CJornrll ICatu irlinol ICtbrary Cornell university Library KF 1249.C46 inustratlve cases on to^^^^^^ Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019350051 HORNBOOK CASE SERIES ILLUSTRATIVE CASES ON TORTS By H. GERALD CHAPIN, LL. M. PROFESSOR OF LAW IN FORDHAM UNIVERSITY AND IN NEW JERSEY LAW SCHOOL A COMPANION BOOK TO CHAPIN ON TORTS ST. PAUL WEST PUBLISHING CO. 1916 B^/506 COPTBIGHT, 1916 BY WEST PUBLISHING COMPANY (Ohap.Oas.Tobts) To Fordham University School of Law, and to my fellow members of the Faculty, this short collection of cases is respectfully dedicated by The Author. (iii)' THE HORNBOOK CASE SERIES It is the purpose of the publishers to supply a set of Illustrative Casebooks to accompany the various volumes of the Hornbook Series, to be used in connection with the Hornbooks for instruction in the classroom. The object of these Casebooks is to illustrate the prin- ciples of law as set forth and discussed in the volumes' of the Horn- book Series. The text-book sets forth in a clear and concise manner the principles of the subject; the Casebook shows how these princi- ples have been applied by the courts, and embodied in the case law. With instruction and study along these lines, the student should se- cure a fundamental knowledge and grasp of the subject. The cases on a particular subject are sufficiently numerous and varied to cover the main underlying principles and essentials. Unlike casebooks prepared for the "Case Method" of instruction, no attempt has been made to supply a comprehensive knowledge of the subject from the cases alone. It should be remembered that the basis of the instruc- tion is the text-book, and that the purpose of these Casebooks is to illustrate the practical application of the principles of the law. WesT Publishing Company. (v)* TABLE OF CONTENTS Part I GENERAL PRINCIPLES THE TORT CONCEPT— Page I. The Nature of a Tort 1 II. Difference between Tort and Contract 1 1. Election of Remedy 8 III. Statutory Torts 10 IV. Cases of Novel Impression 16 RESPONSIBILITY AS DEPENDENT UPON CONDITION OF MIND— I. Voluntary .Acts. 21 1. Accident 21 II. Motive 27 LIABILITY UNDER LEGAL RULES GOVERNING CAUSE AND EF- FECT— I. Proximate Cause in Genpral 31 II. Intervention of Natural Force 35 III. Fright and Mental Anguish 37 IV. Intervention of Voluntary Act 44 1. Foreseeable Intervention 45 2. Involuntary Intervention ; 49 DEFENSES— I. Necessity 52 II. Acts of State 56 III. Illegal Conduct of Plaintiff 58 IV. License 60 Y. Release and Covenant not to Sue 61 PARTIES— I. Public Officers 65 1. Judicial Officers 65 2. Ministerial Officers 76 n. Infants 81 III. Servants and Agents 83 PARTIES (Continued)— I. Corporations 91 1. Municipal 91 2. Charitable 95 n. Employers 99 1. For Wrong of Servant or Agent 99 2. For Wrong of Independent Contractor 106 III. Joint and Several Liability Ill 1. Single Injury Ill ' 2. Separate Injuries 113 3. Ratification 116 4. Indemnity and Contribution 119 CONFLICT OP LAWS— I. Transitory and Local Actions 122 II. Wrongfulness by Lex Loci 123 Chap.Cas.Toets (vii) Vm TABLE OF CONTENTS Part II SPECIFIC TORTS INFRINGEMENT OF PERSONAL SECURITY— Page I. Assault 125 II. Battery 126 1. Defense of Person 126 2. Defense of Property.' 128 3. Recaption and Entry 131 (A) Personal Property 131 (B) Real Property 134 4. Enforcement of Discipline 137 III. False Imprisonment . . ^ 139 1. Arrest without Warrant 145 (A) For Misdemeanor 145 (B) For Felony 147 INJURIES TO REPUTATION— DEFAMATION— I. Publication 152 II. Construction of Language 154 III. Matter defamatory per se 156 1. Imputation of Crime 156 2. Contagious or Infectious Disease 160 3. Tendency to Prejudice Party in Office, Trade or Profession. 161 4. Libel 164 IV. Defenses 167 I 1. Fair Comment 167 2. Privilege 170 (A) Absolute Privilege 170 (B) Qualified Privilege 172 TRESPASS— I. To Land 179 II. To Chattels '..'.'.'.'.'.'.'., 181 III. Ab Initio 1S2 CONVERSION— I. Denial of Right Essential 184 II. Nonfeasance is Insufficient 185 III. Exercise of Dominion ' . 189 IV. Conversion by Agent 191 V. Unlawful Detention 194 1. Unqualified Refusal ' 194 2. Qualified Refusal .' _' 193 3. Quantum of PlaintifC's Interest I99 4. Offer to Return 200 WASTE ! 202 FRAUD— I. Statement 205 1. Promise '..'.','. 205 2. Opinion .'.'.'!!.'.' 207 3. Concealment ' ' . 