the defendant that " if I was as sure as you are that it was my cloth, and was stolen out of my store, I would follow it up, and you can follow it up as soon as you please." A'ery soon afterward the defendant sent a young man to Brown & Osborn's, who told the plaintiff that the defendant wanted to see him. The plaintiff then went back to the defendant's store, and the defendant then said that he was not satisfied about that cloth, and asked the plaintiff to go to the police ofSce with him. The plaintiff told him he had no business there, and nothing to call him there. The defendant said, " If you don't go, I'll send for an officer and make you go." 340 FALSE IMPEISONMENT. The defendant also said, " Where is that cloth ?" The plain- tiff said, "Itisup-town." The defendant said, "Send for that cloth, or I'll send an officer for it." The plaintiff then re- quested a young man by the name of Irwin, who had come over from Brown & Osborn's to the defendant's after the plain- tiff had returned there, to go out and get the cloth and bring it to the police station. Before Irwin left, a police officer came in with the young man who had been sent by defendant to Brown & Osborn's. The plaintiff testifies that some one pointed him out to the officer, and that the officer walked toward him. Irwin swears that the defendant said, " This is the man — take him — there he is," pointing to Reuck. The policeman then said, " I want you to go along with me." Reuck hesitated. The officer said, " If you don't go I'll take you." The plaintiff then went with McGregor to the police office, the officer walking behind. They reached the police office a little after twelve o'clock, noon. The police justice was not in, and Reuck was informed by the clerk of police that the judge would not be there till two o'clock. The plain- tiff then said to defendant, " I suppose I may go home and get my dinner?" Defendant said, " Yes ; you can go, I sup- pose." The plaintiff then started for the door, and as he got near it the defendant said, "You can't go, for there maybe more goods where that came from." The plaintiff then re- mained in charge of the officer until the justice came, the de- fendant, in the meantime, having left. The cloth, was taken to the police station by Irwin, and, upon the return of the justice, McGregor made complaint, under oath, that the cloth was stolen out of his possession, and showing the possession of it by Reuck. Thereupon the plaintiff gave bail to appear in about a week before the justice, to answer the complaint, at which time a hearing was had, witnesses were produced upon both sides, and the plaintiff was discharged. The plaintiff also showed that he was a member of High Street Church, in Newark, and had been superintendent of a Sabbath-school in Wickliffe Street for fifteen years. But it does not appear from the evidence that McGregor knew these facts. These are about REUCK V. m'gregoe. 341 the leading facts, as shown by the plaintiflf. The verdict of the jury was for $3,000. The defense was mainly upon the question of damages, the defendant insisting that there were strong probable grounds for the arrest, and that he was liable only by reason of the irregularity of causing the arrest before the complaint was actually made to the justice. It is well, before looking into the question of probable cause, to state the general powers of the officer and the citizen in arrests in cases of larceny or other felonies. A peace officer may justify an arrest upon a reasonable charge of felony, although it should turn out that no felony had been committed. A private person is justified in arresting, when a felony has actually been committed, and there is probable ground to fairly suspect the person guilty, or, as it is well expressed by TiNDAL, C. J., in the case of Allen v. "Wright,, 8 Carr & Payne, 522, where it apears : " 1. That a felony had actually been committed. " 2. That the circumstances were such that you yourselves, or any reasonable person, acting without passion and preju- dice, would have fairly suspected the plaintiff of being the person who did it." To justify an arrest by a private person, then, it should ap- pear that a felony had been committed, and that there was probable or reasonable ground to fairly suspect the person to be guilty. The liability of the defendant, in this case as it now stands, to pay some damages, is not questioned ; but the question for our consideration now is, were the circumstances and facts connected with the arrest and its causes so reason- able, from the undisputed testimony on either side, as to make the damages found excessive, according to the rule as already laid down. The arrest was made on the 23d day of January, 1865. In the month of November previous the cutter of de- fendant called his attention to a piece of dark-blue beaver cloth, with holes in it, marked with chalk to show where they were. The attention of the defendant was called to it because 342 FALSE IMPRISONMENT. the cutter could not get the garment designed to be cut out of it. The piece was then laid aside, and the defendant swears that he never found it, nor any traces of it, but that he had not missed it till the plaintiff came to his store, when he rec- ognized the piece brought by the defendant as belonging to him. About these two pieces of cloth (for it satisfactorily ap- pears from the evidence that there were two pieces) there were several remarkable coincidences, and from them the piece of Reuck was thought to be the piece of McGregor, by himself, his cutter, and a tailor of the defendant, all of whom were sworn in this case, and also before the police, justice. The length of each piece was about the same ; each had holes in it, with chalk marks to show where they were. The cutter says that those upon Reuck's piece were very much like his, and he thought they were his. In Reuck's piece there was a niche at one end, which he swears was caused by a person to whom it was shown to try pulling it, and it tore, and that he cut that off and made the niche. The cloth of McGregor, the cutter testified, had also a piece cut in the corner, where it was usual to cut for samples. Each was a dark-blue pilot cloth, and the quality and warp of each were recognized by the wit- nesses as the same. The cutter swore that he recognized Reuck's piece, and supposed it to be a piece of goods that came from McGregor's. The tailor swore that he thought he had seen it at McGregor's, and that it belonged to McGregor, and that he had handled it often, and McGregor also, as it satisfactorily appears from the evidence, believed the cloth to be his. In addition to that, McGregor testifies that he had no personal acquaintance with Reuck, only knowing him as a resident of Newark, and by sight, and not his character ; and Reuck testifies that he knew defendant, but did not rec- ollect of offering to him articles except once before, and never offered him any cloth before. Taking these facts together, which appear to be uncontroverted, as well as the other features of the case, to which it is unnecessary to refer specially, among them being the undesirableness of the remnant as to size, we cannot fail to pronounce this a very striking instance EEUCK V. m'gregor. 343 of mistaken identitj'-, without any evil design against the plaintiff, and founded upon such reasonable grounds of belief, as would be sufficient, at least, to relieve the defendant from any charge of malicious prosecution, had he made complaint to the magistrate before the arrest, and quite sufficient to authorize the defendant to arrest the plaintiff, without war- rant, if the proof that a felony had been committed had been complete. The proof is not clear that a larceny of McGregor's cloth had been committed, yet he never found it, and there is nothing in the case to induce us to think that he feigned it, or that he did not believe it, but, on the contrary, the circum- stances would reasonably create the belief in the mind of McGregor that his cloth had been stolen. The defendant was entitled to the benefit of these considerations upon the trial. Besides, if the defendant had made the same complamt before the arrest that he made when the justice returned, instead of getting the officer to take the plaintiff to the police office first, and then making the complaint, it is difficult to see how the defendant could have been held liable at all. His liability, then, is in that irregularity of proceedings and the manner of the arrest, and he should be held to pay reasonable and fair damages, according to the circumstances, mitigated by the reasonable or probable causes that induced it. If, upon the strength of the facts as proved, the officer had made the arrest upon his own responsibility, it can hardly be contended that he would be liable, and although the plaintiff, for procuring the arrest, is liable to answer damages, by reason of his irreg- ular proceeding, yet the reasonableness of the causes of it re- quired of the jury a very careful investigation in estimating the damages. The verdict was extravagantly disproportion ed to the injury, and cannot be reconciled with that dispassion- ate, unprejudiced, impartial, or temperate consideration that the case was entitled to. Under the rule as laid down, the damages are excessive, and for that reason there should be a new trial. It was also objected that the Court refused to allow the de- fendant to prove "that Captain Connelly, the captain of the 344 FALSE IMPRISONMENT. police, told him that Irwin, who was there with Reuck, and had the cloth, had himself been arrested for, or suspected by the police of receiving stolen goods, knowing them to be stolen." The plaintiff had shown that, while at the police station, the defendant said to him, " You can't go (to dinner), for there may be more goods where that came from." The plaintiff also swore that the defendant asked him there if he had any objection to the officer searching his premises. McGregor swears that Reuck said " he supposed he could go to dinner. I said, ' certainly.' Captain Connelly, of the police, spoke to me. I then told Reuck he had better wait a little. From what Captain Connellj' said I withdrew my consent." The object of that offer was to explain the motive of the defend- ant and his reason in not consenting for the plaintiff to go to dinner, and also in asking if he had any objection to the officer searching his premises. This evidence was competent upon the question of damages, but how far, by itself, the re- jection of it would control the Court, upon the question of a new trial, it is not necessary now to state, the reason of exces- siveness of damages being sufficient to allow it. The other objection, as to the admission of the indorsement of " P. Larceny " by the justice upon the back of the com- plaint, is not good. Let the verdict be set aside and a new trial be granted. Holley V. Mix, 3 Wend. 351 ; Allen v. Wright, 8 C. & P. 522, 34 E. C. L. 870; Allen v. Leonard, 28 la. 529; Teagarden v. Graham, 31 Ind. 422; Merely v. Chase, 143 Mass. 396 ; Oahill v. People, 106 111. 621 ; Brockway V. Crawford, 3 Jones (N. C), 433 ; Diers v. Mullen, 64 N. W. 722 ; Carl v. Ayers, 53 N. Y. 463 ; Burns v. Erben, 40 N. Y. 463 ; Minn. Stat. 1894, § 7126 ; Jaggard, 427-^29 ; Cooley, 174 ; Pollock, 262 ; Bigelow, 132. QUINN V. HEISEL. 345 (b) Misdemeanor. In case of a misdemeanor having been committed, no ofBcer nor private individual can arrest iwithout a vrarrant ; and to justify an officer in making an arrest to prevent a misdemeanor, the fact must be such as to ■warrant him in believing an arrest necessary to prevent its immediate execution. QuixN V. Heisel. Supreme Court of Michigan, 1879. 40 Mich. 576. Trespass b}^ Heisel against Quinn for an assault and bat- tery. Quinn claimed to be a policeman of Grand Kapids, and gave evidence to show that the alleged assault consisted in forcibly arresting Heisel under a city ordinance for disorderly conduct toward a number of laborers who were laying side track in front of his house. There was testimony that he used profane and abusive language to them, swore he would kill some of them, approached them with an axe, threatened to cut their heads off, and raised the axe as if he were about to strike one of them. He resisted arrest, and in the struggle was thrown down and handcuffed. The complaint for tres- pass was tried in a justice's court, where defendant had judg- ment. On appeal to the Circuit Court plaintiff recovered, and defendant brings error. Maeston, J. A careful examination of the record fails to show that plaintiiF in error has any cause of complaint. The Court certainly charged the jury, as to the right of an officer to make arrests without warrant for breaches of the peace, as favorably as common-law rules would warrant, and we are not at present prepared to say that an ordinance of the city of Grand Rapids could authorize arrests witliout process in cases not justified by common-law principles. The evidence on the part of the plaintiff tended to show that at the time of the arrest there was no disturbance, either actual or threatened, while that on the part of the defendant tended to show not 346 FALSE IMPRISONMENT. merely a reasonable and probable apprehension of a violation of the ordinance, but an actual disturbance, and the jury was charged that under such circumstances, if a disturbance was found to exist, defendant was justified. The Court was requested to charge that if there had been a breach of the peace before defendant arrived, and that plaintiff was about to renew his disorderly conduct, and continue the said breach in presence of the officer, then defendant would be justified in arresting him, even though the disturbance had temporarily ceased before defendant came on the ground ; also, if the jury found as matter of fact that plaintiff had been guilty of a breach of the peace before defendant came where he was, and defendant knew the fact, and had reasonable and probable cause to believe plaintiff was about to renew his offense, then he was justified in arresting ; also, that if the officer received information from the bystanders that there had been a tumult and that plaintiff was the cause of it, of which fact plaintiff was afterward found guilty, and plaintiff, in pres- ence of defendant, made use of language indicating an inten- tion on his part to continue the disturbance, then defendant had a right to arrest without process. These requests were re- fused, and, under the facts in the case, we think properly. There are many loose general statements in the books as to the right of officers to make arrests without warrant. That they have a right to arrest for breaches of the peace commit- ted in their presence is conceded by all. It is equally clear that they cannot arrest for a past offense, not a felony, upon information or suspicion thereof, although expressions may be found which would seem to assume such power. How far or when they may interfere by an arrest to prevent a threatened breach of the peace is not equally clear. We are of opinion that a threat or other indication of a breach of the peace will not justify an officer in making an arrest, unless the facts are such as would warrant the officer in believing an arrest neces- sary to prevent an immediate execution thereof, as where a threat is made coupled with some overt act in attempted exe- cution thereof. In such cases the oflBcer need not wait until QUIXN V. HEISEL. 347 the offense is actuallj- committed. To justify such arrest the party must have gone so far in the commission of an offense that proceedings might tlrereafter be instituted against him therefor, and this without reference to any past similar offense of which the person ranj liave been guiltj' before the arrival of the officer. The object of permitting an arrest under such circumstances is to prevent a breach of the peace where the facts show danger of its being immediately committed. A reference to some of the authorities may not be inappro- priate. In Regina r. Mabel, 9 C. & P. 474, the jury was charged that, under the circumstances stated by the police- man, he had no authority to lay hold of the defendant unless they were satisfied that a breach of the peace was likely to be committed bj' the defendant on the person in the parlor. In Timothy v. Simpson, 1 C, M. & E. 757, the plea justifying the imprisonment alleged that an affray had been committed, and it appeared that there was danger of its immediate re- newal. In Grant v. Moser, 5 Mann. & G. 123, it was said there should be a direct allegation either of a breach of the peace committing at the time or that a breach had been committed, and that there was reasonable ground for apprehending its renewal. In Baynes v. Brewster, 2 A. & E. (N. S.) 384, a plea to a declaration for false imprisonment was held bad which showed that the violent and illegal conduct was over, and it was not stated, nor did it appear, that it would have been repeated if the apprehension had not taken place. In this case Williams, J., said : " It is not a question, in this case, how far a constable is justified in interfering when an affray is going on in his presence ; but no principle is more generally assumed than that a warrant is necessary to entitle him to interfere after the affray is over. It is otherwise where the facts show that the affray is practically going on. That is on account of the obvious distinction, as to public danger, be- tween a riot still raging and one no longer existing." Wigitt- MAN, J., in speaking of the right to arrest during the affray, and while there is a disposition shown to resist it, quotes from Timothy v. Simpson as follows : " Both cases fall within the 348 FALSE IMPRISONMENT. same principle, which is that, for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts." In Wheeler v. Whiting, 9 C. & P. 262, Patte- soN, J., said : " The defendant pleads that the plaintiff was making a disturbance -in the house, and ready and desirous to commit a breach of the peace, whereupon he gave him in charge to the policeman, to be dealt with according to law. The policeman, however, was not justified in taking him, unless he saw some breach of the peace committed : on a charge of felony it would be different :" and the learned justice doubted whether a plea which stated that the plaintiff was intending to commit a breach of the peace was good. In Howell V. Jackson, 6 C. & P. 723, Parke, B., distinctly and clearly instructed the jury that to make out the defense they must be satisfied that plaintiff had committed a breach of the peace, and that the watchman saw him do so. In Knot v. Gay, 1 Root (Conn.), 66, it was said an arrest might be made to prevent a breach of the peace which was about to take place. In The State v. Brown, 5 Har. (Del.) 507, it was said : " A peace officer, such as a constable or sheriff, has the right to arrest, even without warrant, a person concerned in a breach of the peace or other crime, or when he has reasonable ground to suspect the party of such offense." Clearly this last clause does not state the law correctly in not limiting the right to cases of felonj^ In McCullough v. The Commonwealth, 67 Pa. St. 32, it was said : " A constable may justify an arrest for a reasonable cause of suspicion alone," citing in support Russell V. Shuster, 8 W. & S. 309, which was a case of suspi- cion of felony. In Commonwealth v. Carey, 12 Gush. 252, Shaw, C. J., said " that a constable or other peace officer could not arrest one without a warrant for a crime proved or sus- pected if such crime were not an offense amounting in law to felony." Other cases might he referred to. There is little danger of being misled by the cases in which it is held an officer may make arrests to prevent a threatened MEDCALFE V. BROOKLYN LIFE INS. CO. 349 breach of the peace. The interposition in the case of merely- threatened violence is not for the purpose of an arrest in the ordinarj^ sense, but as a peace officer to prevent a disturbance or breach of the peace under a present menace of violence. The judgment must be affirmed, with costs. Phillip V. Trull, 11 John. 486 ; AVahl v. Walton, 30 Minn. 506 ; Taaffe v. Slevin, 11 ]\Io. Ap. 507 ; Main v. McCarty, 15 111. 442 ; Com. v. Carey, 12 Cush. 246; Com. v. McLaughlin, 12 Cush. 615; Pow v. Beckner etal, 3 Ind. 475 ; Cook v. Nethercote, 6 C. & P. 741, 25 E. C. L. 666 ; Minn. Stat. 1894, U 7111, 7120, 7126. 3. Malicious Peosecution. a Definition. " A malicious prosecution is the putting in force maliciously of any- process of the la-w and the carrying it forvT-ard -v^ithout reasonable or probable cause until it terminates in favor of the one prosecuted maliciously to his injury." b Elements. (1) The malice and ivant of probable cause must concur. ■Medcalfe v. Brooklyn Life Ins. Co. Court of Appeals of Maryland, 1876. 45 Md. 198. Bq-wie, J., delivered the opinion of the Court. 'The subject of the present appeal is an action for malicious prosecution, brought by the appellant, an agent or solicitor of policies, against the appellee, a corporation, organized under the laws of the State of Ne-w York, known as " The Brooklyn Life Insurance Company of New York." The gravamen of the suit is that the appellee, on the 1st of May, 1873, at the city of Baltimore, falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the appellant, then being the agent of the appellee. 350 MALICIOUS PROSECUTION. with fraudulently embezzling the money of the appellee, and caused the appellant to be arrested and held to bail for his ap- pearance before the Criminal Court of the City of Baltimore, etc., from which arrest he was afterward discharged, the grand jury finding no presentment against him. Issue was joined on the plea of " not guilty." At the trial, two exceptions were taken by the appellant ; the first, to the exclusion by the Court of certain questions propounded by the appellant; the second, to the rejection of the appellant's prayers, and the granting of the first, third, and fifth of the appellee, and to the assent of the Court to the withdrawal of his second and fourth prayers. The first exception is unimportant in the consideration of this appeal, inasmuch as the questions which arise on the prayers go to the existence of the right of action, and are con- clusive of the matters in controversy. The plaintiff's, or appellant's prayers, present substantially the following propositions : 1st. That the appellant must have fraudulently intended to embezzle the appellee's money, and cheat the company, to con- stitute the off'ense with which he was charged, under the 49th section of the 30th article of the Code of Public General Laws, etc. 2d. That if the company first advised with Messrs. Merry- man & Bryan, in relation to their claim against appellant, in the sum of $1,400, and had their advice, and afterward ceased to employ them, they cannot defend the wrong of which the appellant complains, upon the ground that they afterward consulted and acted upon the advice of other counsel. 3d. That it is a question for the jury whether the appellant acted fraudulently in the use of the sum of $1,400. 4th. That whether the defendant was actuated by malice in causing the arrest, etc., was a question of fact. 5th. That whether there was probable cause for the institu- tion of the criminal proceedings, etc., was a question to be de- cided by the jury. MEDCALFE V. BROOKLYN LIFE I^sS. CO. 351 6th. That if the jury found for the plaintiff, the amount of damages should be such as the jury might think right and proper under all the circumstances. The defendant's first, third, and fifth prayers, which were granted, affirm these propositions : First. That there was no evidence from which the jurj' could find that the prosecution complained of was instituted without probable cause. Third. Tliat there is no proof legally sufficient to connect the defendant with the arrest and prosecution of the plaintiff. Fifth. That the action can only be maintained by proof of actual malice against the plaintiff, in the institution of the prosecution complained of, and such malice cannot be predi- cated of a corporation, and this action cannot be maintained. The prayers of the appellee are in the nature of demurrers to the evidence. The first and third declare the insufficiency of the testi- mony, in certain essential particulars, to the maintenance of the action. The fifth assumes the broader ground that an action for malicious prosecution does not lie against a corporation aggre- gate, because it is incapable of malice. No decision has been made in this State upon the question raised by the appellee's last prayer. In other States of the Union, and in Great Britain, a great contrariety of opinion has existed on this point, and conflicting decisions have been pronounced by Judges and Courts, of equal eminence and au- thority. It is not necessary, and we therefore do not propose to en- deavor to reconcile these, or announce any conclusion on this point, in the present case. The action for malicious prosecution, as it is laid down in all the text-books and reports, depends upon the proof of two facts — the want of probable cause for the prosecution, and malice on the part of the prosecutor as the motive of the pros- ecution. The union of these two conditions is essential to the injury 362 MALICIOUS PROSECUTION. known as malicious prosecution. The absence of eitlier is fatal to the suit. Malice may be inferred from the want of probable cause, but where probable cause exists, malice, however intense, will con- stitute no cause of action. In the case of Boyd v. Cross, 35 Md. 196, this Court an- nounced the law in these terms : " To have entitled the plaintiff to recover for malicious prosecution, it was incumbent upon him to prove affirma- tively that he had been prosecuted, or that a prosecution had been instituted by the defendants, or one of them ; that such prosecution had terminated in his discharge or exoneration from the accusation against him ; and that such prosecution was both malicious and without probable cause on the part of the defendant. All of these propositions must concur and be established by the plaintiff to entitle him to maintain his action. If the evidence adduced be legally insufficient to be submitted to the jury to prove each and all of these elements of the plaintiff's case his action could well be pronounced groundless, and the defendant not be called on for his de- fense :" Turner v. Walker, 3 G. & J. 377 ; Cecil v. Clarke, 17 Md. 508 ; Williams v. Taylor, 6 Bing. 183 ; Wheeler v. Nesbit, 24 How. 544. What facts will be sufficient to constitute probable cause for a criminal prosecution is a question for the Court ; whether such facts exist as will constitute the probable cause, or the absence of it, is a question for the jury. In Cecil v. Clarke, 17 Md. 524, " probable cause " was said to be " such conduct on the part of the accused as may induce the Court to infer that the prosecution was undertaken from public motives." In Boyd v. Cross, Judge Washington's definition in the case of Munns v. Dupont, 3 Wash. C. C. Repts. 31, was adopted as most accurate, viz.: "such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the party accused to be guilty." MEDCALFE V. BROOKLYN LIFE IXS. CO. 353 " The want of probable cause is a mixed question of law and fact ; but what will amount to the want of probable cause in any case is a question of law for the Court. The jury, in our practice, are always instructed hypothetically as to what constitutes probable cause, or the want of it, leaving to them to find the facts embraced in the hypothesis:" Boyd v. Cross, 35 Md. 197; Cooper v. Utterbach, 37 Md. 317. This course was not adopted in the present case. The appellant prayed the Court to instruct the jury. that the question whether the defendant had probable cause for instituting the criminal pro- ceedings against him (the plaintiff) was one to be decided by the jury, upon all the evidence in the case. The appellee, on the other hand, prayed the Court to instruct the jury that the plaintiff had offered no evidence from which the jury could find that the prosecution was instituted without probable cause. The appellant's prayer submitted to the jury a question of law, and was therefore improper ; the appellee's prayer called on the Court to decide whether the evidence offered by the plaintiff constituted probable cause, assuming it to be true. The facts being all admitted and undisputed, as far as the question of probable cause was involved, there was no neces- sity for hypothetical instructions. The appellee's prayer conceding all the evidence on the part of the appellant to be true, submitted, as was his right, the question of its legal sufficiency, to the Court. It is not neces- sary to recapitulate the testimony, to show how far it approxi- mated the measure of probable cause given by the authorities above cited. It was proved by the appellant, testifying in his own behalf, and upon cross-examination, that whilst he occupied the high and responsible trust of general agent and collector for the appellee he several times violated his duty by appropriating the funds of his principals to his own use, without their privity or consent, and concealed his defalcations by false representa- tions. That notwithstanding the first and second offenses were overlooked and excused, he transgressed the third time. 23 354 MALICIOUS PKOSECUTIOX. However such conduct may be palliated "in foro consci- entise " by domestic difficulties and distress of the appellant, the condonation of the first and second offenses did not lessen the criminality of the third in the eye of the law, but rather aggravated it. The circumstances were such as constituted a reasonable ground of suspicion, in a cautious man, that the appellant was fraudulently abusing his trust, and guilty of the offense with which he was charged. The appellant's evidence, failing in its first and most essential feature — the absence of probable cause for the prosecution — it was legally impossible the suit could be sustained. All other questions presented by the exceptions are imma- terial and unnecessary to be examined. Judgment affirmed. Mitchinson v. Cross, 58 111. 366 ; Leidig v. Kawson, 2 111. 272 ; Jacks v. Stimpson, 13 111. 702 ; Spain v. Howe, 25 Wis. 625 ; Sherbourne v. Rodman, 51 Wis. 474; Plath v. Braunsdorff, 40 Wis. 107 ;. Barrett v. Spaids, 70 111. 408 ; McKown v. Hunter, 30 N. Y. 625 ; Boyd v. Cross, 35 Md. 194 ; Live Stock Co. V. Slaughter-house Co., 120 U. S. 141 ; Stone v. Stevens, 12 Conn. 219 ; Carl v. Avers, 53 N. Y. 14 ; Bernar v. Dunlap, 13 Norris, 329 ; jNIinn. Stat. 1894, S 5136 ; Laws 1895, ch. 30 and 33 ; Jagjjard, 614 ; Bishop, 220 et aeg. ; Cooley, 180 et seq. ; Pollock, 392 et seq. ; Bigelow, 70. Note.— What is probable cause : Bitting v. Ten Eyck, 82 Ind. 421, 423 ; Casey v. Sevatson, 30 IMinn. 516 ; Boyd v. Cross, 35 Md. 197 ; Cooper v. Utterbach, 37 Md. 282 ; Brewer v. Jacobs, 22 Fed. 217 ; Walker v. Camp, 19 N. W. 802 ; Barron v. Mason, 31 Vt. 189 ; Bernar v. Dunlap, 94 Pa. St. 329 ; Ross V. Langworthy, 14 N. W. 515 ; Stacey v. Emery, 97 U. S. 642, 645 ; Humphries v. Parker, 52 Me. 502, 504. Note.— What is malice : Pullen v. Glidden, 66 Me. 202 ; Humphries v. Parker, 32 Me. 502, 506, 507 ; True v. Plumley, 36 Me. 466, 483 ; Boyd v. Cross, 35 Md. 197 ; Buckley v. Knapp, 48 Me. 152 ; Ullman v. Abrams, 9 Bush(Ky.), 738. Note.— The burden of proving inalice and showing want of probable cause is on the i)laintiff and not inferable from mere failure of the prosecution : Sutton V. Anderson, 103 Pa. St. 151, 155 ; Barber v. Scott, 60 N. Y. 497 ; Dietz V. Langfltt, 63 Pa. St. 234 ; McKown v. Hunter, 30 N. Y. 625 ; Boyd V. Cross, 35 Md. 194 ; Good v. French, 115 Mass. 201 ; TJllman v. Abrams, 9 Bush (Ky.), 738 ; Burris v. North, 64 Mo. 426. But see ; Barhight v. Tammany, 28 Atl. 135 ; Smith v. Ege, 52 Pa. St. 419 ; Bernar v. Dunlap, 94 Pa. St. 329. WOOD V. LAYCOCK. 355 (2) The proceedings must have terminated in favor of the com- plaining party in the malicious prosecution suit. Wood v. Laycock. Court of Appeals of Kentucky, 1860. 3 Mete. (Ky.) 192. Chief Justice Stites. Wood and Laycock entered into a written agreement to cultivate and carry on for the year 1858, a farm belonging to Wood. By the terms of the agreement each party was to perform certain duties therein specified, and Laycock was to have one-fifth of the product of the farm for his share of the profits. Before the expiration of the year and gathering of the crops they disagreed, and an effort was made to settle their differ- ences by reference to arbitrators. This, however, was not ac- complished ; and Laycock undertook, against the will of Wood, to gather, sell, and appropriate to his own use a portion of the crop. AVood thereupon filed his petition in equity for a settle- ment of the partnership, and upon several grounds therein set forth, applied for and obtained an injunction and restraining order from the Judge of the Circuit Court, forbidding and pro- hibiting Laycock from removing any of the produce from said farm, or in anywise interfering with the same. To LLig petition Laycock filed his answer, and, upon notice to Wood, moved a discharge of the injunction, which motion was heard and sustained, and the injunction discharged, but no order made finally disposing of the action, which, so far as this record shows, is still pending. Soon after the discharge Of the injunction Laycock brought this action against Wood for maliciously, and without any prob- able cause, bringing said suit and suing out said injunction, and claimed damages for injuries resulting therefrom, and for attorney's fees and other expenses incurred in defending the same, and alleged that said injunction had been discharged and dissolved, but failed to aver or show that the action, in 356 MALICIOUS PROSECUTION. which the injunction had been granted, had ended or had been finally disposed of. To this action Wood appeared and answered, controverting the material allegations of the petition, and relying on the pendency of the suit in equity as a bar to any recovery in this. Upon a trial in the Circuit Court Laycock recovered a ver- dict and judgment of $450 in damages, and to reverse that judgment Wood has appealed. Several objections are taken to the judgment, the first of which is, that the action was prematurely brought — there hav- ing been, as is contended, no legal termination of the suit for the malicious prosecution of which the present action was brought. This objection, it seems to us, is well taken, and must prove fatal to the judgment. It is a well-established principle that a plaintiff cannot main- tain an action for the malicious prosecution of a civil suit until after the legal termination, in his favor, of the suit complained of. And such termination must appear on the face of the de- claration or petition : 12 B. Mon. 553 ; 3 Mon. 209 ; Hillard on Torts, vol. 1, 495. This rule may be said to be subject to exception in cases wherein, by statutory provision, an interlocutory order is de- clared final, as in the case of an order discharging an attach- ment, as provided by the Civil Code, § 292. But except in cases of the class mentioned, we are aware of none in which the important prerequisite of a legal termination of the suit complained of can be dispensed with. It has been suggested that the injunction and restraining order, in Wood's suit against Laycock, were mere provisioiial remedies, allowed by the Code of Practice, and independent of the cause of action set forth in his petition, and that the order discharging them was as much a final order and termi- nation of that branch of the case as if it had been an order discharging an attachment. Admitting that the injunction and restraining order were mere provisional remedies in aid of the action, it still does not WOOD V. LAYCOCK. 357 follow the order discharging them was for any purpose what- ever final. There are many provisional remedies provided by the Code, concerning some of which — as in attachments and warrants of arrest — the orders of the Circuit Court, of a particular descrip- tion, made pending the action and before its termination, are expressly declared to be final ; but it is not so in orders re- specting injunctions as in the present case. On the contrary, it is manifest throughout the provisions of the Code in regard to injunctions that any order respecting them, by way of modi- fication or discharge, made pending the action and before its final determination, is deemed merely interlocutory. There is indeed a special provision for the reinstatement of injunc- tions by a Judge of this Court. This it is true applies alike to attachments, but as we have seen, an order of discharge of an attachment is made final by another express provision, which is not the case in regard to injunctions. Besides, it is well known, that from a simple order discharging an injunction, made pending an action, and before its final determination, no appeal lies to this Court. In no sense, in which it can be regarded, was the order merely discharging the injunction and restraining order a final termination of the suit. As is manifest from the petition, and the exhibit filed therewith, it was merely an interlocutory order — the suit was still pending between the parties when this action was begun, and the case, in our opinion, falls directly within the principle stated in the outset. Wherefore the judgment is reversed, and cause remanded with directions to dismiss the petition. O'Brien v. Barry, 106 Mass. 300 ; Davis v. Stuart, 16 So. 871 ; Spring & Step V. Besore, 12 B. Mon. 5-53 ; Brown r. Randal et at, 36 Conn. 56 ; Grant V. Moore elal., 29 Cal. 644 ; Crescent City Live Stock Co. v. Butchers' Union Slaughter-house Co., 120 U. S. 141 ; Steel v. Williams, 18 Ind. 161 ; Walker et al. i: Martin, 43 111. 508 ; Wheeler v. Nesbit et al, 24 How. 544; Blalock V. Randall, 76 111. 224. The person complaining must have sustained legal damage : Preston v. Cooper, 1 Dill. 589 ; Cotterell v. Jones, 11 C. B. 713, 73 E. C. L. ; Jaggard, 610, 627 ; Bishop, 220 el seq., 227; Cooley, 186 ; Pollock, 394 ; Bigelow, 72, 87. 358 MALICIOUS PROSECUTION. c Effect of advice of counsel. The case being brought upon advice of counsel affords strong evi- dence that there ■was neither malice nor 'want of probable cause. Walter v. Sample. Supreme Court of Pennsylvania, 1855. 25 Pa. St. 275. Error to the District Court of Allegheny County. This was an action on the case for malicious prosecution. Upon the trial of the cause, defendant's counsel called Jacob Whitesell, Esq., a member of the bar, who testified as fol- lows : "Mr. Sample stated to me the facts of the case, and I advised him to go before the mayor and make information, and have the parties arrested and examined. He acted under my advice, so far as arresting the boys, and having an investi- gation of the matter, and the trial in Court." The Court instructed the jury, inter alia, as follows : " The opinion of private counsel cannot amount to proof of probable cause, unless the facts clearly warrant it, and were correctly stated." Assignment of error: The Court erred in instructing the jury that " the opinion of private counsel cannot amount to proof of probable cause, unless the facts clearly warrant it, and were correctly stated." "Woodward, J. This was an action on the case for malicious prosecution, and the only question presented by the record is, whether the Court were right in instructing the jury that " the opinion of private counsel cannot amount to proof of probable cause, unless the facts clearly warrant it, and were correctly stated." Ever since the case of Farmer v. Darling, 4 Burr. 1971, it has been held that malice, either express or implied, and the want of probable cause, must both concur to support WALTER V. SAMPLE. 359 actions of this nature. The presumption of law is, that every public prosecution is founded in probable cause, and the burden is, therefore, in the first instance, on the plaintiff; but when he has submitted evidence of want of probable cause, or of circumstances from which a violent presumption would arise that it was wanting, the burden of proof is shifted on to the defendant, and then it is competent for him to show that he acted under professional advice. To make this defense available he must show that he submitted all the facts which he knew were capable of proof fairly to his counsel, and that he acted bona fide on the advice given. This proved, he nega- tives, if not the malice, the want of probable cause. " I accede to the proposition," said Bayley, J., in Ravinge v. Mcintosh, 2 B. & C. 493, " that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description." See the cases cited 2 Saunders' Pleading and Evidence, 659, 660 (marginal). In Sumner v. Wilt, 4 Ser. & R. 24, Judge Duncan plainly intimated his opinion that such evidence would be a defense to the action, as negativing the imputation of malice ; and in the case of Hall v. Smith, reported in 7 Leg. Intelligencer, 7, the District Court of Philadelphia treated such evidence as an answer to the imputation both of malice and of probable cause, between which, it was said, there is no difference in the consideration of a matter of this kind. The opinion of Judge Rogees at Nisi Prius, in the case of Le Maistre v. Hunter, Brightley's Rep. 498, which seems to have been the authority followed by the Court below, is not, when taken altogether, in conflict with the current of authori- ties. The facts are not given in reference to which he charged the jury in this language : " In conformity to a point put by counsel for the plaintiff, I instruct you that the opinion of pri- vate counsel of a prosecution cannot amount to proof of prob- able cause, nor prevent a recovery, unless the facts clearly warrant it, and are correctly stated. Even the application to counsel, and their opinion, in order to be available in the 360 MALICIOUS PROSECUTION. establishment of probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose ; and the statement made at the time must be fair and full and consistent with that purpose." This is no more than a statement of the general rule with its necessary qualifications. Nevertheless, the words, " unless the facts clearly warrant it," found both in Judge Rogers's opinion and that under review, are ill chosen, because liable to misapplication. " Unless the facts clearly warrant " what ? the opinion of counsel, or the prosecution ? Whichever be the antecedent intended, it is apparent that these words would make the defense depend for its value wholly on the soundness of the legal opinion. If the facts must clearly warrant the legal opinion, that, to be a defense, must be the very judgment of the law on the facts ; if they must clearly warrant the prose- cution, then the defense is complete without the professional opinion ; and thus, either way, it goes for nothing. No matter how candidly and faithfully a prosecutor has submitted the facts to his legal adviser and followed his advice, if they turn out insufficient for the support of the prosecution, he is liable in an action for malicious prosecution. On this principle every acquittal of a defendant would be followed by such an action. A qualification of the rule in terms like these destroys the rule itself. The law is not so. Professors of the law are the proper advisers of men in doubtful circumstances, and their advice, when fairly obtained, exempts the party who acts upon it from the imputation of proceeding maliciously and without probable cause. It may be erroneous, but the client is not responsible for the error. He is not the insurer of his lawyer. Whether the facts amount to probable cause is the very question sub- mitted to counsel in such cases ; and when the client is in- structed that they do, he has taken all the precaution demanded of a good citizen. To manifest the good faith of the party, it is important that he should resort to a professional adviser of competency and integrity. He is not, in the language of Judge Rogers, to ■WALTER V. SAMPLE. 361 make such a resort " a mere cover for the prosecution ;" but when he has done his -n-hole duty in the premises, he is not to be made liable because the facts did not clearly warrant the advice and prosecution. The testimony here was that Sample stated the facts of the case, and there is no suggestion on the record that they were not fairly stated. Suppression, evasion, or falsehood would make him liable ; but if fairly submitted^ and if the advice obtained was followed in good faith, he had a defense to the action, and the Court should have given him the benefit of it. The judgment is reversed and a venire de novo awarded. Wicker v. Hotchkiss, 62 111. 107 ; Hout v. Hout, 20 Ohio St. 119 ; Eastman r. Krassor, 44 N. H. 518 ; Hill v. Palm, 38 Mo. 13 ; Le Clear v. Perkins, 61 X. "W. 357 ; Womack i: Fudicker, 16 So. 645 ; Poupard r. Dumas, 63 N. W. 301 ; Hurlbut e . Boaz, 23 S. W. 446 ; Leahey v. March, 155 Pa. St. 458 ; Coggswell V. Bohn, 43 Fed. 411 ; Wiel v. Israel, 8 So. 826 ; Norrell v. Vogel, 39 Minn. 107 ; Johnson r. Miller, 82 la. 693 ; Palmer v. Broader, 78 Wis. 483 ; General Discussion, 12 C. L. J. 487 ; 21 Am. L. Eeg. (N. S.) 582 ; Jaggard, 621 ; Bishop, 236 ; Cooley, 183 ; Pollock, 395. 362 SLANDER. 4. Slander and Libel. a Slander. (1) Definition. " Oral slander is the false and malicious oral publication of words Importing that another is guilty of some indictable offense ; or that be has some loathsome disease, of a sort tending to exclude him from society ; or if spoken of him in reference to his business, profession, or calling, or public office which he holds, calculated to injure him therein ; or of -whomsoever spoken, if found on special allegation and proof to have in fact subjected him to some personal or pecuni- ary damage." (2) Publication. There is no legal wrong until the defamatory statement has been given to one or more third persons, then it is published. Shepfill et ux. v. Van Deusen et ux. Supreme Judicial Court of Massachusetts, 1859. 13 Gray, 304. Action of tort for slander. Trial in the Court of Common Pleas, before Briggs, J., who signed this bill of exceptions : " The words claimed to have been slanderous were spoken, if at all, at the dwelling-house of the defendants, in that part thereof called the bakery, where bread and other articles were sold to customers ; and were spoken by Mrs. Vau Deusen to Mrs. Sheffill. " The defendants asked the Court to instruct the jury that if the words alleged in the plaintiffs declaration were spoken to Mrs. Shefhll, and no other person but Mrs. Sheffill and Mrs. Van Deusen were present, there was no such publication of the words as would maintain the action. " The Court declined so to instruct, but did instruct the jury that if the words were publicly uttered in the bakery of the defendants, there was a sufficient publication, though the plaintiff has not shown that any other person was present, at the time they were spoken, but Mrs. Sheffill and Mrs. Van SHEFFILL ET UX. V. VAN DEUSEN ET UX. 363 Deusen. The jury returned a verdict for the plaintiffs, and the defendants except." BiGELOW, J. Proof of the pubUcation of the defamatory words alleged in the declaration was essential to the main- tenance of this action. Slander consists in uttering words to the injury of a person's reputation. No such injury is done when the words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opinion of other men, and not in a party's self-estimation, which consti- tutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plaintiff containing de- famatory matter, was held insufficient proof of publication ; although it would be otherwise in an indictment for libel, be- cause such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language, which no one present understood, no action will lie therefor: Edwards v. Wootou, 12 Co. 35 ; Hicke's Case, Pop. 129, and Hob. 215 ; Wheeler & Appletou's Case, Godb. 340 ; Phillips v. Jansen, 2 Esp. R. 624 ; Lyle v. Clason, 1 Gaines, 581 ; Hammond N. P. 287. It is quite immaterial, in the present case, that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third per- sons ? The defendants were therefore entitled to the instruc- tions for which they asked. Exceptions sustained. Linck V. Driscoll, 41 X. E. 463 ; Desmond v. Brown, 3.3 la. 13 ; Meyers v. Dresden, 40 la. 660; Adams v. Lawson, 17 Grat. 250 ; Marble v. Chapin, 132 JIasp. 225, 226 ; Broderick v. James, 3 Daly, 481 ; AVennhak v. Morgan, L. R., 20 Q. B. D. 635 ; 38 Alb. L. J. 24 ; Nolan v. Traber, 49 Md. 460 ; Hawver V. Hawver, 78 111. 412; Duval v. Davey, 32 Ohio St. 604; Wenman n. Ash, 13 C. B. 836, 76 E. C. L. ; Hurtert r. Weines, 27 la. 134 ; Jaggard, 479 ; Bishop, 276 ; Cooley, 193 ; Pollock, 306 ; Bigelow, 87 ; Minn. Statutory Provisions; Stat. 1894, R 6496-6509, 5417, 5138 (1), 5258; Laws, 1895, ch. 30 and 33. 364 SLANDER. (3) Words actionable per se. (a) Those charging that another is guilty of some indictable offense. WONSQN V'. SaYWARD. Supreme Judicial Court of Massachusetts, 1832. 13 Pick. 402. Action on the case for slander. Plea, the general issue. At the trial the plaintiff produced witnesses to prove the words spoken. Hayes testified that on March 4, 1831, he and the defendant were on the Eastern Point in Gloucester, and that the defend- ant said to him, " There is Samuel Wonson ; he pulled off his boots, threw them away, and put on the cook's boots." The witness told the defendant he was very much surprised, for he had never heard that character of Wonson before. To which the defendant replied, " He is the man." This was at the time when a vessel belonging to Pingree and Osgood, and, having goods on board for them, was cast away on the Eastern Point. Some of the articles were missing. Pingree was in sight during the conversation. The defendant, in what he said, referred to the cook of the " Persia," a vessel which was cast away on the point some years before, and all her crew drowned. Brown, a deputy sheriflf, testified that when he delivered the summons to the defendant, the defendant said, " The more they stir it the worse it will be for them ;" and in a moment added, " I never took a pair of boots from a dead man." Pingree testified that he was interested in the cargo of a schooner, which, in March, 1831, was cast away on the East- ern Point. The plaintiff was employed in hauling away the cargo which was saved. Some parts of it were missing. The defendant asked the witness whether he had found all the articles. The witness told him that some were still missing. The defendant then said it was a pity that such things as were ^\'OXSON V. SAYWARD. 365 cast a\Yay there by accident could not be safe ; and in the course of tlie conversation he said it was not to be wondered at, as the man driving the team (the plaintiff), at the time when the " Persia " was lost, took off his own boot (or boots) and threw it awaj'-, and took one belonging to one of the crew of the " Persia," and put it on. Upon this evidence the plaintiff 's counsel proposed to go to the jury, but the Judge directed a non-suit, subject to the opinion of the whole Court. Shaw, C. J., drew up the opinion of the Court. The only question in the present case is, whether there was sufficient evidence to go to the jury in support of this action of the case for slander ; and this depends upon the question whether the words spoken imputed to the plaintiff an indictable offense, because, if they did, the words are actionable in themselves. It was contended that they did not impute a charge of felony, because a dead man can have no property, and no person can be indicted for larceny upon proof of having taken articles from the body of a dead man. But the Court are of opinion that this position cannot be maintained. The words proved have a tendency to show that the defendant intended to charge the plaintiff with having fur- tively taken the boots from the body of a dead man, drowned and driven ashore from a wreck, and appropriated them to his own use. Such an act, in point of law, might be a felony, and indictable and punishable as such. It is contended that the boots could not be averred to be the property of any one, and so in legal contemplation could not be the subject of larceny, but we think it otherwise. The cir- ;umstances would have a strong tendency to show that the boots were not derelict, and had not been voluntarily aban- doned by the owner, and being attached to the body of the de- ceased, that they were his property at the time of his decease. If an administrator had been already appointed at the time of the taking, the property had vested in him ; and if one should be afterward appointed, it would be deemed to have vested in 366 SLANDER. him by relation from the death of the intestate ; and in either case the boots might be averred to be the property of the ad- ministrator. The boots, therefore, were the property of some one, not the plaintiff, at the time of the alleged taking, in respect to which a larceny might be committed ; and this rule is important, as it applies to a vast amount of wrecked property, where the owners perish by the same disasters by which the property is wrecked. If then the plaintiff had, in fact, taken the boots under such circumstances miimo furandi, it would have been a felony ; and if the defendant intended by the words used to charge this offense, which must be judged of by the accompanying words, and the circumstances under which the}'- were spoken, the words would be actionable. Non-suit taken off and a new trial granted. Young V. Miller, 3 Hill, 21 ; Webster v. Sharpe, 21 S. E. 912 ; McCauley v. Elrod, 27 S. W. 867 ; Chigston v. Garretson, 37 Pac. 469 ; Booker v. State, 14 So. 561 ; Taylor o. Ellington, 15 So. 499 ; Dixon v. Allen, 11 Pac. 179 (note) ; Stoke v. Miller, 5 Atl. 621 (note) ; Miller v. Paush, 8 Pick. 383 ; Klumph V. Dunn, 66 Pa. St. 141 ; Hoag v. Hatch, 23 Conn. 585 ; Harrington V. Miles, 11 Kans. 362 ; Estes v. Estes, 75 Me. 478 ; West v. Hanrahan, 28 Minn. 385 ; Reitan v. Goehel, 33 Minn. 151 ; Jaggard, 502 ; Bishop, 254, 262 ; Cooley, 196 ; Pollock, 294 ; Bigelow, 90. (b) Those charging a loathsome disease. Kauchee et al. v. Blinn. Supreme Court of Ohio, 1875. 29 Ohio St. 62. Motion for leave to file a petition in error to reverse the judgment of the District Court of Darke County. In slander. The words alleged in the petition to have been spoken were, in substance and effect, that the plaintiff (defend- ant in error) was then afflicted with the clap. The petition was demurred to on the ground that the words alleged to have been spoken were not actionable in themselves. The Court of Common Pleas sustained the demurrer, and KAVCHER ET AL. V. BLINN. 367 gave judgment for the defendants ; which was reversed by the District Court, on error, on the ground that there was error in sustaining the demurrer. It is sought by this pro- ceeding to obtain a reversal of the judgment of the District Court. GiLMORE, J. If the words alleged to have been falsely spoken were actionable in themselves, the judgment of the District Court must be affirmed. Where the question is whether slanderous words are action- able in themselves, as charging the plaintiff with crime, the law is as claimed by counsel for plaintiff in error, viz., the charge, if true, must be such as would subject the party charged to an indictment for a crime involving moral turpitude or to an infamous punishment : Dial v. Holter, 6 Ohio St. 228 ; Alfele V. Wright, 17 Ohio St. 238 ; HoUingsworth v. Shaw, 19 Ohio St. 430. But the words in this case, if actionable in themselves, are not so because they impute a crime to the party charged, but because they asserted that he was afflicted with a loathsome and contagious disorder, which, if believed, would cause him to be shunned and avoided by society and excluded from the favor and countenance of all moral persons. From a very early period in England it has been held that to charge a person with having the "French pox" or "great pox " was actionable j)ei' se. " If one man says to another that he has the great pox, an kction upon the case lies because this is a great slander and disgrace, inasmuch as this comes from fornication, and no man will converse with him :" Viiier's Abr. Action for Words, H. a. 3. And in the case of Blood- worth V. Gray, 49 Eng. Com. Law R. 334, which was an action of slander for saying that the plaintiff was infected with the French pox, the words were held to be within the principle of the old authorities, and actionable per se. The weight if not the uniform current of authority in this country is to the same effect: Goldman v. Stearns, 7 Gray, 181 ; Williams v. Iloldridge, 2-2 Barb. 398 ; Hewit v. Mason, 24 368 SLANDER. How. Pr. R. 366 ; Nichols v. Guy, 2 Carter, 82 ; Watson v. McCarthy, 2 Kelly, 57. In the latter case it was contended, on the authority of Mr. Starkie, that actions for words of this description, in the absence of special damage, have been confined to the charges of being afHicted with " French pox " or " great pox," and that clap, which was the word used in the case, was altogether different, being, as claimed, much less infectious and much less dangerous, and that, therefore, the words charging the plain- tiff with being afflicted with the disease last named were not actionable in themselves. But the Court very properly refused to recognize the distinction. Words are to be taken as commonly understood, and from the words used in this case there can be no doubt that the speaker intended the hearers to understand that the plaintiff below was, at the time, afflicted with an infectious venereal disease, and we think it was immaterial which of the forms the disease, as above mentioned, was intended or understood, as the words, understood in either sense, would be actionable in themselves. There is no error in the judgment of the District Court. Motion overruled. Golderman v. Stearns, 7 Gray, 181 ; Williams v. Holdredge, 22 Barb. 396 ; Joannes v. Burt, 6 Allen, 236 ; Irons v. Field, 9 R. I. 216 ; "Watson v. McCarthy, 2 Kelly (Ga.), 57 ; Hewit v. Mason, 24 How. Pr. 366 ; Bloss v. Tobey, 2 Pick. 320 ; Bloodworth v. Gray, 7 Man. & Gr. 334, 49 E. C. L. ; Jaggard, 509 ; Bishop, 268 ; Cooley, 200 ; Pollock, 299 ; Bigelow, 92. (c) Those calculated to injure one in his business or official position. Mains v. Whiting. Supreme Court of Michigan, 1891. 87 Mich. 172 ; 49 N. W. 559. Champlin, C. J. The plaintiff brought suit against the de- fendant for verbal slander. The original declaration set out the words declared to be MAINS V. WHITIXG. 369 defamatory, as follows : " You are the dirty sewer through which all the slums of this embezzlement have flowed ;" and again, "You are the dirty sewer through which all the slums of this embezzlement have been forced ;" and again, " If that $20 had been turned over to you or to A'an Wagner, the com- pany never would have seen 20 cents of it." It is not necessary to set out in detail the terms of the original declaration, for the reason that the defendant demurred, and within the ten days allowed by rule the jjlaintiff filed his amended declaration, in which he sets forth that he is an attorney and counselor-at-law, and solicitor and counselor in chancery of the State of Michigan, and thereby an officer of all the Courts of law and chancery in this State, and is thereby a person holding ah office of trust, honor, and profit, and has an office in, and is practicing his said pro- fession in, the county of Calhoun, and setting out in the usual form as to being a good and faithful citizen, etc., and that he was enabled to and did earn and make for himself large sums of money by means thereof, and was enabled to gain and to earn a competence and livelihood in and by his said profession, a,nd that he has no other business, occupation, profession, or trade from which to derive an income and gain a compe- tence for himself and family. He then avers that the Peerless Reaper Company was a cor- poration duly incorporated under the laws of Ohio, having its home office at the city of Canton, in said State, but was doing business in Michigan, and the defendant was the president thereof at the date of the committing of the grievances in the several counts contained in his declaration. He further avers, by way of inducement, that, at the time last stated, it was well known by his neighbors, and other good and worthy citizens of the State, that he had theretofore been, as such attorney and counselor, etc., employed by the said Peerless Reaper Company, and by virtue of his said employment had repre- sented faithfully and with skill and ability, in divers Courts of this State, the said Peerless Reaper Company, and had col- lected and faithfully and promptly turned over to said com- 24 370 SLANDER. pany large sums of money so collected, and, when called upon for counsel and advice in such employment by said company, had acted and advised honestly and fairly, and as the rules of plaintiff's profession would require — all of which was well known to defendant. He avers, further, that $20 had been received by one 0. L. Van Wagner, who was then the State agent of said Peerless Reaper Company, for and as the agent of said Peerless Reaper Company, before the 22d day of October, A. D. 1890, and had before that day been by the order of defendant, as president of said company, turned over to one Horace Fairfield by said Van Wagner as traveling expenses, said Fairfield being another agent of said Peerless Reaper Company, and said money being the property of said company, as defendant well knew ; . and that, to wit, on the 22d day of October, 1890, said Horace Fairfield, for and in behalf of the people of the State of Mich- igan, by order and direction of the defendant as president of said Peerless Reaper Company, had made complaint in writing on oath before one H. A. Tillotson, then a justice of the peace in and for the city of Marshal, in said county of Calhoun, and a criminal warrant had by said justice been issued on said complaint, charging one Charles H. Van Wagner, as an agent of said Peerless Reaper Company, with having feloniously embezzled and converted to his own use certain chattels, moneys, and effects of said Peerless Reaper Company, and as having feloniously stolen and carried away said chattels, moneys, and effects, contrary to the form of the statute, etc., and thereupon said Charles H. Van Wagner had been brought before said justice of the peace at his office for examination upon such charge, and said plaintiff was by said Charles H. Van Wagner duly employed as the attorney and counselor of the said Van Wagner in and about his defense before said justice of the peace upon said charge of embezzlement, and was so engaged in open Court before said justice of the peace, and plaintiff was conducting the examination of a witness other than defendant in an orderly and professional manner during the examination of said Van Wagner before said justice MAINS V. AVHITINQ. 371 of the peace on said criminal charge, and that defendant was not interested in such examination being so prosecuted before said justice save as a witness for and on behalf of the people of the State of Michigan, j-et the said defendant committed the grievances hereinafter contained, in open Court, before said justice, and in his hearing, and in the presence and hearing of divers good and worthy citizens in said Court assembled as spectators and witnesses ; he, the defendant, then and at such time knowing that said plaintiff was not a party to nor cog- nizant of nor in any way a party in interest and guilt to the offense for which said Charles H. Van Wagner was then and there before said justice of the peace charged ; and defendant well knowing that said plaintiff, as an attorney or otherwise, was innocent of said charge of embezzlement, or of any em- bezzlement, of said Charles H. Van Wagner, and that plaintiff was wholly innocent of said embezzlement and charge, and of any guilty knowledge thereof; and also that plaintiff's partici- pation in such proceedings then and there had before said justice was only such as an attorney-at-law, by virtue of his employment, was in duty bound to do and perform for and in his client's behalf, and such as a client could reasonablj^ ex- pect and require of such attorney-at-law according to strict honor and integrity, as between such attorney and client ; and that such embezzlement with which the said Charles H. Van Wagner was charged was in no way prompted, encouraged, or sanctioned by plaintiff as an attorney and counselor-at-law or otherwise, nor had he any guilty knowledge of it, as defendant well knew. Nevertheless the said defendant, well knowing the premises, but contriving and maliciously intending to injure, defame, and slander the said plaintiff in his good name, and contriv- ing and maliciously intending to injure, defame, and slander the said plaintiff in his profession as such attorney and coun- selor-at-law, etc., as aforesaid, so as aforesaid did falsely and maliciously impute to said plaintiff unfitness to perform the duties of his office and employment as such attorney and counselor-at-law, etc., as aforesaid, and so did falsely and 372 SLANDER. maliciously impute to said plaintiff a want of integrity in the discharge of the duties of the such office and employment as such attorney and couiiselor-at-law as aforesaid, and, so in- tending as aforesaid, did falsely and maliciously speak defam- atory words of said plaintiff, which prejudiced said plaintiff in his said profession as an attorney and counselor as aforesaid, and tended to disgrace and prejudice plaintiff before said Court so held by said justice of the peace, and to vex, harass, oppress, impoverish, and wholly ruin said plaintiff in his pro- fession, and render him, the said plaintiff, liable to imprison- ment in the State Prison, and liable to be indicted for an offense punishable by imprisonment in the State Prison, under the laws of the State, to wit, on the 5th day of November, A. D. 1890, at the city of Marshal, aforesaid, in open Court, be- fore said justice of the peace, as aforesaid, in a certain dis- course which the said defendant then and there had with the said plaintiff, in the presence and hearing of divers good and worthy persons, did falsely and maliciously speak, publish, and declare to, of, and concerning the plaintiff, as an attorney and counselor-at-law, etc., as aforesaid, these false, scandalous, malicious, and defamatory words, to wit : " You," said plaintiff meaning, " are the dirty sewer through which all the slums of this embezzlement," the said items of embezzlement with which the said Charles H. Van Wagner was charged as aforesaid, meaning, " have flowed ;" meaning thereby that the plaintiff had been guilty of unprofessional conduct in his employment as attorney for the said Charles H. Van ^Vagner in his defense as aforesaid ; and that plaintiff as such attorney for said Charles H. Van Wagner had guilty knowledge of such em- bezzlement, and had aided, abetted, counseled, consented to, and advised said Charles II. Van Wagner to commit said em- bezzlement, and that plaintiff as such attorney, with this guilty knowledge of said offense, was shielding said Charles H. Van Wagner, or attempting to shield him from just pun- ishment ; and that plaintiff, in his conduct in the defense of said Charles H. Van Wagner, as aforesaid, as his attorney, lacked integrity, and was wanting in fitness to perform the MAIKS V. WHITING. 373 duties of such oflSce of attorney ; aud that said Charles H. Van Wagner was simply plaintifl's tool, by M-hich he, the plaintiff, was enabled to embezzle aud steal the money charged in said complaint to have been embezzled by said Charles H. Van Wagner, as aforesaid, from said Peerless Reaper Com- pany ; and that the guilty intention of embezzling said money mentioned in said complaint originated with plaintiff, and that plaintiff furthered and perfected the details of said em- bezzlement, and caused it to be completed, and then was as an attorney and counselor-at-law endeavoring to cover and conceal said crime in his defense of said Charles H. Van Wagner, and as an attorney fraudulently mislead and deceive the Court in which said proceedings were had as aforesaid thereby. Then follows a second count in the declaration, substantially like the one above given, in which the slanderous words are the same, except in place of the words " have flowed " the words " have been forced " were substituted. The third count, referring to the inducement in the first count and making it a part of that, charges the defendant with uttering falsely and maliciously the following, to wit : " If that twenty dollars," the twenty dollars turned over to said Fairfield for traveling ex- penses by order of defendant as president of the Peerless Reaper Company meaning, " had been turned over to j'ou," the said plaintiff as attorney and counselor-at-law meaning, " or to Van Wagner," the said Charles H. Van Wagner, whose examination on the charge of embezzling the said Peerless Reaper Company's goods, chattels, moneys, and effects was then and there in progress in open Court meaning, " the com- pany," said Pearless Reaper Company meaping, " would never have seen twenty cents of it ;" meaning thereby that the said plaintiff, as such attorney and counselor-at-law as aforesaid, was a person of so little honesty and integrity that if |20 came into his hands, the same being the property of another, the owner thereof would lose said property by the wrongful conversion and embezzlement by said plaintiff; that it would be as safe to intrust money in the hands of Charles H. Van Wagner, who was then and there under arrest for embezzling 374 SLANDER. money as aforesaid, as to intrust it to plaintiff as such attorney ; that either plaintiff or said Charles H. Van Wagner, or both, would embezzle the said $20 if it had come into their or either of their possession ; that said plaintiff in his profession, and as an individual, was ready and willing to permit crime if op- portunity offered, was dishonest, had no integrity! would coun- sel, connive at, aid, and abet, by his office as an attorney as aforesaid, others to commit criminal offenses ; and that plaintiff was a person wholly unfit for and lacked integrity in the dis- charge of his duties as such attorney and counselor-at-law as aforesaid. To this declaration the d.efendant pleaded the general issue, and gave notice thereunder that the alleged statements were without malice, and did not injure the plaintiff in his good name, fame, and credit, etc. ; and that the words alleged to have been used by defendant were not understood or inter- preted by the hearers thereof then present to mean as set forth in plaintiff's declaration, and that, at the time of the alleged speaking of the alleged slanderous words, the plaintiff was cross-examining the defendant as a witness called in behalf of the people against Charles H. Van Wagner, and that said plaintiff had been shown by the evidence on that examination to be the person who collected the money upon the note belonging to the Peerless Reaper Company, of which defend- ant is alleged to have been president, and for the embezzle- ment of said Charles H. Van Wagner was then under exami- nation, and that he was at that time the attorney and pre- tended legal adviser of said Charles H. Van Wagner, and was at the time of such examination, as aforesaid, by counseling said Charles H. Van Wagner, withholding and retaining a large sum of money in his (plaintiff's) possession from the said Peerless Eeaper Company, upon the pretext that said company had damaged said Van Wagner by not furnishing him a pretended number of machines during the season for him to sell, and that such sum of money so retained in the hands of plaintiff belonged to the said Peerless Reaper Com- pany, and was in amount, to wit : $1,000; and that such words MAINS r. WHITIXG. 375 language, and statements made by the defendant to said plaintiff were made as a witness in Court upon the trial of the cause, and were privileged. The cause came on for trial on the 12th day of March, 1891, before a jury, and the plaintiff offered himself as a witness in his own behalf, and, being sworn, the defendant by his attor- ney objected to any evidence being admitted under the declara- tion, or any evidence to prove slanderous words, on the ground that it was irrelevant and immaterial under the pleadings ; that the declaration sets out no cause of action, because the words charged in the declaration do not amount to or charge any crime, and are not actionable in themselves, and no special damages are claimed ; that the words themselves are simple, and, under any meaning which can be given them, do not convey any criminal intent or criminal action, or anything criminal whatever. The Court sustained the objection, and directed a verdict for the defendant. Plaintiff brings the case here by writ of error, and the only question is whether the declaration sets out a cause of action. It was said by Mr. Justice Clifford in Pollard v. Lyon, 91 U. S. 225, that " oral slander, as a cause of action, may be di- vided into five classes, as follows : (1) Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude for which the party, if the charge is true, may be indicted and punished ; (2) words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society ; (3) defamatory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment, or the want of integrity in the discharge of the duties of such an office or employment ; (4) defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade ; (5) defamatory words falsely spoken of a person which, though not in themselves actionable, occasion the party special damage." The authorities are uniform that spoken words are defamatory without allegation of special damages when the 376 SLANDER. imputation cast by them on the plaintiff is so injurious that the Court will presume witliout proof that his reputation has thereby been impaired, and the Court will so presume when the words are spoken of him in the way of his profession. It was said by Ingkaham, J., in Fowles v. Bowen, 30 N. Y. 24, that " any charge of dishonesty against an individual in connec- tion with his business, whereby his character in such business may be injuriously affected, is actionable. If spoken of him individually, and not in connection with his office or business, these words would not be actionable." In this case the plaintiff sets up matters of inducement showing the circumstances under which the words were uttered, and expressly avers that the}' were spoken of and concerning his profession and em- ployment as an attorney and counselor-at-law. Where such averments are made with respect to the language used by the defendant, it becomes a question of fact to be determined by a jury ; and, where the plaintiff avers such fact, it is incumbent upon him to prove the truth of the averment in order to re- cover in the action. If it be true, as averred, that these words were spoken of and concerning the plaintiff in the way of his profession or employment, then the words are actionable in themselves, and it was unnecessary to aver special damages. The following authorities support this view : Buck v. Hersey, 31 Me. 558 ; Rush v. Cavenaugh, 2 Pa. St. 187 ; McKee v. Wil- son, 87 N. C. 300 ; Sumner v. Utley, 7 Conn. 257 ; Dole v. Van Rensselaer, 1 Johns. Cas. 330,; Riggs v. Denniston, 3 lb. 198 ; Burtch V. Nickerson, 18 Johns. 217 ; Sewall v. Catlin, 3 Wend. 291; Mott V. Comstock, 7 Cow. 654; Fowles v. Bowen, 30 N. Y. 24 ; Larrabee v. Tribune Co., 36 Minn. 141, 30 N. W. Rep. 462 ; Williams v. Smith, 22 Q. B. Div. 134. And Ave think the plaintiff was entitled to introduce evidence to support, if he could, the averments contained in his declaration. We think the Court erred in refusing to permit any testimony to be given. The judgment must be reversed, and a new trial ordered. The other justices concurred. Ireland v. McGarvish, 1 Sandf. 155 ; Rush v. Cavenaugh, 2 Pa. St. 187 ; McMillan v. Birch, 1 Binn. 178 ; Camp v. Martin, 23 Conn. 86 ; Chaddock v. BRADT V. TOWSLEY. 377 Briggs, 13 Mass. 248 ; Forward v. Adams, 7 Wend. 204 ; Galhvey r. Marshall, 9 Ex. 294 ; Goodenow r. Tappan, 1 Ohio, 60 ; Doyley i: Roberts, 3 Bing. (N. C.) 835, 32 E. C. L. 384; Aston v. Blagrave, Strange, 617; Jaggard, 505; Bishop, 270 ; Cooley, 201, 202 ; Pollock, 300 ; Bigelow, 93. (d) Those found upon allegation and proof to have sub- jected plaintiff to some special damage, personal or pecuniary. Beadt v. Towsley. ^V*' Supreme Court of New York, 1835. ' 7 ^1 " 13 Wend. 253. The declaration in this case is in slander for charging the plaintiff, a. female, with being a, prostitute. Besides the general allegation, that b}^ means of the speaking of the words charged in the declaration, the plaintiff was greatly injured in her reputation and brought into public scandal, infamy, and dis- grace, it was alleged that by reason of the scandal and dis- grace brought upon the plaintiff by the speaking of the words she had become sad and dejected in mind and enervated, en- feebled, and languid in body for a long space of time, to wit, for the space of six months, during all which time she suffered and underwent great pain and anguish, and was hindered and prevented from transacting her necessary affairs and business, te her damage of $5,000. To this declaration the defendant put in a general demurrer. Savage, C. J. It is now too late to interrupt the current of authority adjudging the words charging a, female with lewd- iiess are not actionable, though it is very palpable that the pre- sumption of damage is quite as strong as in any case in which it is presumed. For instance, damage is presumed if one charges a clergyman with intemperance or profligacj^, because they tend to his temporal damage. So a charge of dishonesty in a lawyer, bankruptcy in a merchant, ignorance in a physi- cian, and many other cases ; but where a charge of want of chastity is made against a female, which has a tendency to 378' SLANDER. destroy her character and prospects in life, no action lies unless she can prove special damage. The Courts have long regretted that thej'^ had- not authority to adjudge differently ; they have not the power, and Legislatures have not the incli- nation to do justice to injured female innocence. The Courts, sensible of the injustice of the law in this respect, have shown an inclination to lean in favor of such plaintiffs in regard to special damage ; and any damage, however slight, has been held sufficient to sustain the action. Thus, in Moore v. Meagher, 1 Taunt. 39, where the plaintiff averred that, by reason of similar charges, she had lost the benefit of the society and hospitality of friends who had previously entertained her gratuitously, the ' words were adjudged actionable, on the ground that the plaintiff sustained damage in consequence of the slanderous words. It is true that in that case the plain- tiff added that she had been deprived of an income, which probably would have continued but for the speaking of the words. So in Olmsted v. Miller, 1 Wendell, 506, the plaintiff in the Court below stated the slanderous words to be a charge of lewdness, and alleged as special damages that the keeper of a public house, on account of the slanderous words, re- fused to provide her with meat and drink, which was proved upon the trial ; and also that a person refused to take her into his family to reside, by reason of the slanderous words, until he cleared up her character ; and although the plaintiff failed in her suit on another ground, yet it was said that the special damage was probably sufficient. In the case now be- fore the Court the plaintiff alleges that she lost her health, and thereby became incapable of performing and transacting her necessary affairs and business. She does not, indeed, allege in terms a pecuniary loss, but alleges that which must neces- sarily involve such loss. It is said that the special damage must be the legal and natural- consequence of the words spoken. On this point there is no difficulty. The question now arises upon the declaration, and the plaintiff expressly avers that " by means of the speaking of which said several false, slanderous, malicious, and defamatory words," she sustained MAINS V. WHITING. 379 the damage already mentioned. The truth of this allegation is admitted by the demurrer. The only question, therefore, arising upon the record is whether loss of health and consequent derangement of busi- ness is such a damage as will sustain a suit for slander. The damage alleged in this case is surely equal to that stated in Moore v. Meagher or Miller v. Olmsted. I am of opiuion that it is sufficient, and, of course, that the plaintiff is entitled to judgment on the demurrer, with leave to the defendant to plead on payment of costs. Cook V. Cook, 100 IMass. 194 ; Moore v. Meagher, 1 Taunt. 39 ; Anony- mous, 60 N. Y. 262 ; Bastwick i: Nickelson, Kirby (Conn.), 65 ; Terwilliger v. Wands, 17 X. Y. 54 ; Boldt v. Budwig, 19 Neb. 739 ; Brown v. Smith, 13 C. B. 596, 17 E. C. L. ; Oakley v. Farrington, 1 Johns. Cas. 129 ; Odiorne V. Bacon, 6 Cush. 185 ; Pettibone v. Simpson, 66 Barb. 492 ; Underhill v. ^yelton, 32 Vt. 40 ; Jaggard, 489 ; Bishop, 275 ; Cooley, 203 ; Pollock, 290. b Libel. (1) Definition. Libel is the false and malicious Mvritten slander 'which would give rise to a cause of action per se if published orally ; or which has done special damage ; or which imputes moral or physical defect ; or is calculated to bring the party into hatred, contempt, or ridicule. (2) Words actionable per se. (a) Words actionable when oral slander, are actionable when written slander, or libel. Mains v. Whiting. Supreme Court of Michigan, 1891. 87 Mich. 172 ; 49 N. W. 559. (Ante, page 368.) Minn. Stat. 1894, U 5138 (1), 5258, 6496-6507, 5417, 5418; Minn. Laws 1895, ch. 30 and 33 ; Jaggard, 494 ; Bishop, 278 and 281 ; Cooley, 205 ; Bigelow, 96. 380 LIBEL. (b) Words subjecting one to hatred, contempt, or ridicule^ SoLVERsoN V. Peterson. Supreme Court of Wisconsin, 1885. 64 Wis. 198 ; 25 N. W. 16. Orton, J. The appellant, the defendant in the Circuit Court, interposed a general demurrer to the complaint, which was overruled. The only question on this appeal is whether the alleged publication is libelous. The main facts stated in the complaint are as follows : The libelous article was pub- lished by the defendant of, and concerning the plaintiff, in the Oconomowoc Local, a paper published in Waukesha County, and in circulation in the county of Dodge, where the plaintiff resided, and which was read and understood by many persons, imd tended to expose the plaintiff to public ridicule, and did so expose him, and it was published by the defendant for the purpose of exposing him to public hatred, contempt, and ridicule. The main charges in said publication are as follows : The plaintiff is spoken of as the " King of the Norwegians — a character so mystical and eccentric that every one would be interested to hear from him." " He takes us back to the time when the star of human progress was just rising above the dark horizon of human ignorance ; when the King of Babylon was changed into an ox and lived on grass." " But let us doubt such things no longer, when I tell you at the present time this great king, in whose veins courses the blood of the ancient viking, has turned into an enormous swine, which lives on lame horses," etc. "He still retains the faculty of ' speech." " Great sympathy is felt for him by Norwegians all over the world, who keep sending him lame horses. Doctors say there is no hope for his recovery, and he will probably re- main a swine the rest of his days." The plaintiff is here ironically spoken of as a king and a descendant of kings, as if he had assumed such a high char- acter among his countrymen, and he is compared to the king SOLVEKSON V. PETERSON. 381 of Babylon, who fell so low as to eat grass in the fields, and he is said to have turned into an enormous swuic, living upon the carrion of lame horses, as the public, not cognizant of the particular meaning intended by the allusion to " lame horses " may well understand, and he barely retains the faculty of speech, and there is no hope of his recovery, and he will probably always remain a sivine. Is not this the most offensive kind of ridicule and most intensely contemptuous, and does it not tend, and was it not intended, to bring the plaintiff into ridicule and contempt, and to injure his standing and reputa- tion as a citizen? How could a man be lower, meaner, or more filthy, than to have the character, habits, and ways of a sivine. Of course, no one would understand that the defendant in- tended to charge the plaintiff with being veritably a hog. The plaintiff is compared with this low and filthy animal to indi- cate that he has fallen to the very lowest degree of human deg- radation, morally, intellectually, and physically. It was sup- posed that the prodigal had fallen to the very lowest condition when he became the associate of swine, and lived upon the same food. " "Words which hold the plaintiff up to contempt, hatred, scorn, or ridicule " are libelous : Odgers, Lib. 21. This is the common definition of libel. Is it difficult to see that these words fall within this definition ? Words of com- parison may be as libelous as those importing a direct charge ; such as, " He is thought no more of than a horse-thief and a counterfeiter:" Nelson v. Musgrave, 10 Mo. 648 ; " A frozen snake:" Hoare v. Silverlock, 1 Q. B. 624; "An itchy old toad:" Villers v. Monsley, 2 Wils. 403; "He is a black sheep :" M'Gregor v. Gregory, 11 Mees. & Vi. 287. " Likening persons to certain animals," such as imputing to a person their qualities, may be libelous : Folk. Starkie, Sland. 165. The learned counsel of the appellant claims that the language used in this publication is equivocal or ambiguous. If these words mean anything, they mean to attribute to the plaintiff the meanest of character and conduct. They certainly have not two meanings, one of which may be innocent and the other libelous. They are not ambiguous. It is further claimed that 382 LIBEL. the words are not libelous because their allusions to certain transactions, which give to them a particular meaning, are not understood or explained by innuendo, and hence they have a doubtful meaning ; and it is said in the brief of the learned counsel for the appellant, bj'' way of illustration, " A man may be called a swine because he is gluttonous, or because he is grasping or self-seeking, and the Court cannot say in which of these senses the word is here used." If this word may be un- derstood to impute either or both of these base qualities to the plaintiff it is sufficient. In comparing the plaintiff 's present character and condition with that of a swine, the publication does not limit the impu- tation to any particular quality of that animal, and therefore the public may well understand that it was intended to im- pute to him all of the offensive qualities of a hog, and cer- tainly the article was not intended to give the plaintiff the credit of having any of the good qualities of that animal, if it has any. The obvious meaning of the publication is well ex- pressed by the learned counsel in his brief, even at a close risk of a repetition of the libel, when he says : " It seems most likely, therefore, that the libelous charge which rankled and festered in the plaintiff 's breast for the nine long weary months between the publication of this alleged libel and the com- mencement of this action ivas that he, the king of the Norwegians, who had so long enjoyed the confidence and esteem of the com- munity, had become a swine, or, to put it as it is more commonly and vigorously put, a hog" — i. e., like a hog, as far as a man can possess the offensive characteristics of a hog. A precise pre- cedent of this libel may not be found in the books, but it clearly falls within the rule of all cases in which the libel contained a gross imputation upon the character and conduct of the plaintiff, tending to bring him into ridicule and con- tempt, and the citation of the thousands of quite similar cases is unnecessary. The sum of all of them is " that language in writing (concerning an individual as such) is actionable per se, which denies to a man the possession of some such worthy quality as every man is a priori to be taken to possess, or DAVIS V. MAKXHAVSKN. 383 which tends to bring a party into public hatred or disgrace, or to degrade him in societj', or to expose him to hatred, con- tempt, or ridicule, or which reflects upon his character, or im- ports something disgraceful to him, or throws contumely on him, or contumely and odium, or tends to vilify him or injure his character, or diminish his reputation, or which is injurious to his character, or social character, or shows him to be immoral or ridiculous, or imputes to him a degradation of character," etc. : Townsh. Sland. & Lib., § 176. It is too clear for further argument that this case falls far within these rules. The demurrer was properly overruled. By the Court. The order of the Circuit Court is affirmed, and the cause remanded for further proceedings according to law. Wilkes V. Shields, 64 N. W. 921 ; Traynor v. Seiloff, 64 N. "VV. 915 ; State r. Mason, 38 Pac. 180 ; Bidwell c. Eademacher, 38 N. E. 879 ; Piper r. AVool- man, 61 X. W. 588 ; Pfitzinger v. Dubs, 64 Fed. 696 ; Manget v. O'Neill, 51 Mo. App. 35 ; Achom - . Piper, 66 la. 694 ; Donague v. Gaffy, 54 Conn. 257 ; McGregor r. Gregory, 11 M. & W. 287 ; Villers r. Mou^Iey, 2 "Wilson, 403 ; Barr r. Moore, 87 Pa. St. 390 ; Atwill v. Mcintosh, 120 I\Iaps. 177 ; Jaggard, 496 ; Bishop, 259 and 285 ; Cooley, 205 ; Bigelow, 96. (3) Malice. Malice either express or implied in this connection signiiies merely the absence of just cause and excuse accompanying the defamation. Davis v. Marxhausex. Supreme Court of Michigan, 1894. 61 N. ^Y. 504. Montgomery, J. This case was before the Court at the April Term, 1891, and is reported in 86 Midi., p. 281 ; 49 N. W., p. 50. On the first trial defendant recovered. The judgment was reversed by this Court and a new trial ordered. On the retrial a judgment for nominal damages was recovered by plaintiff, and he again appeals. 384 LIBEL. The action is for libel in publishing the following article : " The pohce detectives, Noble and McDonald, yesterday- arrested Michael Davis, who resides at No. 311 East Columbia Street, and Charles Davis, living at No. 2344 liastings Street, on account of larceny of a quantity of lead pipe belonging to the company, who are about to bring natural gas to Detroit." In the next issue of the paper the following was published : " The Michael Davis who was arrested for the larceny of lead pipe — the item which was published shortly on last F^-iday — does not live at No. 311 Columbia Street. This error was caused by a fault in the writing." Six days later plaintiff's attorney addressed a letter to the defendant, stating that he had been retained to bring an action for libel, and that the notice was given in compliance with the libel law of 1889. And on the same day the defendant published an article as follows : " A mixing up of persons. In the number of the Abend Post, of Saturday, November 15, there was a small item published, in which it was stated that Michael Davis and another man had been arrested on account of stealing lead pipe, or had stolen some lead pipe, and on that account had been arrested. So far the notice was correct ; but the residence of Michael Davis was given at 311 East Columbia Street. In this respect it was error. In that house there lives truly a Michael Davis, and a thoroughly honest man, to whom, on account of this error, an unfortunate injury has been done. In last Sun- day's paper, scarcely twelve hours after the publication, we corrected the mistake in this erroneous notice, but we do it now in order to do the fullest justice to the man who is injured." The proofs also show that the paper is only furnished to sub- scribers, so that, presumptively, the correction reached the same persons who read the libel. The Court directed a verdict for the plaintiff, and the only questions which we need discuss therefore are those which relate to the rulings respecting the subject of damages. The plaintiff requested the Court to charge that " the law presumes that the article was published maliciously, and the burden is upon the defendant, to show that he acted in good DAVIS i'. HAliXlIAUHEN. 