209 II. Intent to Cause Action '.'..'.', 212 III. Action by Complainant 215 1. Duty to Investigate 0I8 IV. Falsity 222 TABLE OF CONTENTS IX FRAUD (Continued) — Page V. Scienter 22.'i VI. Damage 230 SLANDER OF TITLE 2;!.-. INTERFERENCE WITH CONTRACTUAL RIGHTS— I. Prospective Contracts of Employment 237 II. Prospective Contracts not of Employment 239 III. Existing Contracts of Employment 251 IV. Existing Contracts not of Employment 256 INTERFERENCE WITH DOMESTIC RELATIONS— I. Injuries to Husband 263 II. Injuries to Wife , 267 III. Injuries to Parent " , 272 OBSTRUCTION AND PERVERSION OF LEGAL REMEDIES— I. Malicious Prosecution 279 1. Nature of Previous Proceeding , 279 2. Commencement of Previous Proceeding 286 3. Probable Cause for Previous Proceeding 293 4. Malice in Instituting Previous Proceeding 295 5. Termination of Previous Proceeding 297 II. Malicious Abuse of Process 297 III. Unauthorized Suit in Another's Name 298 IV. Maintenance and Champerty 300 NEGLIGENCE— I. Duty of Occupant of Land ,303 1. To Trespasser ; 303 2. To Licensee 305 3. To Invitee ! 308 4. To Occupant of Adjoining Premises , 314 n. Duty of Maker or Vendor of Chattel 323 III. Duty of Keeper of Animals 330 IV. Standard of Care S.!2 1. Res ipsa loquitur .' 336 V. Damage 346 VL Contributory Negligence 349 1. Common Law Rule 349 2. Rule in Admiralty 350 3. "The Last Clear Chance" 354 4. Children 363 5. Imputed Negligence SG6 NUISANCE— I. Public and Private Nuisance 373 II. Nuisance Per Accidents 377 III. Abatement 3S1 CONSPIRACY 383 TABLE OF CASES Page Alnsworth v. Lakin 319 Alexander t. New Castle 44 Alfred W. Booth & Bro. v. Bur- gess 2-14 Atlanta & F. K, Co. v. Kimberly 106 Bair v. Struck 76 Beach v. Hancock 125 Beckwith v. Philby 147 Beekman v. Marsters 251 Bird V. Jones 141 Bishop V. St Paul City R. Co. 35 Blate V. Third Ave. R. Co 346 Boiardman v. Sill 194 Boland v. Stanley 263 Bond V. Chapin 298 Booth & Bro. v. Burgess 244 Boyson v. Thorn 256 Bradley v. Fisher 65 Bristor v. Burr 134 Brooker v. Coffin 157 Brown v. Hathaway 175 Buckstafie V. Viall 164 Buffington v. Clarke 198 Buron v. Denman 56 Butterfield v. Ashley 272 Cariienter v. Manhattan Life Ins. Co 200 Carr, Sir John, v. Hood 167 Citizens' Bank of St. Louis v. Tiger Tail Mill & Land Co.... 199 Collins V. Cronin 383 Commonwealth y. Donahue 131 Count Joannes v. Burt 160 Davis V. Hurt Deming v. Darling Dempsey v. Chambers Derry v. Peek Dooling V. Budget Pub. Co.. Dougherty v. Stepp Downs V. Harper Hospital. 1S5 207 116 223 235 179 95 Eckert v. Long Island R. Co Eddy V. Ellicottville. EUenwood v. Marietta Chair Co. Evans v. "Waite Chap.Cas.Toets 49 91 122 60 (xi) Paga Fanning v. Chace 158 Filburn v. People's Palace & Aquarium Co 330 Flandermeyer v. Cooper 2iJ7 Folsom V. Lewis 237 Fottler v. Moseley 215 Frost V. Eastern R. R 303 Galveston City R. Co. v. Hewitt 332 Gear v. Frank 300 Gilbert v. Finch 61 Grainger v. Hill 297 Griffen v. Manice 336 Halberstadt v. New York Life Ins. Co 286 Hanklnson v. Bilby 154 Hannabalson v. Sessions ISO Heeg V. Licht 377 Henry v. Dennis 212 Hickey v. Welch 39 Hughes V. Atlantic City & S. R. Co 342 Indermaur v. Dames 808 Indianapolis Traction & Terminal Co. V. Croly 354 Jacobsen v. Whitely 218 Joannes (Count) v. Burt IGO Jones V. Williams 381 Kidney v. Stoddard 209 Knapp V. Chicago, B. & Q. R. Co. 293 Kujek V. Goldman 16 Lane v. Atlantic Works 45 Laverty v. Snethen 191 Lawyer v. Fritcher 274 Le Forest v. Tolman 123 Little Schuylkill Navigation, R. & Coal Co. V. Richard's Adm'r. . 113 Lomerson v. Johnston 222 liong V. Woodman 205 Lough V.' John Davis c& Co 85 Luby V. Bennett 279 Macauley Bros. v. Tierney 239 Xll TABLE OF CASES Pago MacPherson v. Bulck Motor Co. 323 Marshall v. Welwood 314 Max Morris, The 350 Milwiaukee & St. P. E. Co. v. Kellogg 31 Mitchell V. Rochester R. Co 37 Morley v. Chase 149 Morris, The Mas 350 Newman v. PhlUipsburgh Horse Car R. Co 369 Owen V. Ogilvle Pub. Co 153 Palmeri v. Manhattan R. Co 99 People V. Warren 80 Pike V. Hanson 139 Pliimmer v. Dill 305 Proctor v. Adams 54 Profiitt T. Henderson 202 I'ullen V. Glidden .' 295 Rader v. Davis 27 Rich V. New York Cent. & H. R. R. Co 1 Rush V. Buckley 71 Scott V. Stansfield 170 Scribner v. Beach 128 Secor V. Harris 161 Shea V. Milford 184 Sheehan v. Sturges 137 SheffiU V. Van Deusen 1-52 Simpson v. Hill 139 Sir John Carr v. Hood 167 Six Carpenters' Case 182 Page Slater v. Mersereati Ill Slayton v. Barry °1 Stanley y- Powell ^i Steele v. Marsicano 1^^ Stone V. Dry Dock, E. B. & B. R. Co. 2^ Stranahan Bros. Catering Co. v. Coit Strong V. Campbell Surocco V. Geary ^- Swim V. Wilson 1°^ 102 13 Templeton's Adm'r v. Lynchburg Traction & Light Co 349 Terry v. Munger 8 Thomason v. Gray 120 Trustees of Village of Geneva v. Brush Electric Co 119 Tubervllle v. Savage... ^ 120 TJrtz v. New York Cent. B, Co H. R. 230 Van Antwerp vi Linton 83 Village of Geneva v. Brush Elec- tric Co 119 Wason V. Walter 172 Webb V. Beavan 156 Welch V. Wesson 58 Wentworth v. Waterbury 366 Wesson v. Washburn Iron Co. . . .373 WiUy V. MuUedy 10 Wintringham v. Lafoy 181 Yates V. State 145 HORNBOOK CASES ON TORTS PART I GENERAL PRINCIPLES THE TORT CONCEPT I. The Nature of a Tort ^ II. Difference between Tort and Contract* RICH V. NEW YORK CENT. & H. R. R. CO. (Court of Appeals of New York, 1SS2. 87 N. Y. 382.) The complaint alleged in substance that, about 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 convey to said corporation a site for its depot ; that the agreement was carried out, the site conveyed and the depot erected ; that defendant succeeded to the rights, franchises and obligations 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 rail- road and known as the Nepperhan or Sawmill river ; that the Hudson River Railroad Company, having no right to cut off or obstruct the navigation in said inlet, had constructed and maintained a drawbridge 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 compensation to the riparian owners ; that defend- ant to avoid the payment of damages to said owners, "resolved to ac- complish 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 remove its depot to a point above a third of a mile north ; that plaintiff, a short time previous to 1 For discussion of principles, see Chapin on Torts, §§ 1-16. 2 For discussion of principles, see Chapin on Torts, §§ 7, 8. Chap.Cas.Tobts — 1 •^ THE TOET CONCEPT the threatened removal, had borrowed on his bond secured by mort- gage 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 hun- dred feet south of said depot and if the depot had not been removed could have rented said stores and the adjacent lots for $5,000 per an- num and could have sold other lots for sufficient to pay off said mort- gage, but in consequence of such removal his premises became wholly unproductive and unsalable; that in order to have the depot I'estored 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 drawbridge and an agreement was entered into on March 7, 1877, in and by which defendant 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 thereupon removed the draw- bridge and erected a permanent bridge over the inlet ; that it also erect- ed 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 cross- ed 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 the steamboat docks on the Hudson River; 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 ; that the common council refused to pass an ordinance to that effect, because of the large amount of damages the city would have to pay ; that up- on such refusal being made known defendant's officers publicly assert- ed that it would never open said new depot until said ordinance was passed, and would tear down the new depot or use it exclusively for freight ("in all of which the defendant jwas actuated by malice and vindictiveness towards plaintiff and a design to crush, ruin and destroy him") ; that in consequence of the removal of the depot and the con- sequent unproductiveness of plaintiff's property, he was unable to pay the interest on said bond and mortgage; that foreclosure was com- menced and a decree of foreclosure and sale was made ; but that the mortgagee had f oreborne selling ; that defendant's officers and agents 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 mortga^ree havmg been induced to waive any such claim ; that plaintiff's endre property was sold under said decree and bid off by the mortgagee for $20,000 and thereupon the ordinance was passed closing said" street and defendant immediately opened the new depot. * * * Upon the trial plaintiff offered in evidence the agreement of, 1877 which was objected to and excluded as irrelevant and incompetent! DIFFERENCE BETWEEN