385 faith, and with proper motive," and that " the willful publica- tion of injurious statements involves the design to produce v.-hatever injury must necessarily follow, and when done pur- posely, knowinglj', and for no good purpose or justifiable end, it is malicious in the sight of the law, even if done without any actual personal ill will." These requests undoubtedly em- bodied the law on the subject, and should have been given un- less the defendant has shown conclusively that the publication was made for justifiable ends, and that the article was made to point to the plaintiff through a mistake. The record fails to show this state of facts. It was therefore error to refuse to give the instruction asked, and to charge the jury as the Cir- cuit Judge did on his own motion, that " there was no evidence from which improper motives, on the part of the defendant, would be inferred :" Tribune Co. v. McArthur, 16 Mich. 451 ; Whittemore v. AVeiss, 33 Mich. 353 ; Association v. Tryon, 42 Mich. 549, 4 N. W. 267; Newell Defam., pp. 319, 321 ; Bacon V. Railroad Co., 55 Mich. 224, 21 N. W. 324. It was competent for the defendant to offer testimonj^ to show the want of actual malice, as that the publication was made through mistake, and that all proper precautions were ob- served by which the damages will be reduced to such a sum as will compensate for the injury which must inevitably have re- sulted : Scripps v. Reilly, 38 Mich. 23 ; Association v. Tryon, 42 Mich. 549, 4 N. W. 267. But the defendant did not, in this case, make these facts appear conclusively. The cir- cumstances of the publication are not shown, except as the jury are left to infer that because another Michael Davis was arrested, the defendant must, in publishing this libel, have in- tended, in good faith, to refer to that Michael Davis, and not to the plaintiff. If any such inference is deducible from the testi- mony, it should have been left to be drawn by the jury. The retractions were not evidence of the circumstances under which the original publication was made, or of the good faith of the publication. They were admissible — their publication having occurred before suit brought, and immediately fol- lowing the libel — in mitigation of damages : Newell Defam., 25 386 LIBEL. p. 907 ; Storey v. Wallace, 60 111. 51. While the case is mani- festly one in which large damages should not be awarded, yet it is clear that the record fails to show conclusively that the publication occurred through mistake, and while in the ex- ercise of reasonable care. There are no other questions which we think require dis- cussion. For the error pointed out the judgment will be re- versed, with costs, and a new trial ordered. Lilea v. Gaster, 42 Ohio St. 631 ; King v. Patterson, 9 Atl. 705 ; Windish V. Hamilton, 16 So. 856; Childers v. Pub. Co., 38 Pa. St. 903; Eepublican Pub. Co. V. Conroy, 38 Pa. St. 423 ; Mowry v. Eaabe, 27 Pac. 157 ; Brue- shaber v. Hertling, 78 "Wis. 498 ; Mitchell v. Mulholland, 106 111. 175 ; Dixon V. Allen, 69 Cal. 528 ; Trabue v. Mayr, 3 Dana, 138 ; Bell v. Fernald, 38N. W. 910; Minn. Stat. 1894, ? 6842 (3) ; Jaggard, 512; Bishop, 257; Cooley, 209 ; Pollock, 305 ; Bigelow, 99. C Justification. (1) Truth. The truth of the charge being complete and being specially pleaded and proved is a complete defense to civil actions of libel and slander. Ellis v. Buzzell. Supreme Judicial Court of Maine, 1872. 60 ile. 209. Barrows, J. The plaintiff claims to recover damages of the defendant, because, he says the defendant falsely charged him with the commission of the crime of adultery. The defendant says the plaintiff ought not to recover dam- ages, because the accusation was not false, but true, and he testifies that he saw the plaintiff in the act of adultery with a certain woman. The plaintiff denies this in his testimony, and produces the deposition of the woman, who denies it also. Hereupon he requests the Judge to instruct the jury that the defendant, in order to maintain the defense, must prove the ELLIS 1'. BUZZELL. 387 act of adultery upon him beyond a reasonable doubt, the same as if he was on trial for the commission of the crime. The Judge refused so to instruct, and, on the contrary, in- structed the jury that if the defendant had made out the truth of the charges against the plaintiff by a preponderance of testi- mony, it ^Yas sufficient to entitle him to a verdict ; and that proof of the truth of the statements made by the defendant would be a complete justification for uttering them. In suits to recover damages for what is alleged to have been slander, the truth of the charges made by the defendant against the plaintiff has always been deemed a sufficient justification, even though they were maliciously made. We see this in the form and tenor of the plea in justification which simply asserts the truth of the words spoken : AYent PI., vol. 3, p. 236 ; Chit. PL, vol. 3, p. 525 ; Foss v. Hildreth, 10 Allen, 76. Unless the charge made by the defendant against the plain- tiff was false, as Avell as malicious, the plaintiff has no right to recover damages from him. The falsehood of the charge is ;i necessary element in the plaintiff's case. He cannot complain of any one for speaking of him nothing but the truth. The burden, however, of proving that what he has said is true rests rightfully enough upon the defendant, not only because he holds the affirmative according to the pleadings, but because of the presumption of innocence. This pre- sumption, as well as whatever testimony the plaintiff may offer to repel the charge, the defendant must be prepared to overcome by evidence. But when he has done this by that measure and quantity of evidence which is ordinarily held sufficient to entitle a party upon whom the burden of proof rests to a verdict in his favor in a civil case, shall he be required to go further, and in order to save himself from being mulcted in damages for the benefit of the plaintiff, free the minds of the jury from every reason- able doubt of the plaintiff's guilt, as the State must in the trial of a criminal prosecution ? We see no good reason for thus confounding the distinction which is made by the best text-writers on evidence, between 388 LIBEL. civil and criminal cases with regard to tlie degree of assurance which must be given to the jury as the basis of a verdict : Greenl. on Ev., vol. 3, § 29 ; Roscoe's Crim. Ev., p. 15 ; Best on Presumptions, § 190 ; Starkie on Ev., 1st Am. ed., Part 3, § 52, vol. 2, pp. 450, 451. It is true that this distinction has heretofore been carried into civil cases and applied to suits in which it incidentally became necessary to determine, in order to settle the issue which the parties were litigating, whether one of the parties had committed an offense against the criminal law. Hence have arisen in these actions for defamation among others a series of decisions which, if juries had acted according to their tenor, would have been productive not unfrequently of very unjust results. Practically we do not consider the form of expression used in the instructions to juries in cases of this description as very likely to change the result. We do not believe, if the jury in the present case found themselves inclined to believe upon the whole evidence that the plaintiff was verily guilty, as the defendant had said, that they would have proceeded to assess damages in his favor, because he might have started a reason- able doubt in their minds whether he ought to be convicted of the crime and sent to the State prison, upon that evidence, even had they been so instructed. The practical effect of such an instruction would probably have been to eliminate the doubt from the minds of the jury, not to change the result at which they arrived. But we think it best to recognize what has been justly said to be " well understood that a jury will not require so strong proof to maintain a civil action as to convict of a crime ;" and to draw the line between the cases where full proof beyond a reasonable doubt shall be required, and those where a less de- gree of assurance may serve as the basis of a verdict, where the juror instinctively places it, making it to depend rather upon the results which are to follow the decision than upon a philo- sophical analysis of the character of the issue. We must remember, as remarked by Roscoe, ubi supra, that "in civil ELLIS V. BUZZELL. 389 cases it is always necessary for a jury to decide the question at issue between the parties ; . . . however much, tlierefore, they may be perplexed, they cannot escape from giving a verdict founded upon one view or the other of the conflicting facts before them ; presumptions, therefore, are necessarily made upon comparatively weak grounds. But in criminal cases there is always a result open to the jury which is practically looked upon as merely negative — namely, that which declares the accused to be not guilty." This is often substantially deemed equivalent only to " not proven," and in cases of doubt it is to this view that jurors are taught to lean. A greater degree of caution in coming to a conclusion should be practiced to guard life or liberty against the consequences of a mistake always painful, and possibly irreparable, than is necessary in civil cases, where, as above remarked, the issue must be settled in accordance with one view or the other, and the verdict is followed with positive results to one party or the other, but not of so serious a nature. lu England there was a reason for carr3'ing the distinction thus made between civil and criminal cases into suits of this description — which never existed here — because there, as Lord Kenyon remarked in Cook V. Field, 3 Esp. 133, " where a defendant justifies words which amount to a charge of felony, and proves his justifica- tion, the plaintiff may be put upon his trial hj that verdict without the intervention of a grand jury ;" and so penal conse- quences might in some sort be said to follow the verdict in a civil cause. See note (a) to Willmet v. Harmer, 8 Car. & P. 695, in E. C. L. E,., vol. 34, p. 590, and the cases there cited. Considering the universal presumption in favor of innocence, and the fact that whether it is presented directly, on the criminal side, or arises incidentally on the civil side, it is still the same question — guilty or not guilty — which is to be deter- mined, it is not at all strange that those English decisions should have been followed in this country, though the reasons that operated there were wanting. But we think it time to limit the application of a rule which 390 LIBEL. was originally adopted in favorem vitas in the days of a san- guinary penal code, to cases arising on the criminal docket, and no longer to suffer it to obstruct or encumber the action of juries in civil cases sounding only in damages. Nor in so doing do we deprive the plaintiff in an action of this sort of any substantial right. It is doubtless incumbent upon the defendant to " make out " (as the phrase was in the ruling here complained of) — i. e., to satisfy the minds of the jury by a preponderance of evidence of tiie strict truth of the words he uttered. And the plaintiff is entitled to the full benefit of the presumption of innocence ; for, as was justly suggested by Walton, J., in Knowles v. Scribner, 57 Maine, 497 (where we held the complainant in a bastardy process against a married man not bound to furnish the same amount of proof of the defendant's guilt, as would be necessary to convict him if he were on a trial for adultery, in order to entitle herself to a ver- dict and contribution from the father of her bastard child, " it is more accurate to say that there is no preponderance unless the evidence is sufficient to overcome the opposing presump- tions as well as the opposing evidence." If the words said to be slanderous impute to the plaintiff the commission of a crime, the defendant must fasten upon the plaintiff all the elements of the crime, both in act and intent, and to do this he must furnish evidence enough to overcome, in the minds of the jury, the natural presumption of inno- cence as well as the opposing testimony. But to go further, and say that this shall be done by such a degree and quantity of proof as shall suffice to remove from their minds every reasonable doubt that might be suggested, is to import into the trial of civil causes between party and party a rule which is appropriate only in the trial of an issue between the State and a person charged with crime and exposed to penal consequences if the verdict is against him. The doctrine contended for by the plaintiff did not prevail in the Courts of New Hampshire or North Carolina : Mat- thews V. Huntley, 9 N. H. 1-50, per Parker, C. J. ; Folsom v. Brown, 5 Foster, 122 ; Kincade v. Bradshaw, 3 Hawks. 63. ELLIS V. BUZZELL. 391 It is worthy of remark, that, with a very few unimportant exceptions, the cases in which it has been held that to sustain a plea of justification the defendant in an action of slander must adduce such proof as would suffice for the conviction of the plaintiff upon an indictment, have been cases in which the words used imputed perjury to the plaintiff, and in most of them the matter more directly under consideration has been the propriety of regarding the plaintiff's testimony upon the occasion referred to, as evidence in the case, to be overcome by the production of more than one witness to prove its falsity — the necessity of showing that his testimony was false in intent as well as in fact — its materiality or some point affect- ing the truth of the charge, and not the necessity of proving the commission of the crime beyond a reasonable doubt. We have no occasion to question those decisions so far as they enforce the necessity of proving all the elements neces- sary to constitute the crime charged by an amount of evidence sufficient to overbalance the plaintiff's side of the case. It may be, and probably is, true that the compendious phrase, "sufficient to convict the plaintiff upon an indictment," has had reference more frequently to the matters which it was necessary to establish than to the degree of assurance upon which the jury should act. In our own case of Newbit v. Statuck, 35 Maine, 318, the consideration of the precise question here raised was studiously and expressly avoided. Exceptions overruled. Castle V. Houston, 19 Kans. 417 ; Eiley v. Norton, 65 la. 306 ; Wolfard r. Pub. Co., ."2 X. E. 929 ; Holmes v. Jones, 121 N. Y. 461 ; ■ Thompson v. P. P. Co., 37 Minn. 28.5 ; Campbell i'. Spattiswoode, 3 Best & S. 769, 113 E. C. L.; Huson !'. Dale, 19 Mich. 17 ; Hutchinson v. Wheeler, 35 Vt. 330 ; Bourland r. Eidson, 8 Gratt. 27 ; Jaggard, 522 ; Bishop, 288 ; Cooley, 207 ; Pollock, 323 ; Bigelow, 98 ; Minn. Stat. 1894, j 6501. 392 LIBEL. (2) Privileged Communication. (a) Absolutely privileged. The law to secure the fearless discharge of public duties gives absolute protection to language used in the exercise of parliamentary and judicial functions. LiLES V. Gaster. Supreme Court of Ohio, 1885. 42 Ohio St. 631. JoHjJSON, J. From the petition, it appears that the words charged, if disconnected with the circumstances under which they were uttered, are actionable per se. These circumstances disclose the fact they that were uttered while the defendant below was giving his testimony in a trial before a justice of the peace. It appears there was action then on trial, wherein one Bealer was plaintiff, and defendant in error and his brother were defendants. It does not appear what the nature of that action was, nor in whose behalf the plaintiff in error testified. We infer from what follows that Bealer's suit related to serv- ices rendered by him to the Gaster brothers. The plaintiff in error was sworn as a witness, and during his examination testified that Bealer had in the fall of 1871 put in all the wheat on the farm of the Gaster brothers, the defendants in that action. He was then asked where the Gaster boys were at the time. He answered, "Jacob Gaster" (meaning the plaintiff below in this action) " had run away." He was then asked why he had run away. He answered, " For poisoning old man "Wagner." He was further asked how he knew. He said, " Everybody says so." These statements were made in the presence of the Court, jury, and spectators while defendant in error was giving evi- dence as a sworn witness. Petition charges that this evidence was false and malicious, and was given for the purpose of in- juring the plaintiff below, and of causing it to be believed that he was guilty of poisoning old man Wagner. It does LILES V- GASTEK. 393 not appear what was the nature of the cause of action then on trial, nor whether the evidence so given was or was not rele- vant to the issue. Under the circumstances we must assume that it was pertinent and material. It may fairly be presumed from the tenor of the examination that it was called out upon cross-examination by the defense in that action. The Court of Common Pleas held that the witness was pro- tected from an action for slander while giving such testimony in that case ; in other words, his testimony was what was known as a privileged communication. The District Court held that it was not. The question, therefore, is whether a witness who gives testimony pertinent to the issue in a judicial proceeding is liable to an action of slander because such testi- mony is false and malicious. It is not averred that the wit- ness kneiv, when he made these statements, that they were false. For aught that appears, he may have believed them to be true, though they were, in fact, untrue. He could not be convicted of perjury unless it appeared that his testimony was not only false, but that it was willfully and knowingly made. We are not called upon, in the case at bar, to determine whether there may not be cases where a witness may not sub- ject himself to an action for damages for statements made while giving his testimon}', where he abuses his privileges as a witness, and makes it an occasion to utter defamatory words against another, where the words are false, are not rele- vant to the issue, and where he is actuated by express malice. The general rule is that language used in the ordinary course of judicial proceedings, whether by the Judge, a party counsel, jurors, or witnesses, is protected if it be relevant to the matter under consideration, and the Court have jurisdic- tion. The privilege accorded to a witness under such circum- stances is founded upon public policy. The due administra- tion of justice requires that a witness should be perfectly free to speak according to his belief, witliout regard to consequences. He is sworn to tell the truth, the whole truth, and nothing but 394 LIBEL. the truth, concerning the matter in trial. "While doing so in good faith, he is absolutelj^ privileged, and cannot be found guilty of perjury, nor is he liable to a civil action : thus far all the authorities agree. An eminent author thus states the reason of the rule : " We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were other- wise. With duty often comes a responsibility to speak openly and act fearlessly, let the consequences be what they may ; and the party upon whom the duty was imposed must be left ac- countable to conscience alone, or perhaps to a supervising public sentiment, but not to the Courts. What would be the condition of the witness, for instance, were he under the necessity of calculating, when giving his testimony, not merely whether it satisfied his conscience, but also whether he could prove it to be true should he be sued for slander in giving it? It is beyond doubt that to subject him to such responsibility would at least detract largely from the reliability of evidence, and multiply the opportunities for operating upon the fears of witnesses to the serious detriment of justice:" Cooleyon Torts, 211. In a recent English case (Munster v. Lamb, 23 American Law Register, 12 ; 11 L. R., Q. B. Div. 588), Brett, Master of the Rolls, says : "Actions for libel and slander have always been subject to one principle ; defamatory statements, though they may be actionable on ordinary occasions, nevertheless are not action- able when they are made upon certain occasions ; it is not that these statements are libel and slander subject to a defense, but the principle is that defamatory statements, if they are made on a privileged occasion from the very moment when they are made, are not libel or slander of which the law takes notice." Malice is either express or implied. If the occasion is such that the statement is privileged, the presumption of legal or LILES V. GASTER. 395 implied malice is rebutted, and the burden is on the plaintiff to aver and prove malice in fact, or express malice ; but even such malice does not render the words of a witness, who testifies in good faith to matters deemed by the Court wherein he is testifying to be admissible, actionable, eveu though the testimony be irrelative to the issue. If the witness, in such a case, believe his statements to be true, though in fact they are false, malice in fact will not render him liable in damages. What his liability in this respect may be, if he was guilty of intentional falsehood and actual malice, we need not here determine, as the case made does not require it. Neither does it require us to determine such liability if a witness disregard the obligations of his oath, and willfully and maliciously perverts the truth, and takes advantage of his position to utter false, malicious, and slanderous words. Whether in such cases a witness is liable only to an indict- ment for perjury, as many authorities hold, or may also be liable to a civil action, as others maintain, is a question not now before us. In the case at bar, the inference or presumption of malice that would arise if the words were not spoken as a witness in a judicial proceeding, is rebutted by the occasion stated : Odgers on Libel and Slander, 186-193 ; Cooley on Torts, 211-215. The burden of removing this presumption and of averring and proving a state of facts that would not justify a witness in claiming protection rests upon the plaintiff. The case made by the petition raises no question of fact for a jury. Whether a question is privileged is a question of law. The petition does not make, if we concede one could be made, a case of a qualified privilege, to be submitted to a jury. The testimony was given before a competent Court by a sworn wit- ness in answer to pertinent interrogatories. His answers were, so far as we are advised, material to the case, made in good faith and believed to be true, though in fact false. It is not averred that he went outside of his duty, and abused his privilege by knowingly and willfully uttering false and de- famatory words. 396 LIBEL. This being so, public policy demands that he should be pro- tected, even though he was actuated by malice, as well as a purpose to perform a duty imposed by law upon him as a wit- ness : 23 Am. Law Register, note to case on p. 12 ; Lanning v. Christy, 30 Ohio St. 115. Judgment of the District Court reversed and that of the Common Pleas affirmed. Dunham v. Powell, 42 Vt. 1 ; Traynor v. Seiloff, 64 N. W. 915 ; Hastings V. Lusk, 22 Wend. 410 ; Hoar v. Wood, 3 Meto. 197 ; Wyatt v. Buell, 47 Cal. 624 ; Barnes v. McCrate, 32 Me. 442 ; Nessin v. Cramer, 104 N. C. 574 Pace V. Coolidge, 121 Mass. 393 ; Post Pub. Co. v. Maloney, 33 N. E. 921 Piper V. Woolman, 61 N. W. 588 ; Baldwin v. Hutchinson, 35 N. E. 711 Wright V. Lathrop, 149 Mass. 385 ; Smith v. Howard, 28 la. 51 ; Mower v. Watson, 11 Vt. 536 ; Bradley v. Heath, 12 Pick. 163 ; Owen v. Dewey, 65 N. W. 8 ; Minn. Laws, 1895, ch. 31 ; Jaggard, 526 ; Bishop, 295 ; Cooley, 210, 211 ; Pollock, 327 ; Bigelow, 101. (b) Qualifiedly privileged. When the lav7 or social duty recognizes an obligation resting upon a party to make certain utterances, they are privileged upon condi- tion that they are made honestly and without malice. Crane v. Waters. Circuit Court of the United States, 1882. 10 Fed. 619. Action of tort for libel. On demurrer. The defendants published in their newspaper, the Boston Daily Advertiser, an article concerning an attempt of Edward Crane, the plaintiff, to procure the election of direc- tors of the New York & New England Railroad Company at the then recent annual meeting. The article was entitled " History Repeated," and purported to give a narrative of the dealings of the plaintiff with the Boston, Hartford & Erie Railroad Company by which he had brought it to bankruptcy, and to give the impression that he intended to act in a similar way with the New York & New England, which was a corpo- CKANE V. ^VATEES. 397 ration formed by the bondholders of the other road. The project attributed to the plaintiff included the buying up of cer- tain railroads in Connecticut, consolidating them with the New York & New England Company, etc. It alleged that the plaintiff's schemes were exposed by skillful questioning at the meeting, and that he had retired discomfited. The plaintiff, in his declaration, .set out this article in full, and in the first count alleged damage generally ; in the second that he was a manager and constructor of railroads, and was engaged in a business undertaking to make a through line be- tween Boston and New York by the purchase and construction of railroads, and that the New York & New England Eailroad was to be a part of the line ; but, by the publication of the libel, he lost the support of some of his associates, and of stockholders of that road, and suffered special damage. The defendants answered — First, that the statements made in the article were true ; second, that the railroad concerning which the article was written was a public work of great im- portance to the Commonwealth and people of Massachusetts, and in which the Commonwealth was a large stockholder ; that the other stockholders were numerous, and could only be reached through the press ; that the effort of the plaintiff to obtain control of the railroad was a matter in which the public were interested, and was a proper subject of discussion in the newspapers ; and that the defendants, believing that such con- trol would be a public misfortune, and would be a serious in- jury to the railroad and to the public, discussed the plaintiff 's plans and qualifications in good faith, and without malice; and that they made only such statements and reflections as they believed, on due inquiry and reasonable grounds, to be true and just, and warranted by the plaintiff's acts. To this second part of the answer the plaintiff demurred. Lowell, C. J. For the purpose of deciding this demurrer it must be assumed that the plaintiff had conceived and begun to carry out a plan for making a railroad from Boston to New York by the consolidation of certain shorter lines, and other- 398 LIBEL. wise, and that it was a part of his plan to obtain control of the New York & New England Company by electing directors favorable to his scheme ; that the publication of the article complained of interfered with this plan to his prejudice ; and that the statements of the article were not true, but were published in good faith, without express malice, and were, upon reasonable inquiry by the defendants, believed by them to be true. The contention then is, on the part of the defendants, that the subject-matter is one in which the public has an interest, and that in discussing a subject of that sort a public speaker or writer is not bound at his peril to see that his statements are trae, but has a qualified privilege, as it has been called, in re- spect to such matters. The modej-'n doctrine, as shown by the cases cited for the de- fendants, appears to be that the public has a right to discuss, in good faith, the public conduct and qualifications of a public man, such as a Judge, an Ambassador, etc., with more freedom than they can take with a private matter, or with the private conduct of any one. In such discussions they are not held to prove the exact truth of their statements, and the soundness of their inferences, provided that they are not actuated by ex- press malice, and that there is reasonable ground for their statements or inferences, all of which is for the jury : Kelly v. Sherlock, L. R. 1 Q. B. 686 ; Kelly v. Tinling, lb. 699 ; Mor- rison V. Belcher, 3 F. & F. 614 ; Hen wood v. Harrison, L. R. 7 C. P. 606 ; Davis v. Duncan, L. R. 9 C. P. 396 ; Gott v. Pulsi- fer, 122 Mass. 235. Some of the affairs of a railroad company are public and some are private. For instance, the honesty of a clerk or serv- ant in the office of the company is a matter for the clerk and the company only. The safety of a bridge on the line is a subject of public moment. The public, in this sense, is a number of persons who are or will be interested, and yet who are at present unascertainable. All the future passengers on the road are the public, in respect to the safety of the bridge, and as they cannot be pointed out, you may discuss the con- CEAXE V. WATEES. 399 struction of the bridge in public, though you thereby reflect upon the character of the builder. If this definition of the public is a sound one, the Commonwealth, considered as a stockholder, is not the public, for its interests are intrusted to certain officers, who are easily ascertained ; nor would the in- terests of the shareholders become a public matter merely by reason of their number, unless it were proved that it would be virtually impossible to reach them individually. If, therefore, the question were merely of the eff'ect of the scheme upon the shares of the New York & New England Railroad Company, a corporation already chartered and organized, I should doubt somewhat whether it would be of a public nature. But, inas- much as the project was one which affected a long line of road, as yet only partly built, and the consolidation of several com- panies, it assumes public importance. Perhaps the right of legislative interference may be taken as a fair test of the right of public discussion, since they both depend upon the same condition. The Legislature cannot interfere in the purely pri- vate affairs of a companj^, but it may control such of them as affect the public. It cannot be doubted, I apprehend, that the Legislatures of Connecticut and Massachusetts would have power to permit or to prohibit or to modify a scheme such as is now in question. It interests the public, consisting of the unascertained persons who will be asked to take shares in it, and those through whose land it will pass or whose business will be helped or hindered by it, that such a line should be well, and even that it should be honestly, laid out, built, and carried through. For this reason the character of the plaintiff, as a constructor and manager of railroads, seems to me to be open to public discussion when he comes forward with so great and important a project affecting many interests besides those of the shareholders of one road ; and that, therefore, the de- fendants, or any other persons, have the qualified privilege which attaches to discussions of public affairs. The distinc- tion is this ; that when a railroad is to be built, or a company to build it is to be chartered, the question whetlier it shall be au- thorized is a public one ; when the company is organized and 400 TRESPASS. the stock is issued, anything which merely affects the value of the stock is private. Demurrer to the answer overruled. Marks v. Baker, 9 N. W. 678 ; Wilkins v. Hytle, 41 N. E. 536 ; Vallery V. State, 60 N. W. 347 ; Locke v. Bradstreet Co., 22 Fed. 771 ; Erber v. Dun, 12 Fed. 526 ; Crane v. Waters, 10 Fed. 619 ; Smith v. Higgins, 16 Gray, 251 ; Quinn v. Scott, 22 Minn. 456 ; Harrison v. Bush, 5 El. & B. 344, 85 E. C. L.; Jaggard, 530 ; Bishop, 203 ; Cooley, 214 ; Bigelow, 101. II WRONGS TO PROPERTY. 1. Trespass. a Definition. Trespass is the unlawful disturbance ■with or vyithout force of an- other's possession of property. (1) Personal property. Dexter v. Cole. Supreme Court of Wisconsin, 1857. 6 Wis. 319. Error to the Milwaukee County Court. The plaintiff declared in trespass, charging the defendant with taking and driving away twenty-two sheep, the property of the plaintiff, to his damage $100. Plea, general issue. The cause was tried before a justice of the peace, to a jury, when it appeared from the evidence that the defendant, who is a butcher at Milwaukee, was driving some sheep he had purchased toward the city, upon the highway, when they became mixed with a small lot of twenty-two sheep of plain- DEXTER V. COLE. 401 tiff, which were running at large upon the highway. The defendant drove the whole flock into a yard near the road, for the purpose of parting them, and did throw out a number which he did not claim, and pursued his way with the re- mainder to his slaughter-house at Milwaukee, where they were slaughtered in his business. The evidence tended to show, and the jury found it did show, by the verdict rendered, that some four of plaintiff's sheep remained in the flock, and were driven to Milwaukep and slaughtered by defendant. The verdict and judgment before the justice were for the plain- tiff. The cause was removed to the County Court of Milwaukee County by a writ of certiorari, when the defendant alleged the following errors in the justice's judgment, to wit : I. That from all the testimony in the case it does not appear that the defendant ought to be charged as a trespasser. II. That there is no testimony that the defendant ever took and converted the sheep to his own use. III. That from the testimony it appears that the action should have been trover, and not trespass, there being no proof of the unlawful taking. IV. The testimony is uncertain and insufficient to found a verdict upon in any form of action. V The verdict is against the evidence. Upon hearing, on certiorari, the County Court reversed the judgment of the justice, and rendered a judgment against the plaintiff before the justice for costs, to reverse which judgment of the County Court this writ of error is brought. Cole, J. We have no doubt but the action of trespass would lie in this case." In driving off the sheep the defendant in error, without doubt, unlawfully interfered with the prop- erty of Dexter ; and it has been frequently decided that to maintain trespass de bonis asportatis, it was not necessary to prove actual forcible dispossession of property ; but that evi- dence of any unlawful interference with, or exercise of acts of ownership over, property, to the exclusion of the owner, would 26 402 TRESPASS. sustain the action : Gibbs v. Chase, 10 Mass. 128 ; Miller v. Baker, 1 Met. 27 ; Phillips & Brown v. Hall et al, 8 Wend. 610 ; Morgan ■;;. Varick, lb. 587 ; Wintringhouse v. La Foy, 7 Cowen, 735 ; Reynolds v. Shuler, 5 lb. 325 ; 1 Chitty PL, 11th Amer. ed., 170, and cases cited in the notes. Neither is it necessary to prove that the act was done with a wrongful in- tent, it being sufficient if it was without a justifiable cause or purpose, though it were done accidentally or by mistake : 2 Green Ev., § 622 ; GruUe v. Snow, 19 J. R. 381. There is nothing inconsistent with these authorities in the case of Parker v. Walrod, 13 Wend. 296, cited upon the brief of the counsel for the defendant in error. Upon the other point in the case, we think there was some evidence to support the verdict of the jury, and therefore the judgment of the justice should not be reversed because the proof was insufficient. It was the province of the jury to weigh the evidence and determine what facts were established by it, and the County Court ought not to reverse the judgment, because the proof was not sufficient in its opinion to justify the finding of the jury. The judgment of the County Court is therefore reversed and the judgment of the justice affirmed. Beuch V. Carter, 32 N. J. L. 554 ; Phillips v. Hall, 8 Wend. 610 ; Ely v. Ehle, 3 N. Y. 507 ; Gibbs v. Chase, 10 Mass. 125 ; Miller v. Baker, 1 Mete. 27 ; Wintringham v. Lafoy, 7 Cow. 735 ; Staples v. Smith, 48 Me. 470 ; Lunt V. Brown, 13 Me. 236; Minn. Stat. 1894, §§ 5415, 5136 (3), 2113, 3992 ; Jaggard, 658 et seq. ; Pollock, 424 ; Bigelow, 178 et seq. (2) Real property. Chandler v. Walker. Supreme Judicial Court of New Hampshire, 1850. 21 N. H. 282. Trespass quare clausum, for cutting and carrying away a quantity of timber from lot No. 6, in the second range of lots CHANDLEK V. WALKER. > 403 in Chatham, in the month of January, 1848. Plea, the gen- eral issue. Eastman, J. The gist of the action of trespass quare clau- sum is the disturbance of the possession. At common law it is not properly an action to try titles, and the question of title does not necessarily arise. It may, however, and often does, where the real ownership is in dispute, and it becomes material to show in whom the rightful possession is. In South Carolina and Alabama the action of trespass is expressly given by statute to try and settle titles to real estate. But where the matter is not regulated by statute the decision of an action of trespass settles nothing in regard to the title beyond the action tried. Whenever the question of title is not raised, so that there is no conflict as to the true ownership, and no title, pos- session, or right of possession is shown on the part of the de- fendant, actual possession by the plaintiff, is all that is required to sustain the action. And as against a wrong-doer — one who has no right whatever to be upon the property — constructive possession, accompanied with the right, is also sufficient : 1 Chitty's Pleading, 195 ; 5 East, 485 ; Hall v. Davis, 2 Carr. & Pajme, 33 ; Revett v. Brown, 5 Bingh. 9 ; State v. Newton, 5 Blackf. 455 ; Brandon v. Grimke, 1 Nott & McCord, 356 ; Read V. Shepley, 6 Verm. Rep. 602 ; Anderson v. Nesmith, 7 N. H. Rep. 167. In addition to the above authorities, there are nu- merous others which sustain the same positions, and the language of Courts is substantially the same. We will in- stance a few of them. " Actual possession without a legal title, is sufficient against a wrong-doer :" 1 Chitty's Pleading, 196 ; Graham v. Peat, 1 East, 244 ; Chambers v. Donaldson, 11 East, 74 ; ilyrick v. Bishop, 1 Hawks's Rep. 485 ; Richardson et al. V. Murrill et al., 7 Missouri Rep. 333. This form of action is used for the violation of the plaintiff's possession ; if he be in the actual occupancy he can maintain the action without title : Johnson v. Mcllwain, 1 Rice's Rep. 375 ; Cahoon v. Simmons, 7 Iredell, 189. The plaintiff is bound only to show that the land was in his possession, either actual or constructive, at the 404 TRESPASS. time of the alleged trespass : DoUoff v. Hardy, 26 Maine Eep. 554. And possession alone, although for a less term than twenty years, is sufficient to maintain an action of trespass quare clausum, except against one who can exhibit a legal title : Moore et al. v. Moore, 21 Maine Rep. 35. Possession of land is sufficient to enable a party to maintain trespass against all who can show no better title, and an entry and survey are sufficient evidence of possession against all who can show no better title : Wendell v. Blanchard, 2 N. H. Rep. 456 ; Sinclair V. Tarbox, 2 N. H. Rep. 135 ; Concord v. Mclntire, 6 N. H. Rep. 527. So entirely does this action depend upon the dis- turbance of the possession, that the owner of land cannot maintain it while the premises are in the actual occupation of the tenant: Holmes v. Seelj'-, 19 Wendell, 507; Anderson v. Nesmith, 7 N. H. Rep. 167 ; Robertson v. George, 7 N. H. Rep. 306. Perhaps it may be maintained by the owner where the entry is accompanied with a permanent injury to the free- hold : Robertson v. George, 7 N. H. Rep. 306. But for the cutting of grass it can only be maintained by the tenant in possession : Bartlett v. Perkins, 13 Maine Rep. 87. Actual possession, then, without title, or constructive possession with, is sufficient to maintain this form of action against a wrong-doer. There is no pretense of title, possession,' or right of posses- sion, on the part of the defendants in this case. They stand in the position of mere wrong-doers, and if they can succeed, it must be because the plaintiff has failed to show himself in possession, either actual or constructive. Producing no paper title, and showing no legal right of ownership to the property, the plaintiff stands solely upon his possession. Was that such as would give him a right to maintain this suit ? The case finds that lots 6 and 7 were adjoining each other ; Xo. 6 being the northerly lot, and the plaintiff's buildings being upon lot No. 7. On the north side of No. 6 was an ancient spotted line. The easterly part of that lot was cleared up to and along that line, and a fence made as far as the clearing went. This clearing was occupied as a pasture. The southerly part of this CHANDLER V. WALKER. 405 lot was cultivated, and the iiorthwesterlj'- part, where the tres- pass was committed, was wood and timber land ; and the jury have found that the plaintiff had occupied that part of said lot for the last thirteen or fourteen years, up to said spotted line as a part of his farm, and as a wood and timber lot attached and belonging to the same. The lot was not inclosed on the north, except at the easterly end, where the pasture was, but it was occupied for all the ordinary purposes of a farmer's wood- lot, up to a definite and known line, just as much as though fenced. "Whether such an occupancy, had it continued unin- terrupted for twenty years, would have been suflBcient to have gained title by adverse possession, does not necessarily arise in this case. It appears, however, to have been open, visible, and marked by definite boundaries. But this controversy is not between parties standing in the same position. This action is not a writ of entry by wliicla the title is to be determined. The plaintiff shows the ordinary and common possession of like property in most instances, while the defendants show no possession or title whatever, either in themselves or others. Many wood-lots are not fenced for a long series of years ; and where the possession is known and marked, and uninterrupted, it is not necessary that the property should be inclosed, in order to maintain an action of trespass gitare clausum against a mere wrong-doer. Some cases are very direct upon this point : Catteris v. Cowper, 4 Taun- ton's Rep. 546, is one of them. In that case, it being proved that the defendant had entered the land and taken the pro- duce, the question was made whether the plaintiff had proved such a possession of the locus in quo as would enable him to maintain the action. The locus in quo was a piece of waste land lying between the farm which the plaintiff rented, and the river Ouse. It bore grass, which every one cut who pleased, until within two years before the action; and the plaintiff 's only title was, that two years before he had taken possession and twice mowed the grass, and had since pastured a cow there. The defendant's testimony was, that the first time the plaintiff cut the grass he boasted that he had cut hay off of land for 406 TRESPASS. which he had paid neither rent nor taxes ; that in a former year the plaintiff bought the hay cut by another man off from this same land ; and that a few years before the trial, in re- pairing the boundary fence of his farm, he excluded, by his fence, the land in question, and had frequently shown to other persons the boundaries of his farm as excluding this land. The Court held the defendant's evidence insufficient to disprove the plaintiff 's title, and that there was sufficient evidence of possession on the part of the plaintiff to maintain the action against a wrong-doer. The marginal note to this case is as fol- lows : " Mere prior occupancj'' of land, however recent, gives a good title to the occupier, whereupon he may recover as plaintiff, against all the world except such as can prove an older and better title in themselves." In Barnstable v. Thatcher et al., 3 Metcalf, 239, it was held, that an entry upon a piece of waste cranberry land, and putting up stakes about it, and notices upon the stakes that possession had been taken, was a sufficient possession, without anj^ other title, to maintain trespass, except against the right owner, or the person having the prior right of possession. And it is further said, in that case, that "to maintain an action of trespass, it is not necessary to have such a possession as amounts in law to a disseisin." To the same effect is Cook v. Rider, 16 Pick. 186. In Townsend v. Kerns et al., 2 Watts, 180, it is said, that trespass is emphat- ically an action founded on possession, and the defendant can- not rely upon the plaintiff's want of title. In Machin v. Geortner, 14 Wendell, 239, the plaintiff proved that he oc- cupied the locus in quo as a wood-lot, cutting thereupon his wood and rails for fencing, and some saw-logs ; but the lot was not fenced, nor was there any clearing upon it, nor did he pro- duce any title to it. The defendant thereupon moved for a non-suit, because the plaintiff had failed to prove himself in actual possession of the locus in quo. The motion was over- ruled ; the Court holding that proof that the premises were used as a wood-lot, was sufficient evidence of actual possession to maintain the action against a person showing no rights. And in Penn et al. v. Preston, 2 Rawle, 14, the Court say. STAPLES V. SMITH. 407 " possession of a farm, draws to it the possession of the wood- laud belonging to it, though not inclosed; and the party in possession may maintain trespass against a wrong-doer for de- stroying timber on such woodland." Looking, then, at the nature of this form of action, the pur- poses for which it is used, and the authorities upon the subject, as applicable to the facts presented in this case, we cannot doubt that the rulings of the Court below, and the instructions given to the jury, were correct. In examining the case we have not considered the question whether the declaration was broad enough to cover the locus in quo, or not, because that question not being raised at the trial, but it appearing that the case was tried mainly upon the fact of possession, it is too late to take that exception now. If an objection on account of variance between the declaration and the proof be not taken at the trial, it will be considered as waived : McConihe v. Sawyer, 12 N. H. Eep. 396. Judgment on the verdict. JMcLeod V. Jones, 105 3Iass. 403 ; Guille (■. Swan, 19 Johns. 381 ; Bascom r. Derapsey, 143 ]Mass. 409 ; Gunsolus v. Lormer, 54 Wis. 630 ; Mairs v. Ass'n, 89 X. Y. 498 ; Devlin v. Snellenburg, 182 Pa. St. 186 ; Dolahanty v. Lucey, 59 N. ^y. 415 ; Smith v. Smith, 110 Mass. 302 ; Gooding v. Shea, 103 Maps. 360 ; :Mitchell i: 3Iitchell, 55 N. W. 1134 ; Jaggard, 658 et seq. ; Pollock, 421 ; Bigelow, 178 et seq. It is an injury to the right of possession, which right of possession may arise from either an absolute or special property interest. Staples v. Smith. Supreme Judicial Court of Maine, 1861. 48 Mf. 470. Appleton, J. On the 7th of December, 1858, one William K. Knox sold and delivered the horse, which is the subject of this suit, to the plaintiff, and, at the same time, gave him a bill of sale containing these words : " Said Staples agreeing to let the horse remain in Wm. N. Knox's hands till called for." 408 TKESPASS. The defendant justifies as an officer under a writ against Knox, as whose property the horse was attached. It was proved that the horse had not been " called for " by the plaintiff, and it is insisted, in the defense, that, for that cause, this suit, which is trespass, cannot be maintained. Possession, or the right to take immediate possession of goods, entitles one to maintain trespass against a wrong-doer : Freeman v. Rankins, 21 Maine, 446. So the mere right of possession is sufficient : Codman v. Freeman, 3 Gush. 316. The actual or constructive possession is enough. A mortgagee, having a right to take possession, may maintain trespass against a stranger, who unlawfully interferes before the debt becomes due : Woodruff v. Halsey, 8 Pick. 383 ; Foster v. Perkins, 42 Maine, 168. One having a right to personal property, loaned to another for an indefinite time, may maintain trespass against a stranger for its tortious taking : Orson v. Storms, 9 Cow. 687. In Shloss -i;. Cooper, 27 Vt. 623, where the plaintiff had left goods in the hands of a commission merchant, taking from him a receipt to " sell or return on demand," and they were at- tached as his property, it was held that the owner might maintain trespass. In Strong v. Adams, 30 Vt. 223, Redfield, J., in cases of bailment, held that, unless the bailee had the absolute right to maintain possession for a definite time, the action of trespass might be brought against a wrong-doer in the name of the bailor or the bailee. So, if a bailee, without authority, sell or mortgage the property bailed, the bailor may maintain an action of trespass against such vendee or mortgagee without demand : Stanley v. Gaylord, 1 Cush. 536. The owner may maintain trespass for taking property out of the hands of a person to whom it was lent : Root V. Chandler, 10 Wend. 110. " It is established law," re- marks HosMEE, C. J., in Bulkley v. Dolbeare, 7 Conn. 235, " that the person who has the general property in a personal chattel, may maintain trespass for the taking of it by a stranger, although he never had the possession in fact ; for a general property in a personal chattel draws to it a possession STAPLES V. SMITH. 409 in law : Bro. Abr. Tit. Trespass, pt. 404, 341, § 214 ; 2 Bulst. 208 ; Bficou's Abr. Trespass, e. 2, 3 ; 3 Stark Ev. 1639." Xor are the cases relied upon by the counsel for the defend- ant, when examined, adverse to these views. In Wyman ■;;. Dorr, 3 Maine, 183, the cattle, for the taking of which trespass was brought, had been leased for a term of years , to be taken back by the owner within the term if he should deem them unsafe in the hands of the lessee. As the term had not ex- pired, and as no notice had been given, the action was not maintained. In Lunt v. Brown, 13 Maine, 237, the mare in controversy had been leased for a specified time. It was there held that the general owner could not maintain trespass against a stranger during the continuance of the lease, because he had neither possession nor the right of taking immediate possession. Whether the sale of a schoonei', at another time, in another jurisdiction, and to another party, was fraudulent or not, was entirely immaterial to the inquiry before the jury, and all evi- dence relating thereto was properly excluded. The good faith of the sale of Knox to the plaintiff was sub- mitted to the jury with appropriate instructions, and, notwith- standing the able argument of the learned counsel for the de- fendant, they affirmed its validity. The evidence tending to show the fraudulent character of the transaction, does not so preponderate as to justify or require interference on our part. . Motion and exceptions overruled. Jaggard, 658 ; Bigelow, 181 and 191 ; Cooley, 323 ; Pollock, 412 et seq. Note. — Trespass ab initio. An abuse of a license given by law or an action under a void writ constitutes a trespass ab initio : Baker v. Lewis, 150 Pa. St. 251 ; Taylor v. Jones, 42 N. H. 25 ; Esty v. Wilmot, 15 Gray, 168 ; Six Carpenters' Case, 8 Coke, 432 ; Jaggard, 679 ; Bishop, 391 ; Cooley, 317, 318 ; Pollock, 477. ;j^QTj;. — Trespass by joint tenant. Trespass lies by one co-tenant against another when there has been an ouster of possession : Pardee v. Lumber Co., 21 S. E. 878. 410 WASTE. 2. Waste. a Definition. Waste is an injury done or suffered by the ovirner of the present estate, destroying or impairing the value of the inheritance. Keelee v. Eastman. Supreme Court of Vermont, 1839. 11 Vt. 293. The orator's bill stated, in substance, that Seba Eastman, in October, 1828, executed a lease of a certain farm, described in the bill, to the defendant and his wife during their natural lives, and afterward, in February, 1832, conveyed his rever- sionary interest in the farm to the orator. The bill then alleged that the defendant had committed waste on the prem- ises, and especially upon a sugar orchard, by cutting down and carrying away and selling the wood and timber growing thereon, and concluded with a prayer for an injunction to stay further waste, and that the defendant might be decreed to account to the orator for such as had been committed. The substance and amount of the testimony will appear from the opinion of the Court, delivered by Benxett, Chancellor. The great subject of complaint seems- to be the destrufction of the sugar orchard, which, it is alleged, has been cut down and destroyed since the orator became pos- sessed of the reversionary interest in February, 1832. It is unnecessary to go into the particulars of the evidence, which is quite voluminous, and is evidently somewhat contradictory ; but suffice it to say that it seems to be pretty well established from the current of the testimony, that the principal part of the chopping in the sugar orchard was prior to the winter of 1832, and this, too, by Seba Eastman and Charles Eastman, while Seba had the reversionary interest. The whole evidence, taken together, satisfies the Court that the farm, on the whole. KEELER V. EASTMAN. 411 has been managed by the tenant for Life in a prudent aud husbandlike manner, and that there have been no acts of wan- tonness on the part of the defendant or disregard to the ulti- mate value of the reversionary interest. Indeed, the value of the property seems to have been enhanced by the better- ments and good husbandry of the defendant. We are not aware of any decisions in the Courts of this State laying down any precise rules establishing what acts shall constitute luaste; and, indeed, it is difficult there should be any. The general principle is that the law considers everything to be waste which does a permanent injury to the inheritance : Coke Litt. 53, 54 ; Jacob's Law Die, 6th vol., 393, Tit. Waste ; 6 Com. Dig. Tit. Waste. By the principles of the ancient common law, many acts were held to constitute waste — such as the conversion of wood, meadow, or pasture into arable land, and of woodland into meadow or pasture land — to which we might not, at the pres- ent day, be disposed to give that effect. These principles must have been introduced when agriculture was little understood, and they are not founded in reason, and many of them are inconsistent with the most important improvements in the ■cultivation of the soil. In England that species of wood, which is designated as timber, shall not be cut, because the destruction of it is considered an injurj' done to the inherit- ance, and, therefore, luaste. From the different state of many parts of our country a different rule should attain in our Courts ; and timber may and must in some cases, to a certain extent, be cut down, but not so as to cause damage to the in- heritance. To what extent a tenant for life can be justified in cutting wood before he shall be guilty of waste must depend upon a sound discretion applied to the particular case. It is not in this State waste to cut down wood or timber so as to fit the land for cultivation, provided this would not damage tljo inheritance, and would be according to the rules of good hus- bandry, taking into view the location and situation of the whole farm. So, to remove the dead and decaying trees, whether for the purpose of clearing the land or giving the green timber a 412 WASTE. better opportunity to come to maturity, is not waste. We are satisfied tliat when the wood or timber is cut with this intent, and is according to a judicious course of husbandry, the ten- ant is not guiltj- of waste, though the wood or timber so cut may have been sold or consumed off of the farm. Tliis farm, it is to be remembered, is comparatively in a state of nature, and the town in which it is situated- comparatively new, and what might constitute waste, as applied to one farm in one place, might not, when applied to another, in a different place. Though the evidence is somewhat contradictory, we are not satisfied that the defendant has gone beyond his rights. The orator's bill is, therefore, dismissed. But inasmuch as the de- fendant has made declarations claiming the right to cut off all the wood and timber from the farm if he chose to do it, and threatened the doing of it, the bill w^as not brought without some apparent cause, and the defendant, in this particular, is not without fault. It is, therefore, dismissed without costs. Pynchon v. Stearns, 11 Mete. 304 ; Curtiss r. Livingstone, 36 Minn. 380 ; Drown v. Smith, 52 Me. 141 ; Wilkinson v. Wilkinson, 59 Wis. 557 ; Culvert V. Eice, 91 Ky. 533 ; Williamson v. Jones, 19 S. E. 436 ; Disher v. Disher, 63 N. W. 368 ; Jackson ?'. Bronson, 7 Johns. 227 ; Morehouse v. Catheal, 2Zab. 521 ; Owen v. Hyde, 6 Yerg. 334 ; Dooly v. Stringham, 4 Utah, 107 ; Owinga V. Emery, 6 Gill. 260 ; Cornish r. Strutton, 8 B. Mon. 586 ; Chase v. Hazle- ton, 7N. H. 171; Parkinson v. Coxe, 2 Hayw. (N. C.) 339; Sheppard i). Sh'eppard, 2 Hayw. (N. C.) 382; Minn. Stat. 1894, 5136 (3), 5882, 5883 j Jaggard, 695 ; Cooley, 333 ; Pollock, 427 ; Bigelow, 184 ; Williams, R. P. 23 ; Washburn, K. P. I., il 135, 136, 146, 147 ; Tiedeman, B. P. 72 ; Kerr, E. P., ?668. (1) Voluntary. Where the injury results from a direct act the waste is voluntary. Chalmers v. Smith. Supreme Judicial Court of Massachusetts, 1891. 152 Mass. 561 ; 26 N. E. 95. Count in tort. And the plaintiffs say the defendants be- came and were tenants to the plaintiffs of a certain barn and premises of the plaintiffs, situated in said South Hadley, which CHALMERS V. SMITH. 413 said defendants hired for the storage of hay, and when so occup3-ing and using said barn and premises as such tenants, they wrongfully and unlawfully, and without the license and against the will of the said plaintiffs, stored and filled the barn floors, passageways, and stables of said barn with meal, grain, and fertilizers, all of which were quite weighty, and having also hlled the remaining space in the barn with hay and grain, so that the entire space in the barn was filled or nearly filled with material and substance much too weight}', said barn not having been constructed or calculated to sustain such a quantity of heavy grain, hay, and substances as the defendants placed therein ; and said defendants so overloaded said barn as aforesaid that the floor gave way. The timbers, braces, and supports of said barn were drawn out of place aud broken. The scaffold and roof were broken down, and the entire building badly damaged by reason of the enormous weight so wrongfully and unjustly and improperly placed therein by said defendants. By means of which damage said plaintiffs have lost and will lose the use and rental of said barn, and have been and will be put to great loss and expense to repair the same. Knowlton, J. The jury have found that the defendants unreasonably used the plaiutifi's barn by putting into it -a weight which was apparently, and in fact, excessive. This was something more than a mere omission which would con- stitute permissive waste. It was a positive, unreasonable act, of a kind likely to cause injury to the plaintiff's property. Such an act, which results in damage, is voluntary waste on the part of a tenant who is guilty of it. A tenant at will who commits voluntary waste is liable to his landlord in an action of trespass quare clausum. Plis act terminates his right as a tenant, and entitles the landlord to treat him as a trespasser in doing it : Starr v. Jackson, 11 Mass. 519 ; Lienow v. Ritchie, 8 Pick. 235 ; Daniels v. Pond, 21 Pick. 367 ; Lothrop v. Thayer, 138 Mass. 466, 473. A tenant at will as well as a tenant for life or for years is 414 WASTE. under an implied agreement to use the premises in a tenant- like manner, and not by his voluntary act unnecessarily to injure them. While this agreement does not include an obli- gation on the part of a tenant at will to repair defects resulting^ from the action of the elements or from a reasonable use of the premises or from an unavoidable accident, it creates a liability in an action of contract for a wrongful act in violation of it : 1 Add. Cont. (8th ed.) 383 ; Holford v. Dunnett, 7 M. & W. 348 ; United States v. Bostwick, 94 U. S. 58, 66. The acceptance of rent by the plaintiffs for the full term was not necessarily a waiver of their right to recover damages for a breach of this contract. It was merely evidence for the con- sideration of the jury upon the question whether there was a waiver. A liability in damages for an act of this kind may well be enforced in an action of contract, notwithstanding that the rent has been fully paid. Upon the facts which the jury must have found the action can be maintained on the second count, and the ruling of the Presiding Justice was therefore correct. Whether the plain- tiffs waived their right to maintain an action of trespass quare clausum by permitting the defendants to be in possession of the premises, and accepting rent for a long time after the building fell, or whether the defects in pleading in the first count, treat- ing it as a count in trespass, could be taken advantage of by the defendants' request for a ruling at the close of the evidence, it is unnecessary to decide. Judgment for the plaintiffs. Douglas V. Wiggins, 1 John Ch. 435 ; Jaggard, 697 ; Cooley, 333 ; Williams, R. P. 23 ; Washburn, E. P. I. 146, 152 ; Kerr, B. P., ? 664 et seq. SHERRILL V. CONNOR. 415 (2) Involuntary or permissive. ■Where the injury results from an omission, the waste is termed in- voluntary or permissive. Sherrill v. Connor. Supreme Court of North Carolina, 1890. 107 jr. C. 630 ; 12 S. E. 588. Avery, J. The defendant's first contention is that the Judge below erred in instructing the jury that she was liable for permissive waste. Waste is defined to be " a spoiling or destroying of the estate with respect to buildings, wood or soil, to the lasting injury of the inheritance." The statute of Marl- bridge made the tenant in dower liable at common law for single damages, and that of Gloucester provided subsequently that he should forfeit the place wherein the waste was com- ' mitted, and treble damages to him that had the inheritance. But we fail to find any express authority from the English Courts to sustain the view that a tenant in dower is generally answerable for permissive, as well as voluntary, waste, though our own text-writers maintain that all life-tenants are liable, like insurers, for all injuries to buildings, whether purposely done or negligently permitted, except such as is caused by act of God or the public enemy, or by consent of the reversioner. While the Courts of this country have generally adhered to the old definition of waste that we have already given, they have as uniformly maintained that what is permanent injury to the inheritance must, of necessity, depend often upon the circumstances attending a particular case, and that rules laid down in England, for determining what acts constituted waste there, were not always applicable in a new country, where the same acts might prove beneficial, instead of detrimental, to the inheritance. Gaston, J., in Shine v. Wilcox, 1 Dev. & Bat. Eq. 631, says: "While our ancestors brought over to this country the principles of the common law, these were, never- theless, accommodated to their new condition. It would have 41 6 WASTE. been absurd to bold tbat the clearing of the forest, so as to fit it for the habitation and use of man, was waste. . . . We also hold that the turning out of exhausted land is not waste." The Court, in that case, reached the conclusion that it was for the jury to determine whether, in clearing additional land or turning out that which had been exhausted, the tenant for life acted as a prudent owner in fee would have done, had he been cultivating the land for a support or for profit. Substantiallj' the same reasoning is adopted in other cases decided before and since that opinion was delivered, here and in other States : Sheppard v. Sheppard, 2 Hay, 382 ; Ballentine v. Poyner, lb. 110 ; Lambeth v. "garner, 2 Jones Eq. 165 ; Crawley v. Tim- berlake, 2 Ired. Eq. 460 ; Davis v. Gilliam, 5 Ired. Eq. 308 ; Dorsey v. Moore, 100 N. C. 44 ; Hastings v. Crankleton, 3 Yeates, 261 ; Clemence v. Steere, 53 Am. Dec. 621 ; Wilson V. Edwards, 2 Foster (N. H.), 517 ; Harvey v. Harvey, 41 Vt. 373. In King v. Miller, 99 N. C. 583, the Court approved the • charge of the Judge below, in which he had said, in substance, that it must be left, in large measure, to the discretion of the jury to say whether the destruction of timber or giving up a cultivated field, and permitting bushes to grow and take pos- session of it, in the light of the evidence in the case, had proved a lasting injury to the inheritance. The late Chief Justice gave to the entire charge of the learned Judge who tried the case the unqualified approval of this Court, and re- iterated the general proposition that "while, in its essential elements, waste is the same in this country and in England, being a spoil or destruction in houses, trees and the like, to the permanent injury of the inheritance, yet, in respect to acts which constitute waste, the rule that governs in a new and un- opened laud, covered largely with primeval growth, must be very different." We have quoted the language used in these cases by this Court, not because the point decided was identical with that involved here, but to show that the true test for determining what is waste, voluntary or permissive, is ordinarily involved SHEREILL V. COXNOR. 417 in the question whether, in view of the evidence in a particu- lar case, the act complained of was productive of permanent impairment of the value of the inheritance. In aircertaining whether a given act or omission falls within tlie rule, and sub- jects the tenant to liability, tlie condition of the land when dower was assigned should be compared with its state during the period for which damage is claimed. It appears from a review of the pleadings and evidence that Connor, the husband of the defendant and the ancestor through whom plaintiffs claim the reversion, was tbe owner of a large number of slaves and an extensive body of land, lying in two or three counties, and that his dwelling-house was the headquarters or base of his farming operations, and the place where his slaves resided in cottages ranged around his house, and the horses and mules necessary to work the farm, and cattle, hogs, and sheep necessary to furnish food for the family and slaves were kept. This Court can take notice of the fact that the barns formerlj' used at such establishments have often, if not generally, proven too large to be kept up by an owner who survived the war long enough to accommodate himself to, and arrange his business in relation to the changed condition as to labor and alterations in methods consequent upon emancipation. When it became necessary to build tenement-houses at suitable points for the accommodation of lessees of different sections of the estate, the negro cabin, the large smoke-house for the storage of bacon, and the large barn for the protection of all the stock needed, possibly to operate the entire farm, were no longer useful, and were often torn down, or suffered to fall into decay, and were replaced by others of a size suited to the new state of affairs. If it was proper when our ancestors were transplanted in America to look to the reason of the common law, and hold that under different conditions, in an undeveloped country, the clearing of land by a life-tenant should no longer be held per se to amount to waste, without regard to its effect upon the interest of a reversioner, there are reasons equally as potent for leaving a jury with explicit instructions to determine whether a pru- 27 418 WASTE. dent owner of the fee, if in possession in lieu of the life- tenant, would have suffered the barn, or other building, un- suitable because of its great proportions, to his wants in the new state of society, to have fallen into decay rather than incur the cost of repair. Upon this subject, the charge of His Honor was not suffi- ciently clear and specific, though it was, in the main, an elab- orate and correct exposition of the law except as to this and one other point. The paragraph complained of was as fol- lows : " It is the duty of the defendant to keep the barn and necessary and proper farm-houses and the residence-houses in an ordinary condition, and to repair them as much as is con- sistent with, and required by, the ordinary usage and care of such buildings. If the defendant sat bj"- and permitted the roofs of the dwelling to rot, the barn to fall in, the out-houses to decay, etc., such negligence constitutes permissive waste, if thereby lasting injury is inflicted on the inheritance." Under this instruction, the jury must have inferred that the " barn, necessary out-houses and dwelling-house " must be kept, at all events, in " ordinary repair," even if it were such a gigantic structure that a prudent owner of the whole fee would not have kept it in repair. The qualification appended to the next sentence does not affect this sentence, and the words " as much as is consistent with, and required by, the ordinary usage and care of such buildings," convey the idea that the repairs should have been of the kind usually made on such buildings, but that repairs to some extent must, in any event, have been made to the barn. The question whether the barn was such an one as a prudent owner in fee would have felt that he ought to keep up, in order to prevent permanent injury to the inheritance, was not passed upon by the jury. In instructing the jury as to the amount of damage to be allowed for permissive waste, the Judge left them to infer that, in any view of the evidence, some damage must be assessed for the failure to keep in repair " said buildings," without dis- tinguishing between them. The qualification that they must ascertain what lasting damage had accrued would not, and SHEERILL V. CONXOR. 419 could not, lead the jury to the conclusion that, if it were good husbandry or wise economy to allow a barn too large for the altered conditions growing out of a revolution to go to decaj'' and substitute a suitable one in its stead, the defendant was not liable on account of failure to repair the barn. The ac- countability of life-tenants for permissive waste must, in the most favorable view of the law, subject them to no little hard- ship ; but we think that the same rule should be applied as in alleged voluntary waste by cultivating meadow-land, clearing woodland or in abandoning the cultivation of land already cleared. The jury should be left, with more specific instruc- tion, to say whether the omission complained of caused lasting injury to the inheritance. Subject to the qualification that we have stated, we think that, under the law now in force (the Code, §§ 624 to 630), a tenant in dower, or other life-tenant, who, by neglect or wan- tonness, occasions permanent waste or injury to the inheritance, whether voluntary or permissive, thereby subjects himself to liability to paj'' the actual damages, or treble damages, at the discretion of the Judge, and also to forfeit the place wasted on a day to be fixed by the Judge, if she should meantime fail to pay the damage recovered of her : 4 Kent's Com., marg. p. 76 ; Minor's Inst., marg. p. 543 ; 1 Washburn on R. P., marg. p. 257 ; Scribner on Dower, 744; 6 Lawson's Rights and Rem., § 2856 ; Clemence -v. Steere, supra; Wilson ■;;. Edwards, supra; Harvey v. Harvey, supra. We think that His Honor erred when he told the jury that, on account of the continuous character of the injury, no statute of limitations applied to the permissive waste. While we find no direct authority upon the question, the general principles governing the assessment of damages, and the application of them in other analogous cases, lead us to a conclusion very different. If it be admitted (the demand being for the posses- sion of the place wasted and damaged) that the action falls within the provision of section 267 (5) of the Code, still a re- covery could only be had for the injury that may have arisen from want of repair up to the time of trial. When mulcted in 420 WASTE. damages by the verdict of a jury, a life-tenant is at liberty to pay the amount assessed, and provide against future liability by making repairs immediately. The jury cannot allow pros- pective damages, where the roof of a building has become de- cayed, for the value of the whole building, on the supposition that the tenant will suffer the decay to continue, till the struc- ture shall have rotted and fallen down. The tenant is at liberty to replace the roof, and restore the building to its orig- inal condition, and if he does so the decay is arrested, and the accruing liability ceases. If he chooses to allow the building to be injured still further by his inattention, and the value of the inheritance is thereby diminished, damage may be recov- ered (which the Judge can increase three-fold) for the time elapsing since the former recovery in another action subse- quently instituted. We have held that a similar rule prevailed in the case of nuisances caused by flooding lands by water, and the principle laid down by this Court is sustained by abundant authority : Emery v. Railroad, 102 N. C. 232 ; Sherlock v. Railroad, 1J5 Ind. 22 ; Luther v. Winnisimmet Co., 9 Cush. (Mass.) 171 ; Railway Co. -y. Gilleland, 94 Am. Bee. 97 (66 Pa. St. 445); Wood on Lim. of Actions, 371 ; Wood Mayne on Dam. 647. It being apparent that, from the nature of the case, the liability for permissive waste to the same building may be the subject of separate actions, where it is continued after one re- covery, we can see no reason why ITis Honor should not have limited the extent of the recovery by the plaintiffs, laboring under no disability, such as prevented the statute from running to three years before the action was brought. They had the right to bring an action and adjust liabilities at any time after dower was assigned in 1866. There would have been no greater inconvenience in ascertaining the exact status of a building at the time of assessment heretofore, if an action had been brought, than would arise should the plaintiffs, in future, find, on bringing another action, alleging that the defendant had suffered buildings to be injured still more for want of re- pair since the damages had been ascertained in this action. HUTCHINSOX V. PARKER. 421 But the jury would be at liberty to estimate the damage arising from permissive waste since the dower was first assigned for the purpose of a set-off agaiust the value of permanent im- provements placed on the land by the tenant in dower. If the damage for the time elapsing between the allotment of dower and the bringing of this action should exceed the value of such permanent improvement, the plaintiffs, who are not barred, would be entitled to their proportionate share of the excess, while the other plaintiffs would be barred as to their ratable shares. There was error, for which a new trial must be granted. Error. Harnett v. Maitland, 16 M. & AV. 2.i7 ; Stevens v. Rose, 69 Mich. 259 ; White r. Wagner, 4 Har & J. 373 ; Loudon r. Warfield, 5 J. J. Marsh, 196 ; Cannon i . Barrj-, 59 Miss. 289 ; Clemence r. Stern, 1 E. I. 272 ; Anderson v. Hammond, 19 Oreg. 446 ; Jaggard, 697 ; Cooley, 334 ; Williams, E. P. 23 ; Washburn, E. P. I. 146, 152 ; Kerr, E. P., § 669. b Remedies. (1) Damages. The waste being committed, the proper remedy is an action in damages. Hutchinson v. Parker. Supreme Judicial Court of New Hampshire, 1886. 64 N. H. 89 ; 5 Atl. 659. Smith, J. This is an action of trespass qu. cl. The parties are owners of adjoining tracts of land separated by a rail fence, the plaintiff's land being mostly pasture and the de- fendant's wood. The defendant, in cutting timber near the line, felled it across the fence and on to the plaintiff's land, breaking the fence and covering his land for a space sixty rods in length by thirty feet in width next the fence with brush, and left it there. The plaintiff claimed to recover as damages the reasonable expense of removing the brush and 422 WASTE. repairing the fence. The defendant claimed that the cost of removing the brush was more than the land on which it rested was worth, and that the damages should not exceed the value of the land. The Court ruled that the plaintiff could recover the expense of removing the brush in a reasonably prudent manner, though it might exceed the value of the land, and the defendant excepted. It cannot be said, as matter of law, that the plaintiff can or cannot recover as damages the expense of removing the brush. The expense is not the measure of his damages. It is a fact to be considered in connection with other evidence, such as the value of the land before and since the cutting, the uses to which it was adapted, and the extent to which the plaintiff had been deprived of the use. The damages may be more and they may be less than the cost of removing the brush. The plaintiff is not obliged to remove it. The defendant may, with the plaintiff 's license, remove it. In the assessment of damages for land taken for a highway, the question is not what the value of the laud taken is, but what is the damage to the whole tract by the taking of a part ? Special benefits to the owner from the construction of the way, not shared by others, may be considered ; also the increased expense of fencing, and any injury to the rest of the land from the taking of a part: Adden v. Railroad, 56 N. H. 413. In this case the injury may not have been confined to the strip covered by the brush, but may have extended to the whole tract. If A. cuts down my shade-trees, my damages are ^ot necessarily limited to their value for wood or timber. If he cuts and carries away my timber trees, if they are worth more to grow than to him as timber, my damages are not necessarily measured by their value as timber : Foote v. Merrill, 54 N. H. 490-494. " The owner may sometimes be entitled to greater damages for the destruction or conversion of property than its market value : he may be entitled to damages for the consequential injury to other property, or to his feelings, for interruption of business, or loss of comfort and health :" Cocheco Co. v. Strafford, 51 N. H. 455, 481 ; see also Holt v. Sargent, 15 Gray, 102 ; Mayo EEHARDT V. BOARD. 423 V. SpriDgfield, 138 Mass. 70 ; Jones v. Gooday, 8 M. & W. 146 ; Day V. Woodworth, 13 How. 368, and Mayne Dam. (Wood's ed.), § 569. There must be a new trial on the question of damages. Exception sustained. Randall v. Cleaveland, 6 Conn. 328 ; Parker v. Chambless, 12 Ga. 235 ; Van Densen v. Young, 29 N. Y. 9 ; Jaggard, 703 ; Cooley, 335 ; Tiedeman, R. P. 81 ; Minn. Stat. 1894, ?? 5882, 5883. (2) Injunction. In case an injury irreparable and impossible to compensate by damages is threatened, an injunction vrill issue. Erhardt v. Boaro. Supreme Court of the United States, 1885. 113 U. S. 537. Mr. Justice Field. This is a suit in equity ancillary to the action for the possession of the mining claim just decided. It is brought to restrain the commission of waste by the de- fendants pending the action. The bill sets forth the discov- ery by one Thomas Carroll, a citizen of the United States, while searching on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral on vacant unoccupied land of the United States, of the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities, the posting by him in his name and that of the plaintiff, at the point of discovery, of a notice that they claimed 1,500 feet on the lode, the intrusion of the de- fendants upon the claim, their ousting the locators, and other facts which are detailed by tlie record in the case decided, and the commencement of the action at law. It also alleges that the defendants were working the claim, and had extracted from it one hundred and fifty tons, or thereabouts, of ore, con- taining gold and silver of the value of |25,000, and that about one hundred tons remain in their possession on the 424 WASTE. premises. The bill prays for a writ of injunction restraining the defendants from mining on the claim, or extracting ore therefrom, or removing any ore already extracted, until the final determination of the action at law. The principal facts stated in the bill are supported by affidavits of third parties. The Court granted a preliminary injunction, but, after the trial of the action at law, judgment being rendered therein in favor of the defendants, it dissolved the injunction and dis- missed the bill. From the decree of the Court the case is brought here by appeal. It was formerly the doctrine of equity, in cases of alleged trespass on land, not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A con- troversy as to the title was deemed sufficient to exclude the jurisdiction of the Court. In Pillsworth v. Hopton, 6 Vesey, 51, which was before Lord Eldon in 1801, he is reported to have said that he remembered being told in early life from the bench " that if the plaintiff filed a bill for an account and an injunction to restrain waste, stating that the defendant claimed by a title' adverse to his, he stated himself out of Court as to the injunction." This doctrine has been greatly modified in modern times, and it is now a common practice in cases where irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extract- ing of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the Court is exer- cised in such cases, through its preventive Avrit, to preserve the property from destruction pending legal proceedings for the determination of the title : Jerome v. Ross, 7 Johns. Ch. 315, 332 ; Le Roy ■;;. Wright, 4 Sawyer, 530, 535. As the judgment in the action at law in favor of the defend- ants has been reversed and a new trial ordered, the reason which originally existed for the injunction continues. The decree of the Court below must, therefore, be reversed and the case remanded, with directions to restore the injunc- WEBBEE V. DAVIS. 425 tion until the final determination of that action ; and it is so ordered. Holmberg v. Johnson, 25 Pac. 575 ; Moriarty v. Ashwortli, 43 Minn. 1 ; Poindexter v. Henderson, 1 Walker (Miss.), 176; Camp v. Bates, 11 Conn. 51 ; Canal Co. c. Comegys, 2 Ind. 469 ; Holmberg v. Johnson, 45 Kans. 197 ; Douglass ('. AViggins, 1 John Ch. 435 ; Loudon v. Warfield, 5 J. J. Marsh, 196 ; Jagg-ard, 704 ; Cooley, 335 ; Tiedeman, R. P. 81. 3. Conversion. a Definition. Any act of dominion ^wrongfully exercised over property, in denial of the o'wner's right or inconsistent -with it, is a conversion. Webber v. Davis. Supreme Judicial Court of Maine, 1857. 44 Me. 147. GooDENOAV, J. This is an action of trover, to recover the value of a mare which Wentworth Davis, one of the defend- ants, formerly owned, and which, it is supposed, was stolen from him in February or March, 1852. The writ is dated Decemher 17, 1853. Davis made search for the mare, after she was stolen, but could not find her. About one month after she was stolen, the plaintiff and the said Wentworth Davis met, and the plaintiff offered him $20 for the mare, and to run his own risk as to finding her. By the proposition, if the plaintiff found the mare she was to be his property, if not, he lost the $20, and had no claim on Davis to recover it back. The mare was worth |60. The proposition was accepted, and the plaintiff paid said W. Davis the $20. Within two or three weeks afterward, the plaintiff found said mare in the possession of one Ephraim Jones, in Massa- chusetts. Before he could succeed in getting her from Jones, the said W. Davis claimed her as his, but he did not before the commencement of this suit, offer to rescind the contract with the plaintiff, or pay back the $20. 426 CONVERSION. The deposition of said Ephraim Jones makes a part of the case. The title will pass bj^ a sale without delivery from the true owner, though at the time of the sale the goods are in the tor- tious possession of a third person : Courtland v. Morrison, 32 Maine E,. 190. And a sale without delivery is valid as against the vendor. By the admitted facts in the case, we are of opinion that the property of the mare was in the plaintiff, at the time he found her in the possession of the said Ephraim Jones. Has there since that time, and before the commencement of this action, been a conversion of the same by the defendants, or either of them ? A demand and refusal are only evidence of a conversion. When there has been an actual conversion, and it can be proved, no demand is necessary before commencing a suit. It is not every interference with the property of another which constitutes a conversion. One person may remove the property of another person from one place to another place, without being guilty of a conversion of it to his own use. He may do it, without asserting any claim to it, for the benefit of the owner, and admitting his title to it. But if one person interferes with the goods of another, and without his consent undertakes to dispose of them as having the property, he does it at his peril ; and there need be no manual taking or removal in order to constitute a conversion. It is sufficient if he exercises an authority over the goods against the will and to the exclusion of the owner, by an un- lawful intermeddling with them, or assumes upon himself the property and right of disposing of them. This is abundantly established by the authorities cited by the counsel for the plaintiff: Gibbs v. Chase, 10 Mass. R. 128 ; Miller v. Baker, 1 Met. R. 31 ; Bowlin v. Nash, 10 Gush. R. 418 ; Fernald v. Ghase, 37 Maine R. 290. By the deposition of Jones, it appears that John Davis, as the agent of his father, did sell the mare in question to said Jones, for the sum of |60, on the 24th of October, 1853, which was before this action was commenced. And it is fairly to be WEBBER V. DAVIS. 427 inferred that he signed the obhgation at that time, which is annexed to said deposition. The obligation speaks of the maro as having been " supposed to have been stolen from iis about the winter of 1851-2." It admits that they both received the $60, paid by Jones for the mare, and both promised to in- demnify Jones against the claim of any other person on said mare. Jones says the obligation was procured by him, and was handed to John Davis, when he was at the house of the witness, in October, 1853, to take down to his father, to be signed by him, and to be brought back in the spring or sum- mer of 1854, when he paid for the mare ; and it was taken by John, because the witness wanted Wentworth Davis' name to the instrument. But whether signed by John Davis at that time or subsequently, it is proved to have been in his hands in October, 1853 ; it is to be presumed that he then knew the contents of it ; and it is evidence of what he then undertook to do in relation to the property in said mare, although it might have been signed by him subsequently, and at the same time it was signed by his father. We find no foundation in the facts reported in the case, for the argument of the defendant's counsel, that the sale of the mare from W. Davis to the plaintiff was fraudulent and void, on account of a fraudulent suppression of facts known to the plaintiff and not known to W. Davis. The case states, as a fact, that after said sale was made, and the $20 paid by the plaintiff to said W. Davis, " within two or three weeks after- ward the plaintiff found the mare in the possession of one Ephraim Jones, in Massachusetts." There is no evidence that the plaintiff had any knowledge that the mare could be found at that place or any other, when he purchased the mare of W. Davis. By agreement of the parties, the case having been sub- mitted to the Court upon the facts and evidence reported, with authority to draw such inferences as a jury might, and to enter judgment according to the law of the case, we have arrived at the conclusion that the defendants must be defaulted, and judgment entered for the plaintiff, for the sum of |60 dam- 428 . CONVERSION. ages, and interest on the same from the date of the writ, with costs. McPheters v. Page, 83 Me. 234 ; Lewis v. Navigation Co., 125 N. Y. 341 ; Hewes v. Platts, 12 Gray, 143 ; Smith v. Wood, 63 Yt. 534 ; Frome v. Dennis, 45 N. J. L. 515 ; Gordon v. Stoclidale, 89 Ind. 240 ; Robertson v. Hunt, 77 Tex. 321 ; Glaze v. McMillion, 7 Port. (Ala. ) 279 ; Fernald v. Chase, 37 Me. 289 ; Banking House v. Brooks, 52 Mo. App. 364 ; Gilman & Sanborn v. Hill, 36 N. H. 311 ; Aschermann v. Brewing Co., 45 Wis. 262 ; Miller v. Baker, 1 Mete. 27 ; Spooner v. Manchester, 133 Mass. 270 ; Minn. Stat. 1894, U 2472, 2473, 5415, 5416 ; Jaggard, 706 ; Bishop, 403 ; Cooley, 448 ; Pollock, 432 ;. Bigelow, 268. Note. — The conversion may consist in, (1) A wrongful taking of prop- erty : Hobart v. Hagget, 12 Me. 67 ; Hutchinson v. Bank, 41 Pa. St. 42 ; Kennet v. Robinson, 2 J. J. Marsh, 84 ; Pilsbury v. Webb, 33 Barb. 213 ; Whidden v. Seelye, 40 Me. 247 ; Drew v. Spaulding, 45 N. H. 472 ; Conner v. Allen, 33 Ala. 515 ; Jaggard, 722 ; Cooley, 448 et seq. ; Pollock, 434. (2) Wrongful parting with property : Otter v. Williams, 21 111. 117 ; Mor- rill V. Moulton, 40 Vt. 242 ; Coles v. Clarke, 3 Cush. 399 ; Kimball v. Billings, 65 Me. 147 ; Waverly Co. v. St. Louis Co., 112 Mo. 383 ; Piano Co. v. Parker, 155 Pa. St. 208 ; Carpenter et al. v. Amer. Bldg. & Loan Ass'n, 54 Minn. 403 j Jaggard, 724 ; Bishop, 404, 405 ; Cooley, 448 et seq. ; Bigelow, 209. (3) Wrongful retaining property : Hall v. Larro, 53 Vt. 629 ; E. E. v. Kaulbrumer, 59 111. 152 ; Osborn v. Potter, 101 Mich. 300 ; Nutter v. Varney, 5 Atl. 457 ; Dearbourne v. Union Nat. Bank, 58 Me. 273 ; Ascherman a, al. ti. The Philip Best Brewing Co., 45 Wis. 262 ; Castle v. C. E. Bank, 75 Hun, 89 ; Jaggard, 725 ; Cooley, 448 et seq. ; Pollock, 434. (4) Wrongful use, abuse, or destruction of the property: Cummings v. Perham, 1 Meto. 555 ; Gove v. Watson, 61 N. H. 136 ; Stillwill v. Farwell, 64 Vt. 286 ; Norton v. Kidder, 54 Me. 189 ; Mosely t). Wilkinson, 24 Ala. 411 ; Eipley v. Dolbier, 18 Me. 362 ; Old v. Board of Trade, 33 111. App. 445 ; Hall V. Corcoran, 107 Mass. 251 ; Jaggard, 729 ; Cooley, 448 et seq. ; Pollock, 434 ; Bigelow, 216, 217. PENNSYLVANIA COAL CO. V. SANDERSON ET VX. 429 III NUISANCE. 1. Definition. A nuisance is an unlawful act or use of property, in violation of a legal right, which causes material inconvenience, annoyance, or dis- comfiture, resulting in damage actual or implied of law. 2. Elements. a A Violated Legal Right. Pennsylvania Coal Co. v. Sanderson et ux. Supreme Court of Pennsylvania, 1886. 113 Pa. St. 126. Clark, J. The Pennsylvania Coal Company is the owner of some 1,600 acres of anthracite coal lands in the Lacka- wanna valley, situate above the city of Scranton, in the basin of a small tributary of the Lackawanna River known as Meadow brook, into which, owing to the natural conformation of the surface, the water from these lands is drained. The company first opened the coal seams on this land by a drift, or tunnel, in the year 1867 or 1868. They drove three other tunnels and sunk a shaft, and thereafter mining operations were extensively engaged in, the establishment being known as the " Gipsy Grove Coal-works." From the time the first tunnel was driven the mine water fiowed, by the natural course of gravity, into the Meadow brook. As the operation of the mines was increased the volume of mine water increased. The water which percolated into the shaft was by powerful engines pumped tlierefrom, and as it was brought to the surface it passed, with the fiow from the tunnel, by an artificial water- 430 NUISANCE. course, over the defendant's own land, into the Meadow brook, which, we have said, was the natural water-course for drain- age of the entire basin. The plaintiff, Mrs. Sanderson, in the year 1868, purchased a tract of land in the city of Scrantou, some three miles below the Gipsy Grove works, on the Meadow brook, near its mouth. The existence of the stream, the purity of its water, and its utility for domestic and other pur- poses, it is said, was a leading inducement to the purchase. She began, and in the year 1870 finished, the erection of a house upon the land. In connection therewith dams were built across the brook to form a fish and ice-pond and to supply a cistern. The water was forced by a hydraulic ram from the cistern to a tank in the house, and was used for do- mestic purposes and for a fountain. It is alleged that the large volume of mine water which the defendants poured into the Meadow brook has corrupted the water of that stream to such an extent as to render it totally unfit for domestic use ; that the fish in the brook have been totally destroyed, the plaintiff's pipes corroded, and his entire apparatus for the utilization of the water rendered wholly worthless, and that, in consequence, about the year 1875, the same was abandoned. This action was brought to recover the damages which the plaintiff alleges she has sustained in con- sequence of the alleged pollution of the stream. At the trial of the cause in February, 1878, in the Common Pleas of Luzerne County, the Court, after hearing the plain- tiff's case, entered a non-suit on the ground that the discharge of the mine water was a necessary incident to mining ; that there was neither malice nor negligence shown in the opera- tion of the mine, and the case was, therefore, one of damnum absque injuria. A writ of error was taken to the refusal of the Court to take off a non-suit, and the case was presented for the consideration of this Court : 86 Pa. St. 401. Upon consideration of the questions involved, this Court was then of opinion that, except where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim, " sic utere tuo ut alienum non Isedas;" PENNSYLVANIA COAL CO. V. SAXDEKSON ET UX. 431 that this case exhibited none of those peculiar conditions, and that the phiintiff 's proofs exhibited a case wliicli should have been submitted to the jury. A procedendo having been awarded, the cause was again brought to trial in the Common Pleas of Lackawanna County, where, in October, 1879, a ver- dict was rendered for the plaintiff. A writ of error was then taken hj the defendants ; but, this Court adhering to the opinion contained in 86 Pa. St. 401, the judgment was affirmed. The plaintiffs, however, sued out a second writ to the same judgment, and assigned for error the ruling of the Court as to the proper measure of damages, and upon this the judgment was reversed and a venire facias de novo awarded. The cause was again tried in the Common Pleas of Lackawanna County in February, 1885. Judgment was again entered for the plaintiff, and it is to this judgment that the present errors are assigned. The questions which are now to be considered, with a single exception, perhaps, being identical with those which were pre- viously considered and embraced in the judgment reported in 86 Pa. St. 401, the argument has been practically a reargu- ment of the original case. We have before us not only the same parties and the same questions, but the same case; and if it be true, as it is most persistently argued, that this Court was mistaken in its former ruling, it is well that the error should be righted in the same case in which it occurred. If we lay aside our own previous decisions of this case, and re- gard the cause as coming before us upon a reargument, the main question involved is one of new impression in this State. This Court was not then and is not now in harmony with refer- ence to it. It has been stated that 30,000,000 of tons of anthracite and 70,000,000 of bituminous coal are annually produced in Pennsylvania. It is, therefore, a question of vast importance, and cannot, on that account, be too carefully considered ; for, if damages may from time to time be recovered, either in the present form or as for a nuisance, punitive sums may be re- sorted to to prevent repetition or to compel the abatement of 432 NUISANCE. the nuisance. Indeed, if the right to damages in such cases is admitted, equity may, and under the decisions of this Court undoubtedly would, at the suit of any riparian owner, take jurisdiction, and, upon the ground of a continuous and irre- parable injury, enjoin the operation of the mine altogether. Whatever rights Mrs. Sanderson may have to the use of this water, and whatever remedy she may have in this case or in any other form, in law or in equity, is the right and remedj^ of every other riparian owner along Meadow brook ; and whatever may be the rights and remedies of the owners on Meadow brook are, of course, the rights and remedies of all other riparian owners throughout the Commonwealth. It may be that Mrs. Sanderson adopted a more extensive arrange- ment for the use of this water than any other person, and is, consequently, more inconvenienced on that account ; but the law is the same in her case as in all other cases. If she may recover damages in a large amount, others similarly but less affected may recover in a less sum. Besides, these riparian owners are not limited to their present modes of enjoyment. It is impossible to foresee what other modes of enjoyment they or their successors in title may adopt, or to estimate the extent of damages to which the continued pollution of the stream might proceed. Hence, if the responsibility of the operator of a mine is extended to injuries of the character complained of, the consequences must be that mining cannot be conducted except by the general consent of all parties affected. It will be observed that the defendants have done nothing to change the character of the water or to diminish its purity save what results from the natural use and enjoyment of their own property. They have brought nothing into the land artificially. The water as it is poured into Meadow brook is the water which the mine naturally discharged. Its impurity arises from natural, not artificial, causes. The mine cannot, of course, be operated elsewhere than where the coal is nat- urally found, and the discharge is a necessary incident to the mining of it. PENNSYLVANIA COAL CO. V. SANDERSON ET UX. 433 It must be conceded, we think, that every man is entitled to the ordinar}'- and natural use and enjoyment of his property. He may cut down the forest trees, clear and cultivate his land, although in so doing he may dry up the sources of his neigh- bor's springs or remove the natural barriers against wind and storm. If, in the excavation of his land, he should uncover ;i si)riiig of water, salt or fresh, acidulated or sweet, he will certainly not be obliged to cover it again, or to conduct it out of its course, lest the stream in its natural flow may reach his neighbor's land. It has always been considered that land on a lower level owes a natural servitude to that on a higher level in respect of receiving, without claim for compensation by the owner, the water naturally flowiug down to it. In sinking his well he may intercept and api)ropriate the water which supplies his well (Acton v. Blundell, 12 Mees. & W. 324 ; Wheatley r. Baugh, 25 Pa. St. 528 ; Haldeman v. Bruckhart, 45 Pa. St. 514) ; or, if his own well is so close to the soil of his neighbor as to require the support of a rib of clay or of stone on his neighbor's land to retain the water in the well, no action will lie against the owner of the adjacent land for digging awaj' such clay or stone which is his own property, and thereb}- letting out the water : Whart. Neg. 939. Pie may, to a reasonable extent, jure naturse, divert water from a stream for domestic purposes and for the irrigation of his land: Messinger's Appeal, 4 Atl. Rep. 162. So, also, each of two owners of adjoining mines has a natural right to work his own mine in the manner most convenient and beneficial to himself, althougji the natural consequence may be that some prejudice will occur to the owner of the adjoining mine : Smith V. Kenrick, 7 C. B. 505. One mine-owner may thus permit water naturally flowing in his own mine to pass off by gravitation into an adjoining or lower mine so long as his operations are carried on properly and in the usual manner: Bainb. Mines, 297. To the same effect are Wilson v. Waddell, L. R. 2 App. Gas. 95 ; Crompton v. Lea, L. R. 19 E(j. 115. The defendants, being the owners of the land, had a right to mine the coal. It may be stated, as a general ])roposition, 28 434 ' NUISANCE. that every man has the right to the natural use and enjoy- ment of his own property ; and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria; for the rightful use of one's own land may cause damage to another, without any legal wrong. Mining in the ordinary and usual form is the natural use of coal lands. They are, for the most part, unfit for any other use. " It is established," says Cotton, L. J., in "West Cumberland Iron Co. V. Kenyou, L. R. 6 Ch. Div. 773, "that taking out min- erals is a natural use of mining property, and that no adjoin- ing proprietor can complain of the result of careful, proper mining operations." In the same case, Brett, L. J., says : "The cases have decided that, where tJiat maxim [sic utere tuo ut alienum non Isedasl is applied to landed property, is sub- ject to a certain modification, it being necessary for the plain- tiff to show, not only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural use of his own land." The right to mine coal is not a nuisance in itself. It is, as we have said, a right incident to the ownership of coal property ; and when exercised in the ordinary manner and with due care, the owner cannot be held for permitting the natural flow of mine water over his own land, into the water- course, by means of which the natural drainage of the coun- try is effected. There are, it is well known, percolations of mine water into all mines. Whether the mine be operated hy tunnel, slope, or shaft, water will accumulate, and, unless it can be discharged, mining must cease. The discharge of this acidulated water is practically a condition upon which the ordinary use and enjoyment of coal lands depends. The dis- charge of the water is practically part and parcel of the process of mining ; and, as it can only be effected through natural channels, the denial of this right must inevitably produce results of a most serious character to this, the leadhig indus- trial interest of the State. The defendants were engaged in a PEXXSYLVAXIA COAL CO. V. SANDERSON ET UX. 435 perfectly lawful business, in which they had made large ex- penditures, and in which the interests of the entire commu- nity were concerned. They were at liberty to carry on that business in the ordinary way, and were not, while so doing, accountable for consequences which they could not control. As the mining operations went on the water, by the mere force of gravity, ran out of the drifts, and found its way over the defendants' own laud to the Meadow brook. It is clear that for the consequences of this flow, which, b}' the mere force of gravity, naturally, and without any fault of the defendants, carried the water into the brook and thence to the plaintiff's pond, there could be no responsibility as damages on part of the defendants. A person in the lawful use of his own land may cause to flow over the land of another a greater quantity of water than it is naturally subjected to. " I am aware," says Woodward, J., in Kauffman v. Griesemer, 26 Pa. St. 414, " that in Merrit v. Parker, 1 N. J. Law, 460, Chief Justice Kinsey denied these principles, and held that by no contrivance and> under no pre- tense can one man cause to flow over the land of another a greater quantity of water than it is naturally subjected to ; but, on the other hand, there is a Maryland case of equal authority (Williams v. Gale, 3 Har. & J. 231), which, in its facts, bears a striking resemblance to the case at bar, and the case of Martin v. Riddle, decided by my brother Lowrie in the District Court jof Allegheny County, and affirmed in the Supreme Court at September Term, 1848. These cases recog- nize the principle that the superior owner may improve his lands by throwing increased waters upon his inferior through the natural and customary channels, which is a most import- ant principle in respect, not only to agricultural, but to mining operations also." It may be said that under the doctrine of Baird v. William- son, 15 C. B. (N. S.) 376, when the flow of water is increased artificially, or is greater than would result from gravitation alone, the mine-owner who causes it is liable for the increased injury; that this may be termed a non-natural use of the' 436 NUISANCE. land, and the mine-owner would be held for anj' injury which would be sustained in consequence of this artificial increase in the amount. We understand the rule of Baird v. William- son to be this : Where coal may be successfully mined by tunnel or drift, the owner of the land may be deemed to have the natural use and enjoyment of it in that form of mining, and he will, in such a case, not be allowed to add merely to the efficiency of his enterprise, to the injury of his neigh- bor's land, by the "artificial accumulation of water in large quantities through the use of powerful engines and pumps. But it does not appear from any evidence in this cause that the mine was conducted by the defendant in any but the ordinary and usual mode of mining in this country. The deeper strata can only be reached by shaft, and no shaft can be worked until the water is withdrawn. A drift is in some sense an artificial opening in the land, and accumulates and discharges water in a greater volume and extent than would otherwise result from purely natural causes ; j'et mining by drift has, as we have seen, been held to be a natural user of the land. So, too, we think, according to the present practice of mining, the working of the lower strata by shaft, in the usual and ordinary way, must be considered the iiatural user of the land for the taking out of the coal which can be reached by shaft only ; and, as the water cannot be discharged by gravity alone, it must necessarily, as part of the process of mining, be lifted to the surface by artificial means, and thence be discharged through the ordinary natural channels for the drainage of the country. But if we should be wrong as to the water which was pumped out of the mine, how can we discriminate as to the effect of the water which flowed from the mine by mere gravity and that which was pumped out? The witnesses did not discrim- inate in their testimony, and the learned Court did not in- struct the jury to make any discrimination. The injury done to the plaintiff" was estimated without any eff'ort to distinguish between the effects of the water from one or other of these ■ sources. If the stream was already corrupted by the water PEXXSYLVANIA COAL CO. V. SANDERSON ET UX. 437 which flowed from the tunnels, or if tliat water was sufficient of itself to corrupt it, so as to render it useless for domestic purposes, the Avater which was pumped as an independent cause of action would occasion an injury without damage. The pollution of a clear stream might inflict an injury for which damages would be recoverable, but we cannot see how damages could be estimated for the pollution of a stream which had already become foul from other causes for which the law gave no remedy. It is said the defendants created an artificial water-course from their mine to Meadow brook, but this artificial water- course was upon their own land, and conducted no more water to the brook than by the natural conformation of the surface could otherwise have reached it. If it be suggested that the defendants might have extended this artificial water-way, in form of a sewer, to some point of safetj^, it may be asked where, short of the sea, might the sewer be discharged, that the same complaint might not be made ? We do not say that a case may not arise in which a stream, from such pollution, may be regarded as a public nuisance, and that the public interests, as involved in the general health and well-being of the community, may not require the abatement of that nuisance. This is not such a case. It is shown that the community in and around the city of Scran- ton, including the complainant, is supplied with abundant pure water from other sources. There is no complaint as to any injurious eff'ects from this water to the general health. The community does not complain on any ground. The plain- tiff's grievance is for a mere personal inconvenience ; and we are of opinion that mere private personal inconveniences, aris- ing in this way and under such circumstances, must yield to the necessities of a great public industry, which, although in the hands of a private corporation, subserves a great public interest. To encourage the development of the great natural resources of a country trifling inconveniences to particular per- sons must sometimes give way to the necessities of a great community. Nor do we say that a miner, in order that his 438 NUISANCE. mines may be made available, may enter upon his neighbor's lands, or inflict upon him any other immediate or direct in- jury, but we do say that, in the operation of mining in the ordinary and usual manner, he may, upon his own lands, lead the water which percolates into his mine into the streams which form the natural drainage of the basin in which the coal is situate, although the quantity as well as the quality of the water in the stream may thereby be affected. In the previous disposition of this case in this Court, as re- ported in 86 Pa. St. 401, the prhiciple of law mainly relied upon was stated as follows : " If a man brings or uses a thing of a dangerous nature on his own land, he must keep it at his own peril, and is liable for the consequences if it escapes and does injury to another : Jones V. Festiniog, L. R. 3 Q. B. 786." "The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir (Harrison v. Great Northern R. Co., 3 Hurl. & C. 138), or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works (St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642), is dam- nified without any fault of his own, and it seems but reason- able and just that the neighbor who has brought something on his own property which was not naturally there, harmless to others so long as it was confined to his own property, but which he knows will be mischievous if it gets on his neigh- bor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property : Fletcher v: Rylands, L. E. 1 Exch. 280." The parenthetic references to authorities are not found in the opinion in Fletcher v.. Rylands, but were inserted in the body of the quotation by Mr. Justice Woodward, who delivered the opinion of this Court. The doctrine declared in Fletcher v. Rylands, regarded as a general statement of the law, is perhaps not open to criticism in England, but it is subject to many and obvious exceptions there, and has not been generally received in this country. A PENNSYLVANIA COAL CO. V. SANDERSON ET UX. 439 rule which casts upon an innocent person the responsibility of an insurer is a hard one at the best, and will not be generally applied unless required by some public policy or the contract of the parties. The later decisions in the English Courts seem to encourage, rather than to discourage, exceptions to it. But we regard the rule in Fletcher v. Rylands as wholly inappli- cable to the case under consideration. Referring to the judg- ment, we find the facts of that case to have been as follows : The plaintiff was damaged by his property being flooded with water, which, without any fault on his part, broke out of a reservoir constructed and maintained on the defendants' land by the defendants' orders. The coal under the defendants' land had, at some remote period, been worked out, but this was unknown at the time the defendants gave directions to erect the reservoir. Although the persons employed did not in fact use proper care and skill to provide for the sufficiency of the reservoir with reference to these old shafts, the defend- ants were personally free from all blame. The consequence was that the reservoir, when filled with water, burst into the shafts. The water flowed down through them into the old workings, and thence into the plaintiff's mine, and there did the mischief. " We think that the true rule of law is," says Blackbukn, J., "that the person who, for his own purposes, brings on his lands and collects and keeps there, anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major or the act of God ; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just." Then follows the clause which we find quoted in the opinion of Mr. Justice Woodward. But the defendants in the case at bar brought nothing upon the land; they accumulated nothing there; the water was there without any act of theirs, and it was the accumulation 440 NUISANCE. of it which they sought to prevent. They were in the natural user of their lands for a lawful purpose, and the discharge of the mine water was an absolute necessity in order to that use of the land. The distinction is obvious, and we cannot see how Rylands ■;;. Fletcher can be supposed to have any applica- tion in the consideration of this case. The case was taken to the House of Lords on a proceeding in error against the judgment of the Exchequer Chamber, which had reversed the judgment of the Court of Exchequer. The judgment was there affirmed (Rylands v. Fletcher, L. R. 3 H. L. 330), and the general legal proposition involved in the case thus stated by Lord Ceanworth : " If a person bring or accumulate on his land anything which if it should escape may cause damage to his neighbor, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and what- ever precautions he may have taken to prevent damage." But the very distinction we have endeavored to point out between that case and this was suggested in the judgment of the House of Lords in the case referred to. Lord Cairns says: " The defendants might lawfully have used that close for any purpose for which it might, in the ordinary course of the employment of land, be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or under-ground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that the result had taken place." A line was thus drawn between the rule recognized in the case adjudged and the general immunity which the law ex- tends to land-owners for acts done in the natural and lawful user of their land. In the first head-note of the case, as re- ported in L. R. 3 H. L. 330, the general legal proposition em- bodied in the judgment of the House of Lords, is thus stated : "Where the owner of the land, without willfulness or negli- PENNSYLVANIA COAL CO. V. SANDERSON ET UX. 441 gence, uses his land in the ordinary manner of its use, though mischief should tliereby be occasioned to his neighbor, he will not be liable for damages." Thus it seems tliat the hability, even under the ruling of Rylands v. Fletcher, is rested on the manifestly hazardous state of things artificially maintained on the land, and not on the natural user of it. As we have said, even in England the later decisions favor exceptions to the rule of Eylauds v. Fletcher. Thus, in Nichols ('. Marsland, L. R. 10 Exch. 255, the defendant was an owner of artificial pools formed b}^ damming a natural stream into which the water was finally let off by a system of weirs. The rain-fall accompanjang an extremely violent thunder-storm broke the embankments, and the rush of water down the stream carried away four county bridges, in respect of which the action was brought. It was held that the rule referred to did not apply in the operation of natural forces so violent and unexpected that human foresight could not have been reason- ably expected to anticipate it. So it has been held not to apply where the immediate cause of the damage is the act of a stranger (Box v. Jubb, 4 Exch. Div. 76) ; nor when the arti- ficial construction is maintained for the common benefit, and the immediate cause of the injury of such a trivial character as to have been wholly unexpected (Carstairs v. Taylor, L. E. 6 Exch. 217) ; or in the exercise of powers specially conferred by law (Madras Ry. Co. v. Zemindar, etc., L. R. 1 Ind. App. 364). The principle of Rylands v. Fletcher was again enforced by the Court of Exchequer in Smith v. Fletcher, L. R. 7 Exch. 305, a case referred to in the argument of counsel, growing out of injury from the same premises. The case was carried up, however, to the Exchequer Chamber, where the Judges thought that, under the circumstances of the case, evidence might have been received to show that every reasonable precaution had been taken to guard against ordinary emergencies, and that it was desirable the opinion of the jury should be taken as to whether the acts of the defendants were done in the ordinary, reasonable, and proper mode of working the mine. 442 NUISANCE. It is not altogether clear, therefore, since the decision of this case in the Exchequer Chamber, what the English doctrine is as to cases which are not strictly like Rylands v. Fletcher. Nor has the doctrine of Rylands v. Fletcher been generally received in this country. It has been cited with approval in Massachusetts (Shipley v. Fifty Associates, 106 Mass. 194 ; Gor- ham /'. Gross, 125 Mass. 232 ; Mears v. Dole, 135 Mass. 508); but it has been expressly denied in New York (Losee v. Buchanan, 51 N. Y. 477), in New Jersey (Marshall v. Wel- wood, 38 N. J. Law 338), and in New^ Hampshire (Swett v. Cutts, 50 N. H. 489 ; Garland v. Towne, 55 N. H. 57). In Losse V. Buchanan, Earl, G, says : "It is sufficient, however, to say that the law as laid down in these cases (Rylands v. Fletcher, and Smith v. Fletcher) is in direct conflict with the law as settled in this country. Here, if one builds a dam upon his own premises, and thus holds back and accumulates the water for his benefit, or if he brings water upon his premises into a reservoir, in case the dam or the banks of the reservoir give way, and the lands of a "neigh- bor are thus flooded, he is not liable for the damage without proof of some fault or negligence on his part : Ang. Water- courses, § 336 ; Laphan v. Curtis, 5 Vt. 871 ; Todd v. Cochell, 17 Gal. 97; Everett v. Hydrauhc, etc., Co., 28 Gal. 225; Shrewsbury v. Smith, 12 Gush. 177 ; Livingston v. Adams, 8 Cow. 175 ; Bailey v. Mayor, etc., of New York, 3 Hill, 531 ; s. c, 2 Denio, 433 ; Pixley v. Clark, 35 N. Y. 520, 524 ; Sliel- don ■;;. Sherman, 42 N. Y. 484." The true rule is laid down in the case of Livingston v. Adams, as follows : " Where one builds a mill-dam upon a proper model, and the work is well and substantially clone, he is not liable to an action though it break away, in consequence of which his neighbor's dam and mill below are destroyed. Negligence should be shown in order to make him liable." In Marshall v. Welwood, Beasley, C. J., says: " The fallacy in the process of argument by which judgment is reached in the case of Rylands v. Fletcher, appears to me to PEXXSYLVAXIA COAL CO. V. SANDERSON ET UX. 443 consist in this : that the rule, mainly applicable to a class of cases, Avliich I think should be regarded as in a great degree exceptional, is amplified and extended into a general, if not universal, principle." In Garland v. Towne, Ladd, J., referring to the case of Rylands v. Fletcher, says : " I am not aAvare that any Court this side of the Atlantic has gone so far as this, and I apprehend it would be a surprise not only to that large class of our people engaged in various manufacturing operations who use water-power to i:)ropel their machinerj^, and for that purpose maintain reservoirs, but to the legal profession, to hold that, in case of the breaking awaj^ of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus "accumulated water in a non- natural state, on his own premises, is liable at all events, as matter of law, in case it escapes, for the damage caused by it. As a general proposition it is safe to say that the owner of the land has a right to make reasonable use of his property, and that right extends as well to an unlimited distance above the earth's surface as to an unlimited distance below." See, also, AVhart. Neg. 934 ; Ang. Water-course, 336 ; Washb. Easem., c. 3, § 7 ; Jones v. Railroad Co., 27 Yt. 399. If a man erect a mill upon a stream of water, and build a dam wholly upon his own land in order to apply the weight and power of the water to the propelling of his mill, or if he erect tanks or basins to retain water for the irrigation of his land, it seems a severe rule to jmt upon him the strict and un- bending obligation of an insurer — to hold him liable for any injury whatever which may result from the escape of the water, whether in the construction and maintenance of the works he was negligent or not. As a general rule those who engage in an undertaking attended with risks to their neighbors are answerable for the conduct of that undertaking with diligence proportioned to the apparent risk, and this would seem to be the better rule. Where one places a steam-boiler upon his premises and operates the same with care and skill, so that it is no nuisance, in the absence of proof of fault or 444 NUISANCE. negligence upon his part, he is not liable for damages to his neighbor occasioned by the explosion of his boiler : Losee v. Buchanan, supra. A railway company may bring upon its lands locomotive engines, and if, notwithstanding the best practicable care and caution and the use of the best approved appliances, sparks escape and fire the property of the adjacent land-owners, the company will not be held for the conse- quences. So with fires necessarily emploj'ed in the clearing of land, and for domestic purposes ; in the accumulation of materials for building of dwelling-houses, or other necessary structures on the land for the enjoyment thereof. In the first place, then, we do not regard the rule in Rylands- V. Fletcher as having any application to a case of this kind ; and, if it had, we are unwilling to recognize the arbitrary and absolute rule of responsibility it declares, to the full extent, at least, to which its general statement would necessarily lead. The case of Mason v. Hill, 5 Barn. & Adol. 11, is in no respect inconsistent with the view we have expressed, and we cannot see how it can be supposed to have any important bearing on the case. The only case cited by the defendants in error which would seem to sustain their view of this case is the rather recent case of Pennington v. Brinsop Coal Co., L. R. 5 Ch. Div. 769, where an injunction was granted to restrain the coal company from pumping water from their coUiery into Borsdane brook, by means whereof the water used in the plaintiff's cotton-mill was corrupted. The claim in that case, however, included the distinct assertion by the plaintiff of a prescriptive right to the use of the water for the supply of his boilers, and for the other purposes of the mill in its natural purity. That the plaintiff had all the rights of a riparian owner, and also a right by pre- scription, was conceded. ' Upon this the Court granted an in- junction. What the plaintiff's rights as a riparian owner - were, was not separately discussed in the judgment of the Court. Indeed, that question was not discussed at all, and cannot be said to have been decided, because, as we have said,, the defendant conceded the prescriptive right. The opinion. PENNSYLVANIA COAL CO. ('. SANDERSON ET UX. 445 of the Court (Fey, J.) is wholly occupied with the discussion of a question which is irrelevant here, whether, where the right is conceded, damages might or should be awarded in lieu of the injunction. As the question now under consideration was neither discussed nor decided, we cannot see how the case can be supposed to have any importance here. If it be assumed, however, that it was decided upon the plaintiff's rights as a riparian owner alone, we think the case was not well consid- ered. The authorities cited by the learned Judge, in that view, certainly do not sustain him. There is a well-known line of cases in Pennsylvania and elsewhere which decide that a stream of water may not be fouled by the introduction into it of any foreign substance, to the damage and injury of the lower riparian owners. Howell V. McCoy, 3 Rawle, 256 ; Barclay v. Com., 25 Pa. St. 503 ; !McCallum v. Germantown Water Co., 54 Pa. St. 40 ; Wood v. Satcliffe, 16 Jur. 75 ; Wood v. Waud, 3 Exch. 748 ; St. Helen Smelting Co. v. Tipping, 4 Best & S. 608 ; s. c, 11 H. L. 642, are cases of this kind. But we do not understand the prin- ciple of these cases to be denied, and we think they are not pertinent to the question now under consideration. The de- fendants introduced nothing into the water to corrupt it. The water flowed into Meadow brook just as it was found in the mine. Its impurities were from natural, and not from artificial causes. It may be said that, if the mines had not been opened, the water which flowed into the stream would have been pure ; but, as Chief Justice Lewis said in Wheatley v. Baugh, 25 Pa. St. 532 : " The law has never gone so far as to recognize in one man the right to convert another's farm to his own use for the purpose of a filter." In the case of New Boston Coal Co. v. Pottsville Water Co., 54 Pa. St. 164, a question of a somewhat similar nature was sought to be raised in this Court, but the cause was determined on other grounds, and the question referred to was not decided. No case in Pennsylvania has been brought to our notice in which the precise question appears to have been decided. As the discharge of mine water is incident to all mining, it 446 KUISANCE. is probable that there is scarcely a stream in the mining regions of Lackawanna County which is not, to a greater or less extent, similarly affected ; but, adopting the language of our brother Paxson in his dissenting opinion (6 Wkly. Notes Cas. 100) : " The population, wealth, and improvements are the result of mining, and of that alone. The plaintiffs knew when they purchased their property that they were in a mining region. They were in a city born of mining operations, and ^'hich had become rich and populous as a result thereof. They knew that all mountain streams in that section were affected by mine water, or were liable to be. Having enjoyed the advantages M'hich coal mining confers, I see no great hardship, nor any violence to equity, in their also accepting the inconveniences necessarily resulting from the business." We are of opinion, for the reasons stated, this judgment should be reversed. It is with the greatest reluctance we con- clude to revise and reverse a former judgment of this Court. We feel much more embarrassed in so doing because of the well-known ability and learning of the distinguished Judge who delivered the previous opinion, and of the fact that two, at least, of our number have given that opinion their formal approval ; but a majority of this Court, as it is now consti- tuted, satisfied that the rule laid down in that opinion and judgment is wrong, feel constrained to adopt a different rule, and enter a different judgment. The view which we have taken of this case renders it unnecessary that we should consider the other errors assigned. The judgment is reversed. Mercur, C. J., and Gordon and Trunkey, JJ., dissent. Peckard '■. Collins, 23 Barb. 444 ; Jlahan v. Brown, 13 Wend. 261 ; Hougan r. R. R., 35 la. 558 ; Acton v. Blundell, 12 M. & W. 324 ; Lybe's Appeal, 106 Pa. St. 626 ; Wheatley v. Baugh, 25 Pa. St. 528 ; Haldeman v. Bruckhart, 45 Pa. St. 514. Note.— What are nuisances in Minnesota : 1085 (28), 1088, 6616 6617 6642, 6643, 6896-6901, 6577 ; Laws, 1895, ch. 273, 274. DAVIS V. SAWYER. 447 b A Material Inconvenience, Annoyance, or Discomfiture. Davis v. Sawyer. Supreme Judicial Court of Massachusetts, 1882. 133 IMass. 289. W. Allex, J. This is a bill in equity praying for an injunc- tion to restrain the defendants from ringing a bell. The case comes here on appeal hj the defendants from a decree entered by a single Judge, enjoining them from ringing the bell earlier than half after six o'clock in the morning. The plaintiffs for many years have owned and occupied dwelling-houses situated, one about one thousand feet, and the other about three hun- dred feet, from a woolen mill of the defendants. The defend- ants began to run their mill, which had been before that occu- pied by other persons, in December, 1879, and about January 1, 1880, placed the bell upon the mill, and caused it to be rung eveiy working day at five o'clock, and twice between six and six and one-half o'clock in the morning, and at other times during the day, except that the five-o'clock bell was dis- continued during the summer months. The plaintiffs allege that the bell as rung is a private nuisance to them, and injures their property, and disturbs the quiet and comfort of their homes ; that it is not necessary for any pur- pose of trade or manufacture ; that it is unnecessarily large, and rung at unseasonable hours, and unreasonably long. The defendants, in their answer, deny that the bell is a nuisance to the plaintiffs, and say that it is used by the defendants to summon the operatives in their mill to work ; that it is neces- sary and customary to adopt some method to summon opera- tives in such a manufactory to their work ; that the bell is of suitable size, and rung at suitable hours, and in a proper manner, for that purpose. Two questions are presented : whether the plaintiffs have proved that the ringing of the bell is a nuisance to them ; and 448 NUISANCE. whether it is such a nuisance that this Court will interfere to restrain it by injunction. Noise which constitutes an annoyance to a person of ordinary sensibihty to sound, sucli as materially to interfere with the ordinary comfort of life, and impair the reasonable enjoyment of his habitation, is a nuisance to him : Crump v. Lambert, L. li. 3 Eq. 409 ; Wesson v. Washburn Iron Co., 13 Allen, 95 ; Fay V. Whitman, 100 Mass. 76. Upon a careful examination of the evidence reported, it seems fully to sustain the finding of the Judge who heard the case, that the ringing of the bell was a nuisance to the plaintiffs. The bell weighs about two thousand pounds, and is set in an open to^ver about forty feet from the ground, and was rung for a long time at five o'clock, as many as ninety strokes having been repeatedly counted. The residences of the plaintiffs are so situated with respect to the bell, particularly that of the plaintiff Cavis, being higher than the bell and upon the hill-side, with no obstruction be- tween, that they received the full force of the sound, and they are in a village in which, at that hour, there is no other ring- ing of bells, or other disturbing noise. Without referring to the evidence in detail, or reviewing the particular circum- stances affecting the question, it is enough to say that the evi- dence sustains what must have been found by the Judge, namely, that the plaintiffs were deprived of sleep during hours usually devoted to repose, and were personally annoyed and disturbed in their homes, and the quiet and comfort of their dwellings were impaired, as the natural consequence of the acts of the defendants which are complained of. Nor is the fact that a large majority of the persons living nearer to the bell than the plaintiffs were not annoyed by it, at all con- clusive that it would not and did not awaken and annoy per- sons of ordinary sensibility to noise situated as the plaintiffs were. Besides the consideration that nearness to the bell would not alone determine the effect produced by its sound, it is obvious that the bell was sufficient and effective to awaken persons ordinarily sensitive to sound, who were no more exposed to its effects than the plaintiffs were. That was the effect it DAVIS V. SAWYEE. 449 ■was intended to produce, and, if it had not in fact produced the eflfect, its use would not have been continued. The fact that some persons may liave had sucli associations connected ivith the sound that it may have been to them a pleasure rather than an aiinoyance, or that the sensibility of others to the sound may have become so deadened that it ceased to dis- turb them, shows that the noise was not a nuisance to them, but does not change its character as to others. Many persons can, by habit, lose, to some extent, their sensibility to a dis- turbing noise, as they can to a disagreeable taste or odor or sight, or their susceptibility to a particular poison, but it is because they become less than ordinarily susceptible to the par- ticular impression. In this case, the evidence shows that per- sons were awakened and disturbed hj the bell until they had lost ordinar}^ sensibility to its sound. The other question presented is, whether the plaintiffs are entitled to an injunction. Upon general principles, they would be entitled to an injunction against a nuisance of this nature, for the obvious reason that they can have no adequate remedy in actions at law for damages: Cadigan v. Brown, 120 Mass. 493. But the defendants argue that relief by injunction is in the discretion of the Court, and will -not be granted where it will be inequitable between the parties, or will work detriment to the public, and that, in this case, the abatement of the nuisance by injunction will involve damage to the defendants in a lawful business, carried on by them to the public benefit, disproportionate to the damage to the plaintiffs from its con- tinuance ; and that the Court ought not to interfere by injunc- tion, but leave the plaintiffs to their remedy in damages which may be recovered in actions at law. The business in which the defendants are engaged is such a business ; and if it appeared that the effect of an injunction would be to mate- rially affect it, the argument for the defendants would be of great weight. But the evidence does not show that the ringing of the morning bells is at all essential to the defendants' busi- ness, or that it is anything more than a convenience to them. The time for commencing work in the mill was at half after 29 450 NUISANCE. six o'clock in the morning, and the ringing of the morning bells was to aid the operatives in being at their work at that time. It may be convenient for the boarding-house keepers to be called at five o'clock, and for the defendants' operatives to be called at six o'clock, and to be summoned to the mill at half after six o'clock ; but the evidence wholly fails to show that there are not other and equally effective methods of accom- plishing the result which will not interfere with the rights of the plaintiflfs. The custom in other places cannot affect the rights of the plaintiffs. The question is, largely, what is rea- sonable under the circumstances peculiar to the case. The defendants have adopted a certain method for producing a result subordinate in their business ; they thereby do damage to the plaintiffs. If that method is so necessary to their busi- ness that it is reasonable that they should use it, notwith- standing the damage it does to the plaintiffs, then it is reason- able that the plaintiffs should suffer 'the damage, or obtain an indemnity by an action at law. But it is for the defendants to show that their act is, under all the circumstances, reason- able ; and we think that the evidence warranted the Judge before whom the case was heard in finding that the ringing of the bell before the hours of six and one-half o'clock in the morn- ing was not necessary or reasonable. Decree affirmed. Price V. Grantz, 118 Pa. St. 402; Spa,rhawk v. R. R, 54 Pa. St. 401; St. Helen's Smelting Co. v. Tipping L. R., 1 Ch. App. Cas. 66 ; Bohan v. P. J. G. L. Co., 122 N.Y. 18 ; Hurlbut v. McKone, 10 Atl. 164 ; Jaggard, 768 ; Bishop, 416, 418 ; Cooley, 596 ; Pollock, 494 ; Bigelow, 267. NORTHERN PACIFIC R. R. V. WHALEN. 451 C A Damage Actual or Implied of Law. Northern Pacific E. R. v. Whalen. Supreme Court of the United States, 1893. 149 TJ. S. 157. Mr. Justice Gray. The Northern Pacific Raih-oad Com- pany asks for an injunction against the county commissioners and the other defendants, because the latter, under pretended licenses from the former, keep and maintain gambling and drinking saloons at the village of Tunnel City and along the line of the plaintiff 's railroad, and there sell intoxicating liquors at retail to the plaintiff's employees, and thereby make them drunk and unfit to work under their several contracts with the plaintiff, and thus increase the danger to its agents and employees from the use of the machinery and explosives required in constructing its railroad, cause many of the em- ployees to quit its employment, delay and increase the expense of constructing its railroad, seriously annoy its agents and their families, and consequently diminish the value of the plaintiff 's property. It is not alleged that the defendants have conspired or in- tend to injure the plaintiff's property or business, or to prevent the plaintiff's workmen from performing their contracts of service. Nor is it alleged that any one of the saloons kept by the several defendants is a disorderly house, which, by reason of noises in or about it, or otherwise, is a nuisance to property in the neighborhood. The whole complaint is based upon the theory that by the general principles of equity jurisprudence, and by the provisions of the Code of Washington Territory, the saloons kept by the defendants severally are, by reason of the sales of intoxicating liquors therein to the plaintiff 's work- men, and their consequent drunkenness and incapacity to work, public nuisances, and cause special damage to the plain- tiff, to prevent the repetition and continuance of which it is entitled to an injunction. 452 NUISANCE. But the usual, and at the suit of a corporation the only, ground on which, independently of express statute, a Court of Equity will grant an injunction in a private action for a nuisance is special injury to the plaintiff's property: 3 Bl. Com. 216 ; Robinson v. Kilvert, 41 Ch. D. 88 ; Georgetown v. Alexandria Canal Co., 12 Pet. 91, 99. No employer has such a property in his workmen, or in their services, that he can, under the ordinary jurisdiction of a Court of Chancery, main- tain a suit, as for a nuisance, against the keeper of a house at which they voluntarily buy intoxicating liquors, and thereby get so drunk as to be unfit for work. Nor is there anything in the provisions of the Code of the Territory, cited in behalf of the plaintiff, which enlarges the equitable jurisdiction in this respect. By that Code, a nuisance, other than the obstruction of a highway, or of navigable or running waters, is defined to be " whatever is injurious to health, or indecent or offensive to the senses, or an obstacle to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property ;" and again, " unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures, or endangers the comfort, repose, health, or safety of others, offends decency, or in any way renders other persons insecure in life, or in the use of property ;" " the rem- edies against a public nuisance are indictment or civil action or abatement ;" and an action for damages may be brought, and an injunction or abatement obtained, " by any person whose property is injuriously affected, or whose personal en- joyment is lessened by the nuisance:" §§ 605, 606, 1235, 1242. As a corporation cannot be said to have life or health or senses, the only ground on which it can obtain either dam- ages or an injunction, under these provisions, is injury to its property. The Code further provides, in § 1247, that all houses of ill-fame; "all public houses or places of resort where gam- bling is carried on or permitted ; all houses or places within any city, town, or village, or upon any public road or high- NORTHERN PACIFIC R. R. V. WHALEN. 453 way, where drinking, gambling, fighting, or breaches of the peace are carried on or permitted ;" and all opium dens, are nuisances, and maj"- be abated, and the owners or keepers thereof punished. This action is aimed at nuisances which affect the public morals or the public peace, and affords no countenance for a private action, unless by an owner of prop- erty, the use or enjoyment of which is specially affected by the existence of such a nuisance in its immediate neighbor- hood : United States v. Columbus, 5 Cranch C. C. 304 ; Meyer V. State, 12 Vroom (41 N. J. Law), 6 ; Hamilton v. Whitridge, 11 Marj'land, 128 ; Inchbald v. Robinson, L. E. 4 Ch. 388. The Code of "Washington Territory contains no enactment, such as exists in some States, declaring all houses or tenements kept for the unlawful sale of intoxicating liquors to be common nuisances, and conferring jurisdiction in equity to restrain them by injunction, at the suit of the district attorney or of a private citizen. The plaintiff relies on § 2059, which provides that " any husband, wife, child, parent, guardian, employee [r ?], or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole, or in part, of such person," as well as against the owner of the building or premises in which the liquors are sold, if he has leased it with knowledge that such liquors are to be there sold, or has knowingly permitted their sale therein. But this section, creating a new liability, unknown to the common law, is to be strictly construed, and is not to be ex- tended beyond the clear import of its terms ; and, as the only remedy which it gives is an action against the seller of the liquor, or against the owner of the place where it is sold, to recover damages suffered by reason of sales to particular per- sons, it cannot be construed as authorizing an injunction to prevent the use of the building for future sales. 454 NUISANCE. The complaint in this case has no foundation, in common law or statute, in principle or precedent. Judgment affirmed. Kaiser v. Mahanoy, 143 Pa. St. 276 ; Bohan v. P. J. G. L. Co., 122 N. Y. 18 ; Eobb v. Carnegie, 145 Pa. St. 324 ; Jaggard, 778. d Care or Motive are Immaterial. Laflin & Rand Powder Co. v. Teaeney. Supreme Court of Illinois, 1890. 181 III. 322 ; 23 N. E. 389. Mr. Justice Magruder. This is an action on the case brought in the Superior Court of Cook County by the appellee against the appellant company to recover damages to the dwelling, barn, and other out-houses upon the premises of appellee, resulting from the explosion of a powder magazine upon the premises of appellant. The buildings of the plam- tiff and the powder magazine in question were located upon a street called Archer Avenue in the town of Lake in the out- skirts of the City of Chicago in Cook County. Verdict and judgment in the trial Court were in favor of the plaintiff, and such judgment having been affirmed by the Appellate Court is brought here from the latter Court by appeal. The first instruction given for the plaintiff is as follows : " If the jury find from the evidence that the plaintiff has made out her case as laid in her declaration, then the jury must find for the plaintiff." Defendant took exception to the giving of this instruction. We have held that such an instruction does not make the jury the judges of the effect of the averments of the declaration, but merely empowers them to determine whether the proof introduced sustains the issues made by the pleadings in the case : 0. & M. Ry. Co. ■;;. Porter, 92 111. 437 ; Pennsylvania Co. v. Marshall, 119 lb. 399. The declaration was not demurred to. After the plaintiff LAFLIX tt RAXD POWDER CO. V. TEARNEY. 455 had closed her testimony, the defendant moved that the jury be du'ected to return a verdict in favor of the defendant, which motion was overrnled, and exception was talcen. After the motion for a new trial was overruled, defendant also moved in arrest of judgment, which latter motion being overruled ex- ception was entered. It is claimed by the appellant that the declaration does not set out a cause of action. The first objection made to the declaration is that it does not charge the defendant with neg- ligence. The objection is not well taken. The powder magazine kept by the defendant upon its prem- ises was so situated with reference to the dwelling-house of the plaintiff, that it was liable to inflict serious injury upon her person or her property in case of an explosion. It was a private nuisance, and, therefore, the defendant was liable whether the powder was carefully kept or not. As a general rule, the question of care or want of care is not involved in an action for injuries resulting from a nuisance. If actual injury result from the keeping of gunpowder, the person keeping it will be liable therefor, even though the explosion is not charge- able to his personal negligence : Wood's Law of Nuisance, 1st ed., §§ 73, 115, 130, 142 ; Heeg v. Licht, 80 N. Y. 579 ; Cheatham v. Shearon, 1 Swan (Tenn.), 213 ; Stout v. McAdam, 2 Scam. 67 ; Ottowa Gas Co. v. Thompson, 39 111. 600 ; Nevins V. City of Peoria, 41 lb. 502 ; Cooper v. Randall, 58 lb. 24 ; Myers v. Malcorn, 6 Hill, 292 ; Hay v. Cohoes Co., 2 N. Y. 159 ; Phinne}- v. Augusta, 47 Ga. 268 ; Burton v. McClellan, 2 Scam. 434 ; Weir's Appeal, 74 Pa. St. 230. The second objection to the declaration is that it does not specifically aver the powder magazine to be a nuisance. It was not necessarj'- to use the word, "nuisance," if the facts alleged constitute a nuisance. Tlie declaration avers that it was the duty of the defendant to so use its premises as not to jeopardize the buildings of the plaintiff, and not to store upon its premises any dangerous substance whereby plaintiff's prop- erty might be destroyed in case of an explosion ; that the de- fendant did keep upon its jiremises a magazine of gunpowder, 456 NUISANCE. dynamite, etc., and stored therein a large amount of gun- powder, dynamite, etc. ; that the gunpowder, dynamite, etc., so kept upon said premises exploded, and that, by means of such explosion, " the material of which such magazine was constructed was then and there driven M'ith great force and violence upon and against the property of the plaintiff here- inbefore described," and that " the following property of the plaintiff was by means of such explosion struck by flying mis- siles, rocks, and stones, and was wrecked and torn by means of the concussion of the air, then and there caused by said explosion, and was totally destroyed and lost, and was of great value, to wit: One two-story frame dwelling," etc. "A pri- vate nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another: 3 Bl. Com. 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or per- sonal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all dam- ages arising from such use :" Heeg v. Licht, supra. The averments of the declaration bring the present case within the definition thus quoted. The fact that the magazine exploded shows that it was dangerous. The fact that the ex- plosion destroyed plaintiff's buildings shows that the keeping of gunpowder in the magazine, considered with reference to "the locality, the quantity, and the surrounding circum- stances," constituted a nuisance per se .• Heeg i). Licht, supra/ Wood's Law of Nuisance, § 142, supra. The declaration contains two counts. The second count, in addition to the averments of the first as above set forth, fur- ther avers, that there was an ordinance in the town of Lake, ordaining that " no powder magazine or place for storing or keeping gunpowder or other explosive material shall be kept or maintained within the town : Provided, however, the pro- visions of this section shall not be held or construed to apply," etc., to any magazine located upon a lot of a certain size and area ; and that the defendant's magazine was located upon a lot of a smaller size than that required by the ordinance. LAFLIN & EAND POWDER CO. V. TEARNEY. 457 It is claimed bj' the defendant tliat the injury to the plain- tiff's propert}' was not caused by the violation of this ordi- nance, and, therefore, that such violation imposes no liability upon the defendant. We do not concur in this view. If the magazine had not been where it was, the explosion would not have taken place, and the injury to plaintiff's property would not have resulted. The ordinance absolutely prohibited any powder magazine from being kept within the town, unless the lot upon which it was located should be of a certain size. The defendant kept its magazine within the town upon a smaller lot than the law required. Its magazine was in the town in violation of the law. The keeping of gunpowder in the town was an illegal act. " If an illegal act be done, the party doing or causing the act to be done, is responsible for all conse- quences resulting from the act :" Burton v. McClellan, supra. The cases referred to by counsel as holding a contrary doc- trine have no application here. In those cases it is held, that, where the plaintiff's right of recovery depends upon his own exercise of due care as well as upon the defendant's negligence, the failure of the defendant to complj' with some statutory re- quirement, such as ringing a bell, or blowing a whistle, or erecting a sign-board, will not of itself authorize a recoverj'' in the absense of such care on the part of the plaintiff. There, the injury is attributable to the plaintiff's want of ordinary care, and the defendant's neglect of a statutory requirement cannot be set up as an excuse. Here, there is no question of the exercise of care by the plaintiff, nor is it a mere matter of non-feasance on the part of the defendant. In keeping a powder magazine in the town without complj'ing with the condition named in the ordinance, the defendant was guilty of malfeasance. Its offense is similar to that of bringing diseased cattle into the State in violation of the Act of the Legislature on that sub- ject, as discussed in Somerville v. Marks, 58 111. 371, and Sangamon Distilling Co. v. Young, 77 lb. 197. The appellant complains of the refusal of the Court to in- struct the jury that there could be no recovery, if they should find from the evidence that tliere were other powder magazines 458 NUISANCE. in the neighborhood where plaintiff lived, that such magazines ^\■eTe there when plaintiff bought her lot and erected her build- ings, that her husband had been employed in the powder busi- ness, that she bought her property in order that her husband might be near the magazines, that she bought said property after the location and erection of defendant's magazine, that her husband had been a stockholder in one of the powder companies, and that she had leased some of her own land to powder companies for the purpose of storing powder thereon. It is claimed, that, if the foregoing facts were found to be true, the plaintiff assumed the risk of being injured by the explosion of defendant's magazine. If a servant enters the employment of his master knowing it to be dangerous and unsafe, he assumes the risks attendant upon such employment and waives all claim for damages against his employer in case of injury. In such cases the risks are a part of the contract of service : 2 Thompson on Negligence, 1008. But in the present case, it is not pretended that either the plaintiff or her husband had ever been employed by the defendant, or had ever had any interest in defendant's powder magazine or business, or that there had ever been any relations of any kind between her or her husband and the defendant. In Cooper v. Randall, 53 111. 24, which was an action to re- cover damages for the erection, on a lot adjacent to plaintiff's dwelling-house, of a flouring mill which threw chaff, dust, smut, and dirt into plaintiff's house, the defendants sought to prove that another house in the same neighborhood, owned and rented by the plaintiff, was a disreputable house. The evi- dence was held to be inadmissible because wholly foreign to the issue. " The issue was whether the mill was an injury to this property, and no light could be shed upon that question by evidence in regard to the occupancy of another house in the neighborhood." In Weir's Appeal, 74 Pa. St. 230, supra, it was said : " Carrying on an offensive trade for any number of years in a place remote from buildings and public roads does not entitle CRAWFORD V. TYRRELL. 459 the owner to continue it in the same place, after houses have been built and roads laid out in the neighborhood, to the occu- pants of which and travelers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residence of the citizens. This public policy, as well as the health and comfort of the population of the city, demand." "We do not think that there was any error in the refusal of the instruction last referred to. The judgment of the Appellate Court is affirmed. Judgment affirmed. Cahill V. Eastman, 18 Minn. 324; Frost v. Phosphate Co., 20 S. E. 280 ; Hauck i: Pipe Line Co., 153 Pa. St. 366 ; Chicago Coal Co. v. Glass, 34 111. App. 364 ; Heeg c Licht, 80 N. Y. 579 ; Fallon ?. Schilling, 44 Am. Rep. 642 ; South Royalton Bank v. Suffolk Bank, 27 Vt. 505 ; Brady v. Detroit Steel & Spring Co., 60 N.AV. 687 ; Bonnell?;. Smith, 53 la. 282 ; Jaggard, 771 ; Cooley, 566 ; Pollock, 499. 3. The Injury may Consist. a In a ■wrongful use of property. Cranford v. Tyrrell. Court of Appeals of New York, 1891. 128 N. Y. 341 ; 28 N. E. 514. Gray, J. In this action, which was brought to restrain the ■defendant from keeping a house of ill-fame and from using his premises as an assignation house, and to recover damages for injuries sustained, the trial Court found as facts that the house, as maintained by defendant, was a resort for prostitutes and licentious men, and that the persons occupying rooms acted in a boisterous and noisy manner, and indecently exposed their persons at the windows, " whereby the use and occupation of the plaintiffs' premises have been interfered with and rendered uncomfortable, and wherel:)y the occupants of plaintiffs' prem- ises have been annoyed and seriously disturbed." 460 NUISANCE. Such a finding was amply justified by the evidence, and^ indeed, it is not discussed by tlie appellant ; but he argues that the plaintiffs could not maintain a civil action of this nature ; inasmuch as the damage they suffered was a damage common to the whole community, and not special to them. If that position had been sustained by the facts, I do not doubt but that it would have been the duty of the trial Court to have denied the relief prayed for. The rule of law requires of him who complains of his neigh- bor's use of his property, and seeks for redress and to restrain him from such use, that he should show that a substantive in- jury to property is committed. The mere fact of a business being carried on which maj'' be shown to be immoral, and, therefore, prejudicial to the character of the neighborhood, fur- nishes, of itself, no ground for equitable interference at the suit of a private person ; and though the use of property may be unlawful or unreasonable, unless special damage can be shown,, a neighboring property-owner cannot base thereupon any private right of action. It is for the public authorities, acting in the common interest, to interfere for the suppression of the common nuisance. See Francis v. Schoellkopf, 53 N. Y. 152. If the business complained of is a lawful one, the legal question presented in a civil action for private damage is whether the business is reasonably conducted, and whether, as conducted, it is one which is obnoxious and hurtful to adjoin- ing property. If the business is unlawful, the complainant in a private action must show special damage, by which the legitimate use of his Adjoining property has been interfered with, or its occupation rendered unfit, or uncomfortable. That the perpetrator of the nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained, and for an injunction against the continued use of his premises in such a manner. The principle has been long settled that the objection that the nuisance was a common one is not available, if it be shown that special damage was suffered r Rose V. Miles, 4 M. & S. 101 ; Rose v. Groves, 5 Man. & G. CRAWFORD V. TYRRELL. 461 (513 ; Francis v. Schoellkopf, supra; Lansing i'. Smith, 4 Wend. 9. One who uses his property lawfully and reasonably, in a general legal sense, can do injury to nobody. In the full en- joyment of his legal rights in and to his property, the law will not suffer a man to be restrained ; but his use of the property must be always such as in no manner to invade the legal rights of his neighbor. The rights of each to the enjoy- ment and use of their several properties should, in legal con- templation, always be equal. If the balance is destroyed by the act of one, the law gives a remedy in damages, or equity will restrain. If the use of a property is one which renders a neighbor's occupation and enjoyment physically uncomfort- able, or which may be hurtful to the health, as where trades are conducted which are offensive by reason of odors, noises, or other injurious or annoying features, a private nuisance is deemed to be established, against which the protection of a Court of Equity power may be invoked. In the present case the indecent conduct of the occupants of the defendant's house and the noise therefrom, inasmuch as they rendered the plaintiffs' house unfit for comfortable or re- spectable occupation, and unfit for the purposes it was intended for, were facts which constituted a nuisance, and were sufficient grounds for the maintenance of the action. If it was a nuisance which affected the general neighborhood and was the subject of an indictment for its unlawful and immoral features, the plaintiffs were none the less entitled to their action for any injury sustained and to their equitable right to have its con- tinuance restrained. The judgment appealed from should be affirmed, with costs. All concur. Judgment affirmed. Tyner )'. Gas Co., 31 N. E. 61; Comminge v. Stevenson, 76 Tex. 642 Grady v. Wolsner, 46 Ala. 381 ; Cleveland v. Gas Co., 5 C. E. Green, 201 Dennis v. Eokhardt, 3 Grant (Pa.), 390 ; Meyer v. Metzler, 51 Cal. 142 Grandona i. Lovdal, 70 Cal. 161 ; Ball v. Nye, 99 Macs. 582 ; Haugh's Ap- peal, 102 Pa. St. 42 ; Red River Mills v. Wright, 30 Minn. 249 ; McCaffrey's Appeal, 105 Pa. St. 253 ; Bishop v. Banks, 33 Conn. 118 ; Brill v. Flagler, 23 Wend. 354 ; Jaggard, 768 ; Bishop, 412-415 ; Cooley, 567 ; Pollock, 502. 462 NUISANCE. b In wrongful personal conduct. State v. Graham. Supreme Court of Tennessee, 1855. 3 Sneed, 134. Caeuthers, J. The indictment in this case was quashed, and appeal by the Attorney-General. The charge is, that the defendant, " in a public place, and in the presence and hearing of divers good citizens of the State, then and there being, unlawfully did utter, publish, speak, and say the following gross, scandalous, profane, and blasphemous language." The various oaths are then set forth, coming fully up to the description of profane cursing and swearing, and concludes : " To the great scandal and common nuisance of all good citizens so then and there being as afore- said, to the manifest corruption of public morals, to the evil example of all like offenders, and against the peace and dig- nity of the State." Now, the only question is, whether an indictable offense is here charged. We dare not permit our abhorrence of this most ungentlemanly and disgraceful habit to influence our judgments in the determination of the legal questions pre- sented. No matter how odious and corrupting the practice of pro- fane cursing and swearing may be, yet the question of crimi- nal responsibility, in the temporal Courts, must still depend upon what the law is. There are many practices most cor- rupting and reprehensible, of which the municipal laws have taken no notice, but left them to the curative powers of the church and a sound public sentiment. Whether this offense be of the latter class or not is the point now to be decided. By the Act of 1741, ch. 14, Car. & Nich. 349, any person who may curse or swear before a justice of the peace, or, upon proof made of doing so elsewhere, is made liable to a fine of STATE V. GRAHAM. 463 31 J cents for each oath ; or, if he be a public officer, 62^ cents ; or, if in presence of anj' Court of record, $1.25, or be sentenced to sit in the stocks not exceeding three hours. These penalties must be enforced within ten daj^s from the commission of the offense. In England several similar statutes have been passed, the last of which, superseding and repealing all others, was that of 19 Geo. 2, ch. 21, by which laborers, sailors, and soldiers were to forfeit one shilling ; all others under the degree of gentlemen, two shillings ; and every gen- tleman, or person of rank, five shillings, for each oath, to the poor of the parish : 4 Bl. Com. 60. Under these Acts, each oath or curse is a distinct and complete offense. The punishments prescribed in these statutes are clearly in- tended to apply to single acts and to the offense of cursing and swearing, in and of itself, unconnected with the public, or the effect upon others. The forfeiture seems to be for the in- dividual wickedness of the act, without any reference to the annoyance to others and the injury to society. This offense, then, in itself is not indictable ; it can only be punished as prescribed by the statutes, to which reference has been made. In American Criminal Law, by Wharton, 3d edition, page 75, it is laid down that whatever is productive of a disturbance of the public peace, or of a " nuisance or scandal of the com- munit}^," is indictable as a misdemeanor. Many offenses, he states, vfhich are in England only indictable by statute, or ex- clusively cognizable in the ecclesiastical Courts, are indictable here as common-law offenses. We are not aware that the question now under consideration has ever before come before this Court. It may be that it has been the general professional opinion that the offense was only punishable under the Act of 1841 ; and that is certainly cor- rect, as to the isolated act of profanity, as before stated. But as early as 1809 the question now presented came up in our mother State, North Carolina, in the case of The State v. Kirby, 1 Murphy, 254, in which it was decided that, " Wher- ever the bill charges the swearing as a nuisance, and there is 464 NUISANCE. evidence to satisfy the jury that it has jjioduced this effect, we can discover no reason why the offense should not be in- dictable." In that case the charge in the indictment was, " That the defendant swore several oaths in the court-yard, during the sitting of the Court, to the great disturbance and common nuisance of the citizens necessarily attending said Court." Again, in 1827, in the case of The State v. Ellar, 1 Dev. 267, the question again arose in that State, and was decided as be- fore. The charge in that case was that the defendant being an evil-disposed person, " Did, in the public street of Jefferson, profanely curse and swear, and take the name of God in vain, to the evil example, etc., and to the common nuisance of the good citizens of the State," etc. Motion in arrest of judgment was sustained by Judge Steange, and appeal by the Attorney- General. The judgment was reversed, Chief Justice Taylor giving the opinion of the Court, as follows : " It was held in the case of The State v. Waller, 3 Murphy, 229, that if the offense with which the defendant there stood charged had been laid as a common nuisance, and the jury had so found it, the judgment would have been supported. Drunkenness and profane swearing are placed upon the same footing by the Act of 1741, and where committed in single acts, maybe punished summarily by a justice of the peace ; but where the acts are repeated, and so public as to become an annoyance and an inconvenience to the citizens at large, no reason is perceived why they are not indictable ks common nuisances. Several offenses are stated in the books as so indictable, though not more troublesome to the public than the one before us. A common scold is indictable as a common nuisance ; and with equal if not stronger reason, I should think, a common pro- fane swearer may be so considered." To utter loud cries and exclamations in the public streets, to the great disturbance of the citizens, constitutes a nuisance, if alleged and proved to be to the great damage and common nuisance of all the citizens : 6 Gushing, 80. Until changed by recent statutes (1842, ch. 94, and 1844, STATE V. GRAHAM. 465 ch. 98) a single act of notorious or public drunkenness was indictable as an offense against good morals : Smith v. The State, 1 Humph. 396-9. Sobriety in public, as laid down by Blackstone in his Commentary, is a duty every man owes to the community, and the violation of which is indictable. Not so as to private acts of drunkenness — that is only hurtful to himself and not his neighbors. The principle pervading all our laws, in relation to the de- scription of offenses under consideration, is that with the private views of citizens, the community, as such, will not concern itself, but leave tliem to the lash of conscience and the frowns of neighbors ; but when their vicious acts are public, they will be dealt M'ith as crimes, because of their tendency to disturb and annoj' others, and exert a baneful influence upon the morals and habits of the community. Generall}^, any prac- tices tending to disturb the peace and quiet of communities, or corrupt the morals of the people, are indictable as publ'c offenses by the common law. Under these general principles, the cases of lewdness of Grisham v. The State, 2 Yerg. 589, and Bell v. The State, 1 Swan. 42, were held to be indictable. No one can doubt the corrupting influence of profane curs- ing and swearing in public upon the youth of the country. It is in violation of the second commandment, and the general injunctions and precepts of religion ; it generates a contempt for holy things, tends to the corruption of morals, and the debasement of humanity. In all this the public have a deep interest, and may well enforce penalties to avert such consequences. We therefore adopt the principle of the North Carolina cases as the law here, by which the words charged in the in- dictment before us constitute an indictable offense, if the proof shall sustain the charge that they became a nuisance, as before explained, and it is difficult to conceive how profane cursing and swearing in public could fall short of what the law denominates a nuisance. The judgment of the Circuit Court is reversed and the case remanded for trial. 30 466 KUISANCE. State V. Toole, 106 N. C. 736 ; State v. Millard, 18 Vt. 574 ; State v. Rose, 32 Mo. 560 ; Com. v. Harris, 101 Mass. 29 ; Com. v. Oaks, 113 Mass. 8 ; Com. V. Kneeland, 20 Pick. 206 ; Updegraph v. Com., 11 S. & R. 394 ; State V. Powell, 70 N. C. 67 ; Snider v. Cable, 1 S. E. 41 ; State v. Buckley, 5 Har. (Del. ), 508 ; Wrecks v. Smith, 2 Strange, 704 ; Com. v. Taylor, 5 Binn. (Pa. ) 276 ; Bankus v. State, 4 Ind. 114 ; Walker v. Brewster, L. R., 5 Eq. Cas. 31 ; Jaggard, 770 ; Pollock, 502 ; Bishop, 416. C Resulting in damage. (1) To corporeal rights. St. Helen's Smelting Co. v. Tipping. House of Lords Cases, 1865. 11 H. of L. 642. This was an action brought by the plaintiff to recover from the defendants damages for injuries done to his trees and crops, by their works. The defendants are the directors and shareholders of the St. Helen's Copper Smelting Company (Limited). The plaintiff, in 1860, purchased a large portion of the Bold Hall estate, consisting of the manor house and about thirteen hundred acres of land, within a short distance of which stood the works of the defendants. The declaration . alleged that " the defendants erected, used, and continued to use, certain smelting works upon land near to the said dwelling- house and lands of the plaintiff, and caused large quantities of noxious gases, vapors, and other noxious matter, to issue from the said. works, and diffuse themselves over the land and premises of the plaintiff, whereby the hedges, trees, shrubs, fruit, and herbage were greatly injured ; the cattle were ren- dered unhealthy, and the plaintiff was prevented from having so beneficial a use of the said land and premises as he would otherwise have enjoyed, and also the reversionary lands and premises were depreciated in value." The defendants pleaded not guilty. The cause was tried before Mr. Justice Mellor at Liverpool in August, 1863, when the plaintiff was examined and spoke ST. Helen's smelting co. v. tipping. 467 distinctlj^ to the damage done to his plantations, and to the very unpleasant nature of the vapor, which, when the wind was in a particular direction, affected persons as well as plants in his grounds. On cross-examination, he said he had seen the defendants' chimney before he purchased the estate, but he was not aware whether the works were then in opera- tion. On the part of the defendants, evidence was called to show^ that the whole neighborhood was studded with manu- factories and tall chimneys, that there were some alkali works close by the defendants' works, that the smoke from one was quite as injurious as the smoke from the other, that the smoke of both sometimes united, and that it was impossible to say to which of the two any particular injury was attributable. The fact that the defendants' works existed before the plaintiff bought the property was also relied on. The learned Judge told the jury that an actionable injury was one producing sensible discomfort ; that every man, unless enjoying rights obtained by prescription or agreement, was bound to use his own property in such a manner as not to injure the property of his neighbors ; that there was no pre- scriptive right in this case ; that the law did not regard trifling inconveniences ; that everything must be looked at from a reasonable point of view ; and therefore, in an action for nuisance to property, arising from noxious vapors, the injury to be actionable must be such as visibly to diminish the value of the property and the comfort and enjoyment of it. That when the jurors came to consider the facts, all the circum- stances, including those of time and locality, ought to be taken into consideration ; and that with respect to the latter it was clear that in counties where great works had been erected and carried on, persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance, for if so, the business of the whole country would be seriously inter- fered with. The defendants' counsel submitted that the three questions which ought to be left to the jury were " whether it was a necessary trade, whether the place was a suitable place for 468 NUISA>XE. such a trade, and whether it was carried on in a reasonable manner." The learned Judge did not i:>u.t the questions in this form, but did ask the jury whether the enjoyment of the plaintiff's property was sensibly diminished, and the answer was in the affirmative. Whether the business there carried on was an ordinary business for smelting copper, the answer was, " We consider it an ordinary business, and conducted in a proper manner, in as good a manner as possible." But to the question whether the jurors thought that it was carried on in a proper place, the answer was, " We do not." The verdict was therefore entered for the plaintiff, and the damages were assessed at £361 18s. 4|d. A motion was made for a new trial, on the ground of misdirection, but the rule was refused. Leave was, however, given to appeal, and the case wa's carried to the Exchequer Chamber, where the judgment was affirmed. Lord Chief Baron Pollock there observing, "My opinion has not always been that which it is now. Acting upon what has been decided in this Court, my brother Mellor's direction is not open to a bill of exception." This appeal was then brought. The Lord Chancellor (Lord Westbury). My Lords, as your Lordships, as well as myself, have listened carefully to the able argument on the part of the appellants, and are per- fectly satisfied with the decision of the Court below, and are of opinion that, subject to what we may hear from the learned Judges, the direction to the jury was right, I would submit that two questions should be put to the learned Judges ; but at tlie same time the learned .Judges will be good enough to understand that if they desire further argument of the case the respondent's counsel must be heard. Otherwise, the following are the questions which I propose to be put to them : Whether directions given by the learned Judges at Nisi Prius to the jury were correct? or, Whether a new trial ought to be granted in this case? The learned Judges will intimate to your Lordships whether they desire to hear fur- ther argument on the part of the respondent's counsel, or ST. Helen's smelting co. v. tipping. 469 't\-hether they are prepared to answer the questions put to them by your Lordships. Mr. Baron Martin said that the Judges did not require the case to be further argued, but they requested to have a few moments' consideration to give their answer to the questions put to them. Adjourned for a short time, and resumed. Mr. Baron JIaktin. Jly Lords, in answer to the questions proposed by your Lordsliips to the Judges, I have to state their unanimous opinion that the directions given by the learned Judge to the jurj"^ w^ere correct, and that a new trial ought not to be granted. As far as the experience of all of us goes, the directions are such as we have given in these cases for the last twenty years. July 5. The Lord Chancellor. My Lords, I think your Lordships will be satisfied with the answer we have received from the learned Judges to the questions put by this House. My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal dis- comfort. With regard to the latter — namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be car- ried on in his immediate locality, which are actually necessary 470 NUISANCE. for trade and commerce, and also for the enjoyment of prop- erty, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable M'ay, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade or occupation or business is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the sub- mission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property. Now, in the present case, it appears that the plaintiff pur- chased a very valuable estate, which lies within a mile and a half from certain large smelting works. What the occupation of these copper-smelting premises was anterior to the year 1860 does not clearly appear. The plaintiff became the proprietor of an estate of great value in the month of June, 1860. In the month of September, 1860, very extensive smelting operations began on the property of the present appellants, in their works at St. Helen's. Of the effect of the vapors exhaling from those works upon the plaintiff's property, and the injuiy done to his trees and shrubs, there is abundance of evidence in the case. My Lords, the action has been brought upon that, and the jurors have found the existence of the injury ; and the only ground upon which your Lordships are asked to set aside that verdict and to direct a new trial is this, that the whole neighbor- hood where these copper-smelting works were carried on is a neighborhood more or less devoted to manufacturing purposes of a similar kind, and therefore it is said, that inasmuch as this copper smelting is carried on in what the appellant con- V. TIPPING. 471 tends is a fit place, it may be carried on with impunity, although the result may be the utter destruction or the very consider- able diminution of the value of the plaintiff's property. M}' Lords, I apprehend that that is not the meaning of the word " suitable " or the meaning of the word " convenient," which has been used as applicable to the subject. The word " suit- able " unquestionabl}'- cannot carry with it this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighboring property. Of course, my Lords, I except cases where any prescriptive right has been acquired by a lengthened user of the place. On these grounds, therefore, shortly, without dilating fur- ther upon them (and they are sufficiently unfolded by the judgment of the learned Judges in the Court below), I advise your Lordships to affirm the decision of the Court below, and to refuse the new trial, and to dismiss the appeal with costs. Lord Cranworth. My Lords, I entirely concur in opinion with my noble and learned friend on the Woolsack, and also in the opinion expressed by the learned Judges, that this has been considered to be the proper mode of directing a jury, as ]Mr. Baron ^Iartix said, for at least twenty years ; I believe I should have carried it back rather farther. In stating what I always understood the. proper question to be, I cannot do better than adopt the language of Mr. Justice Mellor. He says : " It must be plain that persons using a limekiln or other works which emit noxious vapors may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place." I always understood that to be so ; but in truth, as was ob- served in one of the cases by the learned Judges, it is extremely difficult to lay down any actual definition of what constitutes an injury, because it is always a question of com- pound facts, which must be looked to to see whether or not the mode of carrying on a business did or did not occasion so 472 NUISANCE. serious an injur}' as to interfere with the comfort of life and enjoyment of property. I perfectly well remember, when I had the honor of being one of the barons of the Court of Exchequer, trying a case in the county of Durham, where there was an action for injury arising from smoke, in the town of Shields. It was proved iucontestably that smoke did come and in some degree inter- fere with a certain person ; but I said : " You must look at it not with a view to the question whether, abstractedly, that quantity of smoke was a nuisance, but whether it was a nui- sance to a person living in the town of Shields ;" because, if it only added in an infinitesimal degree to the quantity of smoke, I held that the state of the town rendered it altogether im- possible to call that an actionable nuisance. There is nothing of that sort, however, in the present case. It seems to me that the distinction, in matters of fact, was most correctly pointed out by Mr. Justice Mellor, and I do not think he could possibly have stated the law, either abstractedly or with reference to the facts, better than he has done in this case. Lord Wensleydale. My Lords, I entirrely agree in opinion with both my noble and learned friends in this case. In these few sentences I think everything is included : The defendants say, " If you do not mind you will stop the progress of works of this description." I agree that it is so, because, no doubt, in the county of Lancaster above all other counties, where great works have been created and carried on, and are the means of developing the national wealth, you must not stand on extreme rights and allow a person to say, " I will bring an action against you for this and that, and so on." Business could not go on if that were so. Everything must be looked at from a reasonable point of view ; therefore the law does not regard trifling and small inconveniences, but only regards sensible inconveniences, injuries which sensibly diminish the comfort, enjoyment, or value of the property which is affected. MEERIFIELD V. LOMBARD. 473 My Lords, I do not tliiuk the question could have been more correctly laid down by any one to the jurj^ and I entirely con- cur in the propriety of dismissing this appeal. Judgment of the Exchequer Chamber affirming the judg- ment of Court of Queen's Bench affirmed ; and appeal dis- missed with costs. People •!'. Detroit Lead Works, 82 :\Iich. 471 ; Gould v. McKinna, 27 Amer. Report, 705; Fish i: Dodge, 4 Denio, 311 ; Harley v. Brick Co., 83 la. 73 ; Hazletine i: Edgmand, 10 Pac. 544 ; Sparhawk i: R. E., 54 Pa. St. 401 ; Demarest v. Hardham, 34 S. J. Eq. 469 ; Jaggard, 748 ; Pollock, 492 ; Cooley, 567 rf seq. (2) To incorporeal rights. ]Merrifield v. Lombard. Supreme Judicial Court of Massachusetts, 1866. 13 Allen, 16. Bill in equity, setting forth that the plaintiff is the owner of land bordering upon a natural stream in Worcester ; that he has a factory upon his said land, with steam-power, and has used the water of the stream for his boiler ; that the de- fendant, within the last three years, being a manufacturer, has thrown vitriol and other noxious substances into said stream, a short distance above the plaintiff's factory, by means of which the water has been corrupted, so that it has corroded the plaintiff's engine and boilers, and been rendered unfit for use ; and that the defendant has refused to discontinue such practice, though requested. The prayer was for an injunction and other relief. The answer alleged that the plaintiff's factory was built since that of the defendant, and below the same, and that for more than twenty years before the filing of this bill, and before the building of the plaintiff's mill, he used his mill and premises in the same manner now complained of, and admitted the effect upon the plaintiff's machinery, and the request to discontinue the use, as charged. The parties agreed that, in the use of the premises by the 474 NUISANCE. defendant, or those under whom he claims, twenty years prior to the filing of the bill, only small quantities of vitriol and other noxious substances were thrown into the stream, and produced no perceptible injurious effects to the water of the stream, and the injurious effects to the engine and machinery of the plaintiff have only been apparent for the last eight years. BiGELOw, C. J. The case, as made by the bill, answer, and agreed facts, establishes a clear invasion of the plaintiff's right by the defendant. The law requires of a party through whose land a natural water-course passes that he should use the water in such manner as not to destroy, impair, or materially affect the beneficial appropriation of it by the proprietors of land below on the same stream. Each riparian owner has the right to use the water for any reasonable and proper purpose, as it flows through Ipis land, subject to the restriction that he shall not thereby deprive others of a like use and enjoyment of the stream as it runs through their land. Any diversion or obstruction of the water which substantially diminishes the volume of the stream, so that it does not flow ut currere solebat, or which defiles and corrupts it to such a degree as essentially to impair its purity and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied, such as irrigation, the propulsion of ma- chinery, or consumption for domestic use, is an infringement of the right of other owners of land through which a water- course runs, and creates a nuisance for which those thereby injured are entitled to a remedy. An injury to the purity or quality of the water, to the detriment of other riparian owners, constitutes, in legal effect, a wrong and an invasion of private right, in like manner as a permanent obstruction or diversion of the water. It tends directly to impair and destroy the use of the stream by others for reasonable and proper purposes : Mason v. Hill, 2 Nev. & Man. 747 ; s. c, 5 B. & Ad. 1 ; Wood V. Waud, 13 Jur. 472 ; s. c, 3 Exch. 748 ; 3 Kent Com. (6th ed.) 439 ; Angell on Water-courses, § 136. MEREIFIELD V. LOMBARD. 