TORT AND CONTRACT 3 Plaintiff also offeted to show the alleged breach of that contract, the value of the property conveyed to defendant and the establishment of the depot originally thereon ; that tlie defendant caused and procured the sale of plaintiff's property under the foreclosure decree to deprive him of his claim for damages for closing the street; that it was sold for less than one-fifth of its value; that plaintiff was dispossessed at the instigation of defendant and that if the depot had been re-establish- ed the market value of the property would have been largely increas- f^f^ ^ sp ^ Defendant moved for a dismissal of the complaint and the motion was granted. * * * Finch, J.^ We have been unable to find any accurate and perfect definition of a "tort." Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a "borderland," where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coinci- dent, as to make their practical separation somewhat difficult. Moak's Underbill on Torts, 23. The text-writers either avoid a definition en- tirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Diet. 600), or depend upon one which they concede to be inac- curate, but hold sufficient for judicial purposes (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 the 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 different from the mere contract obligation. When such duty grows out of relations of trust and confidence, as that of the agent to his principal or the lawyer to his client, the ground of the duty is ap- parent, and the tort is, in general, easily separable from the mere breach of contract. But where no such relation flows from the con- stituted contract, and still a breach of its obligation is made the es- sential and principal means, in combination with other and perhaps in- nocent acts and conditions, of inflicting another and different injury, and accomplishing another and different purpose, the question wheth- er 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 distinguish)- ing test. 8 Portions of the statement of facts and of the opinion are omitted. 4 THE TOET CONCEPT In the present case, the learned counsel for the re^ondent seems to free himself from the difficulty by practically denying the existence of any relation between the parties except that constituted by the con- tract itself, and then insisting that such relation was not of a char- acter to originate any separate and distinct legal duty, argues that therefore the bare violation of the contract obligation created m.erely a breach of contract, and not a tort. He says that the several instru- ments put in evidence showed that there never had been any relation between the plaintiff and the railroad company, except that of parties contracting in reference to certain specific subjects, by plain and dis- tinct 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 wilful misconduct or any other tor- tious 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 grievances, 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 con- tract, must be shown, and proof of such breach was immateri'- 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, and which we are troubled to reconcile with his concession that a cause of action was alleged in the complaint. At the foundation of every tort must lie some violation of a legal duty, and therefore some unlawful act or omission. Cooley on Torts, 60. What- ever or however numerous or formidable may be the allegations of con^ spiracy, of malice, of oppression, of vindictive 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 un- lawful. O'Callaghan v. Cronan, 121 Mass. 114; Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461. 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 unrea- sonable 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 established, and what it might lawfully do it was not unlawful to ask it to do. The act of instigating the sale may be ma- terial, 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. Hazelton, 12 Allen DIFFERENCE BETWEEN TORT AND CONTRACT 5 (Mass.) 