475 It is conceded in the present case that, by the mode in Tvhich the defendant conducts liis business, a large quantitj^ of poisonous and corrosive substances is permitted to run into the water of the stream on which the plaintiff's and defend- ant's manufactories are both situated, which defiles and cor- rupts the water to such an extent that the machinery of the plaintiff is corroded and destroyed, and the use of the water for reasonable and proper purposes is impaired and prevented. AVe know of no rule or principle of law by which such a mode ■of appropriation of a running stream, in the ^absence of any proof of a paramount right or title, can be justified or excused as against a riparian owner of land on the same stream below. No fact appears in this case from which any right by grant, prescription, or adverse use is shown to exist by virtue of which the defendant can claim to use the stream otherwise than as a riparian owner,'entitled to the natural and ordinary rights and privileges which usually and legally attach and belong to the owner of laiid on the banks of a water-course. It is clear, therefore, that he has been guilty of an infraction of the plaintiff 's rights. The right of the latter to equitable relief is clear and un- questionable. The acts of the defendant tend to create a nuisance of a continuous and constantly accruing nature, for which an action of law can furnish no adequate relief: Angell on Water-courses, §§ 444-446 ; Bemis v. Upham, 13 Pick. 169 ; Hill V. Sayles, 12 Gush. 454. Perpetual injunction granted. Good V. Altoona, 162 Pa. St. 493 ; 29 Atl. 741 ; Highrock v. Spring Co., 45 N. Y. 291 ; Carbray v. Willis, 7 Allen, 364 ; Story v. New York Co., 90 JST. Y. 122 ; B. K. i. Long, 46 Kans. 701 ; 27 Pac. 182 ; Crave v. Craft, 53 Cal. 135 ; K. E. v. Cumminsville, 14 Ohio St. 523 ; Jaggard, 749 ; Cooley, 351-674 ; Pollock, 494-509 ; Bigelow, 264, 265. 476 NUISANCE. d Resulting in Inconvenience or Discomfiture. Davis v. Sawyer. Supreme Judicial Court of Massachusetts, 1882. 133 Mass. 289. (Ante, page 447.) Jaggard, 768 ; Bishop, 416, 418 ; Cooley, 596 ; Pollock, 494 ; Bigelow, 267. 4. Kinds. a Public. (1) Definition. A public or common nuisance affects citizens at large or a portion of them, such as the inhabitants of a locality, and is indictable. Commonwealth v. Allen. Supreme Court of Pennsylvania, 1892. 148 Pa. St. 358 ; 23 Atl. 1115. Per Curiam. The defendants were convicted in the Court below of maintaining a nuisance. They now allege that the indictment does not charge an indictable offense. The first count thereof sets forth that the defendants " set up, estab- lished, maintained, kept up, and continued an obstruction in said public road and common highway aforesaid, leading from Rummerfield, in Standing Stone township, up the Rummer- field creek by Philip Grace's, toward Herrickville, by running back and forth several times a day, over said highway, an en- gine propelled by steam, commonly known as a traction engine, which, by its smoke, steam, noise, and appearance,, frightens the horses driven over said road, or common high- way, and endangers the safety and lives of people using said COMMONWEALTH V. ALLEN. 477 Toad in an ordinary manner, and obstructs and hinders travel thereon, whereby the pubhc road and common highway afore- said was then and there obstructed and straitened so that the citizens of said Commonwealth could not then and there go, return, pass, and repass, ride and labor, on foot and on horse- back, with their horses, coaches, carts, (Carriages, and wagons, in, upon, through and along said public road and common highwaj^ as they ought and were wont and accustomed to do, without great danger of their lives, and also their goods, to the great damage and common nuisance of all citizens of said Commonwealth of Pennsylvania, going, returning, passing and repassing, riding and laboring with horses, coaches, carts, car- riages, wagons, on foot and on horseback, upon, through, and along said public road and common highway, contrary to the form of the Act of General Assembly, in such case made and provided, and against the peace and dignity of the Common- wealth of Pennsylvania." Upon the trial below, it appears that the defendants had been operating a stone quarry for several years. This quarry is situated on a public road about three miles from Rummerfield station. It is a narrow road with four bridges between the stone quarry and the station. For several years the defend- ants hauled the stone from the quarry in the ordinary manner by horses. Sometime during the year 1891, Charles A. Allen, one of the defendants, procured a traction engine, and put it on the road for the purpose of drawing heavier loads of stone. Behind the engine they hitched two wagons, one behind the other, making a train from fifty to fifty-five feet long, and, when loaded, weighing from thirteen to fourteen tons. They made two trips a day from the quarry to the station. It took from an hour to an hour and a half to go over the road one way. There was evidence that the train would sometimes stop for half an hour to get up steam. The steam would blow off frequently and make a good deal of noise ; that it hindered and obstructed travel over the road ; that people took other roads several miles out of their way to avoid it ; that women 478 NUISANCE. and children accustomed to drive to the station for different purposes were afraid to do so ; that farmers who had contracted to dehver produce to Rummerfield refused to do so because of the obstruction, and cars partly loaded had to be unloaded on that account ; that parties at the station and on the road had been hindered and delayed, sometimes for half an hour or more, waiting for this train to get out of the way ; that persons who had met it in the road had been obliged to unhitch their horses and go off behind school-houses, into the woods and lanes, and wait until it had gone by. "We are not prepared to say that the indictment does not set forth a public nuisance, and that the jury were not justified in finding in the evidence the existence of such nuisance. The running of a traction engine over a public highway upon a single occasion would not constitute a public nuisance. That may be necessary to remove it from one location to another, as in the case of a steam-threshing machine, which is at certain seasons removed from one farm to another for the purpose of threshing out the farmer's crops. Indeed, the Act of June 30, 1885, seems to recognize such necessity, and prescribes the con- ditions and manner in which machinery propelled by steam may be moved over a public road or highway. This, however, we regard as restrictive legislation. It was not intended to license the unrestricted use of steam upon the public highways of the Commonwealth. While a man may have a right under this Act of Assembly to run a traction engine over a public road for a necessary purpose, by complying with the terms of the Act, yet, if he uses that privilege in an unreasonable and in an unusual way, it may constitute a public nuisance. At common law, any obstruction which unnecessarily incommodes or im- pedes the lawful use of a highway by the public, is a nuisance : Angell on Highways, 255, § 223 ; 4 Bl. Com. 167 ; Com. v. Milliman, 13 S. & R. 404. Any such obstruction of a public road as materially interferes with the public convenience, is in- dictable as a nuisance : 2 Wh. Cr. L. 15. A man may lawfully use a public highway in the transaction of his legitimate busi- COMMONWEALTH V. ALLEN. 479 ness either for travel or for transportation, but it is common law and common sense that he must use it in a reasonable man- ner, and not interfere with its reasonable use by other citizens. And whether a particular use is an unreasonable use and a nuisance, is a question of fact to be submitted to a jury : Alle- gheny r. Zimmerman, 95 Pa. 287. While each citizen is pro- tected in the enjoyment of his own rights, he must so exercise them as not to interfere with the rights of others. "W^e can understand that it may be sometimes necessary to move a trac- tion engine from one place to another, in the reasonable pur- suit of a lawful business. It is quite another matter to occupy a particular road continuously for such purpose, to the incon- venience of the public, and peril to persons using such road. The jury have found such continuous user to be a nuisance, and we cannot say such finding was not justified by the evi- dence. In the American and English Encyclopsedia of_ Law, vol. 16, page 962, the learned editor mentions among other indictable nuisances : " The use on a highway of a traction steam-engine, which, by its noise and appearance, frightens horses and makes the highway dangerous to persons riding or driving." Aside from this, it was alleged on the part of the Common- wealth that this traction engine, with the unusual load that it drew, injured the highway, and endangered the safetj' of the bridges. As a general rule, highways and bridges are con- structed for ordinary use in an ordinary manner, and not for an unusual or extraordinary use, either by crossing at great speed, or by the passing of a very large and unusual weight. A township is not bound to do more than to so construct its bridges as to protect the public against injury by a reasonable, proper, and probable use thereof, in view of the surrounding circumstances, such as the extent, kind, and nature of the travel and business over them. There was evidence upon the trial below that the bridges on this road were built only for the usual and ordinary loads drawn over them, and that such loads were not more than one-third or one-fourth of the weight of the loads drawn by this traction engine. 480 NUISANX'E. An examination of the respective specifications fails to dis- close error. The case was submitted to the jury under proper instructions as to the law. Judgment affirmed. Board of Health v. McGinnis, 45 La. Ann. 800 ; Bohan v. P. G. Gas L. Co., 122 N. Y. 18 ; Hackney v. State, 8 Ind. 494 ; Com. v. Harris, 101 Mass. 29 ; Com. v. Oaks, 113 Mass. 8 ; Com. v. ]Milliman, 13 S. & R. 402 ; People V. Cunningham, 1 Denio, 524 ; Com. v. Sharpless, 2 S. & E. 91 ; Goodrich v. People, 19 N. Y. 574 ; Boom v. Utica, 2 Barb. 104 ; Bradley v. The People, 56 Barb. 72 ; People 'o. Vanderbilt, 26 N. Y. 287 ; Minn. Stat. 1894, 6613 ; Jaggard, 782 ; Bishop, 424 ; Pollock, 484 ; JBigelow, 259, 267 ; Wood's Law of Nuisances, 17 et seq. (2) Action by a private citizen. In order that a private citizen may bring an action in damage for a public nuisance, damages special in degree and character must be proved. Page v. Mille Lacs Lumber Co. Supreme Court of Minnesota, 1893. 53 Minn. 492 ; 55 N. W. 608, 1119. Collins, J. When plaintiffs rested their case upon the trial -the Court dismissed the same on the ground that the testimony- introduced was insufficient to sustain the action. A motion for a new trial was afterward denied, and the questions in- volved are before us on a bill of exceptions. From this bill it .appears that both parties have been engaged in lumbering for several years upon Rum River, a stream navigable for logs and timber. Both parties cut their logs on the upper waters, and ■drive them to their respective mills, there to be manufactured into lumber. The plaintiffs' mill is at Anoka, the defendant's about seventy-five miles above it, at Milaca ; and it follows that plaintiffs' logs must be driven past the point at which defendant's are taken from the stream and manufactured. The only practicable way in which either of these mills can be supphed with logs is by driving them down the said river. Just above its mill the defendant company constructed two dams across the river, about a half mile apart, the natural re- PAGE r. MILLE LACS LUMBER CO. 481 suit being to create a pond and slack water above each, tbe slack water in the upper pond extending about three thousand feet above the upper dam. In this pond the defendant placed piers, piling, and boom sticks, so that a path or way was made from forty to seventy feet wide, leading from about where the slack water began directly to the dam, and crossing the orig- inal channel of the stream twice. Side booms were put in by defendant on either side of the way, and at a convenient place a sorting gap, and all logs coming down the river had to pass men in defendant's employ, stationed at the gap, whose busi- ness it was to guide logs bearing defendant's marks into these side booms for storage, and to allow all other logs to pass on. Between the dams there was piling and booms. The inevit- able result was to delay and detain plaintiffs' and all other logs destined for points below defendant's mill. In the years 1890 and 1891 these plaintiffs were engaged for themselves, and, under contract, for other pei'sons, in making what is called a " clean drive " of the river. It is unnecesary to go into the details as to the exact manner in which it was done, but the testimony produced by the plaintiffs on the trial tended to show that by reason of the piers, piling, booms, boom sticks, and dams before mentioned, and the way in which defendant's employees performed their work above and at the sorting gap, and appropriated the river for the storage of defendant's logs, the passage of the logs which plaintiffs were driving was un- necessarily impeded and obstructed, and that plaintiffs were unreasonably and oppressively hindered and delayed in their driving operations, to their great damage ; the object of this action being to recover the amount of such damages. It is apparent that the learned trial Judge, although con- vinced that by reason of the maintenance of a public nuisance in the river a wrong had been committed for which plaintiffs should have redress, felt constrained to dismiss the action on the authority of two recent cases — Swanson v. Mississippi Con- cocton Stone Co. v. R. B., 52 Barb. 390 ; Rnssell v. Brown, 63 Me. 203 ; Col- rick V. Swinburne, 105 N. Y. 503 ; New Salem v. Eaglemills, 138 Mass. 8 ; Pyne v. Chic, etc., Co., 54 la. 253 ; Vedder v. Tedder, 1 Denio, 257 ; Pills- bury V. Moore, 44 Me. 154 ; Byrne v. R. R., 36 N. W. 339. SAWYER ET AL. V. DAVIS. 495 d Legalized. A legalized nuisance e::ists when the State, by virtue of its police poMver, prevents a use of property vrhich Mirould, in the absence of such authorization, be a nuisance. Sawyer et al. v. Davis. Supreme Judicial Court of Massachusetts, 1884. 136 jNIass. 239. Bill of review, alleging the following facts : The plaintiffs, who were manufacturers in Plymouth, were restrained by a decree of this Court, made on October 1, 1881, upon a bill in equity brought by the present defendants, from ringing a bell on their mill before the hour of six and one-half o'clock in the morning ; which decree was affirmed by the full Court on September 7, 1882. [See Davis v. Sawyer, 133 Mass. 2S0.] On March 28, 1883, the Legislature passed an Act, which took effect upon its passage, as follows : " ]\lanufactur- ers and others employing workmen are authorized, for the pur- pose of giving notice to such employees, to ring bells and use whistles and gongs of such size and weight, in such manner and at such hours as the board of aldermen of cities and the selectmen of towns may in writing designate. [St. 1883, c. 84.] On April 18, 1883, the selectmen of Plymouth granted to the plaintiffs a written license to ring the bell on their mill in such manner and at . such hours, beginning at five o'clock in the morning, as they were accustomed to do prior to the injunction of this Court. The prayer of the bill was that the injunction might be dis- solved, or that the decree might be so modified as to enable the plaintiffs to act under their license without violating the decree of this Court, and for other and further relief. The defendants demurred to the bill, assigning, among other grounds of demurrer, that the St. of 1883, c. 84, was un- constitutional so far as applicable to the defendants. 496 NUISANCE. Hearing on bill and demurrer, before Colburn, J., who re- served the case for the consideration of the full Court. C. Allen, J. Nothing is better established than the power of the Legislature to make what are called police regula- tions, declaring in what manner property shall be used and enjoyed, and business carried on, with a view to the good order and benefit of the community, even although they may to some extent interfere with the full enjoyment of private prop- erty, and although no compensation is given to a person so inconvenienced: Bancroft v. Cambridge, 126 Mass. 438, 441. In most instances, the illustrations of the proper exercise of this power are found in rules and regulations restraining the use of property by the owner in such a manner as would cause disturbance and injury to others. But the privilege of con- tinuing in the passive enjoyment of one's own property, in the same manner as formerly, is subject to a like limitation ; and with the increase of population in a neighborhood, and the advance and development of business, the quiet and seclu- sion and customary enjoyment of homes are necessarily in- terfered with, until it becomes a question how the right which each person has of prosecuting his lawful business in a reason- able, and proper manner shall be made consistent with the other right which each person has to be free from unreason- able disturbance in the enjoyment of his property : Merrifield V. Worcester, 110 Mass. 216, 219. In this conflict of rights police regulations by the Legislature find a proper office in determining how far and under what circumstances the indi- vidual must yield with a view to the general good. For ex- ample, if, in a neighborhood thickly occupied by dwelling- houses, any one, for his own entertainment or the gratification of a whim, were to cause bells to be rung and steam-whistles to be blown to the extent that is usual with the bells and steam-whistles of locomotive engines near railroad stations in large cities, there can be no doubt that it would be an infringe- ment of the rights of the residents, for which they could f;nd ample remedy and vindication in the Courts. But if the SA-\VYER ET AL. V. DAVIS. 497 Legislature, with a view to the safety of hfe, provides that bells shall be rung and whistles sounded, under those circumstances, persons living near by must necessarily submit to some annoy- ance from this source, which otherwise they would have a right to be relieved from. It is ordinarily a proper subject for legislative discretion to determine by general rules the extent to which those who are engaged in customary and lawful and necessary occupations shall be required or allowed to give signals or warnings by bells or whistles, or otlierwise, with a view either to the public safety, as in the case of railroads, or to the necessary or con- venient operation and management of their own works ; and ordinarily such determination is binding upon the Courts, as w^ell as upon citizens generally. And when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legisla- ture is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law : Bancroft v. Cambridge, 126 Mass. 441. It is accordingly held in many cases, and is now a well-established rule of law, at least in this Commonwealth, that the incidental injury which results to the owner of property situated near a railroad, caused by the neces- sary noise, vibration, dust, and smoke from the passing trains, which would clearly amount to an actionable nuisance if the operation of the railroad were not authorized by the Legisla- ture, must, if the running of the trains is so authorized, be borne by the individual, without compensation or remedy in any form. The legislative sanction makes the business law- ful, and defines what must be accepted as a reasonable use of property and exercise of rights on the part of the railroad company, subject always to the qualification that the business must be carried on without negligence or unnecessary disturb- ance of the rights of others. And the same rule extends to other causes of annoyance which are regulated and sanctioned by law: Presbrey v. Old Colony & Newport Railway, 103 Mass. 1,6,7; Walker v. Old Colony & Newport Railway, 1 03 32 498 NUISANCE. Mass. 10, 14; Bancroft v. Cambridge, 126 Mass. 441; Call v. Allen, 1 Allen, 137 ; Commonwealth v. Rumford Chemical Works, 16 Gray, 231, 233 ; Struthers v. Dunkirk, Warren & Pittsburgh Railway, 87 Pa. St. 282 ; Hatch v. Vermont Cen- tral Railroad, 28 Vt. 142, 147 ; Brand v. Hammersmith & City Railway, L. R., 1 Q. B. 130, 2 Q. B. 223, 4 H. L. 171 ; Vaughan V. TafF Vale Railway, 5 H. & N. 679, 685, 687 ; Rex v. Pease, 4 B. & Ad. 30 ; Sedgw. St. & Const. Law, 435, 436. The recent case of Baltimore & Potomac Railroad v. Fifth Baptist Church, 108 U. S. 317, is strongly relied on by the de- fendants as an authority in their favor. There are, however, two material and decisive grounds of distinction between that case and this. There the railroad company had only a general legislative authority to construct works necessary and expe- dient for the proper completion and maintenance of its rail- road, under which authority it assumed to build an engine- house and machine-shop close by an existing church, and it was held that it was never intended to grant a license to select that particular place for such works, to the nuisance of the church. Moreover, in that case, the disturbance was so great as not only to render the church uncomfortable, but almost unendurable as a place of worship, and it virtually deprived the owners of the use and enjoyment of their prop- erty. We do not understand that it was intended to lay down, as a general rule applicable to all cases of comparatively slight though real annoyance, naturally and necessarily resulting in a greater or less degree to all owners of property in the neigh- borhood from a use of property or a method of carrying on a lawful business which clearly falls within the terms and spirit of legislative sanction, that such sanction will not affect the claim of such an owner to relief; but rather that the Court expressly waived the expression of an opinion upon the point. In this Commonwealth, as well as in several of the United States and in England, the cases already cited show that the question is settled by authority, and we remain satisfied with the reasons upon which the doctrine was here established. Courts are compelled to recognize the distinction between such SAWYER ET AL. V. DAVIS. 499 serious disturbances as existed in the case referred to, and com- paratively sliglit ones, which differ in degree only, and not in kind, from those suffered by others in the same vicinity. Slight infractions of tlie natural rights of the individual may be sanc- tioned by the Legislature under the proper exercise of the police power, with a view to the general good. Grave ones will fall within the constitutional limitation that the Legisla- ture is only authorized to pass reasonable laws. The line of distinction cannot be so laid down as to furnish a rule for the settlement of all cases in advance. The difficulty of marking the boundaries of this legislative power, or of prescribing limits to its exercise, was declared in Commonwealth v. Alger, 7 Gush. 53, 85, and is universally recognized. Courts, how- ever, must determine the rights of parties in particular cases as they arise, always recognizing that the ownership of prop- erty does not of itself imply the right to use or enjoy it in every possible manner, without regard to corresponding rights of others as to the use and enjoyment of their property ; and also that the rules of the common law, which have from time to time been established, declaring or limiting such rights of use and enjoyment, may themselves be changed as occasion may require : Munn v. Illinois, 94 U. S. 113, 134. In the case before us, looking at it for the present without re- gard to the decree of this Court in the former case between these parties, we find nothing in the facts set forth which show that the statute relied on as authorizing the plaintiffs to ring their bell (St. 1883, c. 84) should be declared unconstitutional. It is virtually a license to manufacturers and others employ- ing workmen to carry on their business in a method deemed by the Legislature to be convenient, if not necessary, for the purpose of giving notice, by ringing bells and using whistles and gongs, in such manner and at such times as may be des- ignated in writing by municipal officers. In character, it is not unlike numerous other instances to be found in our stat- utes, where the Legislature has itself fixed, or has authorized municipal or other boards or officers to fix the places, times, and methods in which occupations may be carried on, or acts 500 NUISANCE. done, which would naturally be attended with annoyance to individuals. The example of bells and whistles on locomo- tive engines has already been mentioned. Reference may also be made to the statutes regulating the use of stationary steam- engines, the places and manner of manufacturing or keeping petroleum, of carrying on other offensive trades and occupa- tions, of storing gunpowder, and of establishing hospitals, stables, and bowling-alleys. The defendants, however, contend that a different question arises in the present case, where the plaintiffs rely upon a legislative sanction given to acts after it had been determined by this Court that the doing of them was attended by a pecu- liar injury to the defendants, which entitled them to a remedy as for a nuisance. There can be no doubt that such sanction would be a good defense to an indictment for a nuisance, or to a proceeding instituted by an individual, whose only griev- ance was that he had sustained special damage in consequence of being disturbed in the enjoyment of some public right, such as a right to travel upon a highway or river. His public right may clearly be regulated and controlled by the Legisla- ture after a decision by the Court as well as before : Common- wealth V. Essex Co., 13 Gray, 239, 247. But the argument is urged upon us with great force, that in the present case there had been a judicial determination that the ringing of the bell, at the hours now authorized by the terms of the statute and the designation of the selectmen, was a private nuisance to the defendants, not growing out of any public right, and that the statute ought not, as a matter of construction, to be held applicable to this case ; or, if such is its necessary con- struction, that it is unconstitutional, as interfering with their vested rights. In the first place, we can have no doubt that the statute, by its just construction, is in its terms applicable to the present case. It is undoubtedly true that neither a general authority nor a particular license is to be so construed as to be held to sanction what was not intended to be sanctioned. A general authority is not necessarily to be treated as a particular license SA-\VYER ET AL. V. DAVIS. 501 (Commonwealth r. Kidder, 107 Mass. 188) ; and in some cases, even where a particular license or authority has been given, as to keep an inn, ale-house, or slaughter-house in a particular place, which is specified, this authority has not been deemed to sanction the keeping of it in an improper manner : Rex v. Cross, 2 C. & P. 483 ; Commonwealth v. McDonough, 13 Allen, 581, 584 ; State v. Mullikin, 8 Blackf. 260 ; United States v. Elder, 4 Cranch C. C. 507. And, ordinarily, a statute which authorizes a thing to be done, which can be done without cre- ating a nuisance, will not be deemed to authorize a nuisance. In such case it is not to be assumed that it was contemplated bv the Legislature that what was so authorized would have the necessarj^ effect to create a nuisance, or that it would be done in such a manner as to create a nuisance; and, if a nuisance is created, there will in such cases ordinarily be a remedy at law or in equity : Eames v. New England Worsted Co., 11 Met. 570 ; Haskell r. New Bedford, 108 Mass. 208, 215 ; Commonwealth v. Kidder, 107 Mass. 188. But, on the other hand, the authority to do an act must be held to carry with it whatever is naturally incidental to the ordinary and reasonable performance of that act. When the Legislature authorized factory bells to be rung, it must have been contem- plated that they would be heard in the neighborhood. That is a natural and inevitable consequence. The Legislature must be deemed to have determined that the benefit is greater than the injury and annoyance; and to have intended to enact that the public must submit to the disturbance, for the sake of the greater advantage that would result from this method of carrying on the business of manufacturing. It must be considered, therefore, in this case, that a legislative sanction has been given to the very act which this Court found to create a private nuisance. It is then argued that the Legislature cannot legalize a nuisance, and cannot take away the rights of the defendants as they have been ascertained and declared by this Court ; and this is undoubtedly true, so far as such rights have become vested. For example, if the plaintiff, under an existing rule 502 NUISANCE. of law, has a right of action to recover damages for a past in- jury suffered by him, his remedy cannot be cut off by an Act of the Legislature. So also, if, in a suit in equity to restrain the continuance of a nuisance, damages have been awarded to him, or costs of suit, he would have an undoubted right to recover them, notwithstanding the statute. But, on the other hand, the Legislature may define what in the future shall con- stitute a nuisance, such as will entitle a person injured thereby to a legal or equitable remedy, and may change the exist- ing common-law rule upon the subject. It may declare, for the future, in what manner a man may use his property or carry on a lawful business without being liable to an action in consequence thereof; that is, it may define what shall be a lawful and reasonable mode of conduct. This legislative power is not wholly beyond the control of the Courts, because it is restrained by the constitutional provision limiting it to wholesome and reasonable laws, of which the Court is the final judge ; but, within this limitation, the exercise of the police power of the Legislature will apply to all within the scope of its terms and spirit. The fact that the rights of citi- zens, as previously existing, are changed is a result which always happens ; it is, indeed, in order to change those rights that the police power is exercised. So far as regards the rights of parties accruing after the date of the statute, they are to be governed by the statute ; their rights existing prior to that date are not affected by it. To illustrate this view, let it be supposed that the case between the present parties in its orig- inal stage had been determined in favor of the manufacturers, under which decision they would have had a right to ring their bell ; and that afterward a statute had been passed pro- viding that manufacturers should not ring bells except at such hours as might be approved by the selectmen ; and that these manufacturers had then proceeded to ring their bell at other hours not included in such approval. It certainly could not be said that they had a vested right to do so under the de- cision of the Court. The injunction which was awarded by the Court, upon the SAWYER ET AL. V. DAVIS. 503 facts which appeared at the hearing, did not imply a vested right in the present defendants to have it continued perma- nently. Though a final determination of the case before the Court, and though binding and imperative upon the present plaintiffs, and enforceable against them by all the powers vested in a Court of Equity, yet they were at liberty at any time, under neAV circumstances making it inequitable for it to be longer continued, to apply to the Court for a review of the case and a dissolution of the injunction. In respect to such a state of facts, an injunction can never be said to be final, in the sense that it is absolute for all time. Even without any new legislation affecting the rights of the parties, with an increase of their own business and a general increase of manufacturing and other business in the vicinity, and of a general and pervading change in the character of the neigh- borhood, it might be very unreasonable to continue an injunc- tion which it was in the first instance entirely reasonable and proper to grant. The ears of the Court could not, under such new circumstances, be absolutely shut to an application for its modification, without any new statute declaring the policy of the CommonM'ealth in respect to any branch of business or employment. But a declaration by the Legislature that, in its judgment, it is reasonable and necessary for certain branches of business to be carried on in particular ways, not- withstanding the incidental disturbance and annoyance to citi- zens, is certainly a change of circumstances which is entitled to the highest consideration of the Court ; and in the present case we cannot doubt that it is sufiicient to entitle the plaintiffs to relief from the operation of the injunction. The method of procedure to which the plaintiffs have re- sorted is the usual and proper one in such circumstances : 2 Dan. Ch. PL & Pr. (4th Am. ed.) 1577, note 3 ; Story Eq. PL, §§ 404 and seq. ; Clapp ■y. Thaxter, 7 Gray, 384. And for authorities tending to show that the plaintiffs are entitled to the relief which they seek, in consequence of a subsequent statute changing the rights of the parties, see Pennsylvania v. Wheeling & Belmont Bridge, 18 How. 421 ; The Clinton 504 NUISANCE. Bridge, 10 Wall. 454, 463 ; Gilman v. Philadelphia, 3 Wall. 713, 732 ; South Carolina v. Georgia, 93 U. S. 4, 12 ; Bridge Co. V. United States, 105 U. S. 470, 480 ; Commonwealth v. Old Colon}' & Fall River Railroad, 14 Gray, 93, 97 ; Bartholomew V. Harwinton, 33 Conn. 408. Demurrer overruled. Cogswell V. R. E., 103 N. Y. 10 ; Miller v. The Mayor of New York, 109 U. S. 385 ; Bancroft v. Cambridge, 126 Mass. 441 ; Koehl v. Schoenhausen, 17 So. 809; Lewis v. Stein, 16 Ala. 214; R. R. v. Com., 23 Smith (Pa. St.), 29 ; Com. v. Reed, 10 Casey (Pa. St. ), 275 ; Hinchman v. R. R., 86 Am. Deo. 252 ; Jaggard, 788 ; Bishop, 425 ; Pollock, 154. e It is no Defense to the Action that the Party Came to the Nuisance. Brady v. Weeks. Supreme Court of New York, 1848. 3 Barb. 157. This was an application for an injunction, founded upon the bill filed in the suit, to restrain the defendants from occupy- ing a building erected by the defendant Weeks on the north side of Twelfth Street, between Fifth and Sixth Avenues, in the city of New York, as a slaughter-house, and from slaugh- tering any animals in such building, or from permitting the building to be used as a slaughter-house. The bill was filed by several owners of dwelling-houses in the neighborhood of the slaughter-house ; who alleged therein that the slaughter- house was a nuisance to them and their dwellings. The bill stated that the slaughter-house was erected by the defendant Weeks about ten or fourteen years since, and when there were very few dwelKng-houses in its immediate neighborhood ; that within the last three or four years the dwelling-houses of the plaintiffs had been erected ; that during the time the dwelling- houses of four of the plaintiffs were being erected, and for some time previous thereto, the slaughter-house stood empty and unoccupied ; and that the defendant Weeks, in May, 1845, rented the slaughter-house to the defendant Sarles, a butcher, BEADY V. "WEEKS. 505 and that Sarles underlet it to the defendant Bookstaver, who is now using it as a slaughter-house. The defendants' affida- vits showed that Weeks let the slaughter-house a second time to Sarles for one year, from the 1st of May, 1848 ; and that Sarles assigned the lease, or under-let the premises to Book- staver ; and that Bookstaver had underlet a part of the build- ing to one Crist. Bookstaver insisted, in his affidavit, that since the introduction of Croton water, the slaughter-house had been kept perfectly clean, and that no offensive smell, which could be avoided, proceeded therefrom. The bill alleged that the great increase of trade and population in the city of New York had compelled a large class of the citizens to abandon their former dwellings in the lower part of the city, and convert them into stores and places of business, and to seek residences for themselves and their families in the upper part of the city. The bill prayed that the defendants might be restrained from using the building erected by Weeks as a slaughter-house, and that they might be decreed to pay the plaintiffs, respectively, the damages they had sustained by the nuisance. Paige, J. In the case of Catlin and Others v. Valentine, & Paige, 575, the Chancellor held, that the occupation of a building in a city, as a slaughter-house, was prima facie a nuisance to the neighboring inhabitants, and might be re- strained by injunction. And in that case he refused to dissolve the injunction, and retained it until the hearing; although the defendant, in his answer, denied that a slaughter- house was a nuisance. To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the sense, and which renders the enjoyment of life and property uncomfortable : 9 Paige, 576 ; Rex V. White, 1 Bur. 337 ; 3 IBlack. Com. 217. The slaugh- ter-house in question is to be regarded as prima facie a nui- sance to the plaintiffs, notwithstanding the qualified denial of the defendant Bookstaver that it is a nuisance. 606 NUISANCE. The only serious question which the case presents is, whether the plaintiffs, having, after the erection of the nuisance, built their dwelling-houses beside it, are entitled to any relief. When the slaughter-house was erected, it was remote from the thickly-settled parts of the city ; but it seems that the city has now grown up to it, and that the necessities of the population require the occupation of the lots in the immediate vicinity of the slaughter-house for dwellings. When the slaughter-house was erected, it incommoded no one ; but now it interferes with the enjoyment of life and property, and tends to deprive the plaintiffs of the use and benefit of their dwellings. There can be no real necessity for conducting such an offensive business as slaughtering cattle in this part of the city, which is now occupied by valuable and costly buildings. As the city ex- tends, such nuisances should be removed to the vacant ground beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and com- fort of the population of the city, demand. And it seems that whenever any offensive trade becomes an injurious nuisance to any person, such person has a remedy by an action on the case for damages, or by writ of nuisance to have nuisance abated ; upon the principle that every continuance of a nui- sance is a new or fresh nuisance : 2 E,. S. 332 ; Westbourn v. Mordant, Cro. Eliz. 191 ; 1 Leonard, 103; Penruddock's Case, 5 Coke, 101 ; 3 Bl. Com. 220 ; Staple v. Spring, 10 Mass. 74 ; Alexander v. Kerr, 2 Rawle, 83. In Westbourn v. Mordant, the action was case for stopping a stream of water. A motion was made in arrest of judgment, because the nuisance was erected before the plaintiff's title commenced. The Court held that the action lay. Gawdy, J., said : " It is not material when the nuisance was erected, for he that is hurt by it shall have an action." It is conceded by Savage, C. J., in Blunt v. Akin, 15 Wend. 526, that a subse- quent purchaser of premises injured by a nuisance erected pre- vious to his purchase, has a remedy for the injury sustained from the continuance of the nuisance. And in BcAvick v. Cun- der, Cro. Eliz. 402, it was held that an action on the case BEADY V. WEEKS. 507 would lie for damages from a dam erected by the defendant in the time of the grantor of the plaintiff. In Penruddock's Case, 5 Coke, 101, a writ of quod permittat prosternere was brought b}- the feoffee of a house injured by a nuisance, against the feoffee of the erector of the nuisance ; and it was held that the writ lay against either the erector of the nuisance or his feoffee. A continuation of the nuisance is regarded as a new nuisance. It is this principle which gives a party who builds on his own property beside a nuisance previously erected, a right to have the nuisance abated. If the defendants desire to contest the question whether their slaughter-house is a nuisance, they will have a right to do so upon the final hearing. As the nuisance in question is a common, although not a joint, injury to the plaintiffs, they have properly united as plaintiffs in the bill to restrain the nuisance : Murray v. Hay, 1 Barb. Ch. Rep. 59. But the bill is rendered multifarious by inserting therein, in addition to the prayer to restrain the nuisance, a praj'er that the defendants be decreed to pay the plaintiffs, respectively, the damages which they have sustained by the nuisance. This objection, however, may be obviated by striking out that part of the prayer which asks for payment of damages : 1 Barb. Ch. Eep. 65. It is objected that the bill has been improperly filed against Weeks and Sarles, because "Weeks does not himself occupj' the slaughter-house, and because Sarles has parted with all his in- terest in it. Weeks is unquestionably a proper party. He is the owner of the building. He originally erected it, to be used as a slaughter-house. He leased it to Sarles, a butcher, with the knowledge that Sarles intended to carrj^ on the business of slaughtering in it. The revised statutes (2d vol. 332) provide that a writ of nuisance may be brought as well against the party who erected a nuisance, as against his transferee. And such writ goes against both jointly. The writ of nuisance given by the Act of West. 2, 13 Ed. 1, c. 24, went also against the erector of the nuisance, and his alienee jointly : 3 Bl. Com. 221 ; 9 Coke, 53 ; Plumer v. Harper, 3 N. H. Rep. 88. 508 NUISANCE. And whenever the erector of a nuisance owns the premises on which the nuisance is erected, and lets the premises to another, an action on the case will lie against him, for the injury the nuisance occasions, while the premises are in the occupation of his lessee. The demise in such case affirms the continu- ance of the nuisance, and .it may be said to be a continuance of the nuisance by the lessor : Rosewell v. Prior, Eay. 713 ; s. c, 2 Salk. 460 ; Cheetham v. Hampson, 4 T. R. 320, per BuLLEK, J. ; 15 Wend. 526. The same principle was, in the recent case of Waggoner v. Jermaine, 3 Denio, 310, held applicable to the erector of a nuisance who conveys the prem- ises to a purchaser with warranty : Plumer v. Harper, 3 N. Hamp. 88. An action also lies against the lessee or grantee of the erector of the nuisance, for the injury occasioned by the continuance of the nuisance by them : Brent v. Haddon, Cro. Jac. 555 ; Rosewell v. Prior, Ray. 713 ; Penruddock's Case, 5 Coke, 101; Staple v. Spring, 10 Mass. Rep. 74; Alex- ander V. Kerr, 2 Rawle, 83. If Sarles sublet to Bookstaver, reserving rent to himself, or transferred to him with covenants for quiet enjoyment, he comes within the principle of the cases of Rosewell v. Prior, Raym. 713, and Waggoner v. Jermaine, 3 Denio, 310, and is liable in an action on the case to the plaintiffs for the injury sustained by them during the occupation of Bookstaver. If, however, Sarles assigned his entire interest in the lease to Bookstaver, without reserving rent, and without any covenants for quiet epjoyment, he cannot, by the decision in the case of Blunt V. Aik'en, 15 Wend. 522, be held liable to the plaintiffs for any injury sustained by them since his sale to Bookstaver. And in that case, as he would have no interest in the premises, and had not affirmed the continuance of the nuisance, or par- ticipated in its continuance, he could not be a proper party to the bill. If Crist has an interest in the slaughter-house, as the sub-lessee of Bookstaver, he ought to be made a party. An order must be entered allowing an injunction to issue restraining the defendants from slaughtering animals in the slaughter-house mentioned in the bill ; or from using the same HALL V. CHICAGO B. & N. R. E. CO. 509 as a slaughter-house ; or from permitting it to be used as such. And the plaintiffs are at liberty to amend their bill by striking out that part of the prayer which relates to the payment of damages. Boston Ferrule Co. v. Hills, 159 Mass. 147 ; Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; People ,.. Detroit Lead Works, 46 N. W. 735 ; Com. v. Upton, 6 Gray, 473 ; Bliss c. Hall, 5 Bing. (N. C. ) 183 ; Bamford v. Turnley, 3 Best. & S. 62, 70, 73, 113 E. C. L. ; Jaggard, 774 ; Bishop, 119 ; Pollock, 497 ; Bigelow, 262, 269. IV NEGLIGENCE. 1. In General. a Definition. Negligence is the inadvertent failure to use commensurate care in performing a duty implied of law, which results in judicial damages. b Elements. (1) The want of commensurate care. Hall v. Chicago B. & N. R. R. Co. Supreme Court of Minnesota, 1891. 46 Minn. 439 ; 49 N. W. 239. Mitchell, J. This was an action to recover damages for personal injuries sustained by plaintiff while in defendant's service as a locomotive engineer of a passenger train. The injuries were the result of a collision between plaintiff 's train and some freight cars on defendant's main track, between Dayton's Bluff and Oakland station; and a somewhat full 510 NEGLIGENCE. statement of the facts is necessary to a proper understanding of the case. The plaintiff was employed in running the regular suburban passenger train between the Union Depot, in St. Paul, and Pullman Avenue, a distance of 10.18 miles, the first station south of the Union Depot being Dayton's Bluff, a distance of 1.75 miles, and the next Oakland, a fur- ther distance of 1.88 miles. These trains were and always had been run on schedule time, the one on which plaintiff was injured leaving, according to the time-table, Union Depot at 9.30, Dayton's Bluff at 9.38, and Oakland at 9.43 p. M. Im- mediately south of Dayton's Bluff station there is a short curve, but beyond that, south, the track is straight almost down to Oakland. The main track is the westerly or river- ward one, and east of it are several parallel side tracks. About 2,160 feet south of the curve referred to there is a cross-over from the adjacent side track to the main track, and 2,150 feet south of the cross-over is the switch-frog, at which the collision occurred. There is one switch-stand at the cross-over and another eighty-six feet south of the frog, governing the switch to which the frog belongs. These switch-stands are surmounted by the usual lights, which show a white light up and down the track when set for the main track and a red light when the switch is open. A car standing partly on the main track and partly on the side track would hide the light from an engineer coming down from Dayton's Bluff. The defendant's yard, as defined by its rules, extends three thousand feet south from the south switch, which would carry it down almost to Oakland, although the land between Dayton's Bluff and Oak- land is really out in the country, and uninhabited, the defendant's road being there built through a marsh. In rail- road parlance " station " or " station limits " includes " yard." The defendant had promulgated certain rules for the govern- ment of its employees, the most material provisions of which are as follows : "All trains and engines within the limits of Savanna, East Dubuque, Grand Crossing shops, and St. Paul yards will be subject to the orders of the yard-masters. Switching engines HALL V. CHICAGO B. & N. R. K. CO. "jII "will work daily at these stations inside yard limits, as shown by signal boards; All trains must approach these yards under full control. "All trains are required to reach the extreme limits of and to pass through all stations completely under control. Speed must be reduced, and the engineer and trainmen must com- mence to get their train in hand at least one-half mile from a station, so that under no circumstances whatever shall it be possible for it to strike any train, car, or engine which may be inside the limits of the station. The entire responsibilitj' for safety rests with the approaching train. All engines must pass switches, cautiouslj^, and engineers must be sure they are right before passing them." Trains were classified on the time-tables with regard to their priority of right to the track. Trains of the first class (to which plaintiff's train belonged) were superior to those of the second and all succeeding classes. All trains not classi- fied on the time-tables were known as "extra" or "wild" trains, and were required to keep entirelj' out of the way of all regular trains, of whatever class, clearing the time of such regular trains at least ten minutes if passenger and five min- utes if freight trains. Trains of a superior class had the absolute right of the track over all trains of an inferior class. Working trains in all cases to clear the time of passenger trains at least ten minutes. " Should any freight or irregular train, at any time, be com- pelled to occupy the main track at a station or elsewhere within the time of any passenger train, the conductor of such train must immediately send out a flagman to warn tlie approaching train." Another rule provided that when the track was obstructed by accident or from any other cause, the conductor should immediately protect his train, either by going back himself or sending a competent flagman, with danger signals (a red lan- tern and torpedoes by night), to a point not less than twenty telegraph poles (two thousand feet) distant from the rear end of his train, and until he reached a point where his danger 512 NEGLIGENCE. signals could be seen not less than a quarter of a mile by the engineer of an approaching train, where he should place one torpedo on the rail, then move back one telegraph pole, and there remain until the expected train arrived, or until he is re- called by the whistle of his own engine. On the night in question, which was rather dark, the plain- tiff's train, consisting of an engine, baggage, smoking, and two passenger coaches, left the Union Depot on schedule time (9.30 p. M.), and also left Dayton's Bluff station on time (9.38), run- ning at the usual rate of speed, eighteen or twenty miles per hour. Plaintiff sat looking down the track out of the left-hand or easterly side of the cab, and after passing the curve referred to, just south of Dayton's Bluff station, saw both switch-stands giving a white light, showing that the switches were set for the main track. There was no danger-signal, nor anything to indicate that there was any obstruction on the track. In this situation of things, and after he had passed the cross-over, and, as he says, when he was within six hundred or seven hundred feet from the frog where the accident occurred, his attention was attracted by the noise of the injector on the fireman's side of the engine, which had " broke " its work, which caused him to turn round and watch the fireman setting the injector at work again. The principal question of fact contested on the trial was as to the length of time the plaintiff ceased his look- out and watched the fireman fixing the injector. This, and the propriety or necessity of his ceasing his lookout at all, are really the most important questions in this case. The plain- tiff's testimony is that he was thus occupied not over ten or twelve seconds, during which his train ran not to exceed three hundred feet. While the fireman estimates the time it took him to fix the injector at about a " minute," yet his testimony corroborates that of plaintiff, that the whole thing occupied a very short space of time. The defendant's counsel argues that the evidence shows that the plaintiff must have ceased his lookout at least a minute, during which his train would have run fifteen hundred or sixteen hundred feet. This con- clusion is arrived at by an estimate of the length of time HALL V. CHICAGO B. & X. R. E. CO. 513 which it woi;ld have talien for the occurrence of tlie successive events which he assumes took place after [ilaintiff ceased his lookout and before he resumed it. Not only is this mode of reasoning largely conjectural, but in this case we think the counsel is not entirely accurate in his assumption as to what did occur intervening these points of time. The estimates of witnesses as to the lapse of time are very unreliable, especially where, as in this case, the time is, at most, very brief, and different events follow each other in rapid succession. Some persons will estimate at a few seconds what others will esti- mate at as many minutes. The general tendency, under such circumstances, is to overestimate the lajDse of time. In our judgment, all the circumstances indicate the defendant's calcu- lation is an overestimate ; and while that of the plaintiff may be somewhat of an underestimate, yet the evidence was such as to justify the jury in concluding that it was approximately correct. At any rate, it is evident that the space of time re- ferred to was exceedingly brief, as it appears that the collision occurred only about two minutes after plaintiff left Dayton's Bluff. When plaintiff resumed his lookout he instantly saw that the switch light was obscured (indicating that there were cars between him and it). He also saw, right in front of his engine, and in the act of getting out of its way, a man swing- ing a lantern. He immediately did everything in his power to stop his train, but, being then within two hundred and fifty or three hundred feet of the frog, the distance was so short that a collision was inevitable. The cause of the collision was as follows : A switching crew had left a string of freight cars on the main track, just north of the switch, from about 8 o'clock in the evening. Within four or five minutes of the time of plaintiff's train the person in charge of the switching crew sent an engine, with two cars attached, out on the main track to bring in these freight cars. This engine first ran south on the main track far enough to clear the switch, which was then set for the main track. It was evidently after this was done that the plaintiff, while on the lookout before the injector broke, saw the white 33 614 NEGLIGENCE. lights. The engineer of the switch-engine then backed up north on the main track, and coupled on the freight cars re- ferred to, and then went south far enough to let the rear of these cars clear the switch. During all this time the switch was set for the main track, and, of course, would continue to show a white light up and down the track. After the freight cars had thus cleared the switch the brakeman in charge of the switch signaled the engineer to stop, and then opened the switch to enable him to back in on the side track. It is fairh' inferable from the evidence that it was before this was done that plaintiff's attention was directed to the injector. Imme- diately upon receiving the signal the engineer of the switch- engine, who was evidently working as rapidly as possible, stopped and commenced to back in on the side track. As soon as the rear of the freight-cars entered upon the side track it would hide the switch-light from one coming down the main track from the north. It was evidently at this juncture of affairs that plaintiff resumed his lookout and first saw the danger. It should also be added that, when the switch-engine started to go out on the main track, the person in charge of the switching crew, in response to the protests of the engineer, promised to signal plaintiff's train, and started for that pur- pose, with a lantern, up north alongside of the string of freight cars. This was the last that was seen of him by any of the switching crew, and it does not appear, except from the evi- dence of the plaintiff, how far he got. He was undoubtedly the man whom they saw swinging a lantern immediately in front of their engine, then within three hundred feet of the switch. In view of the very brief space of time that inter- vened, it is evident that he could not have gotten far enough to give the signal required by defendant's rules, or, indeed, to give any sufficient signal, even in the absence of all rules on the subject. Everything tends to the conclusion that he never got more than some three hundred feet beyond the frog, and only got there an almost inappreciably short space of time before plaintiff's train arrived. 1. Defendant's first point is that the evidence does not show HALL r. CHICAGO B. & N. R. R. CO. 515 that it was guilty of any negligence or failure of duty toward the plaintiff. • The statement of facts is a sufficient answer to this proposition. The conduct of the switching crew in using the main track for switching purposes, right on the time of plaintiff's train, and in plain violation of the company's rules, was negligence of the grossest kind, which might almost be characterized as wanton and criminal. The plea that this was purged or relieved of all negligence by the act of the person in charge of the switching crew signaling plaintiff's train with a lantern is not warranted by the facts. As has been already said, it does not appear that he ever gave any adequate signal. On the contrar}', it is almost conclusivelj^ demonstrated by the evidence that he could not have done so. 2. The contention that plaintiff voluntarily assumed all the risks resulting from the negligence of other employees of the company in violating its rules is equally untenable. The line of argument advanced in support of this position is, in sub- stance that inasmuch as plaintiff was advised by certain rules that other emploj^ees might violate other rules, and obstruct the main track at a forbidden time, and that rules were adopted in view of such a contingencj^, so that, as far as possi- ble, a collision could not happen without a concurrent violation of rules by two sets of emploj'ees, therefore plaintiff assumed all the risks resulting from such causes. It is a plain proposi- tion that it does not require any rules to advise a person that other employees of the master, or the master himself, may be guiltv of acts of negligence. Common experience tells every man that this is so. Consequent!}^, defendant's proposition, reduced to plain terms, is that, inasmuch as every person who enters the service of another knows that his master or his fellow-servants, however careful ordinarily, are liable to commit negligent acts, and as he voluntarily enters the service with knowledge of that fact, therefore he assumes all the risks liable to result from such causes. To state such a proposition is to refute it. While it is the law that a person assumes all the open and visible risks incident to the employ- ment in which he engages, and of which he had knowledge & 516 NEGLIGENCE. when he entered upon his service, j'et it would be pressing this principle beyond all reason or authority to attempt to carry it to the extent contended for by the defendant. To do so would be, in effect, to hold that the servant assumes all risks, known or unknown, which could possibly result from any conceivable future act of negligence on the part of the master. 3. The next point urged is that plaintiff was himself guilty of contributory negligence in not reducing the speed of his train while running through the yard, so as to have it " com- pletely under control," as required by the rule ; which counsel claims means that the speed must not be greater than that at which the engineer can stop his train within the distance that he can see danger ahead. This rule, like many of the others, does not command the doing or not doing a particular specific act, but is one calling for the exercise of judgment and dili- gence on part of the engineer, and must be construed in that view, and considered in connection with the other rules of the company, and the other duties and responsibilities im- posed upon engineers. It would seem that the construction which plaintiff himself put upon this rule is a reasonable one ; that is, that he should have his train so under control that he could stop it before reaching the danger point, if the proper signals were seasonably given him. But even if the rule, if standing by itself, might mean what defendant claims, yet, as to plaintiff, it was clearly modified by the schedule of time according to which these trains were required to be run, and were actually run, presumably with the knowledge and at the direction of the defendant's governing officers. The plaintiff could not conform to the time-table, and at the same time keep his train "under complete control " in the sense in which de- fendant claims that term is used in the rules. If compliance with a general rule is rendered impossible by other and incon- sistent orders given by the master to his employee, negligence cannot be imputed to the employee for not following the gen- eral rule : Pennsylvania Co. v. Roney, 89 Ind. 453. 4. It is finally urged that it was negligence per se for plaintiff HALL V. CHICAGO B. & N. R. R. CO. 517 to cease his lookout, even temporarily, for the purpose of look- ing at the injector. To our minds this is the only debatable question in the case. It is argued that the rules of the com- pany required engineers to keep a constant lookout while run- ning through yard limits, and that if plaintiff had done so in this case he would have seen the red light on the switch-stand when set to let in the freight-cars onto the side track, and would also have sooner discovered that this light was obscured, and likewise have sooner discovered the waving of the lantern, and thus have been able to avoid the collision. It may be conceded that the evidence shows that if plaintiff had kept a constant lookout he would have discovered these indications of danger a very few moments earlier than he did, and conse- quently have been able to slow his train a little sooner, so as to have at least diminished somewhat the injurious conse- quences of the collision ; also that there was no actual neces- sity for his watching the fireman fix the injector. It will be observed, however, that the rule nowhere expressly requires engineers to keep a constant lookout. Counsel merely claims that it is implied from the rule as he construes it. But it is evident that it cannot be construed as absolutely and inflexibly requiring engineers to keep a constant lookout, under all cir- cumstances ; for, as they have the general care and supervision of their engines, it is evident that circumstances might fre- quently occur which would require them to give their atten- tion temporarily to other things besides looking out. As has been already remarked, the rule must be construed as impos- ing upon engineers duties calling for the exercise of judgment and diligence, and calling their attention specifically to the exercise of that care which the law would impose on every en- gineer even in the absence of rules. Moreover, the plaintiff saw the white lights advising him that the switches were all right and set for the main track. He also knew that he was running on his own time, and had the absolute priority of right to the track over all other trains. So far from having any reason to suppose that the main track was then being used for switching, he had reason to suppose that, in conformity to 518 NEGLIGENCE. the rules, all such trains had been removed at least ten min- utes before. While, of course, he had no right to rest blindly upon the assumption that others would obey the rules without taking reasonable precautions to protect his own train, yet the fact that he had no reason to suppose that the track had been obstructed by the culpable negligence of others has an important bearing upon the question whether he was guilty of negligence in turning his attention momentarily to the dis- abled injector. As a matter of fact, we have no doubt that nineteen out of every twenty engineers would have done pre- cisely the same thing under like circumstances ; and whether plaintiff was guilty of contributory negligence in so doing was, upon the evidence, a question of fact for the jurj', and not of law for the Court : Lake Shore, etc.. Railway Co. v. Parker, 131 111. 557, 23 N. E. Rep. 237. The trial Court, therefore, properly refused to give defendant's seventh instruction to the jury. 5. The defendant also takes exception to the Court's instruc- tions, and refusals to instruct, as to the degree of care which plaintiff was required to exercise. The Court was requested to instruct the jury that it was plaintiff's duty, as engineer of a passenger-train, to exercise the utmost human care and fore- sight to avoid a collision between his train and any obstruc- tion on the track, and if he failed to exercise the utmost human care and foresight, and such failure contributed to the collision in which he was injured, he could not recover. The Court re- fused to give this, but did instruct the jury, in substance, that a railroad company owes to its employees the duty of exercis- ing ordinary care and diligence in protecting them from injury while engaged in the course of their employment ; that this duty is reciprocal, and that the employee owes the company the duty of exercising ordinary care and diligence in the per- formance of his duty ; that ordinary care is such care as per- sons of ordinary care and prudence would exercise under the same circumstances ; that the question whether a person has exercised such ordinary care is to be determined in view of all the circumstances ; that what would be ordinary care under HALL V. CHICAGO B. & N. E. E. CO. 519 certain circumstances might be great carelessness under differ- ent circumstances ; that the jury were to determine from the evidence what was the situation of affairs at the time of this transaction, and then to say whether, in that condition of affairs, the plaintiff exercised such care as a person of ordinarv care and prudence would have exercised ; that this required the jurj^ to consider the liability to danger at the time, the na- ture, character, and extent of the danger, and the more or less disastrous consequences that might be expected to result from a want of care. " The care must be commensurate with the risks of the situation." The argument of defendant's counsel is that, as a railway company owes to its passengers the " highest degree of care," and as it can only do this through its employees, therefore the employees engaged in running passenger-trains owe the highest degree of care to the com- pany. This sounds verj'^ plausible, but, if the position be sound, it is rather strange that the text-writers and decided cases all lay down the rule exactly as stated by the trial Judge in this case; and, so far as we can discover, the proposition insisted on by counsel has never before been advanced, ex- cept in the case of Locke v. Sioux City & Pacific R. Co., 46 Town, 112, where it was very promptly overruled. If the employee owes the highest degree of care to the employer because the latter owes that degree of care to its passengers, it is difficult to see wh}', on the same reasoning, the employer does not owe the same degree of care to its employees. But the question is not one of duty between carrier and passenger, but between employer and employee, and we have no doubt the law was correctly stated by the trial Judge. Moreover, at least as applied to this case, the assumed distinction between the " highest care " and " ordinary care '' was a mere aljstractiou, without any practical value. Indeed, it is a serious question whether the law has not been unnecessarily confused by the attempted dis- tinction between different degrees of care and of negligence. In doing so the words " care " and " negligence " are merel}' used with epithets attached wliich no one has ever been able satisfactorily to define. When we have said that the degree 520 NEGLIGENCE. of care to be exercised in a given case depends on circum- stances, and must be commensurate to the situation, we have expressed, in general terms, the whole law on the subject. In determining what degree of care they will exercise in a given case, prudent, careful men take into account the risks to be ap- prehended, the value of the thing entrusted to them, and its liability to injury. As railway companies, in transporting passengers, use powerful and dangerous instrumentalities, and have entrusted to them the most valuable of all things — human lives — which are more liable to be destroyed in case of acci- dent than inanimate property, therefore we say they must ex- ercise the highest degree of care, which simply means that they must take all these things into account, and, in the lan- guage of the Court below, " exercise a degree of care commen- surate with the situation." Had the trial Judge told the jury that the plaintiff was bound to exercise the highest degree of care, and then attempted to define what that meant, we fail to see how he could have used any more appropriate langunge than he did in defining what he termed "ordinary care." The plaintiff's own life was in greater danger from a collision than those of the passengers in the coaches in the rear, and what a prudent engineer would naturally do to protect his own life would certainly fulfill the requirements of duty to the com- pany or to its passengers. 6. The jury awarded the plaintiff |40,143?33 damages, and upon defendant's motion for a new trial upon the ground, among others, that the damages were excessive, the Court re- quired the plaintiff, as a condition to denying a new trial, that he reduce his verdict to |25,000, which he did. It is claimed that this is still excessive, and that the original verdict was so much so as to indicate that it was rendered under the influ- ence of passion and prejudice, and therefore the Court erred in not setting it wholly aside. If a verdict is so manifestly ex- cessive as to show that it was rendered through passion or prejudice, the only safe rule is to set it aside altogether, at least in all cases where the evidence is conflicting, and the merits of the case doubtful ; for it cannot be told but that this same HALL V. CHICAGO B. & N. R. R. CO. 521 passion or prejudice controlled the jury in finding on the other issues in tlie case : Craig v. Cook, 28 jNIinu. 232, 9 N. W. Rep. 712. But, wliile the verdict in this case is one of the very largest ever rendered in this State in a personal injury case, yet we find nothing in the reoord to indicate that it was the result of any passion or prejudice or undue influence. It is not a pleasant task to describe the terrible injuries which this plaintiff sustained, or the untold agony and sufl'ering which he has endured, and which he will probably continue, to a con- siderable extent, to endure during life. He was an able- bodied young man, capable of earning a good income from his profession. He is now an almost helpless cripple and invalid for life. Life to him will hereafter be a burden rather than a pleasure. His heroic conduct in staying at his post of duty, and hazarding his own life, in order to save the lives of his passengers, may have so commended itself to the jury that they awarded him somewhat more damages than they otherwise would, but we fail to discover anything indicating that they were actuated bj' passion, prejudice, or any corrupt motive. Neither do we construe the action of the trial Judge in cut- ting down the verdict as expressive of an opinion that the jury was influenced by any such improper motives, but simply that he thought that, however great the injuries, there must be some limit to the amount of pecuniary compensation awarded, and that in this case the jury had exceeded that limit. Al- though the verdict is still very large, yet we can see no good reason for our interfering with it on that ground. Order affirmed. P. & R. R. R. V. Spearen, 47 Pa. St. 300 ; R. R. v. Stinger, 78 Pa. St. 219 ; "W. St. L. & P. R. R. '■• Locke, 112 Ind. 40-t ; Nitro-glycerine Case, 15 Wall. .524 ; Coddington r. R. R., 102 N. Y. 66 ; Moreland v. R. R., 141 Mass. 31 ; Balto. R. R. V. Reaney, 42 Md. 117 ; Milwaukee v. Arms, 91 U. S. 489-494 ; L. N. A. & C. R. R. '■• Bryan, 107 Ind. 51 ; Gove v Ins. Co., 48 N. H. 41. Negligence defined : Minn. Stat., § 6842 (1) , Jaggard, 816 ; Bishop, 437 ; Cooley, 630. 522 NEGLIGENCE. (a) The test of commensurate care is, was it such care as a person of ordinary prudence would use under the peculiar cir- cumstances. Texas & Pacific Ry. Co. v. Gorman. Court of Civil Appeals of Texas, 1893. 21 S. W. Rep. 158. Appeal from District Court, Parker County ; J. W. Pattee- rfox, Judge. Action by 0. H. Gorman against the Texas & Pacific Rail- way Company for negligently setting a fire, which spread onto plaintiff's farm. From a judgment in plaintiff's favor, de- fendant appeals. Affirmed. The other facts fully appear in the following statement by Head, J. : The verdict of the jury, which is supported by the evidence, establishes that on the 23d day of November, 1889, appellant negligently set fire to the dry grass and weeds which it allowed to accumulate upon its right of way, and this fire spread to the farm of appellee adjoining, and burned over about 80 acres of his pasture, destroyed 300 of his rails, 25 posts, 306 fruit trees, 60 grape vines, and 200 blackberry vines, the cash value of all of which amounted to as much or more than the verdict of the jury. Appellant brought this suit for the dam- age so caused to him, and recovered judgment for the sum of $609.17, from which this appeal is taken. No complaint is made as to the amount of the verdict, or the sufficiency of the evidence to show negligence on the part of appellee. Head, J. (after stating the facts). Appellant complains that the measure of damage applied by the Court below for the destruction of the growing fruit trees and vines was their cash value, when they should have been treated as a part of the land, and its lessened value the proper measure. A num- TEXAS & PACIFIC EY. CO. V. GORMAN. 52o ber of decisions in such cases recognized as correct the rule adopted by the Court below : Whitbeck v. Railway Co., 3l! Barb. 644 ; Railway Co. v. Bohannan (Va.), 7 S. E. Rep. 236 ; Montgomery v. Locke, 72 Cal. 75, 13 Pac. Rep. 401. Other authorities, however, perhaps with better reason, adopt the rule contended for by appellant: 3 Sedg. Dam. 933, 934. This rule, however, is generally adopted for the benefit of the owner of the land, and not for the one causing the injury, upon the manifestly just ground that by the destruction of a valuable fruit, ornamental, or shade tree the value of the land may be lessened in an amount many times the value of the tree itself, and in such case the rule adopted by the Court below would not furuish adequate compensation. Wq believe, where the thing injured or destroyed is a part of the realty, the lessened value of the land will come nearer furnishing a rule just in its application to all cases than the one adopted by the Court : Pacific Exp. Co. v. Lasker Real Estate Ass'n, 81 Tex. 81, 16 S. W. Rep. 792 ; but we do not believe appellant, is in a position to complain that a different rule was applied to it in this case. If appellee is willing to accept the cash value of his trees and waive the incidental damage, if any, done by their destruction to his farm, it would seem that appellant should be satisfied. None of the evidence introduced tends in the least to show that the land was not damaged to the extent of the full value of the trees, whatever that might be. One of the methods of proving the damage to the land is by prov- ing the value of the trees taken therefrom : Kolb v. Bankhead, 18 Tex. 228. And where the trees are full grown and are only valuable as timber, their value, less the cost of marketing them, has been frequently recognized as the proper measure of the actual damage to be allowed for their wrongful or neg- ligent destruction : 3 Sedg. Dam. 933. Appellant also complains of the action of the Court in giving to the jury, at the request of appellee's counsel, the following definition of " negligence," viz : " ' Negligence ' is the lack of that care which an ordinarily prudent man would exercise in the management of his own affairs." The following definition 524 NEGLIGENCE. was approved by our Supreme Court in Railway Co. v. Oram, 49 Tex. 346, viz. : " ' Ordinary care and caution ' is such as a prudent man would exercise under similar circumstances." Tlie definition to which we are cited by appellant is found in the opinion in Cotton Press, etc., Co. v. Bradley, 52 Tex. 699,, as follows : " ' Negligence ' implies generally the want of that care and diligence which an ordinarily prudent man would use to prevent injury under the circumstances of the particular case." We believe the difference in these definitions is so- slight that no injur}'- could have resulted to appellant under the evidence in this case. No complaint is made against the finding of the jury on the question of negligence, nor is it con- tended that their verdict could have been different had this charge not have been given. The Court committed no rever- sible error in calling the attention of the jury in the charge to the value of the several items as alleged in the petition. We think the judgment of the Court below should be in all things afl&rmed. Brown v. R. R., 49 Mich. 153 ; Needham v. R. R., 85 Ky. 42.3 ; R. R. v. Stinger, 78 Pa. St. 219 ; R. R. -u.^Goddard, 25 Ind. 185; Austin & N. W. R. R. 0. Beatty, 11 S.W. 858 ; Williams v. Murray, 10 Cal. 419 ; Jaggard, 81& et seq.; Bishop, 438, 439 ; Cooley, 631. (2) Violation of a legal duty arising either (a) As implied of law in the case of a pure tort. Emry v. Navigation Co. Supreme Court of North Carolina, 1892. Ill N. C. 94 ; 16 S. E. 18. Shepherd, J. The argument before us was based upon the assumption that the defendant, in conducting certain blasting operations on its own land, was guilty of negligence by reason of its failure to exercise ordinary care, and that its liability for the same can only be avoided by establishing contributory negligence on the part of the plaintiffs. EMEY V. NAVIGATION CO. 525 111 our opinion, tlie true principle upon which the case is to be determined lies quite bej'ond that discussed by counsel, and involves a consideration of the question, not whether there was contributory negligence, but whether the defendant was guilty of any negligence whatever, for which, under the circum- stances, it is liable to the plaintiffs. "While there may be some shades of difference in the various definitions of negligence, all the authorities agree that its essential element consists in a breach of duty, and that in order to sustain an action, " the plaintiff must state and prove facts sufiicient to show what the duty is and that the defendant owes it to him :" 1 Shear. & Red. Neg., § 8 ; Beach Con. Neg. 6 ; Thompson Xeg., preface. A legal duty has been well defined by Dr. Wharton as " that which the law requires to be done, or forborne to a de- terminate person, or to the public at large, and is a cor- relative to a right vested in such determinate person or in the public :" Whar. Neg., § 24. " The duty itself arises out of various relationships of life, and varies in obligation under different circumstances. In one case the duty is high and imperative ; in another it is of imperfect obligation. Thus it maybe dependent on a mere license to enter upon land, or the bare obligation, to avoid inflicting a willful injury upon a trespasser, while, upon the other hand, it may be a duty to care for the safety of a specially invited guest, or of a passen- ger for hire :" 16 Am. & Eng. Enc. 412, and the numerous cases cited. This much being premised, we must now ascertain what , duty, if any, was imposed by law upon the defendant in the present action, and this involves an inquiry into the relation of the parties in respect to the buildings, for the accidental destruction of which the action is brought. It is conceded that the defendant was the owner of the land upon which the buildings were located, and it appears that in January, 1887, a suit between the present parties was settled according to the terms of the following agreement, to wit : " That the said T. L. Emry and wife do further agree that if 526 NEGLIGENCE. they cannot agree with said companj^ upon rent for the use of the water and land of the company, upon which the mills and foundry of said Emry and wife, described in the complaint, are situated, then, upon six months' notice from the said company, they will remove their mills, foundry, and machinery from the lands of said company. This 14th day of _ January, 1887." We cannot concur in the contention of the plaintiffs that, under this agreement, they were entitled to keep their buildings upon the premises, without the payment of rent, until the de- fendant had improved the canal so as to increase the supply of water. The agreement contains no such provision, and we feel that we would be doing violence to the ordinary rules of interpretation by so extending its terms bej^ond the meaning of the plain and unambiguous language emjiloyed. The argu- ment can derive no support from extrinsic circumstances, as it appears that the plaintiffs had been using the water of the canal to some extent by keeping it cleaned out, and that shortly after making the agreement, they proposed to continue the use of the same. There was, therefore, an existing subject upon which the agreement could presently operate, and it is with reference to this, as well as to any contemplated improve- ment, that it must be construed. If the actual contract was such as is contended, it is to be regretted that it was not incor- porated into the written agreement, as it seems that the conduct of the agent of the plaintiffs was influenced by a reason- able misai:>prehension of the legal effect of the said instru- ment. It is further insisted by the terms of the agreement that it was the duty of defendant to entertain in good faith a proposi- tion to fix the rental value of the water and land therein men- tioned ; and that if it refused to do so, it had no right to re- quire the removal of the buildings, etc. Granting this to be a correct interpretation of the agreement, we are unable to find anything in the testimony which discloses that the defendant arbitrarily or in bad faith declined to consider any such prop- osition of the plaintiffs. On the contrary, the plaintiffs' agent EMRY V. NAVIGATION CO. 527 (who seems to have had full control and management of the whole matter) explicitly testified that before the notice to re- move was served on him the defendant's attorney demanded that the plaintiffs enter into a new contract of rent, and that failing to do so they should remove the buildings. The said agent further testified that in response to the proposition he re- plied as follows : " I stated that I would go on as I had been, and keep the canal cleaned out for the use of the land and w^ater, but I could not pay rent, as the canal was in bad repair and supplied scarcely any water." The witness also stated that the defendant's attorney declined to accept his proposal, and that they had no further negotiations. Here, then, was a distinct offer to " enter into a new contract for rent," and this offer was declined, except upon the terms demanded by the plaintiffs. We fail to perceive how the re- fusal to accept these terms can be considered as evidence that the defendant was unwilling to make a bo7ia fide effort to agree upon a reasonable rental value. If, under the contract, it was the duty of the defendant to make a fair effort to agree, it was surel}' released from that obligation after the plaintiffs, with- out hearing any proposal from the defendant, had expressly refused to accede to anj^ other but the previously existing terms. There having been a failure to agree as to the rent, the defendant had a right to insist upon the removal of the buildings upon six months' notice, as provided in the agree- ment, and it was not bound to entertain any further proposi- tions on the part of the plaintiffs. Accordingly, a notice to remove the buildings was given, pursuant to the agreement, on the 3d of February, 1887 ; but notwithstanding this notice, the plaintiffs failed to remove the same, and kept them on the defendant's land after they knew that the defendant had com- menced its blasting operations, and until they were accidentally destroyed by fire in September, 1890. As early as the 6th of June of that year the defendant complained of the plaintiffs' failure to comply with the notice, and at the same time stated that as the land occupied by the buildings was absolutely necessary for its use, it would proceed to remove them unless 528 NEGLIGENCE. the plaintiffs did so in eleven days. At the expiration of that time, the defendant attempted to remove the buildings, but was prevented by the plaintiffs from doing so by means of a shot- gun. Without pausing to consider whether the long and un- reasonable delay to remove the buildings did not have the effect of vesting the same in the defendant as a part of its free- hold (a point which was waived by the answer), it cannot be questioned that in their failure to remove them after said no- tice, and especially in the violent prevention of the defendant from exercising its right of removal, the plaintiffs were tres- passers upon the lands of the defendant : Taylor Landlord and Tenant, §§ 62 and 63. This status of the plaintiffs is in no way affected by the conversation between their agent and the sec- retary of the defendant in 1890. Giving full effect to the tes- timony of the former, it amounted to no more than a parol license to continue the lower mill on the defendant's land in view of the establishment of an oil mill at some indefinite time in the future, which was in fact never done. The license was revocable at the election of the defendant (Kivett v. McKeithan, 90 N. C. 106 ; McCracken v. McCracken, 88 N. C. 272 ; Rail- road V. Railroad, 104 N. C. 658), and was actually revoked on the 6th of June, 1890, by the notice given on that day. The plaintiffs had until the 24th of September of that year (the date of the accident) to remove the buildings, and not only failed to remove them, but, as We have seen, forcibly prevented the defendant from doing so. It cannot be seriously insisted that the effect of this conversation was to revive the broken agreement of 1887, so as to entitle the plaintiffs to another six months' notice of removal. Much clearer testimony than this is necessary to work a result so restrictive of the rights of a property-owner. Besides, the alleged agreement was essen- tially different from the old one, as it related to and was con- ditioned upon the establishment of a new industry, and the supply of water was to be furnished " at the same rates as to others." The old agreement, as we have construed it, had reference to the existing state of affairs, and contemplated the present payment of rent of some character. EMRY V. NAVIGATION CO. 529 The plaintiffs, then, being trespassers upon the land of the defendants, -we will now proceed to inquire into the nature of the duty which the latter owed to the former in respect to the said buildings. It is a well-settled principle that a land-owner has a right to the exclusive use and enjoyment of his premises, and that he incurs no liability for injuries caused by its unsafe condition to a person who was not at or near the place of the accident by lawful right, and when the owner has neither expressly nor by implication invited him there: Sweeny n. Railroad, 10 Allen, 368 ; Bennett v. Railroad, 102 U. S. 577; Carlton -y. Steel Co., 99 Mass. 216 ; Cooley on Torts, 605, 606 ; Pierce v. Whitcomb, 46 Yt. 127 ; Pittsburg v. Railroad, 29 Ohio St. 367 ; 1 Thomp. Neg. 283, 303. The doctrine is thus stated in Schmidt v. Bauer, 5 La. Ann. Rep. 500, and notes : " Unless contrivances are placed on such premises with an actual or constructive intent to hurt in- truders, the proprietor is not liable for injury resulting to persons by reason of the condition in which the premises have been left, or from the prosecution of a business in which the owner had a right to engage : Evansville, etc., v. Griffin, 100 Ind. 221 ; Gillespie v. McGowan, 11 Pa. St. 144 ; Gram- lich V. "Wurst, 86 Pa. St. 74 ; Cauley v. Pittsburg, etc., 95 Pa. St. 398 ; McAlpine v. Powell, 70 N. Y. 126 ; Hargreaves v. Deacon, 25 Mich. 1 ; Burdick v. Cheadle, 26 Ohio, 393 ; In- dianapolis r. Emmelmon, 6 West. Rep. 569." The foregoing authorities, and many others that could be cited, abundantly sustain the proposition " that a trespasser or mere licensee, who is injured by a dangerous machine or con- trivance on the land or premises of another, cannot recover damages unless the contrivance is such that the owner may not lawfully erect or use, or when the injury is inflicted willfully, wantonly, or through the gross negligence of the owner or occupier of the premises :" Galveston Oil Co. v. Mor- ton, 70 Tex. 400. In the leading case of Larmore v. Crown Point Iron Co., 101 N. Y. 291, it was held that where one goes upon the 34 530 NEGLIGENCE. premises of another, without invitation, to obtain employment, and is there injured by a defective machine, he cannot recover. Andrews, J., in the course of a well-reasoned opinion, uses the following language : " The precise question is whether a person who goes upon the land of another without invitation to secure employment from the owner of the land is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises, not obviously dangerous, which he passes in the course of his journey, if he can show that the owner might have ascer- tained by the exercise of reasonable care. We know of no case which goes to that extent."' After speaking of the liability of a land-owner to an uninvited person for injuries caused by the setting of spring-guns or dangerous traps on his premises, and also the duty of railroad companies in running their trains to use proper care in respect to persons on the track, where it has been used by the public without objection, the learned Judge continues : " But in the case before us there were no circumstances creating a duty on the part of the defendant to the plaintiff to keep the whimsey in repair, and consequently no obligation to remunerate the latter for his injury." It has also been held, where a sign of " No admittance " was placed on a door, that one who entered the room (being of the class meant to be excluded) cannot recover for injuries caused by the negligence in the manage- ment of the room, even though no attempt was made to exclude him, nor any further warning given : Zoebisch v. Tar- bell, 10 Allen, 385 ; Victory v. Baker, 67 N. Y. 366. So, where a trespasser entered the defendant's abandoned freight-house, and the wind blew the wall down and injured him : Larry v. Railroad Co., 78 Ind. 323. To the same effect is the case of McDonald v. Railroad, 35 Fed. Rep. 38. There the defendant corporation, in working its coal mine, threw out a pile of slack on its own land, the pile presenting the appear- ance of coal ashes. The land was not fenced, and a stranger in the neighborhood, in passing over the slack, was burned. It was held that he had no right of actipn against the corporation. EMRY V. NAVIGATION CO. 531 lu Batchelor v. Fortescue, 47 J. P. 308 (Eng.), the defendant had contracted to do certain work on a plat of ground where buildings were erected and excavations were being made. To carry out the work, he, by his men, worked a steam winch and crane, with a chain and iron tub attached thereto. The de- ceased was employed by the owner of the ground to watch the materials and buildings. He had no duty to take part in the excavating, and it was no part of his business to stand under the tub as it was raised. While watching the men working, the tub fell on his head, and he was killed. It was held that the defendant was not liable. "The deceased was there to watch the material and buildings. He had no business with the machinery, nor anj^ duty to watch the defendant's men at work. He was thus in a place where he had no right to be, and was a mere licensee, to whom the defendant owed no duty." It is true that the general principles we have enunciated are subject to some qualifications, under possible circum- stances, in favor of certain licensees, or purely technical tres- passers, and of persons walking on a railroad track, as in Clark V. Railroad, 109 N. C. 430, and Deans v. Railroad, 107 N. C. 686. Here, on the border-land between the doc- trine we have stated and that of contributory negligence, there is some obscurity and conflict in the authorities. But, however that may be, there is no difficulty in its appli- cation to a case like the present, where, in the eyes of the law, the plaintiffs must be regarded as willful trespassers. The authorities are practically unanimous in holding that, in favor of trespassers of this character, the land-owner owes no duty to exercise ordinary care in the use of his premises or in the conduct of lawful operations thereon. If no such duty existed in the foregoing cases, which have been cited by way of illus- tration, aod in which the lives of human beings were im- periled, it would be difficult indeed to understand how it could be imposed upon the defendant in this action. It would be a strange result if one who is involuntarily made the custodian of another's property by the coercive power of a shot-gun 532 NEGLIGENCE. should be held liable for an accident to such property because of his failure to take all of the precautions which would com- mend themselves to a prudent man. It is fully settled by the authorities above mentioned that the duty of a land-owner under such circumstances can be no greater than to abstain from what is very generally called " wanton or willful negligence." The defendant had a right to improve his property, and in blasting for that purpose it was engaged in a lawful occupa- tion. There is nothing to show that its servants acted will- fully, wantonly, or recklessly, and there is no testimony tend- ing to prove that after they discovered the accident they could by ordinary care have prevented the destruction of the build- ing. Certainly there is nothing to indicate the same indiffer- ence on their part as that shown by the plaintiff 's agent, who, although he had his hands present, made no effort to arrest the flames, and, indeed, stated that, as he did not cause the fire, he would not assist in putting it out, and " that it might burn." The defendant, therefore, having been guilty of no "willful or wanton negligence" (the abstaining from which constituted its only duty under the circumstances), it must follow that it cannot be held liable for the accidental destruc- tion of the plaintiff's property. We have carefully considered the other exceptions, and are of the opinion that they are without merit. The judgment must be affirmed. Carleton v. Iron Co., 99 Mass. 216; Bennett v. Louisville & Nashville R. R. Co., 102 U. S. 577 ; Bramsom v. Labrot, 81 K}\ 638 ; Durgin v. Kennett, 29 Atl. 414 ; Jaggard, 826 ; Bishop, 446. TOLEDO, ST. L. & KAN. CITY K. E. CO. V. FENSTEMAKER. 633 (b) As implied of law in a quasi tort. The Toledo, St. Louis & Kans. City R. R. Co. v. Fenstemakek. Appellate Court of Indiana, 1891. 3 Ind. App. 151 ; 29 N. E. 4-10. New, J. In this case the appellee sued the appellant upon a complaint consisting of two paragraphs. Demurrers to each paragraph of the complaint were overruled. Several errors are assigned by the appellant, but its counsel have discussed those only which are predicated upon the over- ruling of the demurrer to the amended second paragraph of the complaint, and the overruling of the appellant's motion for judgment upon the special verdict returned by the jury. We have not been favored with a brief from the appellee. The following is a somewhat condensed and yet sufficiently full statement of the allegations contained in the amended second paragraph of the complaint : George W. Fenstemaker was the owner of land in Grant County, Indiana, and conveyed to the Frankfort, St. Louis & Toledo Railroad Company a right of way over and through said lands for the construction of the track of said road. In consideration of said conveyance, said company agreed with said Fenstemaker, in writing, that it would construct and maintain cattle-guards along said railroad track through said lands at the proper places, and that a road crossing should be constructed by said railroad company, and that the road through said land should be fenced ; that under and by virtue of said contract said Fenstemaker had and used a private way across the said railroad track, which way was used in connec- tion with the farming of said land in passing stock, wagons, and other farming implements from one part of said land to the other ; that said Frankfort, St. Louis & Toledo Railroad Company thereafter, because of the conveyance of said right of way and consideration promised therefor, did construct its 534 NEGLIGENCE. railroad track on said right of way, and did construct proper and necessary cattle-guards on either side of said private cross- ing over and upon said railroad track, and did construct and maintain wing fences from the ends of said cattle-guards to the fences on each side of said right of way ; that the defend- ant thereafter, and prior to October 1, 1888, became the owner of said railroad and succeeded to all its rights and franchises, and has ever since had the operating and management of said road ; that the plaintiff, at the date last named, was in the possession of the land through which said railroad was built as aforesaid as the tenant of said Fenstemaker, and as such tenant had full control and management of said land ; that on each side of said right of way there had been put in by said Fenste- maker sufficient gates across said private way on either side of said railroad, and said gates were kept securely closed bj'- the plaintiff; that afterward and prior to the 1st day of Octo- ber, 1888, the defendant, without right, removed said cattle- guards and wing fences ; that at the date last named, plaintiff was necessarily driving his horses across said railroad track, on the crossing of said private way, to the pasture on said land, when one of said horses, to wit, a colt two years old, of the value of $150, when it reached the point where said cross- ing crosses said railroad track, ran west along and upon said track for twenty rods, where it was negligently run over and killed by the defendant's locomotive and cars ; that said colt was so permitted and suffered to run along and upon said track to where it was killed because of the failure of the de- fendant to construct and maintain cattle-guards on the east and west sides of said private way where it crossed said rail- road track — all of which occurred without the fault of plain- tiff, and to his damage of $150. Among other pleadings, the general denial was filed by the appellant, and upon the issues joined the case was submitted for trial to a jury, who returned a special verdict. Judgment was rendered by the Court upon the special verdict for $150 i-n favor of the appellee. The evidence is not in the record, but from the facts found TOLEDO, ST. L. Ji KAX. CITY R. R. CO. V. FENSTEMAKER. 535 b}^ the special verdict it would seem that the recovery by the appellee was upon the amended second paragraph of the com- plaint, and in our opinion this paragraph states a good cause of action. The first objection urged against it is that the written con- tract referred to therein must be regarded as the foundation of the action, and that, therefore, the original, or a copy thereof, should have been filed with the pleading. We are not inclined to regard the writing referred to as the foundation of the action within the meaning of the Code. The suit is not to recover damages resulting necessarily from the removal of the cattle-guards, nor to enforce the specific performance of the contract as such. The complaint is to recover damages for the wrongful killing of the appel- lee's colt. If, under the written obligation or contract in question the appellant owed to the appellee a duty which it failed to discharge, and that failure brought about or contributed materially to the killing of the colt, the contract would be evidence in support of the cause of action, but not its foun- dation. But it is contended that, independent of the objection thus disposed of, the paragraph of the complaint we have been considering (iocs not state a good cause of action against the appellant, especially that it is not shown that the appellant had notice of the contract referred to. The appellee, by virtue of his tenancy, had the right to hold and enjoy the premises for farming purposes, and that right would embrace the private way or crossing with its advan- tages. The right of way or easement through the land con- veyed to the Frankfort, St. Louis & Toledo Railroad Company was a proper subject of contract, and when the appellant be- came the owner of the road, its right to use and operate the same was subject to rights secured or reserved by the contract to Fenstemaker, the owner of tlie land. At the time of the purchase of the road by the appellant, the Frankfort, St. Louis & Toledo Railroad Company had, in compliance with its con- 536 NEGLIGENCE. tract, constructed the proper and necessary cattle-guards and wing fences, and was maintaining the same. Of the existence of the crossing, cattle-guards, and wing fences the appellant must have presumed to have had notice, the same being upon and in a sense a part of the railway or route itself. The ap- pellant was thereby notified that there was in connection with certain crossings, cattle-guards, and wing fences, some claim of right or use to the land-owner or occupant under him, which should have put it on inquiry. One cannot purchase property where there are facts known to him sufficient to put him on inquiry, and hold it free from prior claims or equities of which due inquiry would have given him information. A party in possession of certain informa- tion will be chargeable with knowledge of all facts which an inquiry suggested by such information would have disclosed to him. It is well settled that a person who is about to purchase land upon which a grade for a railroad is being constructed is thereby warned that there is some claim of right connected therewith, and, if he fails to make proper inquiry as to the nature of the claim, he buys at his peril. We see no reason why the same principle or rule should not apply to purchases made by railroads and other corporations. See Indiana, etc., R. W. Co. V. McBroom, 114 Ind. 198, and cases there cited. The motion made by the appellant for judgment on the special verdict was properly overruled. The special verdict is lengthy, and no good purpose can be accomplished by setting it out in this opinion. We have examined it with care, and find that the judgment rendered in favor of the appellee is supported fully by the facts found. The judgment is affirmed, with costs. Stock V. Boston, ]49 Mass. 410; Daly v. Wise, 132 N. Y. 306- Cesar i) Karutz, 60 N. Y. 229. COKEELL V. B. C. E. & M. E. E. CO. 537 (c) As created by statute. CoEKELL V. B. C. R. & M. R. R. Co. Supreme Court of Iowa, 1874. 38 la. 120. This action is brought to recover of the defendant for negli- gently running and operating a train of cars upon its road in the city of Vinton, Iowa, whereby a mare and a mule belong- ing to the plaintiff were injured. The defendant in its answer admits the injury to the stock, but denies that it occurred through its negligence, and avers that the injury was caused by the negligence of the plaintiff. Jury trial. Verdict and judgment for plaintiff. Defendant appeals. I\IiLLEE, C. J. I. The evidence shows that the accident occurred within the corporate limits of the city of Vinton, in Benton County, where the railway track crosses one of the public streets of that city, and that the train was at the time running at the rate of about fifteen miles an hour. It was also shown that this rate of speed was in violation of an ordi- nance of the city which prohibited the moving or propelling of any locomotive, engine, or car along any railroad track in the city at a greater speed than six miles per hour, under a penalty fixed in the ordinance. The defendant requested the Court to instruct the jury as follows : " 2. That the defendant's train was run within the city limits of the city of Vinton at a rate of speed prohibited by the ordinance of said city, is not evidence of negligence in fact, and of itself, and involves no consequences except liability for the penalty to the city. " 3. It is not sufficient to charge the defendant to simply show that the train was run at a rate of speed greater than that prescribed by the ordinance. The plaintiff must show 638 NEGLIGENCE. that after discovering the peril of the i.;nimals, the engineer could have so conducted as to have prevented the injury, and for this purpose the burden of proof is upon the plaintiff." The Court refused to give these instructions, and gave the following : "As to the alleged negligence in running the train, it is con- ceded that the accident occurred within the corporate limits of the city of Vinton, and that at the time of the accident an or- dinance of the city prohibited trains from running at a greater rate of speed than six miles an hour within the city limits. If you find from the evidence that the defendant's servants or employees were running the train at a much greater rate of speed than six miles an hour, and that, while so running, the train ran against the horse and mule in question, this is evi- dence of negligence, and the defendant is liable, unless excused by reason of the alleged negligence of the plaintiff 's servant. If the rate of speed was not to exceed six miles per hour, and the employees on the train, when the horses and mules came on the track, used all proper means to avoid the collision, the de- fendant is not liable." The giving of this instruction and the refusal to give the two former, appellant assigns as error. The power of the citj'^ of A-^inton to pass the ordinance is not questioned. The ques- tion involved is, whether the breach or violation of the ordi- nance imposing upon the defendant the duty of restiicting the speed of its trains within the prescribed limits constitutes neg- ligence. In Reynolds v. Hindman, 32 Iowa, 146, it was held by this Court that, under the statute there involved, it was negligence per se to run a threshing machine Avithout having the tumb- ling rods, etc., " boxed or secured while running :" In Dodge V. The Burlington, C. R. & M. R. R. Co., 34 Iowa, 276, it was held that the omission of a railroad company to have a sign- board at a highway crossing to warn persons approaching, as provided by § 1331 of the Revision, was negligence on the part of the company. Proof of such omission was there held to establisTi one of the conditions essential to the plaintiff 's right CORRELL V. B. C. R. & M. E. E. CO. 539 of recover}^ It is there said, per Day, J., that " this statute imposes a duty upou the defendant, a failure to discharge which constitutes negligence." There is this difference between the statutes involved in the cases above cited and the ordinance in this case, that, by the former, no penalty as such is imposed for the violation, but it is provided that the injured party may recover damages from the negligent one, yet we conceive no real diiference in respect to the principle involved. In the case last cited the decision is expressly based upon the doctrine that the statute imposes a duty upon railroad com- panies to erect sign-boards at highway crossings to warn per- sons of the necessity of looking out for the cars, and that a failure to discharge this duty constitutes negligence ; so in Reynolds v. Hiudman, supra, the principle of the decision, though not as explicitly put as in Dodge v. The B., C. R. & M. R. R. Co., supra, is that the statute has imposed it as a duty upon those running or operating threshing machines to see that certain portions of the machinery shall be safely boxed or secured while running, and that a failure to do this is negli- gence. The liability of the party in fault in either case fol- lows by proof of this neglect of duty resulting in injury to the plaintiff, together with jjroof of due care on his part. "We have found but a single case holding the doctrine con- tended for by appellant's counsel, namely: Brown v. The Buffalo & State Line R. R. Co., 32 N. Y. 191. In that case it appeared that by an ordinance of the city of Buffalo, the de- fendant — a street railway company — was prohibited from run- ning its cars through the city at a greater rate of speed than six miles an hour, under a penaltj'- of $150 for each offense. The plaintiff was injured by the defendant's cars while they were moving at a greater rate of speed than the ordinance per- mitted. The Judge at the trial charged the jury, that if the injury would not have occurred except for such violation of the ordinance, the defendant was liable. This was held an erroneous instruction and the judgment reversed. We fully ao-ree with the learned authors of Shearman & Redfield on 540 NEGLIGENCE. Negligence, when they say : " We do not think this decision will be followed in any other State :" Shear. & Redf. on Neg., § 484 and note 2. It was rendered by a bare majority of the Court of Appeals and has been subsequently justly criticised by the same Court in Jetter v. N. Y. & Harlem R. R. Co., 2 Ke3-es (N. Y.), 154, in the following language: "That case stands upon gi'ounds altogether too doubtful to justify its ap- plication to cases not strictly within it. The opinion confounds- all distinction between civil remedies and criminal punish- ments, and the authorities cited by it go no farther than to hold that, where a specific penalty is prescribed by a law forbidding an act not per se criminal, the act is not otherwise punishable as a public offense. It failed to recognize the axiomatic truth that every person, while violating an express statute, is a wrong-doer, and, as such, is ex necessitate negligent in the eye of the law, and that every innocent party, whose person is injured by the act which constitutes the violation of the statute, is entitled to a civil remedy for such injury, not- withstanding any redress the public may also have. It ignores- also the principle above asserted that every person pursuing his lawful affairs in a lawful way has a right to assume that every other person will do the same thing." The opinion in this case was announced by Mr. Justice Davis, and concurred in by six out of the seven other members of the Court. In our judgment the case criticised cannot be maintained upon either principle or authority and ought not to be followed by us. See, in further support of the views we have expressed, the following cases, which rest on kindred principles : Guenther V. Dewein, 11 Iowa, 133, and cases cited ; Marianthal v. Shaf- fer, 6 lb. 223 ; Davis v. Bronson, lb. 410, 425 ; Sipe iJ.Finarty, lb. 394; Craig v. Andrews, 7 lb. 17; David v. Ranson, 1 G. Greene, 383 ; Cole v. Parker, 7 Iowa, 167 ; Reynolds v. Nichols, etc., 12 lb. 398. II. Appellant complains of a portion of the sixth instruc- tion given by the Court on its own motion. The whole in- struction is as follows : COREELL V. B. C. R. & M. R. R. CO. 541 " 6. In determining this question as to whether the plaintiff's brother exercised ordinary care, you will take into account his I'amiliaritj'- with the crossing, his knowledge of the regular time of the arrival of trains at the crossing, the fact as to the manner in which the horses and mules were being taken over the track, the obstructions in the way of a fair observation of an approaching train, and determine therefrom, as well as from all the other surrounding circumstances, whether he was want- ing in ordinary care and prudence, as above explained, in permitting the stock to go upon the track when they did. It is not for me to say what act or acts amount to negli- gence on his part ; this is for you to determine from all the evidence. " It is proper to observe that if the brother of the plaintiff knew of the regular time of the train, and about that time was approaching the track, a greater amount of care was required than if he was doing the act at some other time. "Another thought in this connection. In determining the question as to the negligence of plaintiff's brother, he had the right in approaching the track to assume that the trains of the plaintiff would not be running at a rate of speed greater than six miles an hour. In other words, all men have a right to expect that others will not violate the law." Tiie last paragraph is the portion complained of, and it is claimed in argument that it ignores the question of contribu- tory negligence. We think that there is no reasonable ground of objection ; that it is not fairly susceptible to those made by appellant in argument. It was conceded that the train was running at a greater rate of speed than six miles per hour, and there could be no prejudice resulting from the assumption of that fact as true. The language objected to, fairly interpreted, amounts to nothing more or less than telling the jury that the person about to cross the track had a right to presume, until the contrary should appear, that the defendant would not run its cars at an unlawful rate of speed. Thus understood there can be no reasonable objection made thereto. It does not in 542 NEGLIGENCE. any manner contravene the doctrine of contributory negligence. It does not tell the jury that the plaintiff's brother, who was driving the horses and mules across the railroad track, might rely upon this presumption as a justification of his own neg- ligence in approaching the crossing, but that this presumption is proper to be considered in connection with the question of contributory negligence. It enters into that question, but is not all of it. See LanghofF's Adm'rs. v. The Milwaukee & Prairie Du Chien R. E. Co., 19 Wis. 489 ; Jetter v. N. Y. & Harlem R. R. Co., supra. III. The appellant insists that upon the evidence it is shown that plaintiff's brother, who had charge of the stock injured, and who was driving the same across the railroad track at the place where the injury happened, was guilty of contributory negligence, and that therefore the Court erred in overruling the motion for a new trial, and in rendering judg- ment on the verdict of the jury. This primarily was a ques- tion for the jury. The case does not come within the doctrine of Dodge V. The B., C. R. & M. R. R. Co., 34 Iowa, 276 ; Artz V. The C. R. I. & P. R. R. Co., lb. 153 ; and Carlin v. The Same (Dec. Term, 1873). We cannot say that the finding of the jury is not sustained by the evidence. On the contrary it seems reasonably proba- ble that if the defendant's train had been moving at a lawful rate of speed, the person in charge of the plaintiff's stock would have been able, by the efforts made by him, to prevent the injury ; that his conduct would have been consistent with due care on the hypothesis that he supposed the train to be moving at a lawful rate of speed. This he had a right to as- sume until the contrary appeared. Whether he was apprised of the true speed of the train in time to act differently from what he did, is doubtful, to say the least. Appellant does not urge in argument the errors assigned upon other instructions, therefore they will not be noticed here. In the view we have taken of the case, it becomes unneces- CROWN V. OER ET AL. 543 sar}- to examine the question whether the defendant was neg- hgent in the construction of the street crossing where the accident occurred. The judgment of the District Court is affirmed. Piper r. R. E., 4G ^^. W. 165 ; Messenger v. Pate, 42 la. 44.3 ; Salisbury r. Herchenroder, 106 IMass. 458 ; I. C. R. R. v. Hetheringt.on, 83 111. 510 ; E. R. r. St ebbing, 62 ^Md. 504 ; Hoppe r. E. R. 61 Wis. 357 ; Clements v. Light Co., 11 So. 51 ; Jaggard, 826 ; Cooley, 780. 2. As Between Master and Servant. a Assumption of Risk. The servant assumes and contracts -with reference to all the ordi- nary risks incident to the employment. Crown v. Orr et al. Court of Appeals of New York, 1893. 140 N. Y. 450 ; 35 N. E. 648. O'Brien, J. The relation of master and servant existed be- tween the plaintiff and the defendants at the time that the former received the personal injury for which he has recov- ered damages. The question presented is whether, upon any view of the evidence, the result can be attributed to any fault or neglect on the part of the master. The rules of law in such cases are well settled, but it is not alwaj^s easy to apply them to the varying facts in each particular case. The master does not insure the servant against all accidents and mishaps that may befall him in the business. The servant, when he enters into the relation, assumes not only all the risks incident to such employment, but all dangers which are obvious and ap- parent. The law imposes upon him the duty of self-protec- tion, and always assumes that this instinct, so deeply rooted in human nature, will guard him against all risks and dangers incident to the employment or arising in the course of the business of which he has knowledge or the means of knowl- 544 NEGLIGENCE. edge. If he voluntarily enters into or continues in the service without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury to him: Thompson on Neg., p. 1008 ; Haskin v. N. Y. C. & H. E. R. R. Co., 65 Barb. 129 ; affd., 56 N. Y. 608 ; Jones v. Roach, 9 J. & S. 248. This principle applies to the plaintiff, though he was not at the time of full age. Like any other servant he took upon himself the ordinary risks of the service, and all dangers from the use of machinery which were known to him, or obvious to persons of ordinary intelligence: De Graffe v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 125 ; King v. B. & W R. R. Co., 9 Cush. 112. He is bound to take notice of the ordinary opera- tion of familiar laws and to govern himself accordingly, and if he fails to do so the risk is his own. He is bound to use his eyes to see that which is open and apparent to any person so using them, and if he neglects to do so he cannot charge the consequences upon the master. The liability of the master for injuries to the servant re- ceived in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or what is equivalent thereto, in order to justify a verdict, and he is entitled to the presumption that he has performed this duty until the contrary is made to appear : Wood on Master & Servant, §§ 345, 346 ; Cahill v. Hilton, 106 N. Y. 517. If the injury to the servant is attributable to the master's neglect in omitting to furnish safe and adequate appliances for the work, according to the nature of the busi- ness, or competent co-servants, or even if he neglects to give persons unacquainted with the use of machinery proper instructions with respect to its use, he is liable. It remains only to apply these principles to the facts of this case as dis- closed by the testimony of the plaintiff himself. On the 10th of December, 1890, the plaintiff, who was then about nineteen years of age, and in the employment of the defendants, lost his hand and part of the arm by coming in contact with the CROAVN V. ORR ET AL. 545 knives of a planing jiiachine. Xo complaint is made that the machine was in any respect defective or unsuitable for the purpose for which it was used, or that the place where the plaintiff was directed to work was in any respect unsafe. The onl\' omission of duty charged against the master in the com- plaint, or at least the only fault now urged, is that the plain- tiff was ignorant of the use of machinery, and the defendants neglected to give proper instructions to him in this regard or cause them to be given. When the accident occurred the plaintiff had been at work in the shop about three weeks. His duty was to stand in front of the machine and about four or five feet from the end of it, and take off the dressed lum- ber after it had passed through the planer, and when he moved to where he stood by the action of the machine and the use of a small roller and horse attached. He was not required to operate or handle the machine itself, but was cautioned against meddling with its operation. There were four of these machines in the room, under charge of a man who assigned the plaintiff to one of them to take the boards away and load them upon a truck as they were dressed. The plaintiff testi- fies that on the day of the accident the man in charge ordered him to place a hood made of tin, and used to divert the shav- ings and dust from the machine to the floor under the frame, in its place in front of the knives of the planer. This hood had a hook at the top, and when in use hung in front of the knives and about eight inches from them, upon a small beam under the frame. He saj's that while attempting to put it in place his hand was caught by the knives, and in this way the injury was sustained. At this point there is a marked con- flict in the evidence. The plaintiff says that he was directed by the man in charge to put the hood in place without giving him any instructions as to the manner of doing it or the danger incident to such an operation. The foreman of the machines in charge admits that he gave him no instructions in this respect, for the simple reason that no such duty was ever required of him, and, in fact, he gave him no order to that effect on this occasion, but the act was entirely voluntary 35 546 NEGLIGENCE. on the part of the plaintiff, and without request or direction from any one. The plaintiff says that when his hand came in "contact with the knives the hood dropped from the hand upon the floor, and that he never succeeded in hanging it. On the other hand, the foreman — and in this he is corroborated by several other witnesses who were working in the shop at the time — say that after the injury the hood was found hang- ing in front of the knives, not upon the beam where it was always placed, but upon another, some four inches nearer to the knives. Assuming that the verdict has determined con- clusively that the foreman ordered the plaintiff to hang this hood in place, in front of the knives of the planer, does this charge the master with personal negligence? The plaintiff had been at work in front of this machine for three weeks, and during that time had full opportunity to observe the man- ner of handling this hood and placing it upon the machine. He had the same opportunity of informing himself with re- spect to any danger attending such an act as the master had. There was nothing in the operation which he was required to perform that called for any special instructions, and he asked for none. It was not negligence to direct a young man nine- teen years of age, who had seen the machine in operation for three weeks, to perform such duty, even without instructions, especially when he asked for none and gave no sign that he was not entirely familiar with the method by which the order could be properly obeyed. This was one of the risks which he assumed when he entered the defendants' service. But if,, as the learned counsel for the plaintiff claims, the operation was specially dangerous in the absence of instructions, then the danger was obvious, and he was not bound to obey the order, but if he did the risk was his own. The learned trial Judge instructed the jury with respect to the law upon this point in the following language : " Now there are some dangers, gentlemen, of which a person does not need to be informed. Where there is a knife or a saw, the danger is palpable to any one who is employed to work, that if he gets before that knife or saw he will be cut or hurt. . . . Against apparent CEOWN V. ORR ET AL. 547 dangers a master ueed not warn a servant. . . . Now, here this boy unquestionably knew that tliere were knives in this machine that planed this board and cut grooves or tongues on either side ; that was as plain to his understanding as it is to yours, and it was as clear to him when he was put at this em- ployment as it is to us to-day after this trial. He knew that if his fingers got within the range of those knives that the same power that caused those knives to revolve and cut off with great rapidity the coating of these boards and make them smooth would injure his fingers. Instruction was not ueces- sar\- to impart that information." This is a clear exposition of the law applicable to such questions, but we think its application to the proofs in this case called for a non-suit or the direction of a verdict for the defendants. There is no conflict in the evidence as to the particular duties which the plaintiff was hired to perform. Thi.'V consisted, as already stated, in removing the dressed boards from the machine as they came through, and occasion- ally sweeping the floor. It is admitted that proper instruc- tions were given him to enable him to perform this work with safety, and if it be true, as the plaintiff testifies, that on the occa- sion in question he was directed to perform another and specially dangerous service, without sufficient instruction, the fault was not that of the master, but of a co-servant. So that whether we consider the order to hang the hood as an incident of the employment the risks of which the plaintiff assumed, or a direction to do a reckless or dangerous thing without sufficient knowledge or instruction, the dangers of which were plain and obvious, or a request by the foreman to do something that by the employment he was not bound to do, the result is the same. The plaintiff was, no doubt, very seriously injured, and his case was one which appealed to the sympathy of the jury, although the testimony preponderated strongly in favor of the conclusion that the injury was the result of some carelessness or inattention on his own part. But it would be manifestly unjust to subject the master to damages in such a case where, under the most favorable view that can be taken of the evi- 548 NEGLIGENCE. dence in favor of the plaintiff, the injury was the result of an accident which could not have been anticipated or prevented by {he exercise of ordinary care, and which occurred without the fault of the master. The judgment should, therefore, be reversed and a new trial granted, costs to abide the event. All concur. Judgment reversed. rCaron v. E. R., 42 N. E. 112 ; Gibson v. Erie R. R., 63 N. Y. 449 ; Houli- han V. R. R., 42 N. E. 108 ; Rowland v. R. R., 54 Wis. 226 ; Tripp v. R. R., 42 N. E. 110 ; Sykes v. Packer, 99 Pa. St. 465 ; Yeaton v. R. E., 135 Mass. 418 ; Do well v. R. R., 62 la. 629 ; B. & O. R. E. v. Strieker, 51 Md. 47 ; Baldwin v. C. E. I. & P., 50 la. 680 ; I. B. & W. E. E. v. Flanigan, 77 111. 365 ; Patterson v. B. & 0. R. R., 76 Pa. St. 389 ; Haskin v. R. R., 65 Barb. 129 ; Minn. Stat. 1894, U 2701, 2702 ; Jaggard, 1013 ; Bishop, 675. b Duties of Master.'' The master is liable to the servant for an injury sustained by reason of the master's negligence. This negligence may consist in (1) Not supplying the servant with appliances reasonably suit- able for the occupation. NoYES V. Smith & Lee. Supreme Court of Vermont, 1856. 28 Vt. 59. Action on the case. The declaration was as follows : " In a plea of the case, whereupon the plaintiff declares and says, that heretofore, to wit, on the 11th day of November, 1853, and for a long time before that time, the defendants were in the possession of the Vermont Central Railroad Company's track, and of all engines, locomotives, cars, and other fur- niture, which had previously belonged to the Vermont Central Railroad Company, a corporation chartered and organized by and under a law of the Legislature of the State of Vermont, XOYES ('. SMITH & LEE. 549 and the defendants on that day, and long before, were and had been common carriers of freight and passengers on said road ; and that on the 11th day of November, 1853, the plaintiff was in the employ of the defendants, hired by them, as an engineer, to have charge of and conduct and run an engine on said road, for the purpose of transporting passengers and freight on said road, and had for a long time before been such hired servant of the defendants, in the capacity of engineer, and that by virtue of said employment of the plaintiff by the defendants, as aforesaid, it became and was the duty of said defendants to furnish an engine for the plaintiff to conduct and run, as it was his duty to do, that was well constructed and safe to the engineer, with the use of proper skill on his part. Yet the defendants, disregarding this dut}', to wit, on the 11th day of November, 1853, carelessly and wrongfully gave to the plaintiff to use dnd conduct in drawing freight on said road, an engine which had not before been conducted by or known to the plaintiff, which was insufficiently stayed and bolted around the fire-box, and insufficient in divers parts ; insomuch that it greatly endangered the life of the engineer who ran it — all which was unknown to the plaintiff, and all which, but for want of all proper care and diligence, would have been known to the defendants. And the plaintiff avers that while in the careful and prudent use and management of said engine on his part, on the 11th day of November, 1853, on said road, said engine exploded from the imperfection and insufficiency aforesaid, and by the explosion the plaintiff was so torn and scalded, that he hitherto, since that day, hath been and always will be a cripple and wholly unable to work, and hath been put to great expen,se for doctors and nurses, to wit, $1,000, whereby and by reason of all which, an action hath accrued to the plaintiff to have and recover his said damages, and all he hath lost from the cause aforesaid, to his damage," etc. To this declaration the defendants demurred, and the County Court, September Term, 1855 — Poland, J., presiding — ad- judged the declaration insufficient. Exceptions by the plaintiff. 650 NEGLIGENCE. IsHAM, J. This case comes before the Court on a general demurrer to the declaration. The plaintiff, it is averred, was injured by the explosion of a locomotive engine, on which he was employed by the defendants as engineer. It is admitted that the engine was insufficiently stayed or bolted around the fire-box, and that it was also insufficient and unsafe in other respects, but that both parties were ignorant of those defects, and had no notice in fact that it was in an unsafe or insecure condition. That fact is directly averred in relation to the plaintiff, and the defendants are not charged with any such notice by any averment in the declaration. It is averred, however, that these defects would have been known to the de- fendants, but for the want of all proper care and diligence on their part. The inquiry arises whether the facts stated are sufficient to enable the plaintiff to recover ; it being admitted that the plaintiff was in the exercise of proper skill aild dili- gence when he was injured. The general rule seems to be well settled by tlie authorities that there is nothing growing out of the mere relation of master and servant that raises the duty stated in the declara- tion. When there is no actual notice of dejects in an engine of that character, and no personal blame exists on the part of the master, there is no implied obligation or contract on his part that the engine is free from defects, or that it can safely be used by the servant. The law imposes no such obligation. There are risks and dangers incident to most employments, and especially is this true in relation to such services as those in which the plaintiff was engaged. Those risks the parties have in view when engagements for services are made, and in consideration of which the rate of compensation is fixed. In all engagements of that character the servant assumes those risks which are incident to his service, and, as between him- self and his master, he is supposed to have contracted on those terms. If an injury is sustained by the servant in that service, it is regarded as an accident ; a mere casualty, and the misfortune must rest on him. That is the doctrine, and the extent of the cases to which we were referred by the de- NOYES V. SMITH & LEE. 551 fendant's counsel. In the case of Priestly v. Fowler, 3 Mees. & Welsb. 1, it was held that the master was not liable to his servant for an injury sustained by him from the breaking down of an overloaded van. Lord Abingek in that case ob- served that " from the mere relation of master and servant no contract, and therefore no duty, can be implied on the part of the master to cause the servant to be safely and securely carried, or to make the master liable for damage to the servant, arising from any vice or imperfection unknown to the master, in the carriage or in the mode of conducting or loading it." The same doctrine is sustained in Seymour V. Madox, 5 Eng. L. & Eq. 265, and in the case of Couch v. Steel, 24 Eng. L. & Eq. 77. The principle, which is now well settled in England and in this country, " that a master is not liable to his servant for an injury occasioned by the negligence of a fellow-servant, in the course of their common employment," is founded upon the same reason. The liability of one servant to be injured by the carelessness of another, is a risk which the servant has assumed, as an incident to his employment, and for which the master is not responsible. This general rule, however, has no application to either of those cases when there has been actual fault or negligmce on the part of the master, either in the act from which the injury, arose, or in the selection and employment of the agent which caused the injury. The case of Couch v. Steel, above cited, recognizes both the general rule and that qualification. In that case it was held that as there was no actual knowledge of the defective condition of the ship, and no personal blame was imputed to the owner, a seaman could sustain no action for an injury sus- tained in consequence of its unsafe condition. The language of the Court implies that, had there been actual knowledge, or if personal blame had otherwise been imputed to the ship- owner, a liability would have existed. The case of liutchin- son V. Railway Company, 5 AYels., Hurls. & Gord. 352, is a strong illustration of the principle. In that case, Aldekson, B., after recognizing the general rule, that a master is not, in general, responsible to one servant for an injury occasioned to 552 NEGLIGENCE. him by the negligence of a fellow-servant, observed that " this must be taken with the qualification that the master shall have taken due care not to expose his servant to unreasonable risks. The servant," he observed, " when he engages to run the risks of his service, including those arising from the negligence of fellow-servants, has a right to understand that the master has taken reasonable care to protect him from such risks, by asso- ciating him only with persons of ordinary skill and care." There can be no doubt in relation to the doctrine of those cases, or the general principles on which they are founded. The master, in relation to fellow-servants, is bound to exercise dili- gence and care that he brings into his service only such as are capable, safe, and trustworthy, and for any neglect in exercising that diligence he is liable to his servant for injuries sustained from that neglect. It is not necessary that he should know that they are unsafe and incapable. It is sufScient that he would have known it, if he had exercised reasonable care and diligence. The same doctrine is sustained in this country : 1 Am. L. C. 620; 5 Wels., Hurls. & Gord. 357, note; Coon v. U. & S. Railroad Co., 6 Barber, 231. There is no distinction in principle between those cases and the one under considera- tion. Upon the facts admitted by this demurrer, whatever may be the agent which the master brings into his service, whether animate or inanimate, the master is bound to exercise care and prudence that those in his employment be not ex- posed to unreasonable risks and dangers ; and the servant has a right to understand that the master will exercise that dili- gence in protecting him from injury, and also in selecting the agent from which it may arise. It is only such injuries as have arisen after the exercise of that diligence and care on the part of the master, that can properly be termed accidents or casualties, which the servant has impliedly agreed to risk, and for which the master is not liable. The doctrine is not controverted that the defendants would be liable to the plaintiff for the injury he has sustained, if they had had notice in fact of the defective condition of the engine. It was so expressly decided in the case of Keegan v. Western Railroad Corpora- BUZZELL V. LACOXIA MFG. CO. 553 tion, 4 Seidell, 175. There is noproprietj^, therefore, in saying that the defendants may be relieved from that liability by a want of such knowledge, when it has arisen from their gross neglect ; for the neglect is gross when the fact is, as is admitted by the demurrer, that but for the want of all proper care and dili- gence, the unsafe condition of the engine ivould have been known to them. We think, upon the facts admitted by the demurrer, the plaintiff can sustain this action, and that the declaration is sufficient. The judgment of the County Court must be reversed and judgment rendered for the plaintiff. Greenleaf r. R. R., 29 la. 14; Buzzell v. Laconia Mfg. Co., 48 Me. 113 ; Mclntyre v. E. R., 39 N. E. 1012 ; Covey v. R. R., 27 Mo. App. 170; Camp- bell v. Walker, 22 S. W. 823 ; Stone Co. v. Johnson, 33 N. E. 1000 ; Beards- ley V. Street Ry. Co., 54 ilinn. 504; Cooper v. R. R., 44 la. 134; Mul- downey '■. R. E., 36 la. 462 ; R. R. ,. Sullivan, 63 111. 293 ; Madden v. R. R., 32 :Minn. 303 ; Fay v. R. R., 30 Minn. 231 ; Ryan v. Fowler, 24 N. Y. 410 ; Hough ;-. R. R., 100 U. S. 213 ; Painton v. R. R., 83 N. Y. 7 ; Minn. Laws, 1895, ch. 173 ; Jaggard, 993 ; Bishop, 639, 644 ; Cooley, 556. (2) Not providing a suitable place of employment ; but the un- safely must not have been equally within the knowledge of the servant. Buzzell v. Laconia Mfg. Co. Supreme Judicial Court of Maine, 1861. 48 Me. 113. Appletox, J. The plaintiff and the defendants sustain to each other the relation of master and -servant. The plaintiff, in her writ, alleges that the defendants are owners of a mill and bridge erected by them and connected therewith, over which she was obliged daily to pass and re-pass in going to and returning from her labor in their service ; that through their negligence it had become out of repair, unsafe, and dan- gerous ; that the defendants represented it to be safe and free from danger; that, relying on their representations, she passed over the bridge, and, in so passing, was dangerously 654 NEGLIGENCE. injured and suffered great bodily paiu, without fault on her part, and in consequence of the defective and dangerous con- dition of the bridge, arising from the defendants' neglect and want of ordinary care. The defendants, by their demurrer, admit the facts set forth in the plaintiff 's writ. The defendants would, unquestionably, be liable to a stranger for an injury caused by the defect or want of repair of a bridge which they were bound to keep in repair, and over which he was obliged to pass and was passing to the defend- ants' counting-i'oom, for the purpose of transacting business with them, if the injury occurred wdthout default on his part, and in consequence of the ruinous condition of the bridge, arising from their negligence and want of ordinary care. It is difficult to perceive why a similar rule should not apply in case of a servant injured in passing over a bridge unsafe from the negligence of his employer, when he is pass- ing over the same in the course of his employment, and the neglect of the employer, without fault on his part, is the cause of the injury. It is the duty of every employer to use all reasonable pre- cautions for the safety of those in his service. He should provide them with suitable machinery, and see that it is kept in a condition which shall not endanger the safety of the employed. If the employer knowingly make use of de- fective and unsafe machinery, when an injury is done to a servant ignorant of its condition, and in the exercise of ordi- nary care, he should compensate the person thus injured through his neglect. The capital of the master furnishes the means of his employment. His will determines the place. His sagacity directs, controls, and supervises not merely the labor, but the machinery and other instruments and appli- ances by which the labor is performed. The superior intelli- gence and determining will of the master demand vigilance on his part, that his servants shall neither wantonly nor negligently be exposed to needless and unnecessary peril. The servant has no general control. He is the actor. The BUZZELL V. LACONIA MFG. CO. 555 master is the director. The one commands, the other obeys. The servant is in subordination. He rehes on the judgment of the master that suitable machinery and the needed require- ments are supplied. He has not the means nor the oppor- tunity of knowing whether those furnished may be safe, and he may be wanting in the intelligence required for the proper determination of the question. His service is com- pulsory, from the pressure of want. His attention is exclu- sively due to the peculiar duties incident to his branch of employment. He assumes the risks, more or less hazardous, of the service in which he is engaged, but he has a right to presume that all proper attention shall be given to his safety, and that he shall not be carelessly and needlessl}' exposed to risks not necessarily resulting from his occupation and pre- ventable by ordinary care and precaution on the part of his employer. The servant is responsible for his own neglects. The gen- eral supervisory responsibility and control over all the work to be done, the place where, the instruments with which and the persons by whom it is to be done, rest with the master. The same reasoning, which shows that the machinery and other instruments of labor should be safe, would demand that the bridges used in passing from one part of the premises to another, or the ' ladders used in ascending to or descending from labor, and that the passage-ways in the premises of the employer and within the precincts of the place where the labor is to be done, should be safe and convenient ; and, that at least, the same care and precaution be used for the safety of the servant, as for that of the stranger whose accidental pres- ence, business may require within the same limits. The claim, as stated, in the plaintiff's declaration, arises from the relation of master and servant, and from the neglect of the master in that relation. It is so argued by the counsel for the plaintiff. It is so resisted by the counsel of the de- fendants. It will be so examined and determined by the Court. The rule is well settled, that a master is not liable to a serv- 556 NEGLIGENCE. ant for any injury caused by the neglect of a fellow-servant in the same employ. Each servant assumes the risk of neglect on the part of fellow-laborers. The question here presented is, whether the master is liable to a servant for an injury caused by his own negligence and want of ordinary care. By recurrence to the decisions of Courts it will be perceived that the weight of judicial authority is in favor of the main- tenance of an action like the present. In Williams v. Clough, 3 Hurls. & Nor. 259, it was alleged in the declaration that, the defendant was possessed of a granary and ladder lead- ing up to it ; that the ladder was wholly unfit and unsafe- for use; that the plaintiff was a servant for hire of the defend- ant ; that the defendant,' knowing the premises, wrongfully and deceitfully ordered the plaintiff to carry corn up the ladder into his granary; that the defendant, believing the ladder to be fit for use and not knowing the contrary, did carry corn up the ladder to the granary, and, by reason of the ladder being unsafe, the plaintiff fell from it and was injured. It was held, on demurrer, that the declaration was sufficient.. In Roberts v. Smith d al., 2 Hurls. & Nor. 213, the iujurj'- arose from a rotten and defective scaffold, over which the- plaintiff, a bricklayer, was compelled to pass in the course of his employment, and, in consequence of its rottenness, it broke, and the plaintiff fell to the ground. The case assumes the liability of the defendant, if the injury arose from his neg- ligence, he knowing the condition of the scaffold and the servant being ignorant thereof. In Vose v. Lancashire & York- shire R. Co., 2 Hurls. & Nor. 728, the cause of action arose from the defective rules of the defendant corporation, and their observance, and the defendants were held liable. In Patter- son V. Wallace, 1 McQueen, 748, " I believe, by the law of England," says Lord Cranwoeth, "just as by the law of Scot- land, in the actual state of the case with which we have to deal here, a master employing' servants upon any work, par- ticularly a dangerous work, is bound to take care that he does not induce them to work under the notion that they are work- BUZZELL V. LACONIA MFG. CO. 557 ing ■s\-itli good and sufficient tackle, whilst he is employing im- proper tackle and being guilty of negligence, his negligence occasioning loss to them." The same view of the law was taken by Lord Brougham in that case. The case of Marshall V. Stewart, 33 Eng. L. & Eq. 1, was an appeal heard in the House of Lords, from a judgment of the Court of Session in Scotland, in an action by the representatives of a miner killed by injuries arising from the shaft of the pit being in an unsafe state, owing to the negligence of the defendant, his ■employer. The law of Scotland was, throughout the case, ireated as the same with the law of England. The servant, in that case, was killed while leaving his master's emploj'- ment, without proper cause. " A master," says Lord Ceax- w^ORTH, " by the law of England and by the law of Scotland, is liable for accidents, occasioned by his neglect, to those whom he employs. I quite. adopt the argument of the Solicitor Gen- •eral, that he is duly responsible while the servant is engaged in his employment, but then we must take a great latitude in the construction of what is being engaged in his employment ;" and he further adds that the liability of the master continues " whatever he does in the course of his employment, accord- ing to the fair interpretation of the M'ords, eundo, morando, re- deundo, for all that the master is responsible, and it does not, in m}' opinion, make the slightest difference that the workmen had, according to the finding of the jury, no lawful excuse for going out, no lawful excuse for leaving their work." " The master," remarks Lord Brougham, in the same case, " who let them down, is bound to bring them up, even if they come up on their own business and not on his ; he is answerable for the state of his tackle bj'' which this lamentable accident was oc- casioned." In Bryden v. Stewart, 2 McQueen's Rep. Scotch Cases in House of Lords, 30, the Lord Chancellor, inter alia, said, " the law of both countries (England and Scotland) make a master liable for accidents occasioned by his neglect toward his servants." In Dixon v. Rankin, 14 Court of Session Cases, 420, the Lord Justice Clerk, held, " the master of men in dangerous 558 NEGLIGEXCE. occupations is bound to provide for their safety. This obli- gation extends to furnishing good and sufficient apparatus and keeping the same in good condition, and the more rude and cheap the machinery, and the more liable on that account to cause injury, the greater obligation to make up for its de- fects by the attention necessary to prevent such an injury." The English cases, cited by the counsel for the defendant, are not adverse to these views. In Tarrant v. Webb, 86 E. C. L. 796, Jarvis, C. J., says : " The rule is now well estab- lished, that no action lies against the master for the conse- quences to a servant of the mere negligence of his fellow. That, however, does not negative liability in every case. The master may be responsible when he is personally guilty of negligence," etc. In Ormond v. Holland, 96 E. C. L. 102, the liability of the master to the servant for personal neglect, is fully affirmed. " The rule is," remarks Ceompton, J., " that the master is not liable, unless there be personal negligence on his part, which negligence may be either personally inter- fering in the work or in selecting servants who do interfere." The same question has been repeatedly discussed in the Courts of this country, and with the same result as in Eng- land. In Indianapolis Railroad Co. v. Love, 10 Indiana, 554, the Court held the corporation liable if they allow an employee to pass over a defective bridge known to the corporation, and not to the servant. If the employee knows, or both company and employee know, the company is not liable, unless it give special directions. But, in the present case, it is not necessary to consider the effect of special directions, and as to that, we give no opinion. In Keegan v. Western Railroad Co., 4 Seld. 175, a railroad company which continued a defective and dangerous locomotive, was held liable to its servant engaged in running such machine, for an injur}'- sustained by him (without negligence on his part), in consequence of such de- fects. In Noyes v. Smith, 28 Vt. 59, it was depided, that a master was bound to exercise proper care and diligence in the selection of the agencies and instruments with or upon which he employs his servants ; and if he fail to do so, he will be BUZZELL V. LACONIA MFG. CO. 559 liable to the servant for any injuries he may sustain there- from. In Mad River & Erie Railroad Co. v. Barker, 5 Ohio, N. S., 541, the Court say, " if the defects which caused the in- jury were actually unknown to the company or the conductor, and were not discoverable by due and ordinary care and in- spection, and yet, were such as resulted from a neglect of reasonable and ordinary care and diligence on the part of the company, either in procuring or continuing to use cars and machinerj- beyond the time when they could be safely used, the company will be liable." In McGatrick v. Wason, 4 Ohio, N. S., 556, the general rule is declared to be that an employer, who provides overseers and controls the operation of machinery, must see that it is suitable, and if a defect, unknown to a workman, injures him, which ordinary care could have prevented, the employer is liable for the injury. In Byron v. N. Y. Telegraph Co., 26 Barb. 39, the plaintiff was employed to climb the poles and regulate the wires. The complaint alleged negligence in providing and using unsound poles and in not having guards, etc. The company was held liable. Xegligence was proved by showing the corporation knew the defect in the pole. The defect, in that case, was not known to the plaintiff and was not discoverable by inspec- tion. In Hayden v. Smithville Man. Co., 29 Conn. 548, it was held that a servant might maintain an action against his master for an injury caused by defective machinery, when the employer knew, or ought to have known of the defect, and the servant did not know it and had not equal means of knowledge. In Fifield v. Northern Railroad, 42 N. IT. 225, the plaintiff, a brakeman in the employ of the defendant cor- poration, being injured without fault on his part, by their negligence in permitting the road to be blocked up with snow and ice, and their car to be out of repair, was held entitled to maintain an action to recover compensation for the damages by him so sustained. If the danger is known and the servant chooses to remain, he assumes, it would seem, the risk and cannot recover. He might leave if he chose, but, choosing to remain, he cannot 560 NEGLIGENCK. remain at the risk of the master. Every employer has a right to judge for himself how he will carry on his business, and workmen, having knowledge of the circumstances, must judge for themselves whether they will enter his service, or having entered, whether they will remain : Hayden v. Smithville Man. Co., 29 Conn. 548. " A servant," remarks Pollock, C. B., in Dynen v. Leach, 26 Law Jur. 221, " cannot continue to use a machine he knows to be dangerous, at the risk of his employer." In McNeil v. Wallace, 15 Court of Sessions Cases, 818, a collier sued his employer for an injury received by the fall of the roof of his excavation. It was the custom of the mine for the workmen, each to prop his own excavation, the wood for that purpose being furnished by the coal master at the mouth of the mine. No wood was furnished, but the workman went on to work, although it was, as the witness agreed, " a seen danger " and the ■ft^orkmen were warned of it. The Court held, as he went on to work, he assumed the risk himself and could not recover of his employer. Neither can the servant recover if his own neglect con- tributed to the injury. " In England, in Scotland, in every civilized country," remarks Lord Cranworth, in Paterson v. Wallace, 28 Eng. L. & Eq. 48, "a party, who rushes into danger himself, cannot say that is owing to your negligence." The master is not liable for the folly, the carelessness, or the rashness of his servant. The plaintiff, to recover, must show ordinary care on his part. The declaration should allege that the insufficiency of the bridge in question was unknown to the plaintiff, and that it was known to the defendant, or that, but for want of all proper care and diligence, it would have been known: Noyes ■;;. Smith, 28 Vt. 59 ; Williams v. Clough, 3 Hurls. & Nor. 258 ; but, as was remarked by Bramwell, B., in the case last cited, " that is a mere question of special pleading." As the declaration is amendable on terms, we have deter- mined the question presented as if it were free from all de- fects. But the declaration, upon principle, must be deemed defec- ROOXEY V. SEWALL A DAY CORDAGE CO. 561 tive. Whether to be amended or not, and on what terms, will be determined at Xisi Pritis, by the Justice presiding. Demurrer sustained ; declaration bad, and exceptions over- ruled. Ryan v. Fowler, 24 N. Y. 410 ; Arkerson r. Dennison, 117 Blass. 407 ; Gates V. R. R., 28 Minn. 110; Baxter i>. Roberts, 44 Cal. 187; R. R. i. Taylor, 69 111. 461 ; R. R. !'. Conroy, 68 111. 560 ; Elmer v. Locke, 135 Mass. 575 ; R. R. v. Holman, 39 N. E. 573 ; Jaggard, 996 ; Bishop, 648 ; Cooley, 549. KoTE. — Exposing servant of immature years to perils observed yet not appreciated : Norton t: Yolzke, 41 N. E. 1085 ; O'Connor v. Adams, 120 :Ma8s. 427 ; Coombs !•. Cordage Co., 102 Mass. 572; R. R. v. Fort, 17 Wall. 553 ; Cooley, 553. C Modification. (1) Servant's knowledge of danger. If the servant kno^vs and understands, or has an equal opportunity ■with the master of knowing of or understanding the defect in the appliances, or the unsafety of the place, and continues in the em- ployment, lie cannot recover. RooNEY V. Sewall & Day Cordage Co. Supreme Judicial Court of Massachusetts, 1894. 161 Mass. 153 ; 34 N. E. 789. Tort, for personal injuries occasioned to the plaintiff, while in the defendant's employ, by the alleged negligence of the latter. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows : There was evidence from the plaintiff that, at the time of the accident, his work consisted in hauling piles of soft, loosely coiled hemp along the floor, from two machines called " breakers," to four other machines called " drawing-frames " in the same room. These piles of hemp were about three feet wide, about four feet long, and varied between four and five feet in height ; they were hauled along the floor by means of a long-handled hook, which tlie plaintiff fastened at the bottom of the pile near the floor, and which he held in his right hand, 36 562 NEGLIGENCE. while by getting a hold with his left hand in the hemp about "two-thirds of the way up from the floor, so as to keep the pile from falling, he walked backwards, dragging it along the floor. Each of these drawing-frames required twelve or fifteen of these piles of hemp at the same time to keep it in operation. These piles were arranged in front of each machine in rows, with three piles in each row, or, taking the rows lengthwise, four or five piles in each row. A different grade or quality of hemp was used by each of these machines. The plaintiff did not know the different grades or qualities himself, but took his information in this regard from the employees in charge of the breakers, from time to time, as required. When each drawing-frame had its full set, it was the plaintiff's work to leave spare piles in places assigned for them, convenient to each drawing-frame, so that, as the piles ran out, the employees attending the drawing-frames might have these spare piles at hand as required. The plaintiff had no charge or care of any of these machines. Between the breakers on the one side, and the nearest drawing-frame on the other, there stood a cylindrical machine called a " topper," which was all boxed in except the end of the shaft and two pulleys thereon, projecting from the side next to the first drawing-frame. One of these pulleys, next and close to the machine, was fixed tight to the shaft ; the other pulley was loose, and was held in place by means of a collar flush with the end of the shaft, and the collar was held in place by means of a set-screw. This set-screw and shaft stood about three and a half feet from the floor, and were left exposed. The collar and end of the shaft were round and smooth, but the set-screw had a sharp-cornered square head, and stood out perpendicularly from the collar about an inch. This machine received its poM^er by means of a belt running from a large pulley on a revolving shaft overhead near the ceiling to this shaft and by a tight pulley as described at the side of the machine. Alongside of this first drawing-frame, and about seven or eight feet back from the topper, was a space about three feet wide and room for three or four spare ROOXEY V. SEWALL & DAY CORDAGE CO. 563 piles of hemp in a row, aud in tliis space the plaintiff, by di- rection of one Stickmver, who was superintendent of that room, was accustomed to leave so many spare piles for this drawing- frame. When the topper was not in operation, there was an open way in front of it by which he hauled these spare piles of hemp to this space for the first drawing-frame. When the topper was in operation, this way was closed with hemp for use on the machine, and the only way left to reach it was through a narrow space, three or four feet wide, between the topper and the row of hemp piles set in front of the first drawing-frame. About three weeks after the plaintiff began this work, and three daj's before the accident, the topper was set in operation for the first time during the plaintiff's employment, and, find- ing the way by which he was accustomed to haul the spare piles for the first drawing-frame closed, he asked Stickmyer, who was present at the starting of the topper, how he should go, and Stickmyer directed him to haul these spare piles through the narrow space between the topper and rows of hemp set before the first drawing-frame. This the plaintiff succeeded for the first two days in doing without any accident, by crowding back with his feet the outside row of hemp set in front of the drawing-frame on one side as he passed, and avoiding the belt and revolving pulleys of the topper on the other. On the morning of the third daj', as he was hauling either the first or second spare pile of hemp along this space between the topper and line of hemp in front of the first drawing-frame as directed, and just as the pile he was hauling got opposite the shaft or centre of the pulleys, his left hand, about two-thirds of the way up in the pile, was suddenly twisted up in the hemp, throwing him bodily about six feet back, and leaving him sitting on the floor clear of the hemp and facing the topper, with his left forearm torn off below the elbow. At the request of the defendant, the Judge ruled that there was no evidence for the jury ; and ordered a verdict for the defendant. The plaintiff alleged exceptions. 564 NEGLIGENCE. The case was argued at the bar in December, 1893, and after- ward was submitted on the briefs to all the Judges. Knowlton, J. When the plaintiff entered the defendant's service, he impliedly agreed to assume all the obvious risks of the business, including the risk of injury from the kind of machinery then openly used. It is not material whether he examined the machinery before making his contract or not. He could look at it if he chose, or he could say, " I do not care to examine it ; I will agree to work in this mill, and T am willing to take my risk in regard to that." In either case, he would be held to contract in reference to the arrangement and kind of machinery then regularly in use by his employer, so far as these things were open and obvious, so that they could readily be ascertained by such examination and inquiry as one would be expected to make if he wished to know the nature and perils of the service in which he was about to engage. A projecting set-screw is a common device for holding the collar on a shaft, although there is a safer kind of set-screw in common use. Under its contract with the plaintiff the defend- ant owed him no duty to box the pulley or shaft, or to change the set-screw for a safer one : Coombs v. New Bedford Cordage Co., 102 Mass. 572. It is contended by the plaintiff that the defendant was negli- gent in not warning him of the danger. The rule of law in- voked by the plaintiif applies only when there is a danger known, or which ought to be known, to the employer, of which the employee, through youth or inexperience, is ignorant, and which the employee cannot reasonably be expected to discover by the exercise of ordinary care. In this case, although the set-screw could not be seen when the shaft was revolving, it was plainly visible when the shaft was at rest ; and while the screw doubtless increased somewhat the danger of being canght by contact with the shaft, belt, or pulleys, that danger was so obvious to every one, and was manifestly so great, that even the most ignorant person would endeavor to keep away from those parts of the machiuery. The collar and set-screw ROONEY V. SEAVALL & DAY CORDAGE CO. 565 did not project much beyond the pullej's and belt, but were ahnost in their line of motion. Although the plaintiff says he did not know of the set-screw, his testimony shows that he was well aware of the danger from the moving pulleys, belt, and shaft. He says in a variety of forms of expression that he was doing the best he could to keep clear of the pulleys, and that he was watching to protect himself as well as the hemp. He was more than forty years of age, and had had consider- able experience. There is nothing in the case to indicate that he needed any warniug of the danger from coming in contact with this rapidly revolving machinerj', whether he knew of the set-screw or not. Indeed, if the defendant had warned him, he would merely have been told that there was great danger of getting caught if he came in contact with that part of the machinery, and that he must use his best effort to avoid it. But it is evident that he knew all that without warning. It has been held in many similar cases that the accident was not imputable to negligence of the defendant : Russell v. Til- lotson, 140 ;Mass. 201 ; Ciriack v. Merchants' Woolen Co., 146 Mass. 182, and 151 Mass. 152 ; Goodnow v. Walpole Emery Mills, 146 Mass. 261 ; Crowley v. Pacific Mills, 148 Mass. 228 ; Coullard v. Tecumseh Mills, 151 Mass. 85 ; Pratt v. Prouty, 15.3 Mass. 333 ; Tinkham v. Sawyer, 158 Mass. 485 ; Henry v. King Philip ilills, 155 Mass. 361 ; De Souza v. Stafford Mills, 155 Mass. 476 ; Rood v. Lawrence Mfg. Co., 155 Mass. 590; Carey v. Boston & Maine Railroad, 158 Mass. 228 ; Hale v. Cheney, 159 ilass. 268. The evidence of custom in other factories was immaterial. Assuming that it might have been competent as tending to show negligence of the defendant if the accident had happened to one there by invitation to do business with the defendant, it was of no coiisequence in view of the plaintiff 's implied contract to work with the machinery which the defendant was then using. Exceptions overruled. Bibb Mfg. Co. V. Taylor, 2.3 S. E. 188; Perry v. R. E., 41 N. E. 289; Buckner V. K. K., 18 So. 449; Austin v. R. R., 41 N. E. 288; Wheeler v. 566 NEGLIGENCE. Berry, 95 Mich. 250 ; Hatter v. 111. C. R. K., 69 Miss. 642 ; 34 C. L. J. 172 ; McNeil V. Wallace, 15 Ct. of Sess. Cas. 818 ; Dynen v. Leach, 26 Law Jur. Ex. 221 ; So. Kans. Ry. Co. v. Moore, 49 Kans. 616 ; White v. Witterman, 131 N. Y. 631 ; Clark v. R. R., 28 Minn. 128 ; Wuotilla v. Duluth Lumber Co., 37 Minn. 153 ; Jaggard, 1002-1007 ; Bishop, 678 ; Cooley, 559. Note. — If, after notice to the master upon a promise to repair the servant remains for a reasonable time only in the employment and sustains an in- jury he can recover: Hough v. E. R., 100 U. S. 213; Lyberg v. R. R., 39 Minn. 15 ; Green v. R. R., 31 Minn. 248 ; Schlitz v. Brewing Co., 59 N. W. 188 ; Chicago Foundry v. Van Dam, 149 111. 337 ; Russell v. Tillotson, 140 Mass. 201 ; Cooley, 559. (2) Negligence of fellow-servant. The master is not liable for an injury sustained by a servant through the negligence of a carefully-selected fellow-servant. Farwell v. Boston & Worcester R. R. Corporation. Supreme Judicial Court of Massachusetts, 1842. 4 Mete. 49. In an action of trespass upon the case, the plaintiff alleged in his declaration, that he agreed with the defendants to serve them in the employment of an engineer in the management and care of their engines and cars running on their railroad between Boston and Worcester, and entered on said employ- ment, and continued to perform his duties as engineer till October 30, 1837, when the defendants, at Newton, by their servants, so carelessly, negligently, and unskillfully managed and used, and put and placed the iton matct rail, called the short switch, across the rail or track of their said railroad, that the engine and cars, upon which the plaintiff was engaged and employed in the discharge of his said duties of engineer, were -* thrown from the track of said railroad, and the plaintiff, by means thereof, was thrown with great violence upon the ground, by means of which one of the wheels of one of said cars passed over the right hand of the plaintiff, crushing and destroying the same. Shaw, C. J. This is an action of new impression in our FAKWELL V. EOSTOX A \YOKCEfc:TER R. R. CORrORATION. 567 Courts, and involves a principle of great importance. It pre- se?\ts a case, ^vhere two persons are in the service and employ- ment of one company, whose business it is to construct and maintain a railroad, and to employ their trains of cars to carry persons and merchandise for hire. They are appointed and employed by the same company to perform separate duties and services, all tending. to the accomplishment of one and the same purpose — that of the safe and rapid transmission of the trains ; and they are paid for their respective services accord- ing to the nature of their respective duties, and the labor and skill required for their proper performance. The question is, whether for damages sustained by one of the persons so em- ployed, by means of the carelessness and negligence of an- other, the party injured has a remedy against the common employer? It is an argument against such an action, though certainly not a decisive one, that no such action has before been maintained. It is laid down by Blackstone that if a servant, by his negli- gence, does any damage to a stranger, the master shall be an- swerable for his neglect. But the damage must be done while he is actually employed in the master's service, otherwise the servant shall answer for his own misbehavior : 1 Bl. Com. 4-31 ; M'Manus v. Crickett, 1 East, 106. This rule is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to in- jure another ; and if he does not, and another thereby sus- tains damage, he shall answer for it. If done by a servant, in the course of his employment, and acting within the scope of his authority, it is considered, in contemplation of law, so far the act of the master, that the latter shall be answerable civiliter. But this presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity ; and the action in such case is an action sounding in tort. The form is trespass on the case for the consequential damage. The maxim respondeat superior is adopted in that case from general considerations of policy and security. 568 NEGLIGENCE. But this does not apply to the case of a servant bringing his action against his own employer to recover damages for an in- jury arising in the course of that employment, where all such risks and perils as the employer and the servant respectively intend to assume and bear may be regulated by the express or implied contract between them, and which, in contemplation of law, must be presumed to be thus regulated. The same view seems to have been taken by the learned counsel for the plaintiff in the argument ; and it was conceded that the claim could not be placed on the principle indicated by the maxim respondeat superior, which binds the master to indemnify a stranger for the damage caused by the careless, negligent, or unskillful act of his servant in the conduct of his affairs. The claim, therefore, is placed, and must be main- tained, if maintained at all, on the ground of contract. As there is no express contract between the parties applicable to this point, it is placed on the footing of an implied contract of indemnity arising out of the relation of master and servant. It would be an implied promise, arising from the duty of the master to be responsible to each person emploj^ed by him, in the conduct of every branch of business, where two or more persons are employed, to pay for all damage oc- casioned by the negligence of every other person employed in the same service. If such a duty were established by law — like that of a common carrier, to stand to all losses of goods not caused by the afct of God, or of a public enemy — or that of an inn-keeper, to be responsible, in like manner, for the baggage of his guests ; it would be a rule of frequent and familiar oc- currence, and its existence and application, with all its quali- fications and restrictions, would be settled by judicial prece- dents. But we are of opinion that no such rule has been established, and the authorities, as far as they go, are opposed to the principle : Priestley v. Fowler, 3 Mees. & Welsh. 1 ; Murray v. South Carolina Railroad Company, 1 McMullan, 385. The general rule, resulting from considerations as well of justice as of policj^, is that he who engages in the employment of another for the performance of specified duties and services. FARWELL V. BOSTON & WORCESTER R. R. CORPORATION. 5Q9 for compensation, takes upon himself the natural and ordi- nary risks and perils incident to the performance of such serv- ices, and in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any others. To say that the master shall be responsible because the damage is caused by his agents, is assuming the very point which remains to be proved. They are his agents to some ex- tent, and for some purposes ; but whether he is responsible, in a particular case, for their negligence, is not decided by the single fact that they are, for some purposes, his agents. It seems to be now well settled, whatever might have been thought formerl}^, that underwriters cannot excuse themselves from payment of a loss by one of the perils insured against, on the ground that the loss was caused by the negligence or unskillfulness of the officers or crew of the vessel in the per- formance of their various duties as navigators, although em- ployed and paid by the owners, and, in the navigation of the vessel, their agents : Copeland v. New England Marine Ins. Co., 2 Met. 440-443, and cases there cited. I am aware that the maritime law has its own rules and analogies, and that we cannot always safely rely upon them in applying them to other branches of law. But the rule in question seems to be a good authority for the point, that persons are not to be responsible, in all cases, for the negligence of those employed by them. If we look from considerations of justice to those of policy thev will strongly lead to the same conclusion. In consider- ing the rights and obligations arising out of particular rela- tions, it is competent for Courts of justice to regard considera- tions of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all parties concerned. This is, in 670 NEGLIGENCE. truth, the basis on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances. To take the well-known and familiar cases already cited, a common carrier, without regard to actual fault or neglect in himself or his servants, is made liable for all losses of goods confided to him for carriage, except those caused by the act of God or of a public enemy, because he can best guard them against all minor dangers, and because, in case of actual loss, it would be extremely difficult for the owner to adduce proof of embezzlement, or other actual fault or neg- lect on the part of the carrier, although it may have been the real cause of the loss. The risk is therefore thrown upon the carrier, and he receives, in the form of payment for the car- riage, a premium for the risk which he thus assumes. So of an inn-keeper ; he can best secure the attendance of honest and faithful servants, and guard his house against thieves. Whereas, if he were responsible only upon proof of actual neg- ligence, he might connive at the presence of dishonest inmates and retainers, and even participate in the embezzlement of the property of the guests, during the hours of their necessary sleep, and yet it would be difficult, and often impossible, to prove these facts. The liability of passenger carriers is founded on similar con- siderations. They are held to the strictest responsibility for care, vigilance, and skill, on the part of themselves and all persons employed by them, and they are paid accordingly. The rule is founded on the expediency of throwing the risk upon those who can best guard against it : Story on Bailments, § 590 et seq. We are of opinion that these considerations apply strongly to the case in question. Where several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others, can give notice of any misconduct, incapacity, or neglect of duty, and leave the serv- FARAVELL V. BOSTON & WORCESTER R. R. CORPORATION. 571 ice, if the common employer -will not tate such j^recautions, iiud employ such agents as the safety of the whole party may require. By these means, the safety of each will be much more effectually secured than could be done by a resort to the com- mon employer for indemnity in case of loss by tlie negligence of each other. Regarding it in this light, it is the ordinary case of one sustaining an injury in the cour.se of his own em- ployment, in which he must bear the loss himself, or seek his remedy, if he have any, against the actual wrong-doer. In applying these principles to the present case, it appears that the plaintiff was employed by the defendants as an engineer, at the rate of wages usually paid in that employ- ment, being a higher rate than the plaintiff had before re- ceived as a machinist. It was a voluntarj'' undertaking on his part, with a full knowledge of the risks incident to the em- ploj'-ment ; and the loss was sustained by means of an ordinary casualty, caused by the negligence of another servant of the company. Under these circumstances, the loss must be deemed to be the result of a pur-e accident, like those to which all men, in all employments, and at all times, are more or less exposed ; and like similar losses from accidental causes, it must rest where it first fell, unless the plaintiff has a remedy against the person actually in default ; of which we give no opinion. It was strongly pressed in the argument that although this migl]t be so, where two or more servants are employed in the same department of duty, where each can exert some influence over the conduct of the other, and thus to some extent provide for his own security ; yet that it could not apply where two or more are employed in different departments of duty, at a dis- tance from each other, and where one can in no degree contro'l or influence the conduct of another. But we think this is founded upon a supposed distinction, on which it would be extremely difficult to establish a practical rule. When the object to be accomplished is one and the same, when the em- ployers are the same, and the several persons employed derive their authority and their compensation from the same source, 572 NEGLIGENCE. it would be extremely difficult to distinguish what constitutes-, one department and what a distinct department of duty.. It would vary with the circumstances of every case. If it. were made to depend upon the nearness or distance of the- persons from each other, the question would immediately arise how near or how distant must thej^ be to be ■ in the same or different departments. In a blacksmith's shop, persons work- ing in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a rope-walk, several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight and voice, and yet acting together. Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The- master, in the case supposed, is not exempt from liability, be- cause the servant has better means of providing for his safety,, when he is employed in immediate connection with those from whose negligence he might suffer ; but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the- person suffering does not stand toward him in the relation of a stranger, but is one whose rights are regulated by contract, ex- press or implied. The exemption of the master, therefore,, from liability for the negligence of a fellow-servant, does not depend exclusively upon the consideration that the servant has better means to provide for his own safety, but upon other grounds. Hence the separation of the employment into differ- ent departments cannot create that liability, when it does not arise from express or implied contract, or from a responsibility created by law to third persons, and strangers, for the negli- gence of a servant. A case may be put for the purpose of illustrating this dis- tinction. Suppose the road had been owned by one set of proprietors whose duty it was to keep it in repair and have it at all times ready and in fit condition for the running of en- FAEWELL V. BOSTON A WORCESTEK E. E. COEPOEATION. 573 gines and cars, taking a toll, and that the engines and cars were owned by another set of proprietors, paying toll to the proprietors of the road, and receiving compensation from pas- sengers for their carriage ; and suppose the engineer to suffer a loss from the negligence of the switch-tender. We are in- clined to the opinion that the engineer might have a remedy against the railroad corporation ; and if so, it must be on the ground that as between the engineer employed by the proprie- tors of the engines and cars and the switch-tender employed by the corporation, the engineer would be a stranger, between whom and the corporation there could be no privity of con- tract ; and not because the engineer would have no means of controlling the conduct of the switch-tender. The responsi- bility which one is under for the negligence of his servant, in the conduct of his business, toward third persons, is founded on another and distinct principle from that of implied contract, and stands on its own reasons of policy. The same reasons of policy, we think, limit this responsibility to the case of strangers, for whose security alone it is established. Like considerations of policy and general expediency forbid the ex- tension of the principle, so far as to warrant a servant in main- taining an action against his employer for an indemnity which we think was not contemplated in the nature and terms of the employment, and which, if established, would not conduce to the general good. In coming to the conclusion that the plaintiff, in the present case, is not entitled to recover, considering it as- in some measure a nice question, we would add a caution against any hasty conclusion as to the application of this rule to a case not fully within the same principle. It may be varied and modi- fied by circumstances not appearing in the present case, in which it appears that no willful wrong or actual negligence was imputed to the corporation, and where suitable means were furnished and suitable persons employed to accomplish the object in view. "We are far from intending to say that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, 574 NEGLIGENCE. the employer would be responsible to an engineer for a loss arising from a defective or ill-constructed steam-engine ; whether this would depend upon an implied warranty of its goodness and sufficiency, or upon the fact of willful miscon- duct, or gross negligence on the part of the employer, if a nat- ural person, or of the superintendent or immediate representa- tive and managing agent, in case of an incorporated compan}', are questions on which we give no opinion. In the present case, the claim of the plaintiff is not put on the ground that the defendants did not furnish a sufficient engine, a proper railroad track, a well-constructed switch, and a person of suit- able skill and experience to attend it ; the gravamen of the complaint is, that that person was chargeable with negligence in not changing the switch, in the particular instance, by means of which the accident occurred, by which the plaintiff' sustained a severe loss. It ought, perhaps, to be stated, in justice to the person to whom this negligence is imputed, that the fact is strenuously denied by the defendants, and has not been tried by the jury. By consent of the parties, this fact was assumed without trial, in order to take the opinion of the whole Court upon the question of law, whether, if such was the fact, the defendants, under the circumstances, were liable. Upon this question, supposing the accident to have occurred, and the loss to have been caused, by the negligence of the person employed to attend to and change the switch, in his not doing so in the particular case, the Court are of opinion that it is a loss for which the defendants are not liable, and that the action cannot be maintained. Plaintiff non-suit. Bjbjian r. Eubber Co., 41 N. E. 265 ; Harrison v. R. E., 31 N. J. L. 293 ; Daves v. So. Pac, 98 Cal. 19 ; Wonder v. R. R., 32 Md. 411 ; Randall v. B.' & 0. E. E., 109 U. S. 478 ; Hough v. E. R., 100 U. S. 213 ; Kans. Pac. Ry. v. Salmon, 11 Kans. 72 ; Smith v. Lowell Mfg. Co., 124 Mass. 114 ; Valtez ,: O. & M., 85 111. 500 ; Brabbits v. E. E., 38 Wis. 289 ; Gartland v. R. E., 67 111. 498 ; Killea v. Faxon, 125 Mass. 485 ; Crespin r. Babbitt, 81 N. Y 516 • McCosker v. E. E., 84 N. Y. 77. But see Minn. Stat. 1894, ? 2701 ; Steffenson v. C. M. & St. P. E. E., 45 Minn. 355 ; Smith v. E. R., 44 Minn. 17 ; Jaggard, 998 ; Bishop, 653 ; Cooley, 558. LINDVALL V. WOODS ET AL. 575 The nature of the -work, and not the relative rank of the t^wo indi- viduals, determines the relation of master and servant. The act being within the duty of the servant, no matter -what his rank, the one doing it is a fellovr-servant of the one injured by its negligent performance. Daves et al. v. Southern Pac. R. R. Supreme Court of California, 1893. 