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 contract cre- ates a relation, out of which relation springs a duty, independent of the mere contract obligation, though there may be a breach of the con- tract, there is no tort, since there is no duty to be violated. And the illustration given is the common case of a contract of affreightment, 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 law- yer and client, of consignor and factor, the contract establishes a legal relation of trust and confidence; so that, upon a breach of the con- tract, there is not merely a broken promise, but, outside of and beyond that, there is trust betrayed and confidence abused. There is construc- tive fraud, or a negligence that operates as such; and it isvthat fraud and that negligence which, at bottom, makes the breach of contract actionable as a tort. Coggs v. Bernard, 2 Ld. 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 important one. Ending the argument at this point leaves the problem of the case still unsolved. If a cause of action for a tort, as 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 explained by them. We have yet to understand what it is, if it exists at all, as a necessary preliminary to any just appreciation 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 depend upon a fiduciary or other character of the relation constituted by the contract merely for no such relation existed ; and there must be some other relation not created by the contract 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 situa- tion and needs of the two parties. The railroad company desired to close the draw over the Nepperhan river, and substitute 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 rail- b THE TORT CONCEPT road station. The defendant was so far master of the situation that it could and did shut up the plaintiff to a choice of evils. He might insist upon the draw and leave his mortgaged property to be lost from depreciation, and save his riparian right, or he might surrender the lat- ter to save the former. The last was the alternative which he select- ed, and the contract of 187/7 was the result. In the making of this con- tract 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 com- plaint 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, originated later. What remains then is this: The railroad company 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 manner that the purchase of tickets could be compelled. This in itself was a perfectly lawful purpose. The grade crossing was a death trap, and the interest of the company and the safety of individuals alike made a change desirable, and the closing in of the depot was in no sense reprehensible. But there was a difficulty in the way. The plaintiff again stood as an ob- stacle 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 decHned to consent, except upon the con- dition of an award of heavy damages, and in dread of that peril the common council refused to pass the necessary ordinance. At this point, according to the allegations 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 accomplishment by unlawful means, 'and through an injury to the plaintiff, which would strip him of his damages by a complete sacrifice of his property. That plan was executed in this manner: The company willfully and purposely re- fused to perform its contract. It had built its permanent bridge over the Nepperhan, and so received the full considerations 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 open- ly and publicly refused. The purpose of that pubhc refusal was ap- parent. 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 ex- tinguish the threatened damages, and thus procure the assent of the common council, and get Main street closed. This unlawful refusal to perform the contract, this deliberate annouircement of the purpose" not to restore the depot, was well calculated to influence the mortgagee towards a foreclosure. But the defendant's direct instigation was add- DIFFERENCE BETWEEN TOET AND CONTRACT 7 ed. 