9S Cal. 19 ; 32 Tac. 708. [Ante, page 272. ) Foster r. R. E., 21 S. W. 916 ; Sadowski r. Car Co., 47 N. W. 598 ; R. R. ;■. Ross, 112 U. S. 377 ; Ceoghegan v. Atlas Steam Co., 22 N. Y. Sup. 749 ; Baltimore E. E. c. Baugh, 149 U. S. 368 ; E, R. v. Eeeeman, 60 Fed. 370 ; Xeal V. S. P. R. E., 59 N. W. 312 ; Lindvall ijf Woods, 44 Fed. 855 ; 41 Minn. 212 ; 42 N. W. 1020 ; Jaggard, 1033 ei seg.; Bishop, 670 et seq.; Cooley, 560 ; Pollock, 118 et seq. 'When a master delegates to another the duties he oTves to his servants, he becomes liable to them for injuries resulting from the negligence of the middleman who is sometimes called a vice-principal. Lindvall v. Woods et al. Circuit Court of the United States, 1891. (District of Minnesota.) 44 Fed. 855. Nelson, J. (charging jury). This has been a very long and tedious case, but it is interesting from the fact that many im- portant legal questions have arisen, aside from the general interest taken in the testimony with reference to tlie facts. You have given it such patient attention that it does not seem to me necessary to go very far into the details of the testimonJ^ The counsel have very thoroughly and exhaustively presented the several theories upon •Which a verdict is asked at your hands. Now, what is the case, gentlemen ? The plaintiff, a 576 NEGLIGE^'CE. laboi'er, brings this action to recover damages against the de- fendants for injuries which it is alleged he sustained by reason of tlie negligence of the defendants in the course of his employment ; that is to say, he claims that the injuries he sustained were the natural consequence of the negligence of the defendants ; that their negligence was the proximate cause of his injury. It appears that the defendants were contract- ors — railroad contractors, principally — and in the spring of 1888 they had a contract to grade somewhere about ten or twelve miles of the St. Paul & Duluth Railroad, straightening the track ; and in doing this it was necessary to do consider- able grading outside of the old track. Upon this work were several gangs of men under foremen — at least two ; one under the charge of Mahoney (not a very large gang), the other, near Gladstone, under the charge of Murdock, in which gang the plaintiff worked. The work to be performed by Murdock's gang near Gladstone was to make a cut through a hill, and fill up several hundred feet of low ground, partially marshy ; and the manner of doing this work was by extending, as fast as the excavation was made, trestles, and filling in these tres- tles according to their height, and thus making the grade con- tinuous. The plaintiff was employed on the work about the 2d of April, 1888. I might say that in doing this work the defendants under Murdock had men who worked in the pit, men who worked on the dump, and a man by the name of Johnson, who was assigned to frame the bents of the trestle- work which was to be put up, and erect it, and who, with the aid of other laborers, was to place stringers of different length upon these bents; that upon this temporary trestle-work, what is called a " Petler " car railroad track was to be con- structed, in order to bring out on it the cars, each of which contained about a cubic yard of dirt, excavated from the cut. The plaintiff claims that he was injured by the negligence of Murdock, who represented the company, in setting him to work upon an insecure and unsafe structure (this trestle), the ■erection of which Murdock had 'intrusted to Johnson, an em- ployee ; that Johnson was an incompetent person for the LINDVALL V. YCOODS ET AL. 577 work ; aud that he is entitled to recover for the injuries sus- tained by reason of that negligence. The defendants deny that there was any negligence on their part ; deny that Mr. iMurdock, if the injuries resulted from his negligence, was a representative — a vice-principal ; also deny that Johnson was an incompetent person within their knowledge ; and the de- fense urged is that if there was any negligence, and the plain- tiff was injured, it was either the negligence of himself or of his co-employees working with him. The issues as presented by the pleadings, affirming and denying the facts, as I have stated to you, are to be determined upon the evidence which has been introduced tending to sup- port the several claims, and the law as I deem it proper to give you. You will thus see, gentlemen, that negligence is the gist of this action, and it may not be improper for me at this time to indicate to you what is negligence — what is legal negligence. Negligence is defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the particular situation, or doing Avhat such a person, under the existing circumstances, would not have done. That is the definition which commends itself to most Courts as being concise and satisfactory. Now, this negligence being alleged, the burden of proof is upon the ])laiutiff, by the preponderance of the evidence, to satisfy you that there was negligence on the part of the defendants, or any one who represented them. This negligence cannot be presumed ; it must be affirmatively proven, and it is to be de- termined by you upon the preponderance of all the evidence. It is not sufficient that the plaintiff proves that he has sus- tained damage by reason of some omission of the defendants ; lie must also prove that the defendants in such omission vio- lated a legal duty or obligation which they owed the plaintiff by reason of the relation established between them of employer and employee. The defendants are not the insurers of the safety of the plaintiff. They do not guarantee absolutely his safety, and it is necessary for the plaintiff to establish by evi- dence facts and circumstances from which it may fairly be 678 NEGLIGENCE. inferred that his injury resulted from the want of some pre- caution which the defendants might and ought to have resorted to ; and, in addition, the plaintiff should also show with rea- sonable certainty what particular precaution should have been taken by the defendants. To prove his case, so as to entitle the plaintiff to recover, he must satisfy you by the preponder- ance of evidence : First, of defendants' negligence in failing to perform some duty which they owed him; second, that the defendants' negligence was the proximate cause of the injury which he sustained ; and you have then what may be called, third, the question of the incompetency of Johnson, who, it is claimed, was a fellow-servant, and was, to defendants' knowledge, incompetent for the discharge of the work which he was set to in connection with the plaintiff; and if those points are resolved in favor of the plaintiff, then another question will arise, to which I will call your attention here- after. Now, what is the proximate cause ? For the plaintiff must prove that if he was injured, as claimed, the negligence of the defendants was the proximate cause of the injury. The proximate cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have occurred ; and it is claimed here that this injury was the natural sequence of the negligence of the defendants, without which it would not have occurred. This raises a question which it is necessary for me to instruct you upon, and that is the duties of the employer (in this case the employers) and the duties of the plaintiff. The law im- poses upon the defendants the duty to use ordinary care to select and retain competent servants or co-employees with the plaintiff, and not to subject him to the negligence of incom- petent fellow- workmen ; and also "to exercise ordinary care to furnish a reasonably safe place for plaintiff to do his work, and a reasonably safe structure upon which plaintiff was re- quired to go to do his work, such as is reasonably calculated to insure safety when doing his work ; also to use ordinary care to discover any defect, if such exist, in the structure upon which the plaintiff was required to go in performing his LINDVALL V. WOODS ET AL. 579 work ; to use ordinary diligence to see that the place where the plaintiff's work called him was in such condition as, from the nature of the work and of plaintiff's emploj'ment, he had a right to expect it would be kept ; for the plaintiff had a right to assume that all reasonable attention would be given by the defendants to his safety, so that he would not be care- lessly and needlessly exposed to risks which might be avoided by the exercise of ordinary care and caution. I say " ordinarj^ care," and it is necessary for me to define what is meant by ordinary care. Ordinary care is defined to be that amount of care which an ordinarily prudent person would exercise under the same circumstances ; that is, such care as, taking into con- sideration all the exigencies of the particular service, ought reasonably to be observed ; and the claim here, you will recol- lect, gentlemen, is that this structure which has been exhibited to you in the models was insecure and unsafe, the bents and stringers not rronerlv tied, braced, and bolted, so as to render it reasonably safe, and that the defendants, through Murdock, their representative, as the plaintiff claims, failed to exercise ordinary care and caution in making that trestle-work safe. If the defendants have exercised, or if the evidence shows to your satisfaction that the defendants exercised all the care and caution which is imposed upon them for the safetj'^ of the plaintiff in doing his work, the law does not hold them liable for a defect in this trestle or structure which could not be dis- covered by the exercise of reasonable care; that is, even if this structure was insecure, unsafe, and defective, the law does not hold the defendants liable for any such defect which was unknown to them, and which could not be discovered by them in tlie exercise of reasonable care. Now, on the other hand, the plaintiff assumed certain risks by virtue of his contract of service, and the relation established between the defendants and himself. The plaintiff assumed all the risks incident to the character of the work which he was employed to do, and, in the absence of any statute (and we have none in our State relative to individuals or corporations, outside of railroads), there is included the risk of injury by the negligence of his 580 NEGLIGENCE. fellow- workmen in the same common employment. The general doctrine is well settled that an employer is not liable for any injury to an employee caused by the negligence of ;; co-employee in the same common employment. So it is nocc-fc- sary for me to instruct you, who are fellow-workmen in the same common employment. Fellow-workmen are in a com- mon employment when each of them is employed in a service or work of such a kind that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting employment, that it may probably expose them to the risk in case he is negligent. I might say here that the theory of plaintiff is that Murdock was a vice-principal, as it is called — a substitute of the defendants in charge of that work — and that he was not a co-employee ; and that the rule which I have laid down to you with reference to the assumption of risk on the part of the plaintiff does not apply to him, for he was not a co-emploj''ee of plaintiff. The duties imposed by law upon the defendants, which I have stated to you with regard to selection of workmen and a safe structure, cannot be dele- gated by the employer to any one, whether fellow-employee of the injured party or not, so as to exempt the defendants from all liability for injury sustained by the negligent exercise of these duties. The duties may be delegated, but if this is done, the person to whom they are delegated, and to whom the execution of them are intrusted, becomes the vice-principal or substitute of the employer, and if he negligently performs them, and a workman of the common employment to whom the master owes these duties is injured, he has a right of action for damages on that account from the common employer; in other words, the employer is responsible for the negligence of an employee who stands as his direct representative, invested with his own authority over a particular business and over inferior employees, and the latter, when injured by such neg- ligence, are not barred by the doctrine of fellow-employee, as I have stated it to you. It is claimed, I say, on the part of the plaintiff, first, that Mr. Murdock was a vice-principal. Now, when can a person LIXDVALL I'. WOODS ET AL. 581 be said or be called legally the vice-principal of another, ^so as to make the employer responsible for his acts — his negligent acts ? In this case it is for you to determine whether, as is claimed on the part of the plaintiff, Mr. Murdock was the representative of the defendants, and, if he was, whether the plaintiff has satisfied you, by the preponderance of evidence, that the injury occurred on account of his negligence. When a foreman of a gang is vested with the entire management, control, and supervision of a particular work to be done, so as to say not only what shall be done, but how it shall be done, and he has full power and authority to command the men under him in the work, and the work is under his practical direction and control, save and except as he may receive directions from time to time from his employer, and ordinarily there is no one else present and authorized to superintend and direct the work of the men, then he represents the employer — he stands for the employer. It is claimed that within that principle the foreman, Murdock, was the representative of the defendants. And you will recollect, gentlemen, that testimony has been offered tending to show that Mr. Woods, of the firm of Woods & Lovejoy, one of the defendants here, had the superintendency of this twelve miles — ten or twelve miles — of road which was to be graded and built, and that occasionally, from time to time — according to his own testimony, nearly every day, according to the testimony of others, twice or three times a week — he visited these different gangs of men, at least this gang under the charge of Murdock. Now, in regard to the claim made by plaintiff that Murdock was a vice-principal, if the preponderance of all the evidence satisfies you that the defendants delegated to Murdock, although he is called " fore- man," the care and management of the work to be performed at this cut, and the work to be performed by this gang was under the practical direction and control of Murdock, subject only to the directions given by him personally, as the local foreman, from time to time by the defendant Woods, and to the latter's oversight and examination, when he occasionally, or two or three times a week, came to the work, and if Murdock 682 NEGLIGENCE. had the authority to employ and discharge men working there in his gang, and had direct control of their movements so far as concerned the work in his charge, and that ordinarily there was no one else present and authorized to superintend and direct the work or the laborers, then he represented the defend- ants. " He stood," as was expressed by a distinguished Judge, " in their shoes, whether they fit him or not," and his negli- gence is so far the defendants' negligence that they are responsible to the plaintiff on account of it, to the extent he was injured in consequence thereof; in other words, if this work required care and oversight for the proper performance thereof, and the evidence satisfies you that Murdock for that purpose was placed in charge of it, and he was clothed with the duty of supervising and managing the work, and had the power of control and direction over the gang of men under him, including the plaintiff, in the details of the work, and the plaintiff and others were required to obey his commands, orders, and instructions, then, in executing that duty of con- trol, direction, supervision, and management, Murdock repre- sents the defendants, and for his negligence in performance thereof the defendants are liable, if his negligence was the proximate cause of the plaintiff's injury, whether he is designated as a foreman, construction boss, or by any other name. On the other hand, if you should believe from the evidence that Murdock was simply a foreman of a gang in which the plaintiff was employed, both he and plaintiff, as occasion re- quired, working side by side, the former merely leading the work, and giving immediate direction to it and to the men, sometimes in the presence of Mr. Woods, as superintendent, then Murdock and plaintiff were fellow-employees in a com- mon employment, and defendants are not liable or responsible for Murdock's negligence. And if you believe that he was simply a foreman, as I have described to you, then the defend- ants would be entitled to a verdict in this case, unless the plaintiff has proved that the defendants were negligent in the employment of an incompetent servant, who built the LLN'DVALL V. WOODS ET AL. 583 structure which it is claimed was unsafe, and that his uegli- gonce was the proximate cause of the injury, and unless there was contributor^^ negligence on the part of the plaintiff him- self, to which I shall brieflj" call your attention hereafter. You will recollect that one claim here is that the defendants failed in their duty to employ a competent person ; that is, that Johnson was an incompetent employee for the work to which he was assigned. It was the duty of the defendants, as I briefly stated to 3'ou, which they personally owed to the plaintiff, to use ordinary care to select fellow-employees of sufficient care and skill to make it probable that he would not be subjected to injury from their failure to possess these qualities ; and, if the defendants tiiemselves or any representative who was authorized to employ the men, failed to perform this duty they would be liable to the plaintiff for any injuries sustained in consequence of such negligence or incompetency on the part of fellow-workmen thus negligently employed as might be reasonably anticipated as not unlikel}^ to happen from such incompetency, provided they knew of it, or could, by the ex- ercise of ordinary care and caution on their part, have ascer- tained it. You have heard the testimony, and I shall not repeat it, in regard to the competency and skill of the work- man Johnson, who, all the testimony tends to show, was desig- nated to frame the bents, and who, it is claimed on the part of plaintiff, the testimony further tends to show, was designated as the person to erect them, with the assistance of other em- ployees that he could call upon, and to place the stringers in position upon them, so that these Petler railroad tracks could be laid out for the purpose of the work. Now it is for you to determine from all the evidence, the burden of proof being upon the plaintiff, the alleged incompetency of Johnson, by the preponderance of evidence, and also whether he was the person designated for that particular work of putting that structure in condition so that it could be operated as a tem- porary trestle, upon whicli the dirt as excavated could be hauled out and filled in. Of course, if he was an incompetent person, and his incompetency was known to the defendants, 584 NEGLIGENCE. and if the injury to the plaintiff was occasioned by the negli- gence of the workman Johnson in that behalf, then the de- fendants would be responsible, and the plaintiff would be entitled to recover for such damages as you think he is justly entitled to under the circumstances of the case. But the mere fact that this thing fell down, even if you should believe that it was defective and unsafe, is not sufficient evidence to war- rant you in finding that the defendants had knowledge that Johnson was an incompetent person for this service, that is, the mere fact that in this particular instance the defect, if there was any defect or insecurity of the structure, was due to a failure of skill on the part of Johnson, that alone is not suf- ficient to warrant you in finding that the defendants knew that Johnson was an incompetent person. You must take all the evidence in the case and determine what knowledge the defendants bad preceding this work here, before Johnson was employed by them, and from all the evidence — all the attend- ing circumstances — decide and settle the issue as to whether he was incompetent for the work intrusted to him, and, if so, if defendants had knowledge of such incompetency. Now, if you should find all these issues in favor of plaintiff, or if you should find that Murdock was the vice-principal of the defendants, and that his negligence was the proximate cause of this iujurj', then the plaintiff would be entitled to a verdict ; or if you should find that, on the other hand, Mur- dock was a mere foreman, and not a vice-principal, but that the defendants were negligent in employing Johnson, an in- competent person, and that his injuries were caused by such negligence, then the plaintiff would also be entitled to a ver- dict, unless he himself was guilty of negligence which con- tributed to cause his injury. If Lindvall went out upon that structure before the time of this accident, as it is claimed, several times, and if he worked »upon the dump in view of it, and knew what was going on there, it was his duty to exercise care and caution on his part to avoid any danger, and it was his duty to see that he was not exposing himself unnecessarily to danger in doing this work. It is true that he had a right to LINDVALL V. WOODS ET AL. 585 rely upon the superior information of the defendants, or the person who represented them, or Johnson, if you believe that he was designated to put up this structure ; but if you believe that, by the exercise of reasonable care and caution on his part, he might have discovered that this structure was imsafe, if you should believe that it was unsafe, and nevertheless went out upon the structure, then he contributed to his own injury, and he cannot recover, though you should find that the de- fendants themselves were negligent. Now, gentlemen, I think I have presented this case to you pretty thoroughly, so far as the claim made and the theories advanced by the plaiirtiff and the defendants. If you should come to the conclusion that the evidence proves no negligence on the part of the defendants, then they are entitled to a ver- dict. If, on the other hand, you believe that the preponder- ance of evidence proves negligence on the part of the defend- ants, then the plaintiff would be entitled to a verdict, unless guilty of contributory negligence, and the question then is presented, what amount should the plaintiff recover for the injuries sustained ? There are certain elements which the jnry are to take into consideration in determining the amount the plaintiff, injured under such circumstances, should recover, if he has satisfied the jury that his injury was sustained by the negligence of a person who owed him a legal dut}', and they are all founded upon compensation. Nothing else, gentlemen, but compensation for the injuries sustained is the plaintiff en- titled to recover. Of course, that, to some extent, is left to the sound judgment and discretion of the jurj^, based upon all the evidence in the case, and the facts disclosed during the progress of the trial. Of course, the plaintiff is entitled to compensation for loss of time on account of the injuries sus- tained. He is further entitled to compensation for pain and suffering. Now, that must be left entirely to the jury. What would compensate a person for pain and suffering? You can- not measure it in dollars and cents ; at least, it must be left to the sound discretion of the jury, and their sound judgment, bearing in mind all the time that it is a compensation, and 686 NEGLIGENCE. not what may be called " smart money," which he is entitled to receive. He is also entitled to compensation for any tem- porary disability, temporary injury, or permanent injury, and the testimony here tends to show that he at least never will regain his eye-sight ; also, what impairment there may be to his bodily strength, for the evidence here discloses beyond any dispute that one leg is shorter than it was. He is not the same man that he was before the injury. At the same time you must graduate, or at least measure, the damages on the theory of compensation only ; that being left to your sound discretion, gentlemen. It is for you to say on the whole case, if you believe the plaintiff is entitled to a verdict, what amount will compensate him for the injury, bearing in mind that you are to decide this case upon the strict legal rights of the parties and the cold facts which have been developed here in testimony, not upon sympathy for the plaintiff, who is in affliction. That is not an element to be taken into consider- ation by the jury, for jurors and Courts would be less than human if they did not sympathize with a fellow-man in afflic- tion. You can take the case, gentlemen. Consolidated Coal Co. v. "VVombacher, 24 N. E. 627 ; Moore v. E. E., 85 Mo. 588 ; L. N. A. & C. R. E. v. Graham, 24 N. E. 668 ; Ft. Smith Oil Co. v. Slover, 24 S. W. 106 ; McDermott v. E. E., 87 Mo. 285 ; Lewis v. Seifert, 11 Atl. 514; E. E. v. Weaver, 11 Pac. 408; Harrison v. E. E., 44 N. W. 1034 E. E. V. Williams, 12 S. W. 835 ; Kelly v. Erie Telegraph Co., 34 Minn. 321 Cox V. Granite Co., 39 Mo. Ap. 424; Covey v. E. E., 27 Mo. Ap. 170 Stephens t'. E. E., 86 Mo. 221; Minn. Laws 1895, ch. 173; Jaggard, 1037 Bishop, 663-665 ; Cooley, 560. ALLEN V. SACKEIDER. 58'( 3. As TO Common Carriers. a Definition. A common carrier is one who undertakes for hire to transport for all alike, goods and passengers. Allen v. Sackrider. Court of Appeals of New York, 1867. 37 N. Y. 341. Appeal from the General Term of the Supreme Court, where a judgment entered in favor of the defendants, upon the report of a referee, had been affirmed. This was an action by Elijah B. Allen and Walter B. Allen against Norman Sackrider and Frank Farnham, to charge thte defendants as common carriers with damage to a quantity of grain, shipped by the plaintiffs in a sloop of the defendants, to be transported from Trenton, in the province of Canada, to Ogdensburg, in this State, which accrued from the wetting of the grain in a storm. The case was tried before a referee, who found as follows : " The plaintiffs, in the fall of 1859, were partners, doing busi- ness at Ogdensburg ; the defendants were the owners of the sloop ' Creole,' of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the bay of Quinte to Ogdensburg ; the master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there ; being assured by the plaintiffs that she had, he engaged her for the trip, at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed for $100 for the trip. The vessel proceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34; that the injury did not result from 588 NEGLIGENCE. the want of ordinarjr care, skill, or foresight, nor was it the- result of inevitable accident, or what, in law, is termed the act of God. From these facts my conclusions of law are, that the defendants were special carriers, and only liable as such, and not as common carriers, and that the j^roof does not establish such facts as would make the defendants liable as special car- riers, and, therefore the plaintiffs have no cause of action against them." Judgment was accordingly entered upon the report, in favor of the defendants ; and the same having been affirmed at Gen- eral Term, the plaintiffs appealed to this Court. Parker, J. The action was brought against the defendants to charge them, as common carriers, with damage to a quantity of grain shipped by the plaintiffs iia the sloop of the defendants, to be transported from Trenton, in the province of Canada, to Ogdensburg, in this State, which accrued from the wetting of the grain in a storm. The case was referred to a referee, who found as follows : " The plaintiffs, in the fall of 1859, were partners, doing busi- ness at Ogdensburg. The defendants were the owners of the sloop ' Creole,' of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the bay of Quinte to Ogdensburg. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there. Being assured by the plaintiffs that she had, he engaged for the trip at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at |100 for the trip. The vessel proceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34 ; that the injury did not result from the want of ordinary care, skill, or foresight, nor was it the result of inevitable accident, or what, in law, is termed the act of God. From these facts, my conclusions of law are that the defendants were special carriers, and only liable as such, and ALLEX V. SACKRIDER. 589 not as common carriers, and that the proof does not establish such facts as would make the defendants liable as special car- riers ; and, therefore, the plaintiffs have no cause of action against them." The only questiou in the case is, were the defendants com- mon carriers ? The facts found by the referee do not, I think, make the defendants common carriers. They owned a sloop ; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiffs' property falls short of proof sufficient to show them common carriers. A common carrier was defined, in Gisburn v. Hurst, 1 Salk. 249, to be any man undertaking, for hire, to carry the goods of all persons indifferently ; and in Dwight v. Brewster, 1 Pick. 50, to be one who undertakes, for hire, to transport the goods of such as choose to employ him from place to place. In Orange Bank v. Brown, 3 "Wend. 161, Chief Justice Savage said : " Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability im- posed, to be considered a common carrier. The distinction between a common carrier and a private or special carrier is that the former holds himself out in common — that is, to all persons who choose to employ him, as ready to carry for hire ; while the latter agrees, in some special case, with some private individual to carry for hire :" Story on Contracts, § 752, a. The employment of a common carrier is a public one, and he as- sumes a public duty, and is bound to receive and carry the goods of any one who offers. "On the whole," says Prof. Parsons, " it seems to be clear that no one can be considered as a common carrier unless he has, in some way, held himself out to the public as a carrier, in such manner as to render him liable to an action if he should refuse to carry for any one 590 NEGLIGENCE. who wished to employ him:" 2 Pars, on Cent. [5th ed.] 166, note. The learned counsel for the appellant in effect recognizes the necessity of the carrier holding himself out to the world as such, in order to invest him with the character and respon- sibilities of a common carrier ; and, to meet that necessity, says : " The ' Creole ' was a freight vessel, rigged and manned suitably for carrying freight from port to port ; her appear- ance in the harbor of Ogdensburg, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of the referee, and, therefore, cannot, if they existed, help the appellants upon this appeal. It is not claimed that the defendants are liable, unless as common carriers. Very clearly, they were not common car- riers ; and the judgment should, therefore, be affirmed. All the Judges concurring, Judgment affirmed. Dwight V. Brewster, 1 Pick. 50 ; Orange Bank v. Brown, 3 Wend. 159 ; Mershon v. Hobensack, 22 N. J. L. .372 ; U. S. Express Co. v. Backman, 28 Ohio St. 144 ; Gisbourn v. Hurst, 1 Salk. 249 ; Garton v. E. R., 1 Best. & S. 112, 101 E. 0. L. ; Fish o. Chapman, 2 Kelly, 349 ; Jaggard, 1057 ; Bishop, 1057 ; Cooley, 638 ; Story on Bailments (9th ed. ), 495 ; 2 Kedfield on Eail- T\-ayg, 3, 4 ; 2 Kent Com. 598 ; 2 Am. & Eng. Encyc. 777 ; Wood's Brown on Carriers, 68 ; Schouler on Bailments, 331. Note.— A telegraph company is a common carrier in Minnesota : Stat. 1894, ? 2635. An express company : Minn. Laws 1895, ch. 152. ^[ICHAELS V. N. Y. CENTRAL R. R. CO. 591 b Liabilities. (1) Carriers of goods. Common carriers of goods are insurers against all losses, except such as result from an act of God, or the public enemy. Michaels v. N. Y. Central R. R. Co. Court of Appeals of New York, 1864. 30 N. Y. 564. Wright, J. The duty and liability of a carrier begins when the goods are received into his custody for transporta- tion, and ends when they are securely and safel}' carried and delivered to the owner. He is responsible for every injury sustained by them, occasioned by any means whatever, except only the act of God or the public enemies. On the 5th Feb- ruary, 1857, the defendants as carriers, and not as warehouse- men, received at Albany, to be transported to Rochester, a box containing cloths and velvets, belonging to the plaintiffs, and twelve days afterward delivered the property at Rochester in a wet and damaged condition. For this injury the}' were liable, unless it was occasioned by one or the other of the causes which legally excuses them. A ground of defense was, that the injury was by the act of God, and not by or through any negligence on their part. If the damages resulted from "the act of God," spoken of in the law of carriers, and the defend- ants were without fault, the Court below was wrong in adjudg- ing them liable. This is the principal, if not the only ques- tion in the case. There was no conflicting evidence, and neither party asked to go to the jury on any disputed fact. We are to see then what the case was as the evidence presented it. The box con- taining the goods damaged, was one of three purchased together in the city of New York, about tlie 1st February, by the plaintiffs, who were merchants at Rochester. Two of the 592 NEGLIGENCE. boxes came to the plaintiffs' hands over the defendants' rail- road, not later than the 7th February. The defendants admit that the three boxes were delivered to them at Albanj'^ on the 5th of February, to be transported to the city of Rochester ; and the inference is almost irresistible that two of them were at once forwarded, and the third, by the negligence of the de- fendants' emploj'ees, left behind. The excuse offered for not forwarding the injured parcel was, that no bill of charges for transportation by the Hudson River Railroad Company ac- companied it, and that it was one of the defendants' regula- tions, known to the latter company, to receive from it goods to be forwarded, but not to forward them until bills of back charges were furnished. It was not shown that there were any back charges, and some days after the goods had been dam- aged, the defendants forwarded them without any expense bill. The defendants had at Albany eight buildings for the recep- tion of freight to be carried, in one of which the damaged box was deposited. These buildings were situated near the docks upon Hudson River, and not, as subsequently appeared, out of the reach of a rise of water by damming the river with ice below the city in time of a freshet. On the 8th February, and after the goods had been in possession of the carrier three days at least, one of these freshets, not uncommon in the upper sources and tributaries of the Hudson, and at Albany, occurred, breaking up the ice in the river, creating an ice obstruction at the overslaugh, and setting the increased volume of water back upon the lower streets of the city. There had been slight in- dications of this freshet at Albany the day before, but whether there had been on Sunday (on the night of which the flood reached its height), the case does not disclose. It is reasonable to presume that this must have been the case, as the M'ater was rapidly rising at ten o'clock that night, and at twelve o'clock had reached the defendants' freight houses, which were some thirteen feet above the ordinary tides in the river, and before it subsided, which was eight hours afterward, had risen four feet in one of the buildings. This rise of water was an unusual and extraordinary one, the like of which had oc- MICHAELS V. N. Y. CENTRAL R. E. CO. 593 curred at uo period for thirty years previously. Except as against such a rise, the freight house of the defendants was a safe and secure place to keep and protect goods, and at uo time' for thirty years had there been any rise or flood that would have damaged the plaintiffs' goods in the freight buildings in which they were deposited. The goods were wet by this rise of the water, and damaged. It seems that the defendants took no steps to protect the property against the probable effects of the rise after it had commenced, until about twelve o'clock on Sunday night, when their freight agent was first apprised by another employee, that the river was rising rapidly toward the freight house ; but it appears quite clear, that if at this time, anything had been done in that direction, the plaintiffs' goods would have escaped injury from the water. The freight agent did not go or send any person into building " B " where the goods were on first visiting the freight house, and the reason assigned was that the building was surrounded by water. About one o'clock in the morning, the water began falling, and fell three feet in half an hour. It had then risen but a little over the floor in building " B." Had the men at that time sent to the building, raised the plaintiffs' box of goods from the floor, no injury would have occurred. Nothing, however, of the kind was done. The direction was to place the cars along by the floors of the freight house, and load in the goods, but this was impracticable because the tracks were blocked up with ice. Shortly thereafter the water commenced rising again, and continued to rise until seven or eight o'clock in the morning, at which latter time it was about four feet in height in building "B." During this period, and while they were able to work there, some of the defendants' employees were engaged in raising the freight from the floor of the building. They laid the plaintiffs' box of goods on a piece of boiler iron, placed across two barrels standing on end ; which, if the same thing had been done before the second rise of water, would doubtless have avoided the injury. This was, in substance, the case disclosed, and the question recurs whether the Judge erred in holding the defendants liable. 38 594 NEGLIGENCE. In other words, whether the defendants, as carriers, brought themselves within one of the two exceptions to their legal liability. What is precisely meant by the expression " act of God," as used in the case of carriers, has undergone discussion, but it is agreed that the notion of exception is those losses and injuries occasioned exclusively by natural causes, such as could not be prevented by human care, skill, and foresight. All the cases agree in requiring the entire exclusion of human agency from the cause of the injury or loss. If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God, nor even if the act or negligence of man contributes to bring or leave the goods of the carrier dnder the operation of natural causes that work their injur}', is he excused. In short, to excuse the carrier the " act of God," or vis divina, must be the sole and immediate cause of the injury. If there be any co-operation of man, or any ad- mixture of human means, the injury is not, in a legal sense, the act of God : McArthur v. Sears, 21 Wend. 190 ; Merritt v. Earl, 31 Barb. 38 ; affirmed in this Court, Smith v. Shepherd, cited in Abbott on Shipping ; The Trent Navigation Company V. Wood, 3 Esp. R. 127 ; Forward v. Pittard, 1 Term R. 27 ; Campbell v. Moore, 1 Harp. Law Rep. 468 ; McHenry v. Rail- road Company, 4 Harrington R. 448 ; Sierdett v. Hale, 4 Bing. R. 607 ; New Brunswick St. Boat Company v. Tiers, 4 Zabriskie, 697 ; Edwards on Bailments, 454 ; Angell on Carriers, 166. The goods were damaged in this case in consequence of a freshet in the Hudson River, on the 8th and 9th of Februarj'. The ice was broken up and lodged in the channel of the river, creating an obstruction to the flow of the water, and set- ting it back upon the lower part of the city, so that the rise was, in part, at least, the result of the obstruction. The com- bined influences of the freshet and obstruction produced the rise of water which wet the plaintiffs' goods. They were nat- ural causes, of which the injury was not the direct, but the remote consequence. Passing by, hoM^ever, the question of remoteness of cause and effect, and attributing the damage directly to the rising of the water in the river, was such damage MICHAELS V. X. Y. CENTRAL E. R. CO. 595 the act of God, in the legal sense of the term ? On this point I cannot entertain a doubt. There was too much of negli- gence on the part of the defendants, and too much of human agency creating or entering into the cause of the disaster, to bring the case within the exception to the carrier's absolute liability, for the safety of property which he undertakes to carry. It was shown that there was a flood — no unusual event at Alban}- — which, in the nature of things, could not have been sudden and unforeseen, and the goods in question being exposed to its effects, were injured. It is said to have been an extraordinary flood, the like of which had not oc- curred at Albany for thirty years previously. But suppose this were so, if the injury which the flood occasioned could have been avoided or prevented, or if the act or negligence of the defendants contributed to bring the property under the ope- ration of the flood, or entered into the cause of the disaster, the injury cannot be considered the act of God. This cannot be done in any case, though the injury proceed directly from nat- ural causes, where it might have been avoided by human pru- dence and foresight, or where human agency creates or enters into the cause of mischief. This extraordinary flood neither could or would have injured the goods of the plaintiffs had not the defendants, by their prior act or negligence, placed them in a situation to be affected by it. And so, also, the flood might have been foreseen, its effects averted, and the goods secured and saved by the exercise of even ordinary care, skill, and foresight by the company, or its servants. Had the com- pany received the goods, and deposited them outside instead of inside of their freight house, and they had been injured by rain, this, in a certain sense, would have been an injury by an act of God, but no one would pretend that the company was not liable. A carrier is always liable for injuries resulting from his own negligence. Can it make any difference that the goods were in a freight house, that the experience of this freshet showed was located in a dangerous place, and the prop- erty in it in danger of destruction in times of high water? I think not. If the defendants misjudged in locating and erect- 596 NEGLIGENCE. ing the building for the deposit of freight to be carried, and they placed it within the reach of any possible effects of freshets, the fault was their own. It was not ordinarj^ but ex-, traordinary prudence which they were bound to exercise in guarding against the effects of any freshet that possibly might occur. Had the defendants left the goods in the open air, fully believing that it would not rain, and they had been in- jured by a storm, no one would doubt their liability ; but I think such liability not more apparent than when they exposed them to the effects of a freshet in a freight house within its reach, which they believed to be a safe place. Suppose, how- ever, the defendants were not guilty of negligence in placing their freight house so near the river as not to have been out of the reach of this particular flood ; still it was an act of theirs, and without which, and the further act of putting the goods in it, no injury would have resulted. Had it not been for human intervention, no injury would have occurred by the rise of water. It is not enough that the " act of God," which shall excuse the carrier, is a means, althougji not the direct and exclusive means by which loss or injury is produced. In Smith V. Shepherd (cited in Abbott on Shipping), where there was no actual negligence on the side of the defendant, the loss happened in this way : Just before the defendant's vessel reached the harbor of Hull, a bank there, formerly shelving, had been rendered precipitous by a great flood, where a vessel sunk by getting on the bank, having a floating mast tied to her. The defendant's vessel striking the mast, was forced toward the bank, where, owing to a change in the bank occa- sioned by the flood, the loss happened. The natural cause, the act of God in changing the bank, was laid out of the ques- tion as not being the immediate cause, and therefore fur- nishing no excuse. The fastening of the mast, if not the sinking of the ship to which it was attached, were the only re- maining causes, and one, if not both, were obstructions placed there by human agency. In McArthur v. Sears, 21 AVend. 190, human agency intervened to produce the loss, and the carrier was held responsible. Judge Cowen, in an able opinion, MICHAELS V. N. Y. CENTRAL R. R. CO. 597 considers the meaning of the phrase " act of God," as applied to a carrier's liability, and reaches the conclusion that it is re- stricted to the act of nature, and implies the entire exclusion of all human agency, whether of the carrier or of third per- sons. " No matter," he says, " what degree of prudence may be exercised by the carrier and his servants ; although the de- lusion by which it is bafHed, or the force by which it is over- come be inevitable, yet if it be the result of human means the carrier is responsible." In Campbell v. Morse, 1 Harp. S. Law. Rep. 468, where the wagon of the defendant, who was a common carrier, in which he was carrying goods for hire, stuck fast in fording a creek, and the water rising suddenly damaged the goods, it was adjudged that the defendant was liable for the damage so occasioned ; for though the rising of the water was caused by the act of God, the placing of the gopds in that situation was the act of man. Again, the carrier is alwaj^s liable for an injury resulting from his own negligence ; and when that intervenes, he cannot discharge himself by showing that it was occasioned by one of those occurrences which are termed the act of God. If, by his negligence, property committed to him is brought under the operation of natural causes that work its destruction, or is exposed to such cause of loss, he is responsible. So, also, if, but for his neglect, the injury would have been avoided. In the present case it plainly appears that, but for the misconduct and negligence of the defendants, no injury would have hap- pened to the plaintiffs' goods. They detained the goods at Albany, without any reasonable excuse, until the flood came upon the lower part of the city, and then exposed them to its effects. It is not to be presumed that so extraordinary a flood as inundated the wharves and lower streets of the city on the 8th and 9th of February, could not have been foreseen, and its effects upon the plaintiffs' property avoided. It must, of necessity, have taken some time for the freshet to have accu- mulated force enough to break up the ice, pile it up on the overslaugh, and inundate the city. That the flood came sud- denly and without warning; or that there were no previous in- 598 NEGLIGENCE. dications of the freshet, is not to be supposed. Yet no steps were taken to avoid its injurious effects upon goods deposited in the defendants' freight houses, until the water had reached the streets surrounding the houses. But even then it was not too late to have prevented the injury. The water had not reached the goods of the plaintiffs, and if then they had been attended to, would have been saved from being damaged. The defendants' employees made no effort in that direction. Their freight agent, after waiting until the water surrounded the building in which the goods were, before visiting the scene of the disaster, assigns that as a reason for not going himself or sending men to raise or remove the goods in that building. He remained about an hour in another building doing nothing, when the water commenced falling, and fell three feet in half an hour. Laborers were then sent to the building where the plaintiffs' box was deposited. The goods had not been dam- aged at this time, and had the box been raised from the floor, as it afterward appears to have been, the goods would have escaped injury. But nothing was done to secure them. About twenty minutes after one o'clock the water commenced rising again, and continued to rise until seven or eight o'clock in the morning. This rise must have been comparatively slow, for it took seven hours to raise the water less than a foot in depth on the floor of the building where the damaged goods wei-e. During all this time, and while the water was rising, no effort was made to secute the goods against injury ; at least not until it had occurred. Men did get into the building about the time the water commenced rising the second time, and the rising water should have warned them to do what was subse- quently done after the goods had received the injury, namely, place the box upon the barrels two and a half feet above the floor. So that there was opportunity enough, if it had been improved, even after the defendants' employees reached the freight houses, to have secured and protected the property in question from injury. The defendants, by their own act or neglect, detained or brought the goods under the operation of the freshet, or natural cause ; they negligently failed to foresee MICHAELS V. N. Y. CENTKAL E. R. CO. 599 the freshet, in time to have taken them bej'ond its reach ; and after tlie fresliet liad appeared, though there was then sufficient time to secure tliem against injury, neglected to do so. Under these circumstances, it cannot be reasonably pretended that the defendants, as carriers, were excused from liability. To have excused them, the damage must have been exclusively the result of an act of God, and entirely free from the co-ope- ration of man ; -n-hicli Avas not the case. By the acts of iregli- gent conduct of the defendants, or the admixture of human means, the goods were brought under the operation of an act of God, which worked the injury ; and even the injury might have been avoided by ordinary care, prudence, and foresight. A carrier cannot fold his arms when property is intrusted to him, and because it is subjected to natural causes that may work its destruction, make no effort to save or protect it from such causes or agencies, and then claim to be exempted from liability. An injury occurring under the circumstances which this case discloses, is, in no legal sense, an injury caused by " the act of God." Another ground on which the Judge was requested to direct a verdict for the defendants was, that the box of goods, at the time the injury was sustained, was in their possession in the character of warehousemen, and not as common carriers of goods. There is nothing in this point. The defendants, in their stipulation, admitted that they were common carriers, and, as such, the box in question, with two others, was deliv- ered to them at Alban}'^, on the 5th of February, to be trans- ported for hire from that place to the city of Rochester. There was not the shadow of proof in the case tending to show that the goods were in their custody as warehousemen when the injury occurred. It was attempted on the trial to excuse their negligence in transporting the goods to their place of destina- tion, by showing that no bill of charges of the Hudson River Railroad Company had been furnished, agreeably to a regula- tion of the defendants ; but it was not claimed or pretended that the goods had been delivered to them, or were in their custody, otherwise than as carriers. 600 NEGLIGENCE. On the trial, the defendants were not allowed to show by their freight agent that it was the custom among forwarders, at Albany to receive goods sent them by other forwarders, to be forwarded, unaccompanied by expense bills, and hold them in store until such bills were furnished. This was not error. Any such custom was entirely immaterial ; and could not affect the rights of the parties. The defendants received the goods into their possession as carriers, on the 6th of Feb- ruary, and their liability as such forthwith attached, without regard to any custom prevailing among warehousemen or for- warders at Albany. The judgment should be affirmed. Mo. Pac. R. E. V. Nevill, 60 Ark. 375 ; R. R. v. Reeves, 10 Wall. 176 ; Bohannan v. Hammond, 43 Cal. 227 ; Morrison v. Davis, 20 Pa. St. 171 ; Denny v. R. R., 13 Gray, 481 ; Hollister v. Nowlen, 19 Wend. 234; Turney V. Wilson, 7 Yerg. 340 ; Gordon v. Little, 8 S. & R. 533 ; Colt v. McMechen, e'johns. 160 ; Moses v. ilorris, 4 N. H. 304 ; R. R. v. Knight, 122 U. S. 79 ; Longi). R. R., 23 Atl. 459; Kemp v. Coughtry, 11 John. 107,- Miller v. Navigation Co., 10 N. Y. 431 ; Parker v. Flagg, 26 Me. 181 ; New Brunswick Co. V. Tiers, 24 N. J. L. 697 ; Minn. Stat. 1894, ? 6895 ; Jaggard, 1059 ; Cooley, 640; Pollock, 605; 2 Am. & Eng. Encyc. 778; Wood's Brown on Carriers, 162 ; Schouler on Bailments, 405. "Act of God." Defined : N. B. Steamboat Co. v. Tiers, 4 Zab. 700 ; Williams v. Grant, 1 Conn. 487, 491. "Act of Ood," "inevitable accident," "unavoidable danger.?," discussed and distinguished : Hays v. Kennedy, 41 Pa. St. 378. "Acts of Ood." Illness: People v. Tiibbs, 37 N. Y. 586 ; Storm: Amies v. Stevens, 1 Str. 128 ; Snow-storm : Ballentine v. N. M. R. R. , 40 Mo. 491 ; Lightning: Parker v. Flagg, 26 Me. 181; Flood: B. &, 0. R. R. v. School District, 96 Pa. St. 65; Frost: Vail v. R. R., 63 Mo. 230; Parsons ■!). Hardy, 14 Wen'd. 215 ; Sudden freezing of river : Harris v. Rand, 4 N. H. 259 ; Failure of wind: Colt?). McMeehen, 6 John. 160; Hidden mag: Williams v. Grant, 1 Conn. 487; Drought: Ward v. Vance, 93 Pa. St. 499. The great Chicago fire was held not to be, in Merchants Dispatch v. Smith, 76 111. 542. MISSOUKI PACIFIC RAILWAY CO. V. m'fADDEN. 601 (a) When does liability attach. Missouri Pacific Railway Co. v. McFadden. Supreme Court of the United States, 1894. 154 U. S. 155. The defendants in error (plaintiffs below) sued in the Cir- cuit Court of Hunt County, Texas, to recover the value of two hundred bales of cotton, alleged to have been shipped from Greenville, Texas, to Liverpool, England, the shipments having been evidenced by two bills of lading, each for one hundred bales of cotton. On application of the defendant below, the case was removed to the Circuit Court of the United States for the ^Northern District of Texas. After filing the record in that Court, the pleadings were amended. The amended answer set up the following, among other special defenses, on behalf of the companj^ " First. That while it is true that it had issued certain bills of lading for said cotton, said cotton had not yet in deed and in truth been delivered to it. It was the habit and the custom of defendant, and well known to plaintiffs to be such, after cottons were placed on the platforms at the compress in Greenville, before the same was compressed, it would issue bills of lading therefor to consignors desiring to ship. Said cottons would be delivered to the compress for the purpose of compressing, and that at the time they were so delivered to it the superintendent of the compress or the agent of the compress would check out such cottons intended, and the ship- per would make out a bill of lading, which would be 0. K.'d by the superintendent of the compress or its agent, and after- ward it would be brought to the agent of the defendant and by him signed up, and defendant would actually receive said cotton only after it was compressed and delivered upon its cars. This course was pursued as a matter of convenience by the compress company and the shipper, but it was not intended 602 NEGLIGENCE. b)' either the shipper or the defendant that the liability of the defendant should attach until the cotton was actually delivered upon its cars. This custom was well known to the plaintiffs, George H. McFadden & Bro. and to A. Fulton & Co., and the bills of lading were made out according to this custom by A. Fulton & Co. as herein shown, and accepted by A. Fulton & Co. according to such custom. At the time said bills of lading were made the cotton was in the hands of the compress according to the custom aforesaid, and had never been deliv- ered to defendant, the defendant's liability as a common carrier had never attached, nor had any liability attached, but said cotton, ■while it was in the hands of the compress company, was wholly destroyed by fire and never came to the hands of the defendant. Defendant says said cotton was placed on said platform at said compress for the purpose of being compressed by A. Fulton & Co. ; that they well knew, intended, and expected said cotton should be compressed be- fore it was shipped. Said cotton while at the compress was under the control of A. Fulton & Co., or their agent the com- press company." The answer thereupon proceeded to set out other matters to which it is unnecessary to refer. The plaintiff replied to the amended answer and excepted to the first count, as follows : " And they specially except to the first count in defendant's special answer, in so far as the same attempts to set up a custom of the manner of receiving cotton and issuing bills of lading, because the same does not show that the custom was such as is recognized and binding in law, but attempts to set up a custom which is contrary to law, and because the same does not show that it was such a custom as would relieve the defend- ant from liability on a contract in writing." The reply then proceeded to except to other parts of the defendant's answer. The Court sustained the plaintiffs' exception to the first count of the amended answer, to which ruling exception was reserved. Thereupon the facts were stated to be, 1st, that MISSOURI PACIFIC RAILWAY CO. V. m'fADDEN. 603 the bills of lading had been issued to Fulton & Co. ; 2d, that they were assigned to the plaintiff's ; 3d, that the value of the cotton was 88,647.83 at the time it was destroyed, and that the defendant had never paid therefor. Upon this evidence, the case was submitted to the Court without a jury, and the Court found for-the plaintiff's and gave judgment for the value of the cotton. The case was brought here by writ of error. Mr. Justice White. Many questions were discussed at bar which we deem it unnecessary to notice, as we consider that the whole case depends upon the correctness of the judg- ment of the Court below in sustaining the exception to the first defense in the amended answer. That defense averred that the cotton for which the bills of lading were issued was never delivered to the carrier ; that by a custom or course of dealing between the carrier and the shipper it was understood by both parties that the cotton was not to be delivered at the time the bills of lading were issued, but was then in the hands of a compress company, which compress company was the agent of the shipper, and that it was the intention of the parties at the time the bills of lading were issued that the cotton should remain in the hands of the compress company, the agent of the shipper, for the purpose of being compressed, and that this custom was known to the plaintiff's and transferees of the bills of lading ; and that, whilst the cotton was so in the hands of the compress company, the agent of the shipper, and before delivery to the carrier, it was destroyed by fire. All of these allegations in the answer were, of course, admitted by the exception, and, therefore, the case presents the simple question of whether a carrier is liable on a bill of lading for property which at the time of the signing of the bill remained in the hands of the shipper for the purpose of being compressed for the shipper's account, and was destroyed by fire before the delivery to the carrier had been consum- mated. The elementary rule is that thfe liability of a common carrier depends upon the delivery to him of the goods which 604 NEGLIGENCE. he is to carry. This rule is thus stated in the text-books : " The liability of a carrier begins when the goods are delivered to him or his proper servant authorized to receive them for carriage :" Redfield on Carriers, 80. " The duties and the obligations of the common carrier with respect to the goods commence with their delivery to him, and this delivery must be complete, so as to put upon him the exclusive duty of seeing to their safety. The law will not divide the duty or the obligation between the carrier and the owner of the goods. It must rest entirely upon the one or the other ; and until it has become imposed upon the carrier by a delivery and accept- ance he cannot be held responsible for them :" Hutchinson on Carriers, 82. This doctrine is sanctioned by a unanimous course of English and American decisions : Schooner Freeman v. Buck- ingham, 18 How. 182 ; The Lady Franklin, 8 Wall. 325 ; The Delaware, 14 "Wall. 579 ; Pollard v. Vinton, 105 U. S. 7 ,- Iron Mountain Railway v. Knight, 122 U. S. 79 ; Friedlander V. Texas & Pacific Railway, 130 U. S. 423 ; St. Louis, Iron Mountain, etc., Railway v. Commercial Union Ins. Co., 139 U. S. 233 ; Barron v. Eldredge, 100 Mass. 455 ; Moses v, Boston & Maine Railroad, 4 Foster (24 N. H.) 71 ; Brind v. Dale, 8 Car. & P. 207 ; Selway v. HoUoway, 1 Ld. Raym. 46 ] Buckman v. Levi, 3 Camp. 414 ; Leigh v. Smith, 1 Car. & P. 638 ; Grant v. Norway, 10 C. B. 665 ; Hubbersty v. Ward, 8 Exch. 330; Coleman v. Riches, 16 C. B. 104. Indeed, the citations might be multiplied indefinitely. While the authorities may differ upon the point of what constitutes delivery to a carrier, the rule is nowhere questioned that when delivery has not been made to the carrier, but, on the contrary, the evidence shows that the goods remained in the possession, of the shipper or his agent after the signing and passing of the bill of lading, the carrier is not liable as carrier under the bill. Of course, then, the carrier's liability as such will not attach on issuing the bill in a case where not only is there a failure to deliver, but there is also an understanding between the parties MISSOURI PACIFIC RAILWAY CO. V. m'fADDEN. 605 -that delivery shall not be made till a future day, and that the goods until then shall remain in the custody of the shipper. Does the fact that the plaintiffs claim to be assignees of the bill of lading without notice of the agreement and course of dealing between the shipper and the carrier confer upon them greater rights as against the carrier than those which attach under the bill of lading in the hands of the parties to whom it was originally issued and who made the agreement ? It is to be remarked, in considering this question, that the -averment of the answer, which was admitted by the excep- tion, charged that the course of dealing between the parties in accordance with which the goods were not delivered at the time of the issuance of the bills of lading, but remained in the hands of the compress company, which was the agent of the shipper, was known to the plaintiffs, the holders of the bills of lading. It is clear that, whatever may be the effect of custom and course of dealing upon the question of legal liability, proof of such custom and course of dealing would have been admissible, not in order to change the law, but for the purpose of charging the plaintiffs, as holders of the bills of lading, with knowledge of the relations between the parties. That a bill of lading does not partake of the character of negotiable paper, so as to transfer to the assignees thereof the rights of the holder of such paper, is well settled. Said this €ourt in Pollard v. Vinton, 105 U. S. 7, 8 : " A bill of lading is an instrument well known in commer- cial transactions, and its character and effect have been defined by judicial decisions. In the hands of the holder it is evidence of ownership), special or general, of the property mentioned in it, and of the right to receive said property at the place of delivery. Notwithstanding it is designed to pass from hand to hand, with or without indorsement, and it is efficacious for its ordinary purposes in the hands of the holder, it is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in tliose cases, all inquiry into the transaction in which it originated, because it has come into the hands of 606 NEGLIGENCE. persons who have innocently paid value for it. The doctrine of bona fide purchasers only applies to it in a limited sense. " It is an instrument of two-fold character. It is at once a receipt and a contract. In the former character it is an acknowledgment of the receipt of property on board his vessel by the owner of the vessel. In the latter it is a con- tract to carry safely and deliver. The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver." See also The Lady Franklin, 8 Wall. 325. The rule thus stated is the elementary commercial rule. Indeed, in the case last cited this Court expressed surprise that the question should be raised. These views coincide with the rulings of the English Courts. The cases of Grant v. Norway, 10 C. B. 665, and Hubbersty v. Ward, 8 Exch. 330, were both cases where bills of lading were issued and held by third parties. The rule was uniform in England until the passage of the Bills of Lading Act, 18, 19, Vict. c. Ill, § 3, making bills of lading in the hands of consignees or indorsers for value conclusive as to shipment. Under these elementarj' principles we think there was man- ifest error below in maintaining the exception to the first count in the amended answer. Of course, in so concluding we proceed solely upon the admission which the exception to the answer necessarily imported, and express no opinion as to what would be the rule of law if the compress company had not been the agent of the shipper, or if the goods had been constructively delivered to the carrier through the compress company, who held them in the carrier's behalf. The judgment is reversed and the case remanded for further proceedings in accordance with this opinion. Barron v. Eldredge, 100 Mass. 455 ; Nelson v. R. E., 48 N. Y. 408 ; Gros- venor r. R. R., 39 N. Y. 34 ; Gleason v. Transportation Co., 32 Wis. 85 ; O'Bannon v. Express Co., 51 Ala. 481 ; Clarke r. Needles, 25 Pa. St. 338 ; R. R. V. Smyser, 38 111. 354 ; Hickox v. R. R., 31 Conn. 28 ; Nichols v. Smith', 115 Mass. 332 ; R. R. v. Kolb, 73 Ala. 396 ; Gr&ndtower v. Ullman, 89 111. KIRK V. CHICAGO, ST. P., M. & O. ItY. CO. 607 244 ; Pratt c. R. R., 95 U. S. 43 ; Trowbridge v. Chapin, 23 Conn. 595 ; Ford c . Mitchell, 21 Ind. 54 ; E. R. v. Barrett, 36 Ohio St. 452 ; Phillips v. Earle, S Pick. 182 ; R. R. i: Shurtz, 7 Mich. 515 ; Kinnick v. R. R, 29 N. W. 772 ; Merriam c. E. R.,20 Conn. 354 ; IMoses r. R. R., 4 Foster, 71 ; Wood's Brown on Carriers, 156 ; Schouler on Bailments and Carriers, 156. Jaggard, 1066 ; Bishop, 1158 ; 2 Am. & Eng. Encyc. 803. (b) When does liability cease. KiEK V. Chicago, St. P., M. & 0. Ry. Co. Supreme Court of Minnesota, 1894. 60 N. W. Rep. 1084. Mitchell, J. This action was brought to recover the value of certain goods delivered by plaintiff to defendant, a common carrier, for transportation, and which were stolen while in de- fendant's possession. Both the place of shipment and the place of destination were on defendant's road. The goods were contained in a box and weighed seventy-five pounds, and were of the value of about $70. The plaintiff shipped the goods consigned to himself He did not reside, nor had he an agent, at the place of consignment, and his residence was unknown to the defendant. The car containing the box arrived at the place of destination about half-past six on Thursday evening, August 10, but the goods were never un- loaded from the car. The car was left " sealed," but not locked. The last that was seen of the goods was Saturday evening, when the defendant's agent saw them in the car. When plaintiff called for them, on Monday morning, it was discov- ered that some one had broken the seal of the car and stolen the box. It does not appear where the car was left standing, or whether it was at a place suitable for the delivery of goods to consignee. There was evidence that the " station " was open for the delivery of freight on Friday and Saturday from 7 A. M. to 6.30 p. M., but there is no evidence that this box was ready for delivery during that time, although it is, perhaps, fairly inferable from the circumstances that had plaintiff called for it on either of these days defendant's agent could and 608 NEGLIGENCE. would have gotten it for him out of the car. No reason was shown why defendant left the box in the car instead of placing it in the freight-room. It does not appear that the defendant had no freight-room, or that there was any necessity for keep- ing such portable packages in the car, or that there was any general custom at that station of delivering such packages from the car to the consignees. On this state of the evidence the Court directed a verdict for the plaintiff. The only question raised on this appeal is whether the de- fendant's liability as carrier had terminated when the goods were stolen, or, at least, whether, under the evidence, that question should not have been left to the jur3^ This Court has had occasion in at least three cases to consider somewhat at length the old and somewhat mooted question when and under what circumstances the peculiar liability of a common carrier as such may be terminated before the goods have passed into the possession or custody of the consignee : Derosia v. Eailroad Co., 18 Minn. 133 (Gil. 119) ; Pinney v. Railroad Co., 19 Minn. 251 (Gil. 211) ; Arthur v. Railroad Co., 38 Minn. 95, 35 N. W. 718. In the first of these cases it was held that if the consignee resides elsewhere than at or in the immediate vicinity of the place of final destination, has no agent there, and his residence is unknown to the carrier (which was this case), the carrier can place the goods in its freight-house, and after keeping them a reasonable time, if the consignee does not call for them, its liability as carrier ceases. We do not mean to lay down as an inflexible nile, applicable to all cases, that in order to terminate the carrier's liability the goods must be removed from the car and put into the carrier's freight-house. The nature of some kinds of goods, such as coal, lumber, and the like, precludes this. It is usual for the consignees them- selves to unload and carry away these kinds of freight directlj' from the cars. It is also true, as suggested by defendant's counsel, that there is nothing to prevent a carrier, at least under special circumstances, from using the car as its ware- house for the storage of freight. But in the case of portable ■ boxes and packages of valuable merchandise, we think that. KIRK V. CHICAdO, ST. P., M. * O. RY. CO. 609 Tinder any ordinary circumstances, public policy requires that it should be held the inflexible rule that in order to terminate the carrier's liability he must remove the goods from the car in which they were transported and place them for safe keep- ing in his freight-house. We will take notice of the fact that it is the general custom to do so with this class of goods, and to deliver them to the consignees from the freight-room, and not from the car. To allow the carrier to terminate his liability for such kinds of goods by any less formal and expressive act would be against public policy. The unloadiDg of cars may be and often is delayed for the mere convenience of the car- rier ; and to permit him in such cases to say that the cars constituted his warehouse for the time being, and that if the goods had been called for they would have been delivered to the consignee, and therefore he is not liable for their loss, would inaugurate a very dangerous rule. If the facts existed which had terminated defendant's liability as a common car- rier, the burden was on it to prove them, and this it certainly failed to do, even under the most favorable view of the law. The Court was right in directing a verdict for the plaintiff. We are by no means sure that this direction would not have been correct even conceding that defendant's liability was only that of a warehouseman ; for it would seem grossly negli- gent to leave a car containing portable packages of valuable merchandise unlocked, and merely fastened with a^stripof tin, called a " seal," which any one could easily remove. Order affirmed. National Line Co. v. Smart, 107 Pa. St. 492 ; Ostrander v. Brown, 15 John. 39; Smith v. R. E., 7 Foster, 86; Parker v. Flagg, 26 Me. 181 ; Stone v. Waitt, 31 Me. 409 ; Wood v. Crocker, 18 Wis. 345 ; Moore v. E. R., 3 Mich. 23 ; Constable v. National S. S. Co., 154 U. S. 51 ; Parker v. E. R., 30 Wis. 689 ; Moses v. E. E., 32 N. H. 523 ; Graff v. Bloomer, 9 Pa. St. 114 ; Ameri- can, etc., Co. V. Baldwin, 26111. 504 ; R. E. v. Sullivan, 14 Ga. 277 ; Hermann V Goodrich, 21 Wis. 43 ; Fenner v. E. E., 44 N. Y. 505 ; Wood v. E. R., 27 Wis. 541 ; Schouler on Bailments and Carriers, 48 et seq. ; Jaggard, 1069 ; Cooley, 642 ; 2 Am. & Eng. Encyc. 884 ; Wood's Brown on Carriers, 285 etteq. 39 610 NEGLIGENCE. (2) Carriers of live stock. Carriers of live stock are relieved from liability for injuries result- ing from the natural propensity of animals to injure themselves or each other. Evans v. Fitchbukg R. E. Co. Supreme Judicial Court of Massachusetts, 1872. Ill Mass. 142. ToET against common carriers to recover for injuries to the plaintiff 's horse. At the trial in the Superior Court, before Rockwell, J., the plaintiff offered evidence that he delivered to the defendants, to be carried on their road, two horses, which were kept and used as a span ; that he saw them placed and fastened by their halters at the end of a car in separate corners ; that when the horses arrived they were in the same position, but one was seriously injured on his hind legs, and his halter rope was hitched so tightly around his lower jaw as evidently to have caused him pain ; that the injuries were caused by kicks from the other horse ; and that the horses had been previously kind and well behaved. The defendants introduced evidence tending to show that the car was suitable for transporting horses ; that it was usual to fasten horses in the corners, as was done with these ; that the plaintiff fastened the horses, and that the defendants did not change the fastening, and knew of nothing peculiar about it. It appeared that the horses were shod, and the defendants offered testimony that although it was customary to transport horses in that condition, the owners for greater safety some- timeS had the shoes removed. The defendants, requested the Judge to instruct the jury " that if the defendants used due care, and provided a suitable car, and the injuries were caused by the peculiar character and propensities of the animals, such as fright or bad temper, the defendants were not liable ; and that if the injuries were caused by the fault or neglect of the plaintiff, or his agents, in attaching the halter rope to the horse's jaw, or in not remov- ing the shoes, the defendants were not liable." EVANS V. FITCHBURG R. R. CO. 611 The Judge declined so to instruct the jury, and instructed them as follows : " The defendants being common carriers, and the horses being intrusted to them as such, if there is legal ex- cuse for them in regard to the injury, the burden of proof is upon them to show it, it being proved that the injury hap- pened while the hoses were in transit. The defendants had the charge of stowage in their cars, and were responsible for the way the horses were put into the cars, unless there was some special agreement about the stowage, or unless the matter of placing and securing the horses in the cars was di- rected by the plaintiff. But there may be such an outburst of viciousness on the part of one of the horses, or both, oc- casioning the injury, as maj'^ relieve the defendants from lia- bility, and if the defendants have satisfied the jury that a proper disposition of the horses in the cars was made and proper precautions and care used by the defendants during the journey, and that the injured horse was attacked and kicked in the severe manner described by the evidence, in an out- burst of viciousness on the part of his mate, quite unusual in horses worked together, the jury may find the defendants not liable." The jury returned a verdict for the plaintiff, and the de- fendants alleged exceptions. Ames, J. According to the established rule as to the lia- bility of a common carrier, he is understood to guarantee that (with the well-known exception of the act of God and of public enemies) the goods intrusted to him shall seasonably reach their destination, and that they shall receive no injury from the manner in which their transportation is accomplished. But he is not, necessarily and under all circumstances, responsible for the condition in which they may be found upon their arrival. The ordinary and natural decay of fruit, vegetables, and other perishable articles ; the fermentation, evaporation, or unavoidable leakage of liquids ; the spontaneous combustion of some kinds of goods, are matters to which the implied ob- ligation of the carrier, as an insurer, does not extend : Story 612 NEGLIGENCE. on Bailments, §§ 492 a, 576. He is liable for all accidents and mismanagement incident to the transportation and to the means and appliances by which it is effected ; but not for in- juries produced by, or resulting from, the inherent defects or essential qualities of the articles which he undertakes to trans- port. The extent of his duty in this respect is to take all rea- sonable care and use all proper precautions to prevent such injuries, or to diminish their effect, as far as he can ; but his liability, in such cases, is by no means that of an insurer. Upon receiving these horses for transportation, without any special contract limiting their liability, the defendants in- curred the general obligation of common carriers. They thereby became responsible for the safe treatment of the animals from the moment they received them until the carriages in which they were conveyed were unloaded : Moffat v. Great Western Railway Co., 15 Law T. (N. S.) 630. They would be uncon- ditionally liable for all injuries occasioned by the improper construction or unsafe condition of the carriage in which the horses were conveyed, or by its improper position in the train, or by the want of reasonable equipment, or by any mismanagement, or want of due care, or by any other acci- dent (not within the well-known exception) affecting either the train generally, or that particular carriage. But the trans- portation of horses, and other domestic animals, is ]iot subject precisely to the same rules as that of packages and inanimate chattels. Living animals have excitabilities and volitions of their own, which greatly increase the risks and difficulties of management. They are carried in a mode entirely opposed to their instincts and habits ; they may be made uncontrollable by fright, or, notwithstanding every precaution, may destroy themselves in attempting to break loose, or may kill each other. If the injury in this case was produced by the fright, restiveness, or viciousness of the animals, and if the defend- ants exercised all proper care and foresight to prevent it, it would be unreasonable to hold them responsible for the loss : Clarke v. Rochester & Syracuse Railroad Co., 4 Kern. 570. Thus it has been held that if horses, or other animals, are EVANS V. FITCHBURG E. R. CO. 613 transported by water, and in consequence of a storm they break down the partition between them, and by kicking each other some of them are killed, the carrier will not be held re- sponsible : Laurence v. Aberdein, 5 B. & Aid. 107 ; Story on Bailments, § 576 ; Angell on Carriers, 214 a. The carrier of cattle is not responsible for injuries resulting from their vieiousness of disposition, and the question what was the cause of the injury is one of fact for the jury : Hall v. Renfro, 3 Met. (Ky.) 51. And in a New York case. Conger v. Hudson River Railroad Co. ,6 Duer, 375, Mr. Justice Woodruff says, in behalf of the Court : '' We are not able to perceive any reason upon which the shrinkage of the plaintiff's cattle, their disposition to become restive, and their trampling upon each other when some of them lie down from fatigue, is not to be deemed an injury arising from the nature and inherent character of the property carried, as truly as if the property had been of any description of perishable goods." It appears to us therefore that the first instruction which the defendants requested the Court to give should have been given. If the jury found that the defendants provided a suitable car, and took all proper and reasonable precautions to prevent the occurrence of such an accident, and that the damage was caused by the kicking of one horse by another, the defendants were entitled to a verdict. That is to say, they might be held to great vigilance, foresight, and care, but they were not ab- solutely liable as insurers against injuries of that kind. As there was evidence also tending to show that the halter was attached by the plaintiff to the jaw of one of the horses in a manner which might cause or increase restiveness and bad temper, and also evidence that their shoes were not taken off, the defendants were entitled to the instruction that if the in- juries were caused by the fault or neglect of the plaintiff in these particulars, he could not recover. This Court has re^ cently decided that for unavoidable injuries done by cattle to themselves, or each other, in their passage, the common carrier is not liable : Smith v. New Haven & Northampton Railroad Co., 12 Allen, 531. This is another mode of saying that a rail- 614 NEGLIGENCE. road corporation, in undertaking the transportation of cattle, does not insure their safety against injuries occasioned by their viciousness and unruly conduct : Kendall v. London & South- western Railway Co., L. R. 7 Ex. 373. The jury should therefore have been instructed that if the injury happened in that way, and if the defendants exercised proper care and fore- sight in placing and securing the horses while under their charge, they are not to be held liable in this action. Upon this point the burden of proof may be upon the defendants, but they should have been permitted to go to the jury upon the question whether there had been reasonable care on their part. It appears to us also that the instruction actually given was not a full equivalent for that which was requested, and which, as we have seen, should have been given. It was not neces- sary to the defense to show that the injury was caused in " an outburst of viciousness." The proposition should have been stated much more generally, and the jury should have been told that if from fright, bad temper, viciousness, or any other cause without fault on the part of the defendants, the horses became refractory and unruly, and the kicking and injury was occasioned in that manner, it was an unavoidable accident, for which the defendants were not liable. Exceptions sustained. BettB V. R. R., 60 N. W. 623 ; Lindsley v. R. R., 36 Minn. 539 ; R. E. v. Harman, 22 S. E. 490 ; Hall v. Renfro, 3 Mete. (Ky.) 51 ; Gabay v. Lloyd, 3 B. & C. 793, 10 E. C. L. 359 ; Mo. Pac. v. Fagan, 27 S. W. 887 ; aarke v. R. R., 14 N. Y. 571 ; Boehl v. R. R., 44 Minn. 191 ; R. R. v. Jurey, 8 111. App. 160 ; Lawrence v. Aberdein, 5 B. & Aid. 107, 7 E. C. L. 69 ; Minn. Stat. 1894, ii 2693, 2694, 6889 ; Jaggard, 1073 ; Cooley, 641 ; Wood's Brown on Carriers, 187 ; 3 Am. & Eng. Encyc. 8. SPELLMAN V. LINCOLN RAPID TRANSIT CO. 615 (3) Carriers of passengers. Carriers of passengers are bound to exercise extraordinary care and the utmost skill, diligence, and human foresight, and are liable for the slightest negligence. Spellman v. Lincoln Rapid Transit Co. Supreme Court of Nebraska, 1893. 36 Neb. 890 ; 55 N. AV. 270. Ragax, C. Thomas Spellman brought suit in the District Court of Lancaster Countj^, Nebraska, against the Lincoln Rapid Transit Company, alleging that it was a corporation owning and operating a street railroad in the city of Lincoln, and that on the 23d of May, 1890, while he, Spellman, was a passenger upon one of the transit company's cars, the defend- ant, its agents, and servants, so negligently and carelessly used, managed, and controlled the said car and the engine by which it was drawn, and so negligently and carelessly managed, used, looked after, and repaired said road and the tracks and switches connected therewith, that the car in which the plaintiff was carried, and the engine drawing the same, were allowed to run off the track ; that in consequence of the car running off the track plaintiff was thrown with great force and violence against the seat and the railing thereof in front of him, and then back on the seat and edges thereof behind him, and was thereby permanently injured, and that the plaintiff was careful and did not contribute to the injury in any degree whatever, and prayed for damages against the transit company. The answer of the defendant denied all negligence of itself or servants ; admitted that the car was derailed as claimed by the plaintiff; denied that the plaintiff's injuries were per- manent, and alleged that the plaintiff was suffering from a rupture of old and long standing. To this there was a reply, consisting of a general denial, by the plaintiff. There was a trial to a jury and a verdict for the transit company, and Spellman brings the case here on error. 616 NEGLIGENCE. On the trial it was admitted that the transit company was a corporation and engaged in the carrying of passengers for hire. There was no pleading or proof that Spellman was guilty of any contributory negligence whatever. The motive power of the cars was a dummy steam engine. The evidence in the record does not afford any precise explanation for the cause of the car's leaving the track. The trial Judge, at the request of the transit company, gave the jury the following instruction : " While it is the duty of the defendant, as a carrier of pas- sengers, to exercise proper care for their safety, yet the defend- ant is not an insurer of the safety of its passengers and not liable to them for injuries resulting from such defects in its means of transportation as could not have been guarded against by the exercise of care on its part, and which are not due in any way to negligence on its part. " The test of negligence in such cases is whether the defects ought to have been observed practically and by the use of ordinary and reasonable care." The giving of this instruction is here assigned for error. It will be observed that the test submitted by the learned Judge to the jury was whether the transit company used ordinary and reasonable care. The defendant in error was a common car- rier of passengers for hire, and the question to be determined in passing upon the correctness of this instruction is, what degree of care is due from a common carrier of passengers to its passengers ? In Rorer, Railroads, vol. 2, p. 1434, it is said : " For injuries occasioned by negligence, street railways are liable, as others are, upon common-law principles, and no more so." And on page 1436 the same authority says : " The company is bound to the highest degree of care and utmost diligence to prevent their (passengers) injury." To the same effect see Shearman & Redfield, Negligence, § 226. In Smith v. St. Paul City Street R. Co., 32 Minn. 1, th& Court say : " Street railway companies, as carriers of pas- sengers for hire, are bound to exercise the highest degree of SPELLMAN V. LINCOLN RAPID TRANSIT CO. 617 care and diligence consistent with the nature of their under- taking, and are responsible for the slightest negligence." In Sales v. Western Stage Coach Co., 4 la. 546, the rule is thus laid down : " Carriers of passengers for hire are bound to exercise the utmost skill and prudence in conveying their pas- sengers, and are responsible for the slightest negligence or want of skill in either themselves or their servants." See, also, Bonce V. Dubuque Street R. Co., 5 N. W. Rep. (la.) 177. In Derwort v. Loomer, 21 Conn. 245, the Supreme Court of that State laid down the rule thus : " In the case of common carriers of passengers, the highest degree of care which a reasonable man would use is required by law." This is also the doctrine of the Supreme Court of California. See Wheaton v. North Beach & M. R. Co., 36 Cal. 590, where it is said : " Passenger carriers, by their contract, bind them- selves to carry safely those whom they take in their coaches or cars, as far as human foresight will go ; that is, for the utmost care and diligence of very cautious persons." This is also the rule in New York. See Maverick v. Eighth Ave. R. Co., 36 N. Y. 378, where it is said : " Passenger car- riers bind themselves to carry safely those whom they take into their coaches, to the utmost care and diligence of very cautious persons." See, also, Carroll v. Staten Island R. Co., 58 N. Y. 126. This is also the doctrine of the Supreme Court of Colorado. See Denver, S. P. & P. R. Co. v. Woodward, 4 Col. 1. This is the doctrine of the Supreme Court of the United States. In Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 485, it is said : " When carriers undertake to convey persons by the powerful, but dangerous ageucy of steam, public policy and safety require that they be held to the greatest possible care and diligence." This doctrine is reaffirmed by the same Court in Steamboat New World v. King, 16 How. (U. S.) 469. See these cases cited and approved Indianapolis & St. L. R. Co. V. Horst, 93 U. S. 291, where the Court say, in reviewing the cases cited above : " We desire to reaffirm the doctrine, not only as resting on public policy but on sound principles of 618 NEGLIGENCE. law." They also cite New York C. R. Co. v. Lockwood, 17 Wall. (U. S.) 357, and quote and affirm that case as saying; " The highest degree of carefulness and diligence is expressly exacted." Continuing, the Court say : " The standard of duty should be according to the consequences that may ensue from carelessness. The rule of law has its foundation deep in pub- lic policy. It is approved by experience and sanctioned by the plainest principles of reason and justice. It is of great importance that Courts of justice should not relax it. The terms in question do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his business ; but it does emphatically require everything necessary to the security of the passenger, and reasonably consistent with the business of the carrier and the means of conveyance employed. " The rule, as gathered from the foregoing authorities, re- quires that a common carrier of passengers shall exercise more than ordinary care ; it requires the exercise of extraordinary care ; the exercise of the utmost skill, diligence, and human foresight ; and makes the carrier liable for the slightest negli- gence." It follows from the foregoing that the giving of the instruc- tion complained of was error. Spellman also assigns as error the giving by the Court below, at the request of the transit company, instructions Nos. 2 and 3. They are as follows : " 2. If the jury find from the evidence that the defendant ■constructed and laid its track in a proper manner, and had the same made safe and in good condition at the place of the accident complained of before it was put into use, and from time to time since, at reasonably short intervals, had the same inspected and repaired by competent track men, specially em- ployed for that purpose, and that the car upon which the plaintiflf was riding at the time of the accident was derailed without any fault or neglect of the person or persons in charge thereof for defendant, and the same is not shown to have been SPELLMAN V. LINCOLN RAPID TRANSIT CO. 619 caused by any defect in said road or car, then the plaintiff could not recover for any injuries caused thereby, and the jury should find for the defendant. " 3. Unless the jury find that the cause of the accident was some definite and proven, defect of defendant's road, engines, or cars, or negligence on the part of the defendant's employees in operating the same, and could have been avoided by exer- cise of proper care in inspection and repair and operation, then the jury will find for the defendant. The mere fact that the defendant's car left the track, and that plaintiff thereby sustained injurj^, is not sufficient to sustain a verdict for the plaintiff. To find a verdict for the plaintiff, the jury must find that the defendant was in some way negligent in the care of its track or the running of its train, and the accident was caused by such negligence." We shall consider these two instructions together. The Court, in effect, told the jury by these instructions that, though Spellman might have been injured by the derailing of the car, that fact did not raise a presumption of negligence against the transit company ; and, further, it put the burden on Spell- man of proving the particular cause of the derailment of the ear. In Rorer, Railroads, vol. 2, p. 1434, it is said : " In actions against . . . [street railways] for personal injuries caused by the cars leaving the track, the burden of proof is on the com- pany to show that there was no fault or want of care on its part." See the same doctrine in Patterson's Ry. Ace. Law, § 439. The Supreme Court of the United States in Stokes v. Salton- stall, 38 U. S. 181, decided : " In an action against the owner of a stage coach used for carrying passengers, for an injury sus- tained by one of the passengers by the upsetting of the coach, the owner is not liable, unless the injury of which the plaintiff complains was occasioned by the negligence or want of proper skill or care in the driver of the carriage. . . . The fact that the carriage was upset ... is prima facie evidence that there was carelessness or negligence or want of skill upon the part of 620 NEGLIGENCE. the driver, and casts upon the defendant the burden of proving that the injury was not occasioned by the driver's fault." This case was affirmed by the same Court in New Jersey R. Co. y. Pollard, 22 Wall. (U. S.) 341. In Cleveland, C. C. & I. R. Co. v. Walrath, 38 Ohio St. 461, the Supreme Court of Ohio thus announces the rule : " On proof of injury sustained by a passenger on a railroad train by the falling of a berth in a sleeping car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable ;" citing and affirming Iron R. Co. v. Mowery, 36 Ohio St. 418. The Supreme Court of Colorado, in Denver, S. P. & P. R. Co. V. "Woodward, 4 Colo. 1, adopted the rule in this language : " If a passenger is killed, in consequence of the overturning of a car, a presumption arises that the casualty was the result of negligence, but such presumption may be rebutted." The Supreme Court of Minnesota, in Smith v. St. Paul, C. & R. Co., 32 Minn. 1, formulates the rule as follows : " Where an injury occurs to a passenger through a defect in the construction or working or management of the vehicle, or anything pertaining to the service which the carrier ought to control, a presumption of negligence arises from the happen- ing of the accident, and upon such proof the burden will de- volve upon the defendant to exonerate himself by showing the existence of causes beyond his control, unless evidence thereof appears as part of the plaintiff's case." In the course of the opinion the learned Judge who deliv- ered it said : " The severe rule which enjoins upon the carrier such extraordinary care and diligence is intended, for reasons of public policj', to secure the safe carriage of passengers, in so far as human skill and foresight can effect such results. From the application of this strict rule to carriers, it naturally follows that where an injury occurs to a passenger through a defect in the construction or working or management of the vehicle, or anything pertaining to the service which the carrier ought to control, a presumption of negligence arises. The rule is therefore frequently stated, in general terms, that negli- SPELLMAN V. LINCOLN RAPID TRANSIT CO. 621 gence on the part of the carrier may be presumed from the mere happening of the accident. The reason of the rule seems to be tliat from the very nature of things the means of proving the specific facts are more in the power of the carrier. The latter, owning the property and controlling the agencies, is presumed to have peculiarly within his own knowledge the cause of the accident, which he might be interested to with- hold, and might himself be unable to prove." Such is the doctrine of the Supreme Court of Illinois, as ex- pressed by that Court in Peoria, P. & J. R. Co. v. Reynolds, 88 111. 418, where it is said : " "Where a railway car is thrown from the track, whereby a passenger for hire is injured, the pre- sumption is that the accident resulted either from the fact that the track was out of order, or the train badly managed, or both combined, and the burden is on the companj^ to show it was not negligent in any respect." This is also the rule in Indiana. See Pittsburg, C. & St. L. R. Co. r. Williams, 74 Ind. 462. It is also the rule in New York. See Seybolt Adm'x V. New York, L. E. & W R. Co., 95 N. Y. 562. In Feital v. Middlesex R. Co., 109 Mass. 398, the action was against a street railway company for injuries resulting to plaintifif from an accident that happened while she was trav- eling on one of the defendant's cars. The plaintiff, to prove her case against the street car company, called the conductor and the driver of the car as witnesses, and they testified that the car ran off the track, one wheel inside and one outside the track ; that they, with others, left the car in question ; that there was no defect in the car, the wheels, or the track ; that the car was going about five miles an hour ; that when they lifted the fore wheels on the track everything was right and the car went on ; that the cars went over this place just before and just afterward without trouble, and they did not know what made the car run off. At the close of plaintiff's case, defendant requested a ruling that the plaintiff could not recover, because she had failed to show negligence on the part of the street railway company. This motion was overruled. The railway company then in- 622 NEGLIGENCE. troduced evidence that the road where the accident occurred had been gone over by their superintendent the day before the accident, and that there was no defect in it ; that the day after the accident he saw the place where it occurred, and that there was nothing the matter with the road then, and had not been since. The railway company then requested the Court to in- struct the jury as follows : "The plaintiff received her accident from the fact of the car's running off the track while traveling at a moderate rate. There is no evidence that the car was out of order. It is not claimed that the driver did anything wrong, or that the rails were before or then or afterward out of order. . . . Under these circumstances, the plaintiff cannot recover. That there was no evidence of any negligence on the part of the railway company ; that the burden of proof is upon the plaintiff ta show how the accident happened, and what was the particular negligence that caused the same ; and that unless the plaintiffs had done so, they could not recover." The trial Court refused to so instruct, and this refusal was as- signed as error. On appeal to the Supreme Court, it said : " On the trial of an action against a street railway corporation for injuring a passenger, proof that the injury was caused by a car's running off the track at a place where the track and the car were under the exclusive control of the defendants is sufficient to charge them with negligence, in the absence of any evidence that the accident happened without their fault." In the light of the foregoing authorities, the Court erred in giving the instructions complained of. In our review of this case we have not been unmindful of the suggestion of the counsel for defendant in error that the trial Court cured instruction No. 3 complained of by instruct- ing the jury, of his own motion : "A train of cars similar to that operated by the defendant is presumed to stay upon the track, and if such train should, for any reason, leave the track, the presumption is that it left the track through some fault of the defendants." It is not necessary to determine now whether this instruction conflicted with the ones complained of, nor SPELLMAN V. LINCOLN RAPID TRANSIT CO. 62S whether one cured the other. The greatest difficulty with the iustructiou complained of lies iu this : " Unless the jury find that the cause of the accident was some definite and proven defect of defendant's road, engine, or cars, or negligence on the part of the defendant's employees in operating the same, and could have been avoided by the exercise of proper care in inspection, repairing, and operation, then the jury will find for the defendant." Here the jury were told, in effect, that the burden was on the plaintiff below to prove the cause of the derailment. This is not the rule. There is no claim by any one, nor is there a word of evidence, that Spellman was guilty of any negligence whatever. The transit company was a common carrier of passengers. Spellman was a passenger on its train. The car on which he was riding was derailed. He alleged he was injured thereby, and there was evidence to sup- port the allegation. He alleged that the derailment of the car was through the carrier's negligence. The law by pre- sumption supplied that proof for him. This was enough. The burden was then on the carrier to rebut this presumption of negligence by showing that it was produced by causes wholly beyond its control, and that it had not been guilty of the slightest negligence contributing thereto, and that, by the exercise of the utmost human care, dihgence, and foresight, the casualty could not have been prevented. The judgment of the District Court is reversed, and the cause remanded, with instructions to the Court below to grant the plaintiff in error a new trial. Reversed and remanded. Meier v. E. E., 64 Pa. St. 225 ; Bowen v. E. E., 18 N. Y. 408 ; Johnson v. E. E. 11 Minn. 296 ; Maury v. Talmadge, 2 McLean, 157 ; Hall v. Steam- boat Co., 13 Conn. 319 ; E. E. v. Horst, 93 IJ. S. 291 ; Derwort v. Loomer, 21 Conn.' 245 ; E. E. v. Lewis, 145 111. 67 ; Willcock v. E. E., 166 Pa. St. 184 Watson V. St. Paul Ey. Co., 42 Minn. 46 ; . Carroll v. E. E., 58 N. Y. 126 Maverick v. E. E., 36 N. Y. 378 ; Caldwell v. Steamboat Co., 47 N. Y. 282 Wheaton o. E. E., 36 Cal. 590; Edwards v. Lord, 49 Me. 279; Frink ?). Potter 17 111. 406 ; E. E. v. Byrum, 153 111. 131 ; Frink v. Coe, 4 Greene (la ) 555; O'Connell v. R. E., 106 Mo. 482; E. E. v. Thompson, 56 111. 138 ; Minn. Stat. 1894, M 401, 402, 2702, 19.50, 7708 ; Jaggard, 1083 ; Bishop, 1064 • Cooley, 642 ; 2 Amer. & Eng. Encyc. 745 ; Wood's Brown on Carriers, 492-497 ; Schouler on Bailments and Carriers, 652. 624 NEGLIGENX'E. And this liability extends to the safe condition and construction of approaches for passengers. Delaware, L. & W. R. Co. v. Trautwein. Court of Errors and Appeals of New Jersey, 1890. 52 ]S'. J. L. 169 ; 19 Atl. 178. Depue, J. Emma Trautwein, the defendant in error, on Sunday, the 11th of September, 1887, was a passenger on a train of the Delaware, Lackawanna & Western E-ailroad Com- pany from New York city to Lyndhurst, New Jersey. She took passage in the company's train, leaving New York at nine o'clock in the evening, and reached Lyndhurst about 9.35 p. m. She alighted from the train, and in leaving the station to reach the street fell over some railroad ties and received injuries for which this suit was brought. On a verdict for the plaintiff below, and judgment thereon, this writ of error was brought, and errors assigned upon the rulings of the trial Judge. The Act concerning vice and immorality provides that no traveling, worldly employment, or business, ordinary or servile labor or work, either upon land or water (works of necessity and charity excepted), shall be done, performed, or practiced by. any person or persons within this State on Sunday. The penalty prescribed for violating this statute is the forfeiture of $1 for every such offense, to be recovered upon conviction and paid for the use of the poor of the township in which the of- fense was committed : Rev., p. 1227, § 1. The section con- tains a proviso that it should be lawful for any railroad com- pany in the State to run one passenger train each way over its road on Sunday for the accommodation of the citizens of the State. This proviso has the effect, not only to give the com- pany a right to run the specified trains on Sunday, but also confers the right upon the citizen to use such trains for ordi- nary travel : Smith v. New York, Susquehanna & Western R. R. Co., 17 Vroom, 7. As between the company and a pas- senger on its train, it would seem that the latter would have the right to assume that the train on which he is received as a DELAWARE, L. & W. R. CO. ('. TRAUTWEIN. 625 passenger is the train run under the protection of the proviso, whatever effect the duplication of the trains might have m subjecting the company to the penalty. There is also some «vidence that the purpose of the plaintitf in going to New York on that day was to obtain from a physician a prescription and get medicine for her mother, a purpose that would probably ex- empt the plaintiff from the penalty prescribed by the Act. But an instruction to the jury put on record in the bill of exceptions, put the plaintiff 's case on a broader ground. The trial Judge assumed that the company was running this train in violation of the statute, and that the plaintiff was also traveling- in violation of the statute, and instructed the jury that these cir- cumstances did not debar the plaintiff of her right to recover. If this proposition be sound, it will not be necessary to con- sider the rulings of the trial Judge in construing the proviso, and with respect to the purpose of the plaintiff's journey on that day or her right to recover. In Massachusetts, Maine, and Vermont, it has been held adversely to the legal proposition adopted by the trial Judge. In the federal Courts, and in the Courts of other sister States, the decisions have been in accordance with the ruling of the trial Judge. A contract to carry, made on Sunday, or to be performed on Sunday, is, by force of the statute, illegal and void. No action could be maintained for the breach of such a contract, nor for services performed under it, where the right of action rests ex- clusively upon a contract, express or implied : Reeves v. Butcher, 2 Vroom, 224. It is also clear that a plaintiff will fail, where, to make a cause of action, he is compelled to rely upon an illegal contract. But the duty of persons en- gaged in these public employments to safely and securely carry is independent of contract. It is a duty imposed by law from considerations of public policy, and arises from the fact that persons or property are received in the course of the business of such employments : Marshall v. York, Newcastle & Ber- wick R. R. Co., 11 C. B. 655 ; Martin v. Great Indian R. R. Co., L. R., 3 Exch. 9 ; Gladwell v. Steggall, 5 Bing. (N. C.) 40 626 NEGLIGENCK. 733 ; Pippin v. Sheppard, 11 Price, 400 ; Carroll v. Staten Island R. R. Co., 58 N. Y. 126. In Austin v. Great Western R. R. Co., L. R., 2 Q. B. 442, a suit was brought against a rail- road company by a child three years and two months old. The plaintiff's mother, carrying the plaintiff in her arms, took a ticket for herself, but not for the child, for passage on the defendant's railway. In the course of the journey an accident happened, and the plaintiff's leg was broken. In a suit for this injury, the defendants contended that they were under no contract with the plaintiff, and that they carried the plaintiff without any hire or fare paid for carrying him. The action was held to be maintainable. Blackburn, Justice, said, that " the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but the fact of his being a passenger casts a duty on the company to carry him safely." The English cases to this effect are cited and commented on in Foulkes v. Met. Dist. R. R. Co., 5 C. P. Div. 157, 169. The rule maybe considered as settled, that a railroad company, having accepted a passenger, is under an obligation to take due and reasonable care for his safety, and that that obligation arises by implication of law independent of contract. To give the plaintiff a standing in Court to sue for the injury, she has no need of the aid of a contract which was illegal. Nor was the plaintiff's violation of the Sunday law, in a legal sense, the cause of her injury. It was only the occasion for an injury by the defendant's wrongful act, and hence her wrong-doing did not contribute to the injury in such a sense as to deprive her of her right of action ; it was merely a con- dition, and not a contributory cause of the injury. Thus, in White V. Lang, 128 Mass. 598, it was held that if a person, while unlawfully traveling on Sunday, is injured by the assault of a dog, the act of traveling was not a contributory cause of the injury, and that he could, notwithstanding his own viola- tion of the law, maintain his action against the owner of the dog. In sustaining the suit, the Court said : " If a person, who is at the time acting in violation of the law, receives an DELAWARE, L. & W. R. CO. V. TKAUTWKIN. C"27 injury caused by the wrongful or negligent duty of another, he may recover therefor if his own illegal act was merely a con- dition, and not a contributory cause of the injury. ... It is true that if he were not traveling he would not have received the injury, but the act of traveling is a condition, and not a contributory cause of the injury." The 92d section of the Eoad Act (Rev., p. 1012) provides that all wagons and other wheel carriages of every kind or de- scription, traveling or passing on the highways within this State, belonging to residents therein, shall track on the ground not less than four feet and ten inches, under the penalty of $5 for each offense, to be recovered, one moiety of which is to be paid to the overseer of the highways and the other to the in- former. The penalty in this statute, like that in the Sunday law, is prescribed for the purpose of prohibition, and not revenue, and a citizen traveling a public highway with a wagon of a narrower track than that named in the statute is engaged in violating the law. In some parts of this State the use of pleasure and business wagons of the New York gauge, which is narrower than that of our statute, is quite common. In collision cases on public highways, or at railroad crossings, the defense that plaintiff is debarred of his action on the ground of contributory negligence, for the reason that the wagon which he was driving did not conform- to the statutory gauge, has never occurred to counsel, who are usually astute in discovering grounds of defense under the doctrine of con- tributory negligence. In my experience it has never been thought worth while to inquire in such cases as to the track of the wagon injured or destroyed in such a collision, and a defense on that ground would oliviously receive no consideration. The cases sustaining the ruling of the trial Judge on this liead are numerous. They are cited and approved by leading text-writers in discussing this subject : Bish. Non-Cont., §§ 63, 04 ; 2 Wood Railw., § 318 ; Beach Con. Neg., § 81 ; Cooley, Torts (2d ed.), 178 (155) et seq. and notes. On principle, as well as by the weight of authority, the ruling of the trial Judge was correct. 628 NEGLIGENCE. The station at which this accident happened was located upon an embankment elevated above the public road, which crosses the railroad under a bridge carrying the railroad over the public road. The company had a depot building for the reception of passengers on a level with the track on the north side of its track. At the west end of this building there were steps, for the accommodation of passengers, leading down to the public road. On the south side of the embankment tliere was a stairway, leading also to the public road, built by private persons residing in that neighborhood for their own convenience, and used by passengers as a means of access to and from the station. The company did not construct or keep the stairway in repair. The stairway rested against the em- bankment of the railroad ; it was on the company's grounds and led to the public street. From the depot building to the top of the stairway there was a gravel walk, and the em- ployees of the company testified that the passage was kept free and opened and unobstructed. It was, apparently, a way pro- vided as a means of access to and from the company's depot grounds. On the occasion when the plaintiff received her injury, the train reached the station at nine thirty-five. The night was dark and stormy. There is no light in or about the depot building, and no person there to direct passengers as to the way to leave the depot grounds. The plaintiff, in crossing the tracks on her way to the stairway, fell over some timber and received the injury for which she sues. The plaintiff testified that the only time she was at that depot before that night she used this stairway, and that she knew of no other passage to or from the depot. The Judge submitted to the jury the question whether the plaintiff was justified in using this way out from the depot, in this language : " Did the plaintiff do right in taking this way out ? That depends upon the question. Whether this way of passage was there by the recognition, procurement, or assent of the company as a means for the entrance and exit of pas- sengers. Proof of such approval by the compaiiy, or of its DELAWARE, L. & W. R. CO. V. TEAUTWElA. 629 recognition, need not be made by any resolution or declaration of the company, or of its agents. If, to persons of ordinary understanding and discernment, it appeared to be such a way, and by the company it was allowed to remain and be in use by passengers going to or from trains, any one going to and from a train as a passenger was authorized to make use of it. If the company permitted it to be done openly, so that persons of reasonable judgment and discernment would conclude it to be a means of entrance and exit, then any passenger was au- thorized to take it and use it. It is submitted to you as a question of fact, whether, to an ordinar}' observer, this was held out as one of the passage-ways from the depot to the public street. If so, anj'^ passenger, unwarned, might use it as such. If you should so find, it is entirely immaterial who built the stairway, or who kept it in repair." The duty of a railroad companj^, as a carrier of passengers, does not end when the passenger is safely carried to the place of his destination. The company must also provide safe means for access to and from its station for the use of passen- gers, and passengers have a right to assume that the means of access provided are reasonably safe. If there be two ways, one of which is faulty in construction or repair, a passenger using it, and injured by its faulty condition, will not be debarred of his action, although the other, which he might have used, was safer : Longmore v. Great Western R. R. Co., 19 C. B., N. S., 183. A company having provided one safe and convenient way of ingress and egress to and from its station may, as con- tended for by the company's counsel, suffer private persons for their own convenience to have and use another way of access across its depot grounds, and it may be that those who use such a way will do so at their peril if they have notice of the private character of the way. But that is not this case. Tlie passage-way taken by the plaintiff led to the public street, and had every indication of having been provided for use by the public, as a way to and from the station. Under the charge of the Court and the finding of the jury, it must be taken to be the fact that this way of passage was there by recogni- 630 NEGLIGENCE. tion, procurement, or consent of the company, and that by sufferance and use it had obtained such an appearance of a passage-way passengers were invited to use, and that persons of reasonable judgment and discernment would conclude it to be a ineans of entrance and egress. It was of a passage-way having these characteristics that the Judge said that it was im- material who built the stairway or who kept it in repair. In Beard v. The Connecticut & Pass. Rivers R. R. Co., 48 Vt. 101 ; s. c, Am. Ry. Rep. 375, there was a stairway for passengers through the company's depot building, and also a stairway at each end of the passenger platform. The stairway at the north end was opened at the top, and there was nothing to indicate that it was not for the use of passengers. In fact, that stairway was built by an express company, and was used exclusively by the express company for removing express freight, and opened into the street, over a platform for loading and unloading express wagons. The plaintiff, a passenger, in attempting to pass down the stairway in the dark, fell and was injured. For this injury she sued the railroad company. The defendant's counsel requested the trial Judge to charge the jury that the plaintiff could not recover unless she showed that the lower platform, in stepping from which she was in- jured, was on the defendant's premises. The Court declined to so instruct the jury, but told the jury that the plaintiff, to recover, must establish that the company was guilty of negli- gence in leaving the stairway, where it left the upper plat- form, open, and without any guard or notice to warn passen- gers that the stairway was not to be used as a way of passage to the street below, and that she was injured by such negli- gence or want of care on the part of the defendant without any neglect or want of care on her part contributing to the injury. This instruction was held to be correct. The Court, in sus- taining the instruction of the trial Judge, speaking of the like- lihood of a stranger to regard that stairway as designed to furnish a safe way of getting to the street, said : " If not so designed, and it was unsafe to a stranger for such a purpose in the darkness, it was the duty of the defendant to forefend DELAWARE, L. & W. K. CO. V, TEAUTWEIN. 631 against injurj- by closing up the head of the stairs, or by noti- fyii^^g in some effectual way against using those stairs for getting to the street. ... In view of the unquestionable law, the request to which the exception was taken seems frivolous. The open stairs on the margin of the platform led the plaintiff, without fault on her part, to the point of harm. . . . The fact that the bottom of the pitfall on which the plaintiff" landed, and thereby received hurt, was beyond the line of ownership of the defendant, neither relieved the duty nor mitigated the fault of the defendant." In the case in hand contributory negligence by the plaintiff was negatived by the jury. The case is here solely on 'the use of the passage-way by the plaintiff' and the duty of the com- pany with regard to its condition and safety. We think the instruction of the trial Judge on that subject was correct. A passage-way having the characteristics mentioned by the Judge became, by the company's act, a passage-way which pas- sengers were invited to use, with respect to which the company was under a duty to have it kept reasonably safe for use. A passenger using the way under such an invitation was not bound to inquire by whose contributions the stairway was erected or maintained. Nor was the company absolved from its duty in the premises by the fact that it erected and main- tained at its own expense another way of exit. The other exceptions on the record have been examined. We find no error in the conduct of the trial, and the judgment should be affirmed. T. & P. E. R. r. McLane, 32 P. W. 776 ; Gilniore v. P. & R. R. R. Co., 154 Pa. Sr. ?,7o ; Quimby v. B. & M. R. R. Co., 69 Me. 340 ; Falls )'. R. R., 97 Cal. IH ; Bennett r. R. R., 102 U. S. 577 ; Tobin v. R. R., 59 Me. 183 ; C. & N. R. R. '. Fillmore, 57 111. 265 ; R. R. r. Thornsbury, 17 S. W. 521 ; Buene- mann v. R. R., 32 Minn. 390; Dobiecki r. Sharp, 88 N. Y. 203; C. R. v. Martin, 112 111. 16; L. & N, R. R. ;-. AVolfe, 80 Ky. 82; Fullerton v. For- . Eoss, 124 Mass. 44 ; E. E. v. Jones, 95 U. S. 439 ; Priest v. Nichols, 116 Mass. 401 ; Hughes c. Muscatine, 44 la. 672 ; R. E. v. Wylie, 26 S. W. 85 ; Jalie v. Car- dinal, 35 Wis. 118 ; Johnson t: Whitofield, 18 Me. 286 ; Fox !'. Glastenbury, 29 Conn. 204 ; Williams i: Clinton, 28 Conn. 263 ; Gray v. Scott, 66 Pa. St. 345; Jaggard, 91)2 ; Bif-hop, 469 et seq.; Cooley, 675 ; Bigelow, 337-9 ; 2 Thompson on Negligence, 1149, 1104, 1129. (2) The absence of ordinary care must have been the direct and proximate cause of the injury. Sutton v. Wauwatosa. Supreme Court of Wisconsin, 1871. 29 Wis. 21. Action against a town to recover damages for injuries to plaintiff's cattle, caused by the breaking down of a defective bridge which they were crossing. The plaintiff started from Columbus on a Friday morning with a drove of about fifty cattle, intending to take them to Milwaukee, and sell them. Stopping at Hartland over Satur- day night, he resumed his journey on Sunday morning, and 644 CONTRIBUTORY NEGLIGENCE. at about four o'clock p. m. reached a public bridge of about seventy-two feet span, over tlie Menomonee River, in the town of Wauwatosa. The cattle were driven upon the bridge, and when the greater part of them were near the middle of the span the stringers broke, some twelve feet from the abut- ments at each end, and precipitated the structure, with the cattle upon it, into the river, causing the death of some, severely injuring others, and rendering the remainder, for a time, unsalable. The complaint alleges that the injury was caused by the dangerous, unsafe, and rotten condition of the bridge, and the neglect of the defendant to keep it in proper repair. The answer denies the negligence charged to the defendant, and alleges that the cattle were driven upon the bridge in so careless and negligent a manner as to cause it to break ; and, also, that they were so driven upon the bridge on Sunday. After hearing the evidence on the part of the plaintiff, the Court granted a non-suit, on the ground that the plaintiff, be- ing in the act of violating the statute prohibiting the doing of secular business on Sunday, when the injury occurred, could not recover therefor. The plaintiff appealed. Dixon, C. J. It is very clear that the plaintiff, in driving his cattle along the road and over the bridge to a market, on Sunday, "was at the time of the accident in the act of violating the provisions of the statute in this State, which prohibits, under a penalty not exceeding $2 for each offense, the doing of any manner of labor, business, or work on that day, except only works of necessity or charity : R. S., c. 183, § 5. It was upon this ground the noii-suit was directed by the Court below, and the point thus presented, that the unlawful act of the plaintiff was negligence, or a fault on his part contributing to the injury, and which will preclude a recovery against the town, is not a new one; nor is the law, as the Court below held it to be, without some adjudications directly in its favor, and those by a judicial tribunal as eminent and much re- spected for its learning and ability as any in this country : SUTTON T. WAUWATOSA. 645 Bosworth v. Swansey, 10 Met. 363 ; Jones v. Andover, 10 Allen, 18. A similar, if not the \evy same, principle has been main- tained in other decisions of the same tribunal : Gregg v. Wy- man, 4 Cush. 322 ; May v. Foster, 1 Allen, 408. But in others still, as we shall hereafter have occasion to observe, the same learned Court has, as it appears to us, held to a different and contradictory rule in a class of cases which it would seem ought obviously to be governed by the same principle. The two first above cases were in all material respects like the present, and it was held there could be no recovery against the towns. In the first, the opinion, delivered by Chief Justice Shaw, and which is very short, commences with a statement of the proposition, repeatedly decided by that Court, "that to maintain the action it must appear that the accident was occa- sioned exclusively by the defect of the highway ; to establish which it must appear that the plaintiff himself is free from all just imputation of negligence or fault." The authorities to this proposition are cited, and the statute against the pursuit of secular business and travel on the Lord's day then referred to, and the opinion proceeds : " The act of the plaintiff, there- fore, in doing which the accident occurred, was plainly un- lawful, unless he could bring himself within the excepted cases ; and this would be a species of fault on his part which would bring him within the principle of the cases cited. It would show that his own unlawful act concurred in causing the damage complained of." This is all of the opinion touch- ing the point under consideration. In the next case there was a little, and but a little, more eflFort. at reasoning upon the point. The illustrations on page 20 of negligence in a railway company in omitting to ring the bell of the engine or to sound the whistle at the crossing of a highway, and of the traveler on the wrong side of the road with his vehicle at the time of the collision, and the language of the Court alluding to such " conduct of the party as con- tributing to the accident or injury which forms the ground- work of the action," very clearly indicate the true ground upon which the doctrine of contributory negligence, or want of due 646 CONTRIBUTORY NEGLIGENCE. care in the plaintiff rests, but it is not shown how or why the mere violation of a statute by the plaintiff constitutes such ground. Upon this point the Court only say : " It is true that no direct unlawful act of omission or commission by the plaintiff, done at the moment when the accident occurred, and tending immediately to produce it, is offered to be shown in evidence. But it is also true that, if the plaintiff had not been engaged in the doing of an unlawful act, the accident would not have happened, and the negligence of the defend- ants in omitting to keep the road in proper repair would not have contributed to produce an injury to the plaintiff. It is the disregard of the requirements of the statute by the plain- tiff, which constitutes the fault or want of due care, which is fatal to the action." It would seem from this language that the violation of the statute by the plaintiff is regarded only as a species of remote negligence, or want of proper care on his part, contributing to the injury. The two other cases above cited were actions of tort by the owners, to recover damages from the bailees for injuries to personal property loaned and used on Sunday — horses loaned and immoderately driven on that day. They were decided against the plaintiffs, and chiefly on the ground of the unlaw- fulness of the act of loaning or letting on Sunday of the horses, to be driven on that day in violation of the statute, which the plaintiffs themselves were obliged to show, and the doctrine of ^ar delictum was applied. It was in substance held in each case that the plaintiff, by the first wrong committed by him, had placed himself in pari delicto with the defendant, with respect to the subsequent and distinct wrong committed by the latter, and the actions were dismissed upon the prin- ciple that the law will not permit a party to prove his own illegal acts in order to establish his case. In direct opposition to the above decisions are the numerous cases decided by the Courts of other States, the Supreme Court of the United States, and the Courts of Great Britain, which' have been so diligently collected and ably and forcibly pre- sented in the brief of the learned counsel for the present plain- SUTTON V. WAUWATOSA. 6'17 tiff. Of the cases thus cited, with some others, we make particular note of the following : Woodman v. Hubbard, 5 Foster, 67; Molmey v. Cook, 26 Pa. St. 342; Norris v. Litch- field, 35 N. H. 271; Corey r. Bath, lb. 530; Merritt v. Earle, 29 X. Y. 115 ; Bigelow v. Reed, 51 Maine, 325 ; Hamil- ton c. Cloding, 55 lb. 428 ; Baker v. The City of Portland, .".8 Ih. ; Kerwhacker v. Railway Co., 3 Ohio St. 172; Phila., etc.. Railway Co. v. Phila., etc., Tow Boat Co., 23 How. (U. S.) 209 ; Bird v. Holbrook, 4 Bing. 628 ; Barnes v. Ward, 9 M. G. & S. 420. It seems quite unnecessary, if, indeed, it were possible, to add anything to the force or conclusiveness of the reasons assigned in some of these cases in support of the views taken and deci- sions made by the Courts. The cases may be summed up and the result stated generally to be the affirmance of two very just and plain principles of law as applicable to civil actions of this nature — namely, first, that one party to the action, when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to him- self nor to his injury, and not necessarily connected with or leading to or causing or j^roducing the wrongful act complained of; and, secondly, that the fault, want of due care, or negli- gence on the part of the plaintiff, which will preclude a recovery for the injury complained of, as contributing to it, must be some act or conduct of the plaintiff having the rela- tion to that injury of a cause to the effect produced by it. Under the operation of the first principle, the defendant cannot exonerate himself or claim immunity from the consequences of his own tortious act, voluntarily or negligently done to the injury of the plaintiff, on the ground that the plaintiff has iieen guilty of some other and independent wrong or violation of law. Wrongs or offenses cannot be set off against each other in this way. " But we should work a confusion of rela- tions, and lend a very doubtful assistance to morality," say the Court in Mohney v. Cook, " if we should allow one offender against the law to the injury of another to set off against the 648 CONTRIBUTORY NEGLIGENCE. plaintiff that he too is a public offender." Himself guilty of a wrong, not dependent on nor caused by that charged against the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the State, and thus to impose upon him a })eualty many times greater than what those laws prescribe. Neither justice nor sound morals require this, and it seems contrary to the dictates of both that such a defense should be allowed to prevail. It would extend the maxim, ex turpe causa non oritur actio, beyond the scope of its legitimate application, and violate the maxim equally binding and wholesome, and more extensive in its operation, that no man shall be per- mitted to take advantage of his own wrong. To take advan- tage, of his own wrong, and to visit unmerited and over- rigorous punishment upon the plaintiff, constitute the sole motive for such defense oa the part of the person making it. In the cases of the horses let to be driven on Sunday, so far as the owners were obliged to resort to an action on the contract which was executory and illegal, of course there could be no recovery ; but to an action of tort, founded not on the con- tract, but on the tort or wrong subsequently committed by the defendant, the illegality of the contract furnished no defense, as is clearly demonstrated in Woodman, v. Hubbard, and the cases there cited. The decisions under the provision of the Constitution of this State abolishing imprisonment for debt arising out of or founded on a contract express or implied, and some others in this Court, strongly illustrate the same distinc- tion : In re Mowry, 12 Wis. 52, 56, 57 ; Cotton v. Sharpstein, 14 Wis. 229, 230 ; Schennert v. Koehler, 23 Wis. 523, 527. And as to the other principle that the act or conduct of the plaintiff, which can be imputed to him as a fault, want of due care, or negligence on his part contril.)uting to the injury, must have some connection with the injury as cause to effect, this also seems almost too clear to require thought or elaboration. To make good the defense on this ground, it must appear that a relation existed between the act or violation of law on the SUTTON V. WAUWATOSA. 649' part of the plaintiff, and the injui-y or accident of which he complains, and that relation must have been such as to haVe caused or helped to cause the injurj- or accident, not in a re- mote or speculative sense, but in the natural and ordinary course of events as one event is known to precede or follow another. It must have been some act, omission, or fault naturally and ordinarily calculated to produce the injury, or from which the injury or accident might naturally and reason- abl}' have been anticipated' under the circumstances. It is obvious that a violation of the Sunday law is not of itself an act, omission, or fault of this kind, with reference to a defect in the highway or in a bridge over which a traveler may be- passing, unlawfully though it may be. The fact that the traveler may be violating this law of the State has no natural or necessary tendency to cause the injury which may happen to him from the defect. All other conditions and circum- stances remaining the same, the same accident or injury would have happened on any other day as well. The same natural causes would have produced the same result on any other day,, and the time of the accident or injury, as that it was on Sun- day, is wholly immaterial so far as the cause of it or the ques- tion of contributory negligence is concerned. In this respect it would be wholly immaterial also that the traveler was within the exceptions of the statute, and traveling on an errand of necessity or charity, and so was lawfully upon the highway. The mere matter of time, when an injury like this takes place, is not in general an element which does or can enter at all into the consideration of the cause of it. Time and place are circumstances necessary in order that any event may happen or transpire, but they are not ordinarily, if they ever are, circumstances of cause in transactions of this nature. There may be concurrence or connection of time and place be- tween two or three or more events, and yet one event not have the remotest influence in causing or producing either of the others. A traveler on the highway, contrary to the provisions of the statute, yet peaceably and quietly pursuing his course,. 650 CONTRIBUTORY NEGLIGENCE. might be assaulted aiid robbed by a highwayman. It would be difficult in such case to perceive how the highwayman could connect the unlawful act of the traveler with his assault and robbery so as to justify or excuse them, or how it could be said that the former had any natural or legitimate tendency to cause or produce the latter. It is true, it might be said, if the traveler had not been present at that particular time and place, he would not have been assaulted and robbed, but that, too, might be said of any other assault or robbery committed upon him ; for if his presence at one time and place be a fault or wrong on his part, contributing to the assault and robbery in the nature of cause to effect, it must be equally so at every other time and place, and so always a defense in the mouth of the highwayman. Every highwayman must have his oppor- tunity by the passing of some traveler, and so, some one must pass over a rotten and unsafe bridge or defective highway be- fore any accident or injury can happen from that cause. Con- nection, therefore, merely in point of time, between the unlawful act or fault of the plaintiff and the wrong or omission of the defendant, the same being in other respects discon- nected, and independent acts or events, does not suffice to establish contributory negligence or to defeat the plaintiff's action on that ground. As observed in Mohney v. Cook, such connection, if looked upon as in any sense a cause, whether sacred and mysterious or otherwise, clearly falls under the rule causa proxima non remota spedatur. " The cause of an event," says Appleton, C. J., in Moulton V. Sanford, 51 Maine, 134, " is the sum total of the contin- gencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable se- quence of events subsists between one antecedent and one con- sequent. Ordinarily that condition is usually termed the cause, whose share in the matter is the most conspicuous and is the most immediately preceding and proximate to the event." In the present case the weight of the same cattle, upon the same bridge, either the day before or the day after the event SUTTON r. WAUWATOSA. 651 complained of, when the phiintifF would have been guilty of no violation of law in driving them, would most unquestion- ably have produced the same injurious result. And if, on that day even, the driving had been a work of necessity or charity, as if the city of Milwaukee had been in great part destroyed by fire, as Chicago recently was, and great numbers of her in- habitants in a condition of helplessness and starvation, and the plaintiff hurrying up his drove of beef cattle for their relief, no one doubts the same accident would then have hap- pened, and the same injuries have ensued. The law of grav- itation would not then have been suspended, nor would the rotten and defective stringers have refused to give way under the superincumbent weight, precisely as they did do on the present occasion. There are many other violations of law which the traveler or other person passing along the high- way may, at the time he receives an injury from a defect in it, be in the act of committing, and which are quite as closely connected with the injury, or the cause of it, as is the viola- tion of which complaint is made against the present plaintiff'. H.e may be engaged in cruelly beating or torturing his horse, or ox, or other animal ; he may be in the pursuit of game, with intent to kill or destroj^ it, at a season of the year when this is prohibited ; he may be exposing game for sale, or have it in his possession, when these are unlawful ; he may be in the act of committing an assault, or resisting an officer ; he may be fraudulently passing a toll-gate, without paying his toll : and he may be unlawfully setting or using a net or seine, for the purpose of catching fish, in an inland lake or stream. All of these are acts prohibited by the same chapter or statute in which we find the prohibition from work and labor on Sundaj^, and some of them under the same, but most under a greater penalty than is prescribed for that off'ense, thus show- ing the character or degree of culpability which was variously attached to them in the opinion of the Legislature. And there are many other minor off"enses, mala prohibita merely, created by statute, which might be in like manner committed. There are in Massachusetts, and doubtless in many of the 652 CONTRIBUTORY NEGLIGEXCE. States, statutes against blasphemy and profane cursing aiid swearing, the prevention of which seems to be equallj', if not more, an object of solicitude and care on the part of the Legis- lature than the prevention of labor, travel, or other secular pursuits on Sunday, because more severely punished. It has not yet transpired, we believe, even in Massachusetts, that the action of any person to recover damages for an injury sus- tained by reason of defects in a highway, has been peremp- torily dismissed because he was engaged at the time in pro- fane cursing or swearing, or because he was in a state of voluntary intoxication, likewise prohibited under penalty by statute. It is obvious that the breaking down of a bridge from th& rottenness of the timbers, or their inability to sustain tho weight of the person or of his horses and carriage, could not be effected by either of these circumstances, and yet, on the principle of the decisions above referred to in that State, it is not easy to see why the action must not be dismissed. On principle there could be no discrimination between the cases,, and it could make no difference in what the unlawful act of the plaintiff consisted at the time of receiving the injury. We must reject the doctrine of those cases entirely and adopt that of the other cases cited, and which is well expressed by the Supreme Court of Maine, in Baker v. Portland, 59 Maine, 199, 204, as follows : " The defendant's counsel contends that the simple fact that the plaintiff is in the act of violating the law, at the time of the injury, is a bar to the right of recovery. Undoubtedly there are many cases where the contemporaneous violation of the law by the plaintiff is so connected with his claim for damages as to preclude his recovery; but to lay down such a rule as the counsel claims, and disregard the dis- tinction in the ruHng of which he complains, would be pro- ductive oftentimes of palpable injustice. The fact that a party plaintiff in an action of this description was at the time of the Injury passing another wayfarer on the wrong side of the street, or without giving him half the road, or that he was traveling on runners without bells, in contravention of the SUTTON V. WAUWATOSA. 653 statute, or that he was smoking a cigar in the street, in viola- tion of municipal ordinance, while it might subject the offender to a penalty, will not excuse the town for a neglect to make its ways safe and convenient for travelers, if the commission of the plaintiff's offense did not in any degree contribute to pro- duce the injury of which he complains." Strong analogy is afforded and much weight and force of reason bearing upon this question are found in some of the cases which have arisen upon life policies, and as to the meaning and effect to be given to the condition usually contained in them, exempting the company from liability in case the assured " shall die in the' known violation of any law," etc., and it has been held that the violation must be such as is calculated to endanger life, by leading to acts of violence against, or to the bodily or personal injury or exposure of, the assured, and so to operate in producing his death in the con- nection of cause to effect. See opinions in Bradley v. Mutual Benefit Life Ins. Co., 44 N. Y. In the case of Clemens v. Clemens, recently decided by this Court, it became necessary to consider the same question, though under different circumstances as to what violation of law on the part of the plaintiff would bar his action in a Court of justice and leave him remediless in the hands of an over- reaching and dishonest antagonist, and the views there ex- pressed are not without their relevancy and adaptation to the question as here presented. In that case, this Court adopted the rule of law as settled in Massachusetts, favoring the remedy of the plaintiff, against the opposite rule sustained by the ad- judications in some of the other States, and consistency of decision seems now clearly to require that our action should be reserved with respect to the rule established by the cases here referred to. The inconsistency upon general principle be- tween these decisions of the same learned Court and those there relied upon and adopted will, we think, be readily perceived and conceded when carefully examined and considered in connection with each other. The other question presented on the motion for a non-suit, 654 CONTRIBUTORY NEGLIGENCE. and which the Court below did not decide, but which has been argued here, is one of more doubt and difficulty to our minds. It is, whether tlie plaintiff was guilty of contributory negli- gence in permitting so many cattle to go upon the bridge at one time. To sustain the non-suit on this ground, it is necps- sary for us to look at the facts in the most favorable light pos- sible for the plaintiff, in which the jury would have been at liberty to find them, and then to say that there was no evi- dence which would have justified a verdict in his favor, or such a clear and decided preponderance of evidence against him as would have required the Court to set aside a verdict finding to the contrary. This Court is not sufficiently familiar with the modes of constructing and using bridges upon countrj^ highways, the degree of strength required to render them ordinarily and reasonably safe and passable, the weight which they are expected or required to sustain, the care neces- sary in passing over them, and especially with herds of cattle or other animals, to say, with confidence in the correctness of its own judgment, upon the evidence before it, that the plain- tiff was guilty of such negligence. The evidence given throws little or no light upon these points, necessary to the formation of a correct judgment, and they are matters upon the evidence, when in, more properly to be considered by the jury, unless the evidence should be such, within the rule above stated, as to make it the duty of the Court to withdraw them from the consideration of the jury, and itself to determine the legal rights of the parties upon the truth of the facts thus assumed to be indisputably shown. By the Court. Judgment reversed, and a venire de novo awarded. Neanow /•. Uttech, 46 Wis. .581 ; R. R. v. Chambers, 68 Fed. 148 ; Mat- thews V. R. R., 23 S. E. 177 ; Parker v. R. R., 86 N. C, 221 ; High ». R. R., 112 N. C. S85 ; R. R. v. Moseley, 57 Fed. 921 ; John?.. Ottumwa, 60 la. 429- Tuffree v. State Center, 57 la. 538 ; Dofrgett v. R. R., 78 N. C. 305 ; R. R. v. Stallman, 22 Ohio St. 1 ; Jaggard, 975 ; Bishop, 459, 462 ; Cooley, 679 ; Pollock, 573 ; Bigelow, 332 ; 2 Thompson on Negligence, 1151. PREKR ET UX. V. CAMERON ET AL. 655 C Modification. In case the injured party had no knowledge of the danger, and could not have apprehended it by the exercise of ordinary care, he cannot be guilty of contributory negligence. Freer et ux. v. Cameron et al. Court of Appeals of South Carolina, 1851. 4 Richardson Law (0. S. ), 228. This was an action ou the case to recover damages on ac- count of an alleged injury to Mrs. Freer, from the negligence of the defendants. The testimony was as follows : Mrs. ^?in Henlin. — Witness lives on James's Island ; so do the plaintiffs ; was in the city in November, 1847, in company with Mrs. Freer. They went into the defendant's crockery store in Meeting Street ; it was a long store ; thinks it was ou the 11th of November ; no one in company with Mrs. Freer but witness ; went to purchase a butter dish. As she entered, asked the clerk, or person in attendance, for a butter dish ; was invited to go down the store, into the back part ; witness heard a crash behind her, turned around, saw a hole, down which Mrs. Freer had fallen. Mrs. Freer cried out " Lord !" The clerk helped her out. Witness, in going down the store, followed the clerk ; passed the place without seeing it. Mrs. Freer was coming in rear of witness, on her side. Mrs. Freer, when she fell, exclaimed, " Good Lord ! would no one tell me about this hole ?" Witness heard no notice that there was such a place ; the trap-door was off; the hole large enough to let the body of a person down. Some one said, " Send for a doctor ;" one came ; Dr. Robertson, who pronounced Mrs. Freer's arm frac- tured ; he tied up the arm in a sling. Mrs. Freer was confined to a bed in town, at a friend's house, and was attended by Dr. Phillips for three weeks or more ; she suffered very much ; had to be dressed and undressed ; could not help herself. 656 CONTRIBUTOllY NEGLIGENCE. , Oross-examined. — The hole was entirely open ; no covering ■on it. The day this happened was cloudy ; it was darker in that part of the store than in front ; witness's attention was •directed to the clerk ; saw but one gentleman there ; he went •down the place by a step-ladder, and got Mrs. Freer out. It was darker in that part of the store than elsewhere ; saw no windows but in the front part of the store; there wag room to walk beside this trap-door, had the place been pointed •out or known ; clerk said to witness, " Walk this way ;" wit- ness followed; he gave no notice or warning. Happened a,bout ten or eleven o'clock. Ofiria, per Withers, J. The first ground of appeal ques^ tions the liability of defendants, assuming that the evidence makes a case sustainable against some one. In all that occurred between Mrs. Freer and her companion, the only witness in this case, and the defendant's agent or clerk, the latter was acting strictly in the line of his employ- ment, in capacity of representative of his principals. If, there- fore, he was guilty of any negligence at all which was action- able, it must be, upon all reason and authority, such as involves the responsibility of the defendants. Nor is there any diffi- culty in the further objection advanced in the same ground, that the person and identity of the clerk was not established. Whatever might be his name, or other characteristic attending him, he was a person in charge of the establishment of defend- ants, it must be presumed (in the absence of adverse proof), with their knowledge and with their procurement. The evi- dence in this behalf must be enough to raise all the respon- sibilities that grow out of the relation of principal and agent. The second ground of appeal advances the position that the •conduct of Mrs. Freer manifested such degree of carelessness or want of circumspection — an absence of such ordinary caution as, in contemplation of law, should cause her to be re- puted the author of her own misfortune. We recognize the doctrine that if a party has been guilty of fault or negligence, not wanton and intended for mischief, and another, by his own FREER ET UX. V. CAMERON ET AL. 657 want of ordinarv caution, sliall suffer damage thereby, thfe law will not help to a recovory, for it will meet him with its own maxim, damimm abi<(jiie injuria. But there can be no sen- sible administration of these propositions in practice, unless we take into account nianj' circumstances that may varj"^ eacli particular case. The caution of prudence that we might well exact of one person, suffering damage from a particular cause, would not do justice to another complaining of a like injury, and arising in the same way. For instance if Mrs. Freer had known that the same incident had previously occurred to another at the same place ; if it were proved that she had a familiar knowledge of the premises ; if it were in evidence that she obtruded herself with an unusual and improper free- dom, instead of following t])e lead and invitation of the clerk (as the testimony is), and so forth, a jury might find in such circumstances material variations from the features of the case, as we have it. Very substantial variations might arise from the consideration of age, since we could not demand of a child the precaution and circumspection of mature years. There is something in the very fact that the place of disaster was a store, with the usual invitation to every customer to enter, with every attraction to look upwards, and not downwards. Now, who would ever dream that in such a place, in any part of it where articles were exhibited for examination and sale, an open pit was to be found, such as Mrs. Freer encountered? She would have had even more cause to apprehend that an overhanging chandelier might be so carelessly adjusted as to fall upon her in the middle of the room. We cannot discover in the evidence reported anything which makes the law cited for the defendants, and not disputed, available for their protection. It is next insisted that the defendants violated no law or right in another in maintaining a cistern in a retired part of their store ; and if injury, purely accidental, resulted from such legitimate exercise of the rights of property, there is no ground for redress. Let this be admitted. But what is our case? It is not the 42 658 CONTRIBUTORY NEGLIGENCE. cause of action that the defendants kept a cistern in one or other part of their store. The complaint is, and the evidence sustains it, that the entrance to the cellar (or cistern, if that was the structure), was left open, from the darkness of the day and place not readily discoverable, and that the complaining party fell in and was thereby damnified, while visiting a portion of the store, in conformity to the clerk's invitation. Surely these facts point to culpable carelessness on the part of the defendants only. While our law encourages the full ex- ercise of dominion over property by the proprietor, it incul- cates, in the same breath, the injunction, so use your own that you hurt not another. Vide Leslie v. Pounds, 4 Taunt. 649 ; Coupland v. Hardingham, 3 Camp. 398. As to the suggestion that there was here pure accident, it is enough to say that this cannot be, where on one side there was fault and negligence producing injury. In actions founded really upon tort (not meaning those so in form, but in reality, quasi ex contractu), we have no tribunal to adjust the damages, upon proof of the cause of action, except the jury. Neither in theory nor in practice is such the appro- priate function of this Court. , The motion must therefore be refused. Gray v. Scott, 66 Pa. St. 345 ; Langan v. R. R, 72 Mo. 392 ; Goodlander n. Standard Oil Co., 63 Fed. 400 ; R. R. v. Ward, 61 Fed. 927 ; Town v. Lind- quist, 37 N. E. 133 ; West v. Eau Claire, 61 N. W. 313 ; Ackert v. Lansing, 59 N. y. 646 ; Carleton v. Iron Co., 99 Mass. 216 ; Gilbert;;. Nagle, 118 Mass. 278 ; Pastene v. Adams, 49 Cal. 87 ; Jaggard, 965 ; 1 Thompson on Negli- gence, 308, 309. Note.— Plaintiff must be one to whom contributory negligence is im- putable. It is not imputable to (1) Persons non compos mentis : R. R. v. Gregory, 58 111. 226 ; Washington (. R. R., 17 W. Va. 190. Exception : Drunkenness being a voluntary state, contributory negligence may be imputed to the drunkard : Cassedy v. Stockbridge, 21 Vt. 391 ; Thorp V. Brookfield, 36 Conn. 320 ; Alger v. Lowell, 3 Allen, 402 : Pollock' 575. (2) Persons distracted by sudden peril : Wesley Coal Co. v. Healer. 84 HI. 126 ; City of Chicago v. Hesing, 83 111. 204 ; Karr v. Parks, 40 Cal. 188 ; Wilson V. R. R., 26 Minn. 278 ; Bigelow, 337 ; 2 Thompson on Negligence. 1092. LYNCH V. NURDIN. 659 One acting under a superior duty is not guilty of contributory negligence : Eckert c. Long Island Co., 43 N. Y. 502 ; Linnehan o. Sampson, 126 Mass. 506; Oottrill v. R. R., 47 Wis. 634. d The question of contributoiy negligence of children depends on their capacity. Lynch v. Nurdin. Court of Queen's Bench, 1841. 1 A. & E., N. S., 29 ; 41 E. C. L. 422. Case. The declaration stated that defendant, on, etc., was possessed of a cart, and of a horse then harnessed to the same. That defendant carelessly behaved and conducted himself in and about the management of the said cart and horse, and carelessly, negligently, and improperly left the said cart and horse in a certain common highway without anybody to take care of the same ; and the said cart and horse of defendant, by and through his carelessness, negligence, and improper con- duct in that behalf, then ran and struck with great force and violence against plaintiff, then lawfully being in the said highway, and then with great force, etc. ; various injuries were then stated, by means of which plaintiff became and was sick, lame, etc. Pleas, not guilty, and that defendant was not possessed of the cart and horse. Issues thereon. On the trial before Williams, J., at the sittings in Middle- sex, in Easter Term, 1839, it appeared that on the day in question defendant's cart was in Compton Street, Soho, under tlje charge of his carman ; that the carman went into a house, and left the horse and cart standing at the door, without any person to take care of them, for about half an hour ; that the plaintiff, who was a boy under seven years of age, and s'everal other children, were about the cart, and plaintiff, during the carman's absence, got upon it ; that another boy led the horse on ; and the plaintiff, who, at tlie time, was getting off the shaft, fell, and was run over by the wheel, and his leg was broken. The defendant's counsel contended that the learned 660 CONTRIBUTORY NEGLIGENCE. Judge ought to direct tlie juiy that there was no evidence iu support of the plaintifl^'s case, his own negligence having brought the mischief u])on him. Williams, J., refused to withdraw the facts from the consideration of the jury, and left it to them to say, first, whether it was negligence in the de- fendant's servant to leave the horse and cart for half an hour, in the manner described; and, secondly, whether that negli- gence occasioned the~ accident. Verdict for the plaintiff. In the same term (May 8) a rule nisi was obtained for a new trial, on the grounds of misdirection, and that the verdict was against evidence. In Michaelmas Term, 1840. Lord Denman, C. J., in this term (January 18), delivered the judgment of the Court. This case was tried before my brother Williams at the sittings in Easter Term, 1839. It was an action of tort for negligence by the defendant's servant, in leaving his cart and horse half an hour in the open street at the door of a house in which the servant remained during that period. The evidence for the plaintiff proved that, at the end of the first half-hour, he, a child of very -tender age, being between six and seven years old, was heard crying, and, on the approach of the wit- nesses, was found on the ground, and a wheel of the defend- ant's cart going over his leg, which was thereby fractured.' The defendant's counsel first applied for a non-suit. The learned Judge refused the application , and no question was made before us that these facts afforded prima facie evidence of the mischief having been occasioned by the negligence of the defendant's servant in leaving the cart and horse. Wit- nesses were then called to establish a defense by a fuller expla- nation of the facts that had occurred. They proved that, after the servant had been about a quarter of an hour in the house, the plaintiff and several other children came up, and began to play with the horse, and climb into the cart and out of it. While the plaintiff was getting down from it, another boy made the horse move, in consequence of which the plaintiflF fell, and his leg was broken as before mentioned. On this LYNCH V. NURDIN. 661 ■undisputed evidence (for there was no cross-examination of the witnesses) the defendant's counsel claimed the Judge's direction in his favor, contending that, as the plaintiff had obviously contributed to the calamity, it could not be said in point of law to have been caused by the negligence of the de- fendant's servant. My learned brother, however, thought himself bound to lay all the facts before the jury, and take their opinion on that general point. They found a verdict for the plaintiff. It is now complained that such direction was not given ; and at all events the jury are said to have given a verdict contrary to the evidence. The case came on in the new trial-paper last term, and has been fully argued before us. It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two other active causes, the advance of the horse in consequence of his being excited by the other boy, and the plaintiff's improper conduct in mounting the cart and so committing a trespass on the de- fendant's chattel. On the former of these two causes no great stress was laid, and I do not apprehend that it can be neces- sary to dwell at any length. For if I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifi- ably set it in motion to the injurj' of a third, and if that injurj- should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first. If, for example, a game- keeper, returning from his daih' exercise, should rear his loaded gun against a wall in the play-ground of school-boys whom he knew to be in the habit of pointing toys in the shape of guns at one another, and one of these should play- fully fire it off at a school-fellow and maim him, I think it will not be doubted that the gamekeeper must answer in damages to the wounded party. This might possibly be assumed as clear in principle ; but there is also the authority of tlie present Chief Justice of the Common Pleas in its support: Illidge v. Goodwin, 5 Car. & P. 190 (24 E. C. L. R. 272). But in the pres- 662 CONTRIBUTORY NEGLIGENCE. ent case an additional fact appears. The plaintiff himself. has done wrong ; he had no right to enter the cart, and abstaining from doing so, would have escaped the mischief. Certainly he was a co-operating cause of his own misfortune, by doing an unlawful act ; and the question arises, whether that fact alone must deprive the child of his remedy. The legal proposition that one who has by his own negligence con- tributed to the injury of which he complains cannot maintain his action against another in respect of it, has received some qualifications. Indeed, Lord Ellenborough's doctrine in Butterfield v. Forrester, 11 East, 60, which has been generally adopted since, would not set up the want of a superior degree of skill or care as a bar to the claim for redress ; ordinary care must mean that degree of care which may reasonably be expected from a person in the plaintiff's situation ; and this would evidently be very small indeed in so young a child. But this case presents more than the want of care ; we find in it the positive misconduct of the plaintiff an active instrument toward the effect. We have here express authorities for our guidance. In Ilott v. Wilkes, 3 B. & Aid. 304 (5 E. C. L. R. 295), a decision which excited great attention, both in Westminister Hall and beyond it, this Court indeed held that a trespasser in a wood, where he well knew spring-guns to be placed, could not sue for the injury received by him from the explosion of one of them. But Lord Tenterden and his three bretliren cautiously and repeatedly declared that their opinion was founded on the plaintiff's knowing of the danger, and voluntarily incurring it. Best, J., who was sup[)osed to carry to the greatest extent tlie right of protecting property against invaders by placing dangerous instruments, took infinite pains, when Chief Justice of the Common Pleas, to explain that his opinion in Ilott v. Wilkes rested exclusively on the notice. In Bird v. Holbrook, 4 Bing. 628 (15 E. C. L. R. 91), his expressions are most re- markable. And so far is his Lordship from avowing the doctrine that the plaintiff's concurrence in producing the evil debars him from his remedy, that he considers Ilott v. Wilkes an LYNCH V. NUEDIN. 663 authority in favor of the action. He also expresses an incli- nation to agree with the two learned Judges who held the action maintainable in Deane v. Clayton, 7 Taunton, 489 (2 E. C. L. R. 183). There the plaintiff's dog had been killed by a spike placed on the defendant's land for the protection of his preserves, while in pursuit of a hare. Park and Buk- KOUGH, JJ., gave judgment in favor of the plaintiff; Gibbs, C. J., and Dallas, J., for the defendant. The present argu- ment does not require any particular discussion of that case, because Bird v. Holbrook is a decisive authority against the general proposition that misconduct, even willful and culpable misconduct, must necessarily exclude the plaintiff who is guiltj^ of it from the right to sue. I remember being present at a trial at Warwick, before Loi'd Chief Baron Richards, where the same law prevailed. The case is mentioned in Bird V. Holbrook : a boy having received serious injury from a spring-gun placed in a garden where he was trespassing, re- covered a verdict for 1201. damages, which was much consid- ered and never disturbed. A distinction may here be taken between the willful act done by the defendant in those cases, in deliberately planting a dangerous weapon in his ground with the design of deter-< ring trespassers, and the mere negligence of the defendant's servant in leaving his cart in the open street. But between willful mischief and gross negligence the boundary line is bard to trace ; I should rather say impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice. It is then a matter strictly within the province of a jury deciding on the circumstances of each case. They would naturally inquire whether the horse was vicious or steady ; whether the occasion required the servant to be so long absent from his charge, and whether in that case no assistance could have been procured to watch the horse ; whether the street was at that hour likely to be clear or thronged with a noisy multitude; especially whether large parties of young children might be reasonably expected to re- sort to the spot. If this last-mentioned fact were probable, it 004 CONTRIBUTORY NEGLIGENCE. would be hard to say that a case of gross negligence was not fully established. But the question remains, can the plaintiff then, consist- ently with the authorities, maintain his action, having been at least equally in fault. The answer is that, supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact.^ The most blamable carelessness of his servant having tempted the child, he ought not to reproach the child with yieldiag- to that temptation. He has been the real and only cause of the mischief. He has beau deficient in ordinary care ; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be ex- pected to possess them. His misconduct bears no proportion to that of the defendant which produced it. For these reasons, we think that nothing appears in the cas& which can prevent the action from being maintained. It was- properly left to the jury, with whose opinion we fully concur. Rule discharged. Norton v. Volzke, 41 N. E. 1885 ; Gunn v. R. E., 14 S. E. 465 ; Buck v. R. R., 46 Mo. App. 555; Schnur v. Traction Co., 153 Pa. St. 29 ; Huff u. Ames, 16 Neb. 139 ; Schmidt r. R. R., 23 Wis. 186 ; R. R. v. Stout, 17 Walk 657; Walters v. R. R., 41 Ja. 71; Frick v. R. R., 75 Mo. 595; R. R. v.. Ormsby, 27 Grat. 455 ; Keyser v. R. R., 56 Mich. 559 ; R. R. v. Mahoney,. 7 Smith, 187 ; McGarry r. Loomis, 63 N. Y. 104 ; Jaggard, 872, 987 ; Bishop,. 584-586 ; Cooley, 680 ; 2 Thompson on Neg. 1129. Note.— Turn-Table Cases : For the maintenance of an unguarded and un- secured turn-table, or other machine likely to attract small children, a railroad is negligent, and for injuries to children in its operation the general rule in the United States is to hold the railroad liable in damages : R. R. v^ Styron, 1 S. W. 161 ; Twist v. Winona & St. P. R. R., 39 Minn. 164 ; Stout i>. R. R., 17 Wall. 657 ; Nagel v. R. R., 75 Mo. 653 ; Kans. Cent. R. R. ,;. Fitz- simmons, 22 Kans. 477; Callahan u. R. R., '.)2 Cal. 89; Kalsti v. R. E. 19' Am. & Eng. Ry. Cas. 140. Contra: Daniels v. R. R., 154 Mass. 349; Frost v. R. R., 64 N. H. 220- Walsh V. R. R., 145 N. Y. 301 ; Jaggard, 8:29 ; Bishop, 854 ; 2 Thompson on Neg. 1194. LITTLE V. HACKETT. 665 e Vicarious Negligence. (1) III general. The negligence of third persons is under some conditions imputed to plaintiff so as to prevent his recovering. In order that negligence may be so imputed there must be some connection 'which the lainr recognizes, betijveen the plaintiff and the third party, from -which th& responsibility may arise. Little v. Hackett. Suprerae Court of the United States, 1886. 116 U. S. 366. ; __:: On the 28th of June, 1879, the plaintiff below, defendant in error here, was injured by the collision of a train of the Cen- tral Railroad Company of New Jersey with the carriage in which he was riding ; and this action was brought to recover damages for the injury. The railroad was at the time oper- ated by a receiver of the company, appointed by order of the Court of Chancery of New Jersey. In consequence of his death the defendant was appointed by the Court his successor, and subjected to his liabilities ; and this action was prosecuted by its permission. It appears from the record that on the day mentioned the plaintiff went on an excursion from Germantown, in Pennsyl- vania, to Long Branch in New Jersey, with an association of which he was a member. Whilst there he dined at the West End Hotel, and after dinner hired a public hackney-coach from a stand near the hotel, and taking a companion with him, was driven along the beacli to the pier where a steamboat was land- ing its passengers, and thence to the railroad station at the West End. On arriving there he found he had time before the train left to take a further drive, and directed the driver to go through Hoey's Park, which was near by. The driver thereupon turned the horses to go to the park, and in crossin.^^ the railroad track near the station for that purpose, the car- 666 CONTRIBUTARY NEGLIGENCE. riage was struck by the engine of a passing train, and the plaintiff received the injury complained of. The carriage be- longed to a livery-stable keeper and was driven by a person in his employ. It was an open carriage, with the seat of the driver about two feet above that of the persons riding. The evidence tended to show that the accident was the result of the concurring negligence of the managers of the train and of the driver of the carriage — of the managers of the train in not giving the usual signals of its approach by ringing a bell and blowing a whistle, and in not having a flagman on duty ; and of the driver of the carriage in turning the horses upon the track without proper precautions to ascertain whether the train was coming. The defense was contributory negligence in driving on the track, the defendant contending that the driver was thereby negligent, and that his negligence was to be imputed to the plaintiff. The Court left the question of the negligence of the parties in charge of the train and of the driver of the carriage to the jury, and no exception was taken to its instructions on this head. But with reference to the alleged imputed negligence of the plaintiff, assuming that the driver was negligent, the Court instructed them that unless the plain- tiff interfered with the driver and controlled the manner of his driving, his negligence could not be imputed to the plaintiff. " I charge you," said the presiding Judge to them, " that where a person hires a public hack or carriage, which at the time is in the care of the driver, for the purpose of temporary conveyance, and gives directions to the driver as to the place or places to which he desires to be conveyed, and gives no special directions as to his mode or manner of driving, he is not responsible for the acts or negligence of the driver, and if he sustains an injury, by means of a collision between his car- riage and another, he may recover daniagos from any party bv whose fault or negligence the injury occurred, whether that of the driver of the carriage in which he is riding or of the driver of the other ; he may sue either. The negligence of the driver of the carriage in which he is riding will not prevent him from LITTLE I'. HACKETT. 661* recovering damages against the other driver, if he was negHgent at the same time." " The passenger in the carriage may direct the driver where to go — to such a park or to such a place that he wishes to see ; so far the driver is under his directions ; but my charge to 3'ou is tliat, as to the manner of driving, the driver of the carriage or the owner of the hack — in other words, he who has charge of it and has cliarge of the team — is the person responsible for the manner of driving, and the passenger is not responsible for that, unless he interferes and controls the matter bj' his own commands or requirements. If the passenger requires the driver to drive with great speed through a crowded street, and an injury should occur to foot passengers or to anybody else, why, then, he might be liable, because it was by his own command and direction that it was <3one, but ordinarily in a public hack the passengers do not ■control the driver, and therefore I hold that unless you believe Mr. Hackett exercised control over the driver in this case, he is not liable for what the driver did. If you believe he did ■exercise control, and required the driver to cross at this particular time, then he would be liable because of his inter- ference." The plaintiflF recovered judgment, and this instruction waa iilleged as error, for which its reversal was sought. Mr. Justice Field delivered the opinion of the Court. After stating the facts in the language reported above, he con- tinued : That one cannot recover damages for an injury to the com- mission of which he bus directly contributed is a rule of estab- lished law and a principle of comiiiun justice. And it matters not whether that contribution consists in his participation in the direct cause of tlie injury, or in his omission of dutiof< which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate •cause of the injury, lie is without remedy against one also in the wrong. It would seem that the converse of this doctrine should be accepted as sound — that when one has been injured 668. CONTRIBUTORY NEGLIGENCE. by the wrongful act of another, to which he has in no respect contributed, he should be entitled to compensation in damages from the wrong-doer. And such is the generally received doctrine, unless a contributory cause of the injury has been the negligence or fault of some person toward whom he sus- tains the relation of superior or master, in which case the negligence is imputed to him, though he may not have per- sonally participated in or had knowledge of it ; and he must bear the consequences. The doctrine may also be subject to other exceptions growing out of the relation of parent and child, or guardian and ward, and the like. Such a relation involves considerations which have no bearing upon the ques- tion before us. To determine, therefore, the correctness of the instruction of the Court below — to the effect that if the plaintiff did not ex- ercise control over the conduct of the driver at the time of the accident he is not responsible for the driver's negligence, nor precluded thereby from recovering in the action — we have only to consider whether the relation of master and servant existed between them. Plainly, that relation did not exist. The driver was the servant of his employer, the livery-stable keeper, who hired out him with horse and carriage, and was responsible for his acts. Upon this point we have a decision of the Court of Exchequer in Quarman v. Burnett, 6 M. & W. 499, 507. In that case it appeared that the owners of a chariot were in the habit of hiring for a day, or a drive, horses and a coachman from a job-mistress, for which she charged and received a certain sum. She paid the driver by the week and the owners of the chariot gave him a gratuity for each day's service. On one occasion he left the horses unattended and they ran off and against the chaise of the plaintiff, seriously injuring him and the chaise, and he brought an action against the owners of the chariot and obtained a verdict ; but it was set aside on the ground that the coachman was the servant of the job-mistress, who was responsible for his negligence. In giving the opinion of the Court, Baron Parke said : " It is un- doubtedly true that there may be special circumstances which LITTLE V. HACKETT. 6G9 may render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent him- self at one particular moment, and the like." As none of these circumstances existed it was held that the defendants were not liable, because the relation of master and servant between them and the driver did not exist. This doctrine was approved and applied by the Queen's Bench Division, in the recent case of Jones v. Corporation of Liverpool, 14 Q. B. D. 890. The corporation owned a water- cart and contracted with a Mrs. Dean for a horse and driver, that it might be used in watering the streets. The horse be- longed to her, and the driver she employed was not under the ■control of the corporation otherwise than that its inspector di- rected him what streets or portions of streets to water. Such directions he was required to obey under the contract with Mrs. Dean for his employment. The carriage of the plaintiff was injured by the negligent driving of the cart, and, in an action against the corporation for the injury, he recovered a verdict, which was set aside, upon the ground that the driver was the servant of Mrs. Dean, who had hired both him and the horse to the corporation. In this country there are many decisions of Courts of the highest character to the same effect, to some of which we shall presently refer. The doctrine resting upon the principle that no one is to be denied a remedy for Injuries sustained, without fault by him, or by a party under his control and direction, is qualified by cases in the English Courts, wherein it is held that a party who trusts himself to a public conveyance is in some way identified with those who have it in charge, and that he can only re- cover against a wrong-doer when they who are in charge can recover. In other words, that their contributory negli- gence is imputable to him, so as to preclude his recovery for 670 CONTRIBUTORY NEGLIGENCE. an injury when they, by reason of such negligence, could not recover. The leading case to this effect is Thorogood -y. Bryan, decided by the Court of Common Pleas in 1849, 8 0. B. 114. It there appeared that the husband of the plaintiff, whose administratrix she was, was a passenger in an omnibus. The defendant, Mrs. Bryan, was the proprietress of another omnibus running on the same line of road. Both vehicles had started together and frequently passed each other, as either stopped to take up or set dbwn a passenger. The deceased, wishing. to alight, did not wait for the omnibus to draw up to the curb, but got out whilst it was in motion, and far enough from the path to allow another carriage to pass on the near side. The defendant's omnibus coming up at the moment, he was run over, and in a few days afterward died from the in- juries sustained. The Court, among other things, instructed the jury, that if they were of the opinion that want of care on the part of the driver of the omnibus in which the deceased was a passenger, in not drawing up to the curb to put him down, had been conducive to the injury, the verdict must be for the defendant, although her driver was also guilty of negligence. The jury found for the defendant, and the Court discharged a rule for a new trial for misdirection, thus sustain- ing the instruction. The grounds for its decision were, as stated by Mr. Justice Coltman, that the deceased, having trusted the party by selecting the particular conveyance in which he was carried, had so far identified himself with the owner, and her servants, that if any injury resulted from their negligence, he must be considered a party to it ; " In other words," to quote his language, " the passenger is so far identi- fied with the carriage in which he is traveling, that want of care on the part of the driver will be a defense of the driver of the carriage which directly caused the injury." Mr. Justice Maule, in the same case, said that the passenger " chose his own conveyance and must take the consequences of any de- fault of the driver he thought fit to trust." Mr. Justice Cresswell said : " If the driver of the omnibus the deceased was in had, by his neghgence or want of due care and skill. LITTLE V. HACKETT. 671 contributed to any injury from a collision, his master clearly could maintain no action, and I must confess I see no reason why a passenger, who employs the driver to carry him, stands in any different position." Mr. Justice Williams added that he was of the same opinion. He said : " I think the passenger must, for this purpose, be considered as identified with the person having the management of the omnibus he was con- veyed by." What is meant by the passenger being " identified with the carriage," or " with the person having its management," is not very clear. In a recent case in which the Court of Exchequer applied the same test to a passenger in a railway train, which collided with a number of loaded wagons that were being shunted from a siding by the defendant, another railway com- pany, Baron Pollock said, that he understood it to mean " that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus or his driver :" Armstrong v. Lancashire & Yorkshire Railroad Co., L. R. ll> Ex. 47, 52. Assuming this to be the correct explanation, it is difficult to see upon what principle the passenger can be con- sidered to be in the same position with reference to the negligent act as the driver who committed it, or as his master, the owner. Cases cited from the English Courts, as we have seen, and numerous others decided in the Courts of this country, show that the relation of master and servant does not exist between the passenger and the driver, or between the passenger and the owner. In the absence of this relation, the imputation of their negligence to the passenger, where no fault of omission or com- mission is chargeable to him, is against all legal rules. If their negligence could be imputed to him, it would render him equally with them responsible to third parties thereby injured, and would also preclude him from maintaining an action against the owner for injuries received by reason of it. But neither of these conclusions can be maintained ; neither has the support of any adjudged cases entitled to consideration. The truth is, the decision in Thorogood v. Bryan, rests upon indefensible ground. The identification of the passenger with 672 CONTRIBUTORY NEGLIGENCE. the negligent driver or the owner, without his personal co- operation or encouragement is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver ■or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world. Thorogood v. Bryan has not escaped criticism in the English Courts. In the Court of Admiralty it has been openlj'^ disre- garded. In llie Milan, Dr. Lushington, the Judge of the High Court of Admiralty, in speaking of that case, said : " With due respect to the Judges who decided that case, I do not con- sider that it is necessary for me to dissect the judgment, but I decline to be bound by it, because it is a single case ; because I know, upon inquiry, that it has been doubted by high authority ; because it appears. to me not reconcilable with other principles laid down at common law ; and, lastly, because it is directly against Hay v. La Neve, and the ordinary practice of the Court of Admiralty :" Lush. 388, 403. In this country the doctrine of Thorogood v. Bryan has not been generally followed. In Bennett v. New Jersey Railroad Company, 36 N. J. L. (7 Vroom) 225, and New York, Lake Erie & Western Railroad Company v. Steinbrenner, 47 N. J. L. (18 Vroom) 161, it was elaborately examined by the Su- preme Court and the Court of Errors of New Jersey, in opinions of marked ability and learning, and was disapproved and re- jected. In the first case it was held that the driver of a horse- car was not the agent of the passenger so as to render the passenger chargeable for the driver's negligence. The car, in crossing the track of the railroad company, was struck by its train, and the passenger was injured, and he brought an action against the company. On the trial the defendant contended that there was evidence tending to show negligence by the driver of the horse-car, which was in part productive of the accident, and the presiding Judge was requested to charge the jury, that if this was so, the plaintiff was not entitled to recover ; but the Court instructed them that the carelessness of LITTLE V. HACKETT. 673 the driver would not affect the action or bar the plaintiff 's right to recover for the negligence of the defendant. And this instruction was sustained by the Court. In speaking of the " identification " of the passenger in the omnibus with the driver, mentioned in Thorogood v. Brj^an, the Court, by the Chief Justice, said : " Such identification could result only iu one way, that, by considering such driver the servant of tlie passenger. I can see no ground upon which such a relationship is to be founded. In a practical point of view, it certainly does not exist. The passenger has no control over the driver or agent in charge of the vehicle. And it is this right to con- trol the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant. To hold that the conductor of a street-car or of a railroad train is the agent of the numerous passengers who may chance to be in it, would be a pure fiction. In reality there is no such agency, and if we impute it, and correctly aj)ply legal principles, the passenger, on the occurrence of an accident from the carelessness of the person in charge of the vehicle in which he is being conveyed, would be without any remedy. It is obvious, in a suit against the proprietor of the «ar in which he was a passenger, there could be no recovery if the driver or conductor of such car is to he regarded as the servant of the passenger. And so, on the same ground, each passenger would be liable to every person injured by the care- lessness of such driver or conductor, because if the negligence of such agent is to be attributed to the passenger for one pur- pose, it would be entirely arbitrary to say that he is not to be affected by it for other purposes :" 7 Vroom 227, 228. In the latter case it appeared that the plaintiff had hired a coach and horses, with a driver, to take his family on a partic- ular journey. In the course of the journey, while crossing the track of the railroad, the coach was struck by a passing train, and the plaintiff was injured. In an action brought by him against the railroad company, it was held that the relation of master and servant did not exist between him and the driver, and that the negligence of the latter, co-operating with that of 43 674 CONTRIBUTORY NEGLIGENCE. persons in charge of the train which caused the accident, was not imputable to the plaintiff, as contributory negligence, to bar his action. In New York a similar conclusion has been reached. In Chapman v. New Haven Railroad Co., 19 N. Y. 341, it ap- peared that there was a collision between the trains of two railroad companies, by which the plaintiff, a passenger in one of them, was injured. The Court of Appeals of that State held that a passenger by railroad was not so identified with the proprietors of the train conveying him, or with their serv- ants, as to be responsible for their negligence, and that he might recover against the proprietors of another train for injuries sustained from a collision through their negligence, although there was such negligence in the management of the train conveying him as would have defeated an action by its owners. In giving the decision the Court referred to Thoro- good V. Bryan, and said that it could see no justice in the doctrine in connection with the case, and that to attribute to the passenger the negligence of the agents of the company, and thus bar his right to recover, was not applying any exist- ing exception to the general rule of law, but was framing a new exception based on fiction and inconsistent with justice. The case differed from Thorogood v. Bryan in that the vehicle carrying the plaintiff was a railway train, instead of an omnibus, but the doctrine of the English case, if sound, is as applicable to passengers on railway trains as to passengers in an omnibus ; and it was so applied, as already stated, by the Court of Exchequer in the recent case of Armstrong v. Lan- cashire & Yorkshire Railroad Co. In Dyer v. Erie Railway Co., 71 N. Y. 228, the plaintiff was injured while crossing the defendant's railroad track on a public thoroughfare. He was riding in a wagon by the per- mission and invitation of the owner of the horses and wagon. At that time a train standing south of certain buildings, which prevented its being seen, had started to back over the crossing without giving the driver of the wagon any warning of its approach. The horses becoming frightened by the blowing LITTLE V. HACKETT. 676 off of steam from engines in the vicinity, became unmanage- able, and the plaintiff was thrown or jumped from the wagon, and was injured by the train, which was backing. It was held that no relation of principal and agent arose between the driver of the wagon and the plaintiff, and, although he traveled vol- untarily, he was not responsible for the negligence of the driver, where he himself was not chargeable with negligence, and there was no claim that the driver was not competent to control and manage the horses. A similar doctrine is maintained by the Courts of Ohio. In Transfer Company v. Kelly, 36 Ohio State, 86, 91, the plaintiff, a passenger on a car owned by a street railroad company, was injured by its collision with a car of the Transfer Company. There was evidence tending to show that both companies were negligent, but the Court held that the plaintiff, he not being in fault, could not recover against the Transfer Company, and that the concurrent negligence of the company on whose cars he was a passenger, could not be imputed to him, so as to charge him with contributory negligence. The Chief Justice, in delivering the opinion of the Court, said : '' It seems to us, therefore, that the negligence of the company, or of its serv- ants, should not be imputed to the passenger, where such neg- ligence contributes to his injury jointlv with the negligence of a third party, any more than it should be so imputed, where the negligence of the company, or its servant, was the sole cause of the injury." " Indeed," the Chief Justice added, " it seems as incredible to my mind that the right of a passenger to redress against a stranger for an injury caused directly and proximately by thelatter's negligence, should be denied, on the wround that the negligence of his carrier contributed to his injury, he being without fault himself, as it would be to hold such passenger responsible for the negligence of his carrier, whereby an injury was inflicted upon a stranger. And of the last proposition it is enough to say that it is simply absurd." In the Supreme Court of Illinois the same doctrine is main- tained. In the recent cases of the Wabasli, St. Louis & Pacific Eailway Co. v. Schacklet, 105 111. 364, the doctrine of Thoro- 676 CONTRIBUTORY NEGLIGENCE. good's case was examined and rejected, the Court holding that where a passenger on a railway train is injured by the con- curring negligence of servants of the company on whose train he is traveling, and of the servants of another company with whom he has not contracted, there being no fault or negligence on his part, he or his personal representatives may maintain an action against either company in default, and will not be restricted to an action against the company on whose train he was traveling. Similar decisions have been made in the Courts of Kentucky, Michigan, and California. Danville, etc., Turnpike Co. v. Stewart, 2 Met. (Ky.) 119 ; Louisville & Cincinnati Railroad Co. V. Case, 9 Bush, 728 ; Cuddy u Horn, 46 Mich. 596 ; Tomp- kins V. Clay Street Railroad Co., 4 West Coast Reporter, 537. There is no distinction in principle whether the passengers be on a public conveyance like a railroad train or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a hack do not become responsible for the neg- ligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. If he is their agent so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other re- spects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employ- ment. But, as we have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who lias in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it. " If the law were otherwise," as said Mr. Justice Depue in his elaborate opinion in the latest case in New Jersey, " not only the hirer of the coach but also all the passengers in it would be under a constraint to mount the box and superintend the LA RIVIERE V. PEMBERTON. 677 conduct of the driver in the management and control of his team, or be put for remedy exclusively to an action against the irresponsible driver or equally irresponsible owner of a coach taken, it may be, from a coach stand, for the conse- quences of an injury which was the product of the co-operat- ing wrongful acts of the driver and of a third person, and that, too, though the passengers were ignorant of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried ;" New York, Lake Erie & Western Railroad v. Stein- breauer, 47 N. J. L. (18 Vroom), 161, 171. In this case it was left to the jury to say whether the plain- tiff had exercised any control over the conduct of the driver further than to indicate the places to which he wished him to drive. The instruction of the Court below, that unless he did exercise such control and require the driver to cross the track at the time the collision occurred, the negligence of the driver was not imputable to him, so as to bar his right of action against the defendant, was therefore correct, and the judgment must be affirmed. R. R. V. Mahoney, 57 Pa. St. 187 ; Sheridan v. R. R., 36 N. Y. 39 ; Atkin- son V. Transpoi-tation Co., 60 Wis. 141 ; Becker v. Mo. Pac. R. R., 102 Mo. 544; N. Y., L. E. & W. R. R. v. Steinbrenner, 47 N. J. L. 161; Poor i). Sears, 154 Mass. 539 ; Chapman v. R. R., 19 N. Y. 341 ; R. R. v. Markens, 88 Ga. 60 ; Jaggard, 980 ; 2 Thompson on Negligence, 884. (2) As to master and servant. The negligence of a servant or agent, the act being -within the scope of bis authority, is imputable to the master or principal. La Riviere v. Pemberton. Supreme Court of Minnesota, 1891. 46 Minn. 5 ; 48 X. W. 406. Dickinson, J. The plaintiff has for many years occupied a farm on the south side of a small meandered body of water. called " Red Rock Lake." His barn is about one hundred and 678 CONTRIBUTORY NEGLIGENCE. sixty rods from the lake. In the winter season he has been accustomed to water his stock on the south side of the lake, by means of holes cut in the ice. His cattle also " used to go " for water to a place on the westerly shore of the lake, some forty rods from the plaintiff's watering place, where a neigh- bor, one Mitchell, owning the land on the west shore, was ac- customed to water his stock. When the plaintiff's cattle wero turned out of his barn there was nothing to prevent their going to the lake, which was unfenced. It had been the cus- tom of the plaintiff and his neighbors for years to cut ice and take it from the lake, probably for domestic use, and cattle allowed to go to the lake unattended were liable to be drowned at places where the ice had been cut and removed. The plain- tiff had lost cattle in that way prior to the occurrence upon which this action was based. He knew and appreciated this danger. Before the accident complained of, he had cautioned a servant, employed by him to take care of his stock, not to let the cattle go to the lake unattended, explaining the danger just i-eferred to. A day or two after that, on a cold day in January, this servant let the cattle out of the barn. Unobserved by the servaut two of the cows went to the lake, and at a place some sixtj'' or eighty feet from Mitchell's watering place they were drowned, having fallen into an opening in the ice some twelve or fifteen feet square, which the defendant had caused by cutting and removing the ice. , The defendant and others had long been suffered by Mitchell to go to the lake over his land for such purposes. The plaintiff had no knowledge that this hole had been made in the ice, or that there was any such opening in the vicinity at that time. He seeks by this action to recover the value of the cattle, his action being based on the negli- gence of the defendant in cutting the ice and leaving the opening unguarded. At the trial, the plaintiff's case being as above indicated, the Court dismissed the action, on the ground that it appeared that the plaintiff was chargeable with con- tributory negligence. The ruling of the Court was right. The plaintiff knew that it was a common practice of the people about the lake to cut LA KIVIERE V. PEMBEETON. 679 and remove ice. He appreciated the risk arising from this cause. While lie did not know that there were sucli openings in the ice at this time, he knew that their existence was prob- able, and that it was dangerous for that reason to allow cattle , to go to the lake unattended in search of water, and had ■warned his servant of this danger. Both he and his servant must have known the natural propensity of the animals to go to the lake for water, that being the place where they were accustomed to get water. It was to be expected as a matter of course that they would go there ; and especially is this true , if, as is to be inferred from the case, the cattle had not been watered since the preceding day. Yet the servant let the cattle out, and seems to have exercised no precaution to pre- vent their going to the lake unattended, as these cattle did do. No excuse or preventing cause for this is shown. In brief, whatever danger there may have been from the cutting and removal of ice, the plaintiff knew of its probable existence, and appreciated the nature of it. Yet the person to whom he had committed the care of his propertj' apparently' neg- lected to exercise any reasonable care to avoid the very consequences which both the plaintiff and the servant appre- hended might result from any such neglect. Such contribu- tory negligence was a sufficient reason why, upon the case made, the plaintiff was not entitled to recover. If it was negli- gence for the defendant to cut and remove the ice, it was equally negligence to unnecessarily allow the cattle to be at large where they might be expected to go to the lake. The contributory negligence of the plaintiff's servant in the dis- charge of the duty committed to him is to be imputed to the plaintiff. In legal contemplation, and as affecting the plain- tiff's right of recovery against a third person, it is as though the plaintiff had personally been guilty of such contributory negligence. Order affirmed. Page V. Hodge, 63 N. H. 610 ; Puterbaugh v. Reasor, 9 Ohio St. 484 ; Siner r. Stearne, 155 Pa. St. 62 ; Morgan v. Tener, 83 Pa. St. 305 ; Martin v. Rich- ards, 155 Mass. 381; Krause ". Dorrance, 10 Barr (Pa.) 462; Ballou v. 680 CONTRIBUTORY NEGLIGENCE. Famum, 9 Allen, 47 ; McDonald v. Snelling, 14 Allen, 290 ; Sullivan ». Scripture, 3 Allen, 564; Corrigan i. Refining Co., 98 Mass. 577 ; Jaggard, 252 ; Bishop, 608, 609 ; 2 Thompson on Negligence, 884. (3) As to infants. In reason, and by weight of authority, the negligence of the custo- dian is not imputable to a child of such tender years as to be non sul juris. Newman v. Phillipsburg Hokse Car R. R. Co. Supreme Court of New Jersey, 1890. 52 N. J. L. 446 ; 19 Atl. 1102. The plaintiff was a child two years of age ; she was in the custody of her sister, who was twenty -two ; the former, being left by herself for a few minutes, got upon the railroad track of the defendant, and was hurt by the car. The occurrence took place in a public street of the village of Phillipsburg. The carelessness of the defendant was manifest, as at the time of the accident there was no one in charge of the horse draw- ing the car, the driver being in the car collecting fares. The Circuit Judge submitted the three following propositions to this Court for its advisory opinion, viz. : First. Whether the negligence of the persons in charge of the plaintiff, an infant minor, should be imputed to the saiS plaintiff. Second. Whether the conduct of the persons in charge of the plaintiff at the time of the injury complained of, was not so demonstrably negligent that the said Circuit Court should have non-suited the plaintifiF, or that the Court should have directed the jury to find for the defendant. Third. Whether a new trial ought not to be granted, on the ground that the damages awarded are excessive. Beasley, C. J. There is but a single question presented by this case, and that question plainly stands among the vexed questions of the law. The problem is, whether an infant of tender years can be NEWMAN ('. PHILLIPSBUKG HORSE CAR R. R. CO. 681 vicariously negligent, so as to deprive itself of a remedy that it would otherwise be entitled to. " In some of the American States this question has been answered by the Courts in the affirmative, and in others in the negative. To the former of these classes belongs the decision of Hatfield v. Rofer & Newell,. reported in 21 Wend. 615. This case appears to have been one of first impression on this subject, and it is to be regarded, not only as the precursor, but as the parent of all the cases of the same strain that have since appeared. The inquir}' with respect to the effect of the negligence of the custodian of the infant, too young to be intelligent of situations and circumstances, was directly presented for deci- sion in the primary case thus referred to, for the facts were these, viz. : The plaintiff, a child of about two years of age, was standing or sitting in the snow in a public road, and in that situation was run over by a sleigh driven by the defend- ants. The opinion of the Court was, that as the child was permitted by its custodian to wander into a position of such danger it was without remedy for the hurts thus received, un- less they were voluntarily inflicted, or were the product of gross carelessness on the part of the defendants. It is obvious that the judicial theory was that the infant was, through the medium of its custodian, the doer, in part, of its own misfor- tune, and that, consequently, by force of the well-known rule, under such conditions, he had no right to an action. This, of course, was visiting the child for the neglect of the custo- dian, and such infliction is justified in the case cited in this wise : " The infant," says the Court, " is not sui juris. He belongs to another, to whom discretion in the care of his person is exclusively confined. That person is keeper and agent for this purpose ; in respect to third persons his act must be deemed that of the infant ; his neglects the infant's neglects." It will be observed that the entire content of this quotation is the statement of a single fact, and a deduction from it, the premise being, that the child must be in the care and charge of an adult, and the inference being that, for that reason, the 682 CONTRIBUTORY NEGLIGENCE. neglects of the adult are the neglects of the infant. But surely this is conspicuousl}^, a non sequitur. How does the custody of the infant justify, or lead to, the imputation of another's fault to him ? The law, natural and civil, puts the infant under the care of the adult, but how can this right to care for and protect be construed into a right to waive, or for- feit, any of the legal rights of the infant? The capacity to make such waiver or forfeiture is not a necessary, or even con- venient, incident of this office of the adult, but, on the con- trary, is quite inconsistent with it, for the power to protect is the opposite of the power to harm, either by act or omission. In this case iu Wendell it is evident that the rule of law enunciated by it is founded in the theory that the custodian of the infant is the agent of the infant ; but this is a mere assumption without legal basis, for such custodian is the agent, not of the infant, but of the law. If such supposed agency existed, it would embrace many interests of the infant, and could not be confined to the single instance where an injury is inflicted by the co-operative tort of the guardian. And yet it seems certain that such custodian cannot surrender or impair a single right of any kind that is vested in the child, nor impose any legal burthen upon it. If a mother traveling with her child in her arms should agree with a railway com- pany, that in case of an accident to such infant by reason of the joint negligence of herself and the company the latter should not be liable to a suit by the child, such an engage- ment would be plainly invalid on two grounds — first, the con- tract would be contra bonos mores, and, second, because the mother was not the agent of the child authorized to enter into the agreement. Nevertheless, the position has been deemed defensible that the same evil consequences to the infai:it will follow from the negligence of the mother in the absence of such supposed contract, as would have resulted if such contract should have been made and should have been held valid. In fact, this doctrine of the imputability of the misfeasance of the keeper of a child to the child itself, is deemed to be a NEWMAN V. PHILLIPSBUEG HORSE CAR R. R. CO. 683 pure interpolation into the law, for until the case under criti- cism it was absolutely unknown ; nor is it sustained by legal analogies. Infants have always been the particular objects of the favor and protection of the law. In the language of an ancient authority this doctrine is thus expressed : " The com- mon principle is, that an infant in all things which sound in his benefit shall have favor and preferment in law as well as another man, but shall not be prejudiced by anything in his disadvantage :" 9 Yin. Abr. 374. And it would appear to be plain that nothing could be more to the prejudice of an infant than to convert, bj'' construction of law, the connection be- tween himself and his custodian into an agency to which the barsh rule of respondeat superior should be applicable. The answerableness of the principal for the .authorized acts of Ms agent is not so much the dictate of natural justice as of public policy, and has arisen, with some proprietj^, from the circumstances, that the creation of the agency is a voluntary act, and that it can be controlled and ended at the will of its creator. But in the relationship between the infant and its keeper, all these decisive characteristics are wholly wanting. The law imposes the keeper upon the child, who, of course, can neither control or remove him, and the injustice, there- fore, of making the latter responsible, in any measure what- ever, for the torts of the former, would seem to be quite evident. Such subjectivity would be hostile, in every respect, to the natural rights of the infant, and, con.sequentlj'', cannot, with any show of reason, be introduced into that provision which both necessity and law establish for his protection. Nor can it be said that its existence is necessary to give just enforcement to the rights of others. Wlien it happens that both the infant and its custodian have been injured by the co-operative negligence of such custodian and a third party, it seems reasonable, at least in some degree, that the latter should be enabled to say to the custodian, you and I, b)'^ our common carelessness, have done this wrong, and, therefore, neither «an look to the other for redress ; but when such wrong-doer says to the infant, your guardian and I, by our joint" miscon- 684 CONTRIBUTORY NEGLIGENCE. duct, have brought this loss upon you, consequently you have no right of action against me, but you must look for indem- nification to j^our guardian alone, a proposition is stated that appears to be without any basis either in good sense or law. The conversion of the infant, who is entirely free from fault, into a wrong-doer, by imputation, is a logical contrivance uncongenial with the spirit of jurisprudence. The sensible-* and legal doctrine is this, an infant of tender years cannot be charged with negligence ; nor can he be so charged with the commission of such fault by substitution, for he is incapable of appointing an agent, the consequence being, that he can, in no case, be considered to be the blamable cause, either in whole- or in part, of his own injury. There is no injustice, nor hard- ship, in requiring all wrong-doers to be answerable to a person who is incapable either of self-protection or of being a partici- pator in their misfeasance. Nor is it to be overlooked that the theory here repudiated,, if it should be adopted, would go the length of making an infant in its nurse's arms answerable for all the negligences of such nurse while thus employed in its service. Every person so damaged by the careless custodian would be entitled to his action against the infant. If the neglects of the guardian are to be regarded as the neglects of the infant, as was as- serted in the New York decision, it would, from logical ne- cessity, follow, that the infant must indemnify those who should be harmed by such neglects. That such a doctrine has never prevailed is conclusively shown by the fact that in the reports there is no indication that such a suit has ever been brought. It has already been observed that judicial opinion, touching the subject just discussed, is in a state of direct antagonism, and it would, therefore, serve no useful purpose to refer to any of them. It is sufficient to say, that the leading text writers have concluded that the weight of such authority is adverse to the doctrine that an infant can become, in any M'ise, a tort-feasor by imputation : 1 Shearm. & R. Neg., § 75 ; Whart. Neg., § 311 ; 2 Wood Railw. L., p. 1284. NEWMAN V. PHILLIPSBUEG HORSE CAR R. R. CO. 685 In our opinion, tlie weiglit of reason is in tlie same scale. It remains to add tliat we do not think the damages so ex- cessive as to place the verdict under judicial control. Let the Circuit Court be advised to render judgment on the finding of the jury. T. & P. R. R. r. Beckwort,h, 32 S. W. 809 ; R. R. v. Rexroad, 59 Ark. 180 ; Kunz !■. City of Troy, 104 N. Y. 344 ; McGarry v. Looniis, 63 N. Y. 104 ; Mangam !•. R. R., 38 N. Y. 455 ; Allen v. R. R., 27 S. W. 943 ; R. R. v. Wil- •cox, 138111. 370 ; Robinson e. Cone, 22 Vt. 213 ; R. R. v. Robinson, 127 111. 9 ; Shippey t: Au Sable, 85 Mich. 280 ; Battisbill v. Humphreys, 64 Mich. 494 ; Jaggard, 984 ; Bishop, 577-583 ; Cooley, 680, 643 ; Pollock, 582 ; 1 Thompson on Negligence, 431 ; 2 Thompson on Negligence, 1180-1197, 1121 ; Wharton, Negligence, 314 et seq. ; Beach, Contributory Negligence, 38-48. Conira. —Hartfield, 21 Wend. 614 ; Thurber v. R. R., 60 X. Y. 326 ; Meeka 1'. So. Pac. R. R., 52 Cal. 602; Reed v. Minneapohs St. Ry. Co., 34 Minn. 557; Willets v. R R., 14 Barb. 585; Fitzgerald v. R. R., 29 Minn. 336;' Wright r. R. R., 4 Allen, 283 ; Gavin v. Chicago, 97 111. 66 ; Cauley v. R. R., 35 Pa. St. 398 ; Honegsberger v. R. R., 33 How. Pr. 193. Comparative Negligence. Note. — AVhere the injury complained of was the proximate result of the mutual and concurrent negligence of plaintiff and defendant, the weight of authority holds that plaintiff cannot recover. "The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief :" Railroad v. Norton, 24 Pa. St. 465 ; O'Keefe V. R. R., 32 Ia.*467 ; Artz v. R. R., 38 la. 293 ; Wilds v. R. R., 24 N. Y. 430 ; Marble v. Ross, 124 Mass. 44 ; Wells v. R. R., 24 N. Y. 181 ; Stiles r. Geesey, 71 Pa. St. 439 ; R. R. v. Price, 29 Md. 420. Contra.— Schmidt v. R. R., 83 111. 405 ; R. R. v. Manly, 58 111. 300 ; R. R. V. Coss, 73 111. 394 ; R. R. v. Smith, 6 Heisk. 174 ; R. R. v. Davis, 18 Ga. 679, 686 ; Brannan v. May, 17 Ga. 136 ; R. R. v. Winn, 19 Ga. 440 ; Jaggard, 978 ; Bishop, 471 ; Cooley, 677 ; Bigelow, 842 ; 2 Thompson on Negligence, 1164-1172 ; 3 Am. & Eng. Encyc. 367. 686 DISCHARGE. E DISCHAEGE OF TOETS. 1. By Act of the Party. a By approval of the 'wrongful act. Thompson v. Libbey. Supreme Court of Minnesota, 1886. 36 Minn. 287 ; 31 N. W. 52. Action brought in the District Court for Dakota County, to recover the price of logs sold and delivered. After the de- cision of the second of the former appeals mentioned in the opinion, the defendant amended his answer. The amended answer states that the logs were delivered under an agreement made June 1, 1883, and signed by defendant and by plaintiff's agent, as follows : " I have this day sold to R. C. Libbey, of Hastings, Minnesota, all my logs marked ' H. C. A.,' cut in the winters of 1882 and 1883, for $10 a thousand feet boom scale at Minneapolis, Minnesota, payments cash as fast as scale bills are produced ;" and that at the date of the contract the logs were floating in the Mississippi River ; and after stating the same representations and matters relied on, on the before- mentioned appeal, as constituting a warranty of quality and a breach, alleges that upon these " representations and warrant- ies the defendant relied in purchasing the logs mentioned in the complaint," and " that such warranties and representations were fraudulent and false, and well known to the agent of said defendant to be untrue, and were made with the intention of deceiving and misleading the defendant." The answer goes on to allege that, after delivery of the first installment of the logs, the defendant complained of their unsoundness, and was THOMPSON V. LIBBEY. 687 induced to accept them by the representation that the logs that would be afterward delivered would be superior to those already received, but that the logs continued to be unsound and decayed, and that afterward in the spring of 1884 the de- fendant made the same complaint and objection, and afterward the defendant continued to receive the logs as delivered, and to appropriate them to his own use. Upon plaintiff's motion, judgment in his favor on the pleadings was ordered by Crosby, J., from which judgment the defendant appeals. Mitchell, J. This case has already been twice before this Court : 34 Minn. 374 (26 N. W. Rep. 1) and 35 Minn. 443 (29 N. W. Rep. 150). Since it was last here, defendant has amended his answer, setting up deceit and fraudulent repre- sentation on part of plaintiflf, by reason of which defendant was induced to enter into the contract. There is no question of breach of warranty in the case. That has been entirely eliminated by the decisions of this Court on the former ap- peals. The answer is an attempt to recoup damages caused by the alleged fraud and deceit. It will be recollected that the contract was, at its inception, when the alleged fraud was com- mitted, wholly executory : 35 Minn. 443 (29 N. W. Rep. 150). There is no allegation in the answer that at the time when de- fendant received the logs he had not discovered the fraud, or that he then relied at all on these false representations. On the contrary, we think it appears affirmatively from the alle- o-ations of the answer that defendant discovered the fraud while the contract was still wholly executory, but that not- withstanding this he afterward accepted the property under the contract, used it, and in part paid for it. The case, then, squarely raises this question : Can one who has been induced by fraud and deceit to make an executory contract for the purchase of personal property, to be delivered and paid for in the future, but who, havhig discovered the fraud while the contract is yet wholly executory, nevertheless thereafter accepts and uses the property, still maintain an 688 DISCHARGE. action for damages for the fraud, or, which is the same thing, set tliem up by way of recoupment in an action against him for the purchase-money? If the contract be executed in whole or in part, before the fraud is discovered, it is well set- tled that the purchaser need not rescind, but may retain the property, and also bring his action for damages on account of the deceit. But to allow a person who has discovered the fraud while the contract is still wholly executory to go on and execute it, and then sue for the fi'aud, looks very much like permitting him to speculate upon the fraud of the other party. It is virtually to allow a man to recover for self-in- flicted injuries. The fraud is really consummated, and the damages incurred, by the acceptance of the property and pay- ing for it. And if this is done after the fraud is discovered, the purchaser cannot say that he sustained this damage by reason of the fraud. It seems to us that if a party discovers the fraud before he enters upon the performance of the con- tract, he must decide whether he will go on under it or rescind. He cannot say it is a good contract for the purpose of author- izing him to accept the property, but not binding on him as to the price to be paid for it. The case is not analogous to that of an executory contract with an express warranty, where an action for the breach of the warranty will survive the acceptance of the property. The warranty itself is a contract collateral to the contract of sale ; and, in accepting the property under the contract of sale, the purchaser does not at all waive his rights under the warranty. An action for a breach of the warranty is an action on the contract, whereas the gist of an action for fraud and deceit is, not any breach of the contract, but that the party has been led, to his damage, by fraud, into making it : Saratoga & S. R. Co. V. Row, 24 Wend. 74 (35 Am. Dec. 598) ; People v. Stephens, 71 N. Y. 527. It seems to us that this is sound upon principle, and we find no decision to the contrary, although we admit our surprise at finding so little direct au- thority upon the question. We find several cases in which expressions are used seeming to support the contention of ap- HART )'. PENNSYLVANIA RAILROAD CO. 68:"> pellant in this case, but an examination of the facts will show- that in all of them the remarks were entirely obiter. In every ^^ase it appears that the contract had been executed, in whole or in part, but before the discovery of the fraud. See Whitney V. Allaire, 1 N. Y. 305 ; Mallory ■;;. Leach, 35 Vt. 156 ; Parker v. Marquis, 64 Mo. 38. The answer, therefore, did not state facts constituting either a defense or a counter-claim, and the Court was right in ordering judgment for plaintiff on the pleadings. Judgment affirmed. Brooks i: Rodgers, 13 So. 386 ; Brewer v. Sparrow, 7 B. & C. 310, 14 E. C. L. 144 ; Lythgoe v. Vernon, 5 H. & N. 180 ; Singer Mfg. Co. v. Green- leaf, 14 So. 109 ; Muldoon v.U. R., 38 Pac. 995 ; Jaggard, 294 ; Bishop, 49 ; Cooley, 505. b In entering into a contract limiting liability. (1) Before damage. Hart v. Pennsylvania Railroad Co. Supreme Court of the United States, 1884. 112 U. S. 331. Lawrence Hart brought this suit in a State Court in Missouri against the Pennsylvania Railroad Company, to re- cover damages from it, as a common carrier, for the breach of a contract to transport, from Jersey City to St. Louis, five horses and other property. The petition alleges that, by the negligence of the defendant, one of the horses was killed, and the others were injured, and the other property was destroyed, and claims damages to the amount of $19,800. After an answer and a reply, the plaintiff moved the suit into the Circuit Court of the United States for the Eastern District of Missouri, where it was tried by a jury. It appeared that the property was transported under a bill of lading issued by the defendant to the plaintiff, and signed by him, and reading as follows : 44 690 DISCHARGE. " Bill of Lading. Form No. 39, N. J. Limited Liability Live-Stock Contract for United Eailroads of New Jersey Division. No. 206. Jersey City Station, P. R. R., , 187-. Lawrence Hart delivered into safe and suitable cars of the Pennsylvania Railroad Company., numbered M. L. 224, for transportation from Jersey City to St. Louis, Mo., live stock of the kind, as follows : one (1) car, five horses, shipper's count, which has been received by said company for themselves and on behalf of connecting carriers, for transportation, upon the following terms and conditions, which are admitted and ac- cepted by me as just and reasonable : First. To pay freight thereon to said company at the rate of ninety-four (94) cents per one hundred pounds (company's weight), and all back freight and charges paid by them, on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation : If horses or mules, not exceeding two hundred dollars each. If cattle or cows, not exceeding seventy-five dollars each. If fat hogs or fat calves, not exceeding fifteen dollars each. If sheep, lambs, stock hogs, or stock calves, not exceeding five dollars each. If a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load. But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, and smothering, nor for loss or damage arising from con- dition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom. Second. Upon the arrival of the cars or boats containing said stock at point of destination, the shipper, owner, or consignee shall forthwith pay said freights and charges, and receive said stock therein, and unload the same therefrom ; and if, from any cause, he or they shall fail or refuse to pay, receive or unload, HART V. PENNSYLVANIA RAILROAD CO. (391 as aforesaid, then said company or other carrier, as the agent, of such shipper, owner, or consignee, may thereupon have them put and provided for in some suitable place, at the cost and risk of such shipper, owner, or consignee, and at any time or times tliereafcer may sell the same, or any number of them, at public or private sale, with or without notice, as said agent may deem necessary or expedient, and apply the proceeds arising there- from, or so much thereof as may be needed, to the payment of such freight and charges and other necessary and proper costs and expenses. Third. When necessary for said stock to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of the said stock may be made to such other carrier or carriers for transportation, upon such terms and conditions as the carrier may be willing to accept ; provided that the terms and conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate ; but in no event shall one carrier be liable for the negligence of another. Fourth. All live-stock transported under this contract shall be subject to a lien, and may be retained and sold for all freight or charges due for transportation on other live-stock or property transported for the same owner, shipper, or con- signee. Fifth. This company's liability is limited to the transpor- tation of said animals, and shall not begin until they shall be loaded on board the boats or cars of the company. The owner of said animals, or some person appointed by him, shall go with and take all requisite care of the said animals during their transportation and delivery, and any omission to comply herewith shall be at the owner's risk. Witness my hand and seal, this 20th day of October, 1879. Lawrence Hart, Shipper, [l. s.J " Attest : E. Butter. W. J. Charmers, Company's Agent." 692 DISCHARGE. At the trial the plaintiff put in evidence the bill of lading,' and gave testimouj"^ to prove the alleged negligence and how the loss and injury occurred. He then offered to show that the actual value of the horse killed was $15,000 ; that the other horses were worth from $3,000 to $3,500 each ; and that they were rendered comparatively worthless in consequence of their injuries. The defendant objected to this testimony, on the ground that it was not competent for the plaintiff to prove anj^ damage or loss in excess of that set out in the bill of lading. The Court sustained the objection and the plaintiff excepted. It appeared, on the trial, that the horses were race-horses, and that they and the other property were all in one car. It was admitted by the defendant that the damages sus- tained by the plaintiff were equal to the full amount expressed in the bill of lading. The Court charged the jury as follows : " It is competent for a shipper, by entering into a written con- tract, to stipulate the value of his property, and to limit the amount of his recovery in case it is lost. This is the plain agreement, that the recovery shall not exceed the sum of two hundred dollars each for the horses, or twelve hundred dollars for a car-load. It is admitted here, by counsel for the defend- ant, under this charge, that the plaintiff is entitled to recover a verdict for twelve hundred dollars, and, also, under the charge of the Court, the plaintiff agrees that that is ail. It is simply your duty to find a verdict for that amount." The plaintiff excepted to this charge. The jury found a verdict of $1,200 for the plaintiff (see 2 McCrary, 333) ; and after a judgment accordingly the plaintiff brought this writ of error. The errors assigned are, that the Court erred in refusing to permit the plaintiff to show the actual damages he had sus- tained, and in so charging the jury as to restrict their verdict to $1,200. Mr. Justice Blatchford delivered the opinion of the Court. He stated the facts in the foregoing language, and continued : It is contended for the plaintiff that the bill of lading does not purport to limit the Uability of the defendant to the HART v. PENNSYLVANIA RAILROAD CO. 693 amounts stated in it, in the event of loss through the negh- gence of the defendant. But we are of opinion that the con- tract is not susceptible of that construction. The defendant receives the property for transportation ou the terms and con- ditions expressed, which the plaintiff accepts " as just and reasonable." The first paragraph of the contract is that the plaintitf is to pay the rate of freight expressed, " on the con- dition that the carrier assumes a liability on the stock to the extent of the following agreed valuation : If horses or mules, not exceeding two hundred dollars each. ... If a chartered car, on the stock and contents in same, twelve hundred dollars for the car-load." Then follow in the first paragraph, these words : " But no carrier shall be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, or smothering, nor for loss or damage arising from condition of the animals themselves, which risks, being be- yond the control of the company, are hereby assumed by the owner, and the carrier released therefrom." This statement of the fact that the risks from the acts and condition of the horses are risks beyond the control of the defendant, and are, therefore, assumed by the plaintiff, shows, if more were needed than the other language of the contract, that the risks and liability assumed by the defendant in the remainder of the same pai'agraph are those not beyond, but within, the control of the defendant, and, therefore, apply to loss through the negligence of the defendant. It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the de- fendant assumes a liability to the extent of the agreed valua- tion named, the rate of freight is graduated by the valuation. Especially is this so, as the bill of lading is what its .heading states it to be, " a limited liability live-stock contract," and is confined to live-stock. Although the horses, being race-horses, may, aside from the bill of lading, have been of greater real value than that specified in it, whatever passed between the 694 DISCHARGE. parties before the bill of lading was signed was merged in the valuation it fixed ; and it is not asserted that the plaintiff named any value, greater or less, otherwise than as he assented to the value named in the bill of lading, by signing it. The presumption is conclusive that, if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have beeu charged. The rate of freight is indis- solubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was be- cause it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation, on the agreed rate of freight. It is further contended by the plaintiff, that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on re- quirement, states the value of the property and a rate of freight is fixed accordingly, and the present case. It is said, that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the ship- per. But we see no sound reason for this distinction. The valuation named was the " agreed valuation," the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the- valuation, and that the liability should go to that extent and no further. We are, therefore, brought back to the main question. It is the law of this Court that a common carrier may, by special contract, hmit his common-law liability ; but that he cannot stipulate for exemption from the consequences of his own negli- gence or that of his servants : New Jersey Steam Nav. Qo. v. Merchants' Bank, 6 How. 344 ; York Co. v. Central R. R. Co., HART V. PENNSYLVANIA RAILROAD CO. 695 3 Wall. 107 ; Railroad Co. i'. Lockwood, 17 Wall. 357 ; Express Oo. (-. Caldwell, 21 Wall. 264 ; Railroad Co. v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Express Co., 93 U. S. 174 ; Railwa\' Co. v. Stevens, 95 U. S. G55. In York Co. v. Central Railroad, 3 Wall. 107, a contract was upheld exempting a carrier from liability for loss by fire, the fire not having occurred through any want of due care on his part. The Court said that a common carrier may " prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to encounter." In Railroad Co. v. Lockwood, 17 Wall. 357, the following propositions were laid down by this Court : (1) A common carrier cannot lawfull3' stipulate for exemption from responsi- bility when such exemption is not just and reasonable in the eye of the law; (2) It is not just and reasonable in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants ; (3) These rules apply both to carriers of goods and to carriers of passengers for hire, and with special force to the latter. The basis of the decision was that the exemption was to have ap- plied to it the test of its justness and reasonable character. It was said that the contracts of the carrier "must rest upon their fairness and reasonableness ;" and that it was just and reason- able that carriers should not be responsible for losses happen- ing by sheer accident, or chargeable for valuable articles liable to be damaged, unless apprised of their character or value. That case was one of a drover traveling on a stock train on a railroad, to look after his cattle, and having a free pass for that purpose, who had signed an agreement taking all risk of injury to his cattle and of personal injury to himself, and who was injured by the negligence of the railroad company or its servants. In Express Co. v. Caldwell, 21 Wall. 264, this Court held that an agreement made by an express company, a common carrier in the habit of carrying small packages, that it should not be held liable for any loss or damage to a package deliv- 696 DISCHARGE. ered to it, unless claim should be made therefor within ninety days from its delivery to the company, was an agreement which the company could rightfully make. The Court said : " It is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his- employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable and not inconsistent with sound public policy." It was held that the stipulation as to the time of making a claim was reasonable and intrinsically just, and could not be regarded' as a stipulation for exemption from responsibility for negli- gence, because it did not relieve the carrier from any obliga- tion to exercise diligence, fidelity, and care. On the other hand, in Bank of Kentucky v. Adams Express Co., 93 U. S. 174, it was held that a stipulation by an express company that it should not be liable for loss by fire could not b& reasonably construed as exempting it from liability for loss by fire occurring through tlie negligence of a railroad company which it had employed as a carrier. To the views announced in these cases we adhere. But there is not in them any adjudication on the particular question now before us. It may, however, be disposed of on principles which are well established and which do not conflict with any of the rulings of this Coui-t. As a general rule, and in the a})- sence of fraud or imposition, a common carrier is answerable for the loss of a package of goods though he is ignorant of its contents, and though its contents are ever so valuable, if he- does not make a special acceptance. This is reasonable, be- cause he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them. If the shipper is guilty of fraud or imposition, by misrepresenting the nature or value of the articles, he destroys his claim to indemnity, because he has at- tempted to deprive the carrier of the riglit to bo compensated in proportion to the value of the articles and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed : 2 Kent's HART V. PENNSYLVANIA KAILEOAD CO. 697 Comm. 603, aud cases cited ; Relf v. Rapp, 3 Watts & Ser- geant, 21 ; Duulap v. International Steamboat Co., 98 Mass. 371 ; Railroad Co. v. FralofP, 100 U. S. 24. This qualification of the liabilitj' of the carrier is reasonable, and is as important as the rule which it qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agree- ment, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the car- riage, if there is no loss ; and the effect of disregarding the agreement, after a loss, is to expose the carrier to a greater risk than the parties intended he should assume. The agree- ment as to value, in this case, stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract. The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that con- tract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly etitered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. This principle is not a new one. In Gibbon v. Paynton, 4 698 DISCHARGE. Burrows, 2298, the sum of £100 was hidden in some hay in an old mail-bag and sent by a coach and lost. The plaintiff knew of a notice by the proprietor that he would not be answerable for money unless he knew what it was, but did not apprise the proprietor that there was money in the bag. The defense was upheld. Lord Mansfield saying : "A common carrier, in respect of the premium he is to receive runs the risk of the goods, and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be propor- tionable to the risk. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expense of more guards or other methods of security ; and, therefore, he ought, in reason and justice, to have a greater reward." To the same effect is Batson v. Donovan, 4 B. & A. 21.. The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance. In the present case, the plaintiff accepted the valuation as "just and reasonable." The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valu- ation according to the nature of the animal. It does not appear that an unreasonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is sup- ported in Newburger v. Howard, 6 Philadelphia Rep. 174 ; Squire v. New York Central R. R. Co., 98 Mass. 239 ; Hop- kins V. Westcott, 6 Blatchford, 64 ; Belger v. Dinsmore, 51 N. Y. 166 ; Oppenheiraer v. United States Express Co., 69 111. 62 ; Magnin v. Dinsmore, 56 N. Y. 168, and 62 lb. 35, and 70 lb. 410 ; Earnest v. Express Co., 1 Woods, 573 ; Elkiiis u Empire Transportation Co., 81* Pa. St. 315 ; South & North Ala. R. R. Co. V. Henlein, 52 Ala. 606 ; Same v. Same, 56 lb. 368 ; Muser v. Holland, 17 Blatchford, 412 ; Harvey v. Terra Haute R. R. Co., 74 Missouri, 538 ; and Graves v. Lake Shore HART V. PENNSYLVANIA KAILKOAD CO. 699 Ry. Co., 137 Mass. 33. The contrary rule is sustained in Southern Express Co. r. Moon, 39 Miss. 822 ; The City of Norwich, 4 Ben. 271 ; United States Express Co. v. Backman, 28 Ohio St. 144 ; Black v. Goodrich Transportation Co., 55 Wis. 319 ; Chicago, St. Louis & N. 0. R. R. Co. v. Abels, 60 Miss. 1017; Kansas City, etc., Railroad Co. u Simpson, 30 Kansas, 645 ; and Moulton v. St. Paul, etc., R. R. Co., 31 Minn. 85. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusions. Applying to the case in hand the proper test to be applied to every limitation of the common-law liability of a carrier — its just and reasonable character — we have reached the result indicated. In Great Britain, a statute directs this test to be applied by the Courts. The same rule is the proper one to be applied in this country, in the absence of any statute. As relating to the question of the exemption of a carrier from liability beyond a declared value, reference may be made to § 4281 of the Revised Statutes of the United States (a re-enactment of § 69 of the Act of February 28, 1871, ch. 100, 16 Stat. 458), which provides that if any shipper of certain enumerated articles, which are generally articles of large value in small bulk, " shall lade the same, as freight or bag- gage, on any vessel, without at the time of such lading giving to the master, clerk, agent, or owner of such vessel receiving the same, a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner, nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof so notified and entered." The principle of this statute is in harmony with the decision at which we have arrived. The plaintiff did not, in the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehension. On the contrary, he 700 DISCHAEGB. offered and read in evidence the bill of lading, as evidence of the contract on which he sued. The distinct ground of our decision in the case at bar is that where a contract of the kind, signed by the shipper, is fairly- made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier as- sumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier,, the contract will be upheld as a proper and lawful mode of secur- ing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protect- ing himself against extravagant and fanciful valuations : Squire V. New York Central E.. R. Co., 98 Mass. 239, 245, and cases there cited. There was no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the Circuit Court is affirmed. Davis V. E. E., 29 Atl. 313; Grinnell v. W. U. T. Co., 113 Mass. 299; Eedpath v. W. U. T. Co., 112 Mass. 71 ; Express Co. v. Caldwell, 21 Wall. 264 ; Primrose v. W. U. T. Co., 154 U. S. 1 ; Clement v. W. U. T. Co., 137 Mass. 463; Selby v. E. E. Co., 113 N. C. 588; Cole v. W. U. T. Co., 33 Minn. 227 ; McAndrew v. Tel. Co., 33 Eilg. L. & Eq. 180 ; Stamey v. W. TJ. T. Co., 18 S. E. 1008 ; Heimann v. W. V. T. Co., 57 Wis. 562 ; Stewart v, Ludwick, 29 Ind. 232 ; Pa. E. E. v. Derby, 14 How. 468 (note); Minn. Stat. 1894, U 381 (g), 2636 ; Jaggard, 298 ; Bishop, 1160 ; Wood's Brown on Car- riers, 192-196 ; Schouler on Bailments and Carriers, 408, 449^80 ; 2 Am. & Eng. Encyc. 818, 871 ; vol. 3, 10-15. Note.— Generally the Courts deny the right to contract against negli- gence: E. E. V. Lockwood, 17 Wall. 357; Gillis v. W. U. T. Co., 61 Vt. 461 ; Quinn v. Halbcrt, 52 Vt. 355 ; Mann v. Birchard, 40 Vt. 326. Contra: Magnin v. Dinsmore, 62 N. Y. 35 ; Kinney v. E. E., 34 N. J. L. 513 ; Eathbone v. E. E., 140 N. Y. 48 ; Belger v. Dinsmore, 51 N. Y. 166 ; Smith V. E. E., 29 Barb. 132; Bissell i;. E. E., 25 N. Y. 442; Mynard v E. E., 71 N. Y. 180. See Text-Book citations supra. CUKEIER V. BILGER. 701 (2) After damage. Currier v. Bilger. Supreme Court of Pennsylvania, 1892. 149 Pa. St. 109 ; 24 Atl. 168. Mr. Chief Justice Paxson. We are of opinion that the defendant's second point should have been affirmed. The point was as follows : " If the jury believe that the plaintiff, on June 27, 1890, agreed to take from the defendant $15.00 in full satisfaction of the damages caused by goring of plaintiff's horse by defendant's bull, and the defendant then and there paid the amount agreed upon, the subsequent death of the horse would not enable the plaintiff to maintain an action for the same injury, the damage for which had been settled." In order to understand this point it is necessary to state that the plaintiff's horse had been gored by defendant's bull. Shortly thereafter a settlement took place between the parties, as will appear by the following receipt : "Pennville, Pa., June 27, '90. " Received, of Jacob Bilger, fifteen dollars ($15.00), for dam- age sustained by bull hooking horse. In full. " (Signed) J. Currier." A week after the settlement the plaintiff's horse died, as is supposed, from the effect of the injury. Shortly thereafter the plaintiff brought this suit to recover the value of the horse before a justice of the peace, and obtained a judgment for $160, from which judgment the defendant appealed to the Court of Common Pleas. On the trial in the Court below the defendant set up this receipt as a bar to the action, and the second point referred to prayed for an instruction to that effect. The point was refused and a bill sealed. While it is settled law that a contract made under a mis- take, or in ignorance of material facts, maybe relieved against in equity, we have no such question here. There was no 702 DISCHARGE. mutual mistake of the parties as to any material fact. The only fact in the case was that the plaintiff's horse had been gored by the defendant's bull. As to this there was no mistaJc^; and each party was fully informed. The consequences result- ing from this fact were, of course, unknown to either party with any degree of certainty. The plaintiff made the mistake of underestimating the consequences of the injuries of his horse, and of making a settlement with the defendant before they were accurately ascertained. This may be his misfor- tune, but it is one which the law cannot remedy. No one will contend that if he had brought suit for this $15 and re- covered he could have maintained a second suit after the death of the horse. He could not have had two suits for the one injury : Logan v. Caffrey, 30 Pa. 196. Nor can he, after settling with the defendant, sustain a suit to recover additional damages for the same injury. In other words, he cannot first recover for the damages for the injury and then sustain a suit for the consequences of the injury. Judgment reversed. Squires v. Amherst, 145 Mass. 192; Hobbs v. Light Co., 75 Mich. 650; Hawes v. R. R., 64 la. 315 ; Rose v. R. R., 12 Atl. 78 ; R. R. v. Shay, 82 Pa. St. 198 ; R. R. o. Doyle, 18 Kans. 58 ; Tompkins v. R. R., 66 Cal. 163 ; Lusted \\i if they should find that the building was not a nuisance, then the defendant was liable to damages. The jury found a verdict for the defendant. The plaintiff asked for a new trial. Savage, C. J. It was not denied upon the trial that the building torn down was a common nuisance, nor was it upon the argument. It may not be improper, however, to refer to. the cases collected in Bacon's Abr. tit. Nuisance, to see what has been adjudged a nuisance. It may be proper to remark that a nuisance is an annoyance; anything that worketh hurt,, inconvenience or damage : Jacob's Law Diet. It is a common nuisance indictable to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in the time of sickness and infection of the plague: 2 Rolle's Abr. 139. So manufactures, lawful in themselves, may become nuisances, if erected in parts of towns where they cannot but greatly incommode the inhabitants and destroy their health. Whether the houses of the plaintiff were of that description, was fairly left to the jury by the Judge in his charge. A more offensive nuisance cannot be imagined than the buildings de- scribed by the witnesses in this case. The first exception taken on the trial was, that the witness should not have been asked whether the inhabitants were not requested to leave the buildings before they were pulled down. MEEKER V. VAN RENSSELAER. 713 The object of the inquiry no doubt was, to show that the con- duct of the defendant was not wanton, but that he was influ- enced by considerations of the public good, and not of private injury to the plaintiff. The question was proper and unex- ceptionable. It was objected that parol evidence should not have been received of the orders of the board of health. This objection was well taken. The board of health is a tribunal created by statute, clothed with large discretionary powers ; and being a public body, its acts should be proved by the highest and best evidence which the nature of the case admits of Every pro- ceeding of a judicial character must be in writing. It is not to be presumed that minutes of their proceedings are not kept by such a body, and that determinations which seriously affect the property of individuals were not reduced to writing, but rest in parol. In the case of Wormer v. The City of Albany,. ante 262, the minutes of the proceedings of the board were in- corporated with the proceedings of the corporation, of which the board of health were members, and were proved by a wit- ness a member of both boards. Here the proof was defective ; but in my judgment it is not material, because the defendant did not need any authority from the board of health. As a citizen of the Fifth Ward, who desired to preserve the public health, and especially as an alderman, he is fully justified in every act done by him. It was also objected that proof should have been received of other modes of abating nuisances, than by pulling down houses. Such proof would have been wholly irrelevant. The proof in this case, from the plaintiff's own witness, was, that there was no other way to correct the evil but by pulling down the building. Had it been proved that in the case of other nuisances draining or filling up had been resorted to, such proof would not have contradicted the testimony in this cause. In my opinion a new trial should be refused. New trial denied. Gates V. Blincoe, 2 Dana (Ky. ), 158 ; Arundel v. MoCulloch, 10 Mass. 70 ; Harvard College v. Stearns, 15 Gray, 1 ; Moffett v. Brewer, 1 Greene (la.). 714 REMEDIES. 348 ; Amoakeag v. Goodale, 46 N. H. 53 ; Wetmore v. Tracy, 14 Wend. 252 ; Adams v. Beach, 6 Hill, 271 ; Burnham v. Hotchkiss, 14 Conn. 311 ; Com. v. McDonald, 16 S. & R. 390 ; Grandona o. Lovdal, 11 Pac. 623 ; Benwick v. Morris, 7 Hill, 575 ; Calef v. Thomas, 81 111. 478 ; Galatian v. Gardner, 7 John. 106 ; People v. Stearns, 21 Wend. 409 ; Minn. Stat. 1894, ?5 1085 (4) (28), Laws 1895, oh. 25; Jaggard, 799-802; Bishop, 429^31, 754, 1323; Pollock, 210, 487, 513, 515 (n.) ; Wood's Law of Nuisance, 794, 795 n., 798, «00, 817, 819. 2. Judicial. a Extraordinary: Injunction. The issuing of an injunction rests 'with a Court of Equity ; only issuing to prevent a threatened injury of an irreparable nature, in that it is not susceptible of a compensation in damages. Thatcher et al. v. Humble. Supreme Court of Indiana, 1879. 67 Ind. 444. HowK, J. This was a suit by the appellee, against the appellants, to obtain an injunction. The appellants demurred to appellee's complaint, for the alleged insufficiency of the facts therein to constitute a cause of action, which demurrer was overruled by the Court, and to this ruling they excepted. They then answered the com- plaint by a general denial thereof. The cause was tried by a jury, and a verdict was returned for the appellee, that the appellants "be restrained and enjoined from cutting down and removing the walnut timber trees described in plaintiff's complaint." The appellants' motion in arrest of judgment having been overruled, and their exception entered to this decision, the Court rendered judgment upon the verdict, that the appellants be enjoined and restrained from cutting or removing the walnut trees described in the complaint, and that they pay the costs of this suit. In this Court errors are assigned which call in question the THATCHER ET AL. V. HUMBLE. 715 sufficiency of the facts stated in tlie appellee's complaint, to constitute a cause of action, and the jurisdiction of the Court below of such cause of action. In his complaint, the appellee alleged, in substance, that he was the owner, and in the peaceable possession of cei'tain real estate, particulai-ly described, in Kosciusko County, Indiana ; that there were growing on said real estate fifteen walnut trees, of the value of $60 ; that the appellants were cutting 295 ; E. R. v. Johnson, 12 S. W. 482 ; Jaggard, 169, 396 ; 5 Am. & Eng.. Encyc. 23. Note. — In case the injury is not the direct result of the act complained of, punitive damages cannot be recovered even though gross negligence or criminal indifference characterize such act : L. & N. R. R. v. Hall, 6 So. 277 ; Petterson v. E. E., 7 So. 437 ; Mo. Pac. E. R. v. Johnson, 10 S. W. 325 p K. C, Ft. S. & G. R. R. V. Kier, 21 Pac. 770 ; Mo. Pac. R. E. v. Mitchell, 10- S. W. 411. (e) General. General damages are those ■which are ordinarily and commonly the- consequence of the conduct complained of, and need not be spe- cially pleaded. DuMONT V. Smith. Supreme Court of New York, 1847. 4 Denio, 319. Error to the Schoharie Common Pleas. Smith sued Du- mont in the Court below in trespass. The first count was for 762 REMEDIES. breaking and entering the plaintiff's close, called a law office., and taking and carrying away a promissory note, made by the defendant, which the holder had left with the plaintiff as an attorney-at-law for collection, whereby the plaintiff (amongst other things) had been deprived of the costs of collecting it. The second count was in trespass de bonis asportatis — for taking and carrying away the note. Plea not guilty. On the trial it appeared that the defendant entered the plaintiff's law office at the plaintiff's request, he having been written to, to call and see to the payment of a note which had been left with the plaintiff to collect. The defendant said he came to pay the note, and handed the plaintiff money nearly sufficient to pay it, and while the plaintiff was counting the money the defendant partly tore his name from the note, and insisted that he had paid all that he was bound to pay. The plaintiff claimed that he was entitled to costs, and some alter- cation taking place the defendant was ordered to leave the oflBce, which he for a time refused to do. He at last offered to pay the amount claimed, with costs, but finally went away, taking the money and the note with him, and as he passed out of the door, dared the plaintiff to come out into the street, threatening to whip him. The Court charged the jury that the mutilation of the note and the carrying it away were each acts of trespass ; and that though the defendant entered the plaintiff's oflBce by his per- mission, if he afterward, while there, did an unlawful act, it rendered him a trespasser from the beginning, and made him responsible for the original entry. They also charged that the plaintiff's actual damage was $54.24, the amount of the note, and five dollars for a retaining fee in the suit on the note, a declaration having been made out but not filed or served. The defendant's counsel excepted, and the jury rendered a verdict for the plaintiff for $59.24, upon which the Court ren- dered judgment. Jewett, J. The Court charged the jury that if the defend- ant entered the plaintiff's office by his permission, and after- DUMOXT V. SMITH. 763 ward did an unlawful act, it made him a trespasser for the original entrj- ; and in this I am of opinion that they erred. It is a maxim applicable to some cases, that the law judges of a man's previous intentions by his subsequent acts. This maxim is well illustrated in The Six Carpenters' Case, 8 Rep. 290, where it was held that if a man abuse an authority given him by the law, he becomes a trespasser ab initio ; but when he abuses an authority given him by the party, he shall not be a trespasser ah initio. The reason assigned for this distinction was, that where a general authority or license is given by the law, the law judges by the subsequent act, quo animo the origi- nal act was done ; but when the party himself gives an au- thority or license to do anything, as to enter upon land, he cannot for any subsequent cause convert that which was originally done under the sanction of his own authority or license into a trespass ab initio ; and in this latter case., there- fore, the subsequent act only will amount to a trespass. For instance, the law gives authority to enter a common inn or tavern, and in like manner to the owner of the ground to dis- train damage feasant; but if he who enters into the inn or tavern commits a trespass, or if the owner who distrains a beast damage feasant, works or kills the distress, in these and similar cases, the law adjudges that the party entered for the specific purpose of committing the particular injury, and be- cause the act which demonstrates the intention is a trespass, he shall be adjudged a trespasser ab initio — or, in other words, the subsequent illegality shows the party to have contemplated an illegal act all along, so that the whole becomes a trespass : Oxley V. Watts, 1 Term R. 12 ; Bagshawe v. Go ward, Cro. Jac. 147; Aitkenhead r. Blades, 5 Taunton, 198; Smith v. Eggiu- ton, per LiTTLEDAivE, .J., 7 Adol. & Ellis, 176; Van Brunt v. Schenck, 13 John. R. 414 ; Allen v. Crofoot, 5 Wend. SOU. The case of Adams v. Freeman, 12 John. R. ^08, arose in a justice's Court. It was an action of trespass, for entering the plaintiff's dwelling-house, and not guilty was pleaded. The evidence was that the defendant entered the dwelling-house of the plaintiff without permission. On being requested to leave 764 REMEDIES. the house he answered he would go when he pleased ; and being ordered to go out several times, he gave the same answer, and remained ha'lf an hour afterward, and finally left. The justice non-suited the plaintiff. On certiorari, this Court re- versed the judgment, holding that entering a dwelling-house of another (it not being an inn or tavern), without license, was in law a trespass ; and that to render such an entry lawful there must be a permission, express or implied. There being no permission in that case, the act of entering the plaintiff's house was held to be a trespass ; but the Court added : " If the defendant had received permission to enter, as by being asked to walk in, upon his knocking at the door, his subsequent con- duct was such an abuse of the license as to render him a tres- passer ab initio." This remark was extra-judicial, and is not supported by principle, and besides has been virtually over- ruled by the cases of Van Brunt v. Scheuck and Allen v. Cro- foot, before referred to. In this case the defendant showed an invitation or license given him by the plaintiff himself, and therefore was clearly not liable as a trespasser for the entry on account of any sub- sequent acts, however tortious. If liable at all, in trespass, it must be only in respect to the subsequent acts ; as those only, under any circumstances, will amount to trespasses. The Court below charged the jury as a matter of law that the plaintiff's actual damages, if they found for him, were the amount of the note, principal and interest, together with five dollars for retaining fee and issuing the declaration on the note. I think the Court also erred in this. In actions for torts, damages are either general or special. The former are such as the law implies to have accrued frotn the wrong com- plained of. The latter are such as really took place, and are not implied by law, and are superadded to general damages arising from an act injurious in itself, as when some par- ticular loss arises from the uttering of slanderous words action- able in themselves ; or are such as arise from an act indiffer- ent and not actionable in itself, but injurious only in its con- sequences, as when words become actionable only by reason of DUMONT V. SMITH. 765 special damage ensuing. The former description need not be stated in the declaration, for the reason that presumptions of law are not in general to be pleaded. Bat the latter, when the law does not necessaril_y imply that the plaintiff sustained ■damage by the act complained of, it is essential to the validity •of the declaration to show particularly. And when the dam- ages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it : 1 Chitty's PI. 385 ; Butler v. Kent, 19 John. R. 228. In this declaration the plaintiff stated his damages specially, namely, that iu consequence of the taking away of the note by the defendant, the plaintiff was prevented from prosecuting -and collecting it, and was deprived of the profit of a suit for the collection thereof. There was no evidence that such ■consequences resulted to the plaintiff from the commission ■of the act complained of. And it is not easily seen how they could. I can see no difficulty in the way of the plain- tiff's proceeding in the suit which, as an attorney, he had commenced against Dumont upon the note, to judgment and ■execution. The tortious taking of the note and conversion of it by the defendant could not afford him a bar to an action upon it. It is enough that the law did not imply that the plaintiff had been damnified to the amount of the note and five dollars costs, in consequence of the wrongful act imputed to the defendant. The judgment is erroneous, and there must be a venire de novo. Judgment reversed. Parker V. Burgess, 64 Vt. 442 ; GerJes v. Foundry, 25 S. W. 557 ; Bristol Mfg. Co. V. Gridley, 28 Conn. 201 ; Hutchinson v. Granger, 13 Vt. 383 ; Jag- ^rd, 383, 388-392 ; 5 Am. & Eng. Encyc. 49. 766 REMEDIES. (f) Special. Special damages are the natural consequence of the act complained of, though not the necessary result of it, and should be specially pleaded. Baldwin v. Western Railroad Corporation. Supreme Judicial Court of Massachusetts, 1855. 4 Gray, 333. Action of tort. The plaintiff's occupation was not stated in the writ. The only averments in the declaration were that the defendants owned a railroad between Worcester and Springfield ; that the plaintiff was traveling on a highway in Spencer, which crosses said railroad, and was using due care ; that the defendants ran their locomotive engine and cars against the wagon in which the plaintiff was riding across said railroad and along said highway, and threw the plaintiff" out on the rails of said road and frozen ground, and did her great hurt and damage ; and the defendants did not use due care in running their said engine and cars. After a verdict for the plaintiff in the Court of Common Pleas, held by Byington, J., the case came before this Court upon the following bill of exceptions : " This was an action of tort for injuries suffered by the plaintiff in consequence of a. collision with a locomotive engine and tender owned by the defendants, at a highway crossing in the town of Charlton, whereby the plaintiff was thrown from the carriage in which she was riding. Before, and at the time of the accident, Warren Baldwin, a brother of the plaintiff, was driving the horse at- tached to the carriage from which the plaintiff was thrown. The defendants offered evidence for the purpose of showing that, by common reputation, Warren Baldwin was a careless driver. The plaintiff objected to this evidence, and the pre- siding Judge ruled that it was inadmissible. "The plaintiff's counsel offered evidence tending to show the education and learning of the plaintiff; and there was evi- BALDWIN ['. WESTERN RAILROAD CORPORATION. 707 dence to show she was a school teacher. The defendants ob- jected ; but the Court ruled that this evidence was admissible. To these rulings of the presiding Judge the defendants except." BiGELOW, J. 1. The testimony that the person, who was driving the carriage iu which the plaintiff was at the time of the accident was, by common reputation, a careless driver, was rightly rejected. It might have been competent for the defendant to show that he was in fact unskillful or careless in the management of a horse: Adams v. Carlisle, 21 Pick. 146. But evidence on this point must come from those who can testify to the fact of their own knowledge. It cannot be proved by reputation. 2. We are of opinion that under the Practice Act, St. 1852, c. 312, a general allegation of damages at the end of the declaration will not entitle a party in an action of tort to prove special damages ; that is, such damages as are not implied by law, because they do not necessarily arise from the act com- plained of. The rule of the common law which requires a plaintiff, for the purpose of guarding against surprise upon his adversary, to set out in his declaration any particular damage which he has sustained, in order to enable him to prove it, re- mains unchanged. There is no specific provision in the statute which authorizes any alteration in the form of pleading in this particular. On the contrary, it is expressly provided in § 6 that the rules of evidence and tlie measure of damages shall remain unchanged, " except so far as the same maybe herein specially provided for." Besides : to the forms of declarations iu actions of tort appended to the statute, and immediately following the first form there prescriljed, there is this significant note : " The ad damnum is a sufficient allegation of damage in all cases in which special damages are not claimed." This is decisive of the Intent of the Legislature to retain the old rule of pleading, which requires the grounds of special damage to be distinctly averred. In the present case, the evidence offered by the plaintiff to show her education and learning, and that she was a school 768 REMEDIES. teacher, could have had no relevancy or application to the questions at issue between the parties, except as forming the basis on which special damages were to be assessed for the in- jury of which she complained. It did not tend to show an injury falling within the class of general damages. That class includes only such damages as any other person, as well as the plaintiff, might, under the same circumstances, have sustained, from the acts set out in the declaration. Without determining the more difficult question whether the evidence would be ad- missible under any form of declaration, it is clear that this part of the plaintiff 's claim could be founded only upon a peculiar loss sustained by her by reason of the interruption to her occupation resulting from ;the tortious act of the defendants. They were therefore in their n.ature damages not necessarily flowing from the acts set out in the declaration, and ^ of which the defendants could not be supposed to have notice unless they were properly averred : 1 Chit. PI. (6th Amer. ed.) 440 ; Dickinson v. Boyle, 17 Pick. 78 ; Squier v. Gould, 14 Wend.r 159. Exceptions sustained. Tomlinson v. Derby, 43 Conn. 562; Laing r. Colder, 8 Barr (Pa.), 479; Squier v. Gould, 14 Wend. 159 ; R. B. v. Friedman, 146 111. 583 ; Comaskey V. R. R., 55 N. W. 732 ; Teagarden v. Hetfield, 11 Ind. 522 ; Dickinson v. Boyle, 17 Pick. 78 ; Young v. Tustin, 4 Blackf. 277 ; Patten v. Libby,32 Me. 379 ; Nunan v. San Francisco, 38 Cal. 689 ; Jaggard, 383-392 ; Cooley, 204 ; Pollock, 292 ; Wood's Mayne on Damages, 30, 34, 709, 502 ; 5 Am. & Eng. Encyc. 50. (4) Mental suffering. Damages can be recovered for mental suffering accompanying an .actual legal injury. Cahill v. Murphy. Supreme Court of California, 1892. 94 Cal. 29 ; 30 Pac. 195. Fitzgerald, C. This is an action for slander. The com- plainant alleges, in substance, that on or about the 21st day of September, 1889, and for a long time prior thereto, plaintiff, CAHILL V. MURPHY. 769 with her children, occupied certain rooms in a hotel of which the defendant was owner and proprietor ; that one of these rooms was situated on the ground-floor of the hotel, and used by her for the purpose of carrying on and conducting a general merchandising business ; that on said last-mentioned date, the soot in the chimney leading from the room used as a store became ignited, causing an alarm of fire to be given ; and it is further alleged, upon information and belief, that the fire was communicated to the soot in the chimney from a fire in the stove situated in said store. The slanderous words out of which this action arose are alleged to have been falsely and maliciously spoken by the defendant of and concerning tho plaintiff, and are laid as fol- lows : " This is twice jou. [the'plaintiff meaning] have tried to burn us [the said hotel meaning] out to get your fourteen hundred dollars insurance. But I will report you [the said plaintiff meaning] to the insurance company to-morrow morn- ing, and have your insurance taken away from you." It is further alleged that the defendant, by the use of these words, intended to convey the meaning that the plaintiff will- fully and maliciously communicated the fire to the soot in said chimney, and that by so doing slie was guilty of an attempt to commit the crime of arson, and that they were so under- stood by those in whose presence they were uttered, to the damage of the plaintiff's character and business in the sum of $10,000. A demurrer was interposed to the complaint, which, upon the grounds stated, was properly overruled. Defendant thereupon answered, specifically denying the material allegations of the complaint, and upon the issues thus joined, plaintiff had verdict and judgment for |1,200. The only error complained of, which we deem it necessary to consider, relates to the ruling of the Court upon defendant's objection to the following question propounded to plaintiff on her examination-in-chief as a witness, and after she had testified, without objection, that she had "a family of four, children." 49 770 REMEDIES. " Q,. How many of them are dependent upon you for sup- port?" Objected to, on the ground that the question " is incompe- tent and immaterial." The objection was overruled by the Court, and defendant excepted. " A. Three are dependent upon me at present." It is claimed that the effect and purpose of this testimony was to arouse the sympathies and sentimental feelings of the jury, to the prejudice of defendant's case, by the introduction of an element that did not belong to it, and which the jury could not properly consider in the assessment of damages. In Rhodes v. Naglee, 66 Cal. 681, the ruling of the Court below permitting the plaintiff, against defendant's objection, to prove that he was a married man and had a family, was held not to be erroneous. And in Dixon v. Allen, 69 Cal. 527, the mother of the plaintiff was allowed to testify as to the number of her chil- dren, their ages, and the death of her husband. The rule laid down by this Court in those cases rests upon the principle (although not stated) that as mental suffering entitled the plaintiff to compensation' in cases of this char- acter, such suffering may be increased, and the damages con- sequently enhanced by the fact that the members of the plain- tiff's family would suffer by reason of the disgrace visited upon her by the slanderous charge. It was therefore competent, in this case, on the question of damages, to prove the number and ages of plaintiff's children ; but that they were dependent on her for support was irrele- vant, and not within the issues raised by the pleadings, there- fore erroneous. But was it such a material error as would justify the re- versal ? The rule in this State is well settled, that injury will be presumed from error, unless the record affirmatively shows to the contrary. It was competent, as we have stated, for the plaintiff to prove the number and ages of her children, and if it appeared from the evidence that they were minors, the CAHILL !'. MURPHY. 771 presumption would be that they were naturally and legally dependent on her for support. The effect, therefore, of such evidence would be the same as if proven by direct testimony. The evidence upon which the verdict was founded shows that the slanderous words charged were spoken wantonly and maliciously. The plaintiff was therefore entitled to recover of the defendant exemplary or punitive damages, and the as- sessment of such damages was almost entirely in the discre- tion of the jury. In view, therefore, of the enormity of the charge and the situation of the parties, the plaintiff being a defenseless woman, coupled with the amount of damages awarded by the jury as compared with the sum sued for, we are satisfied that the jury was not influenced by this evidence prejudicially to the defendant's case. The verdict might well have been for a much larger sum, and yet not obnoxious to the objection that it was excessive. In this case we think the evidence immaterial, and its admis- sion by the Court a mere technical error : People v. Fick, 89 Cal. 144. The judgment and order should be afl&nned, and we so advise. The Court. For the reasons given in the foregoing opinion, the judgment and order are affirmed. Hearing in banc denied. Fenelon v. Butts, 5.3 Wis. 344; Morton v. W. U. T. Co., 41 N. E. 689 ; A. T. & S. F. E. R. V. Midgett, 40 Pac. 995 ; Ferguson v. Davis Co., 57 la. 601 Smith V. Holcomb, 99 Mass. 552 ; Muldowney v. I. C. R. R., 36 la. 462 McKinley )■. C. & N. W. R. R., 44 la. 314 ; Smith v. R. R., 23 Ohio St. 10 W. U. T. Co. V. May, 27 S. W. 760 ; Francis v. W. U. T. Co., 59 N. W. 1078 Larson v. Chase, 47 Minn. 307 ; W. U. T. Co. v. De Jarles, 27 S. W. 792 ; W U. T. Co. V. Burrow, 30 S. W. 378 ; W. U. T. Co. v. Womack, 29 S. W. 932 Vogel V. McAuliffe, 31 Atl. 1 ; W. U. T. Co. v. Coffin, 30 S. W. 896 ; Minn. Stat. 1894, ? 2639 ; Jaggard, 368, 497 ; 5 Am. & Eng. Encyc. 42 ; Wood's Mayne on Damages, 73-81. 772 REMEDIES. (a) Modification. Damages cannot be had when the suffering is too remote and not naturally attendant upon the injury. BovER V. Town of Danville. Supreme Court of Vermont, 1880. 53 Vt. 183. This was an action on the case for an injury to the plaintiff wife by reason of an alleged insufficiency in a highway which the defendant was bound to keep in repair. Plea, the general issue. Trial by jury, and verdict for the plaintiffs. Juno Term, 1880 ; Ross, J., presiding ; Caledonia County. The plaintiff's evidence tended to show that on the occa- sion in question they were driving over a culvert on the de- fendant's highway, when their horse, for some unknown cause, suddenly shied toward the west and threw the wagon off the west end of the culvert, whereby the plaintiff wife was violently thrown upon the ground, and received such injuries that, within a few weeks afterward, she miscarried and was prema- turely delivered of twin living children, with which she was pregnant at the time of the accident, and that said chil- dren both died very soon after their birth. The evidence tended also to show that the fall from the road-bed to the bed of the brook passing under the culvert was considerably less at the west end than at the east end. Against the defendant's objection and exception, the plaintiffs were allowed to show that there was no muniment at the east end of the culvert, and that there was at that end a fall of seven and one-half feet from the road-bed to the bed of the brook. The defendant's evidence tended to show that said highway was a neighborhood road only, used during the winter, and at the time when the accident occurred, by but two families, and that the highway at the point complained of was of sufficient width for teams to meet and pass one another, and in every- way sufficient for the travel reasonably to be expected to pass BOVEE V. TOWN OF DANVILLE. 773 over it, and that no accident ever occurred to the plaintiffs at that place, and that at the time of the alleged accident the whole depression at the west end of the culvert was filled sev- eral feet deep with snow up to the level of the highway, and that no marks indicating any accident were discoverable upon the snow. The plaintiffs claimed there was little or no snow in the depression, and that she fell upon the frozen ground. The Court charged the jury that the plaintiffs, if they made out their right to recover, might recover among their other damages for the injury to the plaintiff wife's feelings caused by the miscarriage and the death of her children, if such mis- carriage and death were attributable solely to the injury, to which the defendant excepted. The reporter's minutes were made a part of the exceptions. In the course of the charge the Court informed the jury that if a place like the one complained of existed in the main street of the village of St. Johnsbury, probably no one would •claim that it did not constitute an insuflSciency within the meaning of the law, to which statement the defendant excepted. This was said by way of illustrating that the duty of the town in regard to its highways was relative, and to be measured by the kind and amount of travel reasonably expected to pass over it, and to the accidents that might reasonably be expected to happen thereon. The defendant having claimed that the accident, if any, was caused and contributed to by the want of care on the part of the plaintiff husband in keeping his horse under proper control, the Court charged the jury that the burden did not rest upon the plaintiff to establish the fact that no want of care or prudence on their part contributed to the accident, and that the burden in this respect was not upon either party, but that the jury must be satisfied from all the evidence that the plain- tiffs were not guilty of any lack of care and prudence, contrib- uting the injury. The above instruction was given when the jury came in from the jury-room and made inquiry, and when the reporter was not present, and was not included in the exceptions from 774 EEMEDIES. the reporter's minutes of the main charge, to which charge the- defendant excepted. In other respects the charge was such as the case called for. Powers, J. The recital of the facts and circumstances at- tending a personal injury in cases of this kind necessarily- involves the conduct of the plaintiff, or some one for whose-, conduct the plaintiff is answerable. A recovery can be predi- cated only upon a state of facts that enables the jury to say- that the injury happened, in the language of the statute, "by. means of " the insufficiency of the highway. If it be said, that the burden is to show that the insufficiency of the high-, way was the sole operative cause of the injury, this is equiva- lent to saying that no want of due care on the part of the plaintiff helped to produce it ; or, in other words, that the in- jury is not the joint product of the plaintiff's lack of prudencfr.^ and the defendant's negligence. If the rule seems to require the plaintiff to prove a negative, such burden often arises, and, no violence is done to the rules of evidence. Notwithstanding what has been said in some of the cases respecting the burden of proof upon the question of contribu- tory negligence in this class of actions, we do not understand that any case in this State has decided that it rests anywhere; except upon the plaintiff. The Judges who heard this case- are all agreed that such burden is upon the plaintiff. The story of the accident settles this question. Witnesses describe the condition of the road, and from such description the jury , find whether insufficiency is proved. No witness is allowed . to say that it is or is not sufficient. In like manner witnesses describe the acts and conduct of the plaintiff at the time of the accident. They are not allowed to say that the plaintiff's conduct was prudent or otherwise. Nevertheless, the jury must be able to say that the highway was insufficient, and the plaintiff's conduct was prudent; and it is the duty of the plaintiff to produce such a state of evidence as will enable the jury to find both these questions in favor of the plaintiff: Walker et ux. v. Westfield, 39 Vt. 246. BOVEE V. TOWN OF DANVILLE. 775 It is argued that this error of the Court, in telling the jury- that this burden of proof did not rest upon the plaintiff, was cured by the succeeding instruction that the whole case must show that no want of due care on the part of the plaintiff contributed to her injury. The latter instruction was correct, the former erroneous. Circumstances might possibly occur where such inconsistent instructions might not work confu- sion in the minds of the jury; but, in this case the jury came into Court from their jury-room and inquired specially where this burden of proof upon this question rested, thus indicating that they had some idea of the force of this rule, and its importance as applied to the case then in hand. In answer to such inquiry these contradictory insti'uctions were ^iven, and the jury, as in Alexander v. Blodgett, 44 Vt. 476, were left to adopt which one they pleased. This exception is, therefore, sustained. Upon the question of damages, the fact of Mrs. Bovee's mis- carriage was made prominent at the trial. In the notice a threatened miscarriage is set forth, and in the declaration the actual fact is alleged as one of the iujuries sustained. The proofs disclosed the fact that this plaintiff was prematurely delivered of twin living children. The plaintiff was entitled to recover all damages that were naturally and legitimately consequent upon the negligence of the town. If the violence