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. ^^^e are thus able to see what the tort pleaded was. ■■ It was not a con- structive fraud, drawn from a violation of a duty imposed by law out of some specific relation of trust and confidence, but an actual and af- firmative 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. Be- yond that, and outside of that, there was said to have existed a fraud- ulent scheme and device by means of that breach to procure the fore- closure of the mortgage at a particular time and under such circum- stances as would make that foreclosure ruinous to the plaintiff's rights, and remove him as an obstacle 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 interwoven into a scheme of oppression and fraud ; so made to set in motion innocent causes which otherwise would not operate — as to cease to be a mere breach of con- tract, and become, in its association with the attendant circumstances, a tortious and wrongful 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 omission of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, inherent in the nature of the contract itself, as in the case referred to in the respondent's argument, but may spring from extraneous 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 considera- tion of any reciprocal obligation, but upon an original moral duty en- joined upon every person so to conduct himself, or exercise his own rights, as not to injure another. Kerwhacker v. C, C. & C. R. R. Co., 3 Ohio St. 188, 62 Am. Dec. 246. Whatever its origin, such legal duty is uniformly recognized, and has been constantly applied as the founda- tion of actions for wrongs ; and it rests upon and grows out of the rela- tions 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 aris- es and yet extraneous circumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort 8 THE TORT CONCEPT grow out of the entire range of facts, of which the breach of the con- tract was but one. The whole doctrine is accurately and concisely stated in 1 Chit? PI. 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 mort- gagee'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 defendant, that is enough. Benton v. Pratt, 2 Wend. 385, 20 Am. Dec. 623 ; Rice v. Man- ley, 66 N. Y. 83, 23 Am. Rep. 30. Nor is it a difficulty that the in- jury suffered was the result of a series of acts, some of which were law- ful and innocent. Cooley on Torts ; Bebinger v. Sweet, 1 Abb. N. C. 263. 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 improperly barred from prov- ing it. From the very nature of the case, a fraud can seldom be proved directly, and almost uniformly is an inference from the character of the whole transaction, and the surrounding and attendant circumstances. Proof of the contract, and its breach, of the delay in restoring of the depot, and the reasons therefor, were essential links in the chain. If the proof should go no further, a nonsuit would be proper, but without these elements the tort alleged could not be established at all. And so, the situation of the parties as it respected tl^eir several properties, the existence of the mortgage, the agreement to postpone the sale, were ele- ments of the transaction proper to be shown. * * * The judgment should be reversed, and a new trial granted, costs to abide the event. All concur, except Rapallo and Miier, and the person for whose benefit the proceeding was instituted or carried on thereby lose the benefit of the proceeding, and sustain an injury, undoubtedly such person might bring his action and recover his damages. But was it ever heard or claimed before that the' pro- prietor of the paper in which the notice should properly have been published had any such right or interest in the matter as would en- title him to maintain an action to recover the profits which the publi- cation in his paper would have brought him ? That would be a parallel case. The interest is too remote and contingent to be the foundation of a right of which the law takes cognizance. The action is altogether misconceived, and the defendant must have judgment upon the demurrer. 16 THE TORT CONCEPT IV. Cases of Novel Impression • KUJEK V. GOLDMAN. (Court of Appeals of New York, 1896. 150 N. Y. 176, 44 N. E. 773, 34 U E. A. 156, 55 Am. St. Kep. 670.) Prior to January 17, 1891, the defendant Katie Kujek, then named Katie Moritz, was an unmarried woman employed as a domestic in the family of the defendant Goldman, by whom she had become pregnant. Upon discovering the fact, the defendants, as it is alleged in the com- plaint, conspired to conceal their disgrace, and to induce the plaintiff to marry the said Katie, and to that end represented to him that she was a virtuous and respectable woman, and he, believing the same, did marry her on the day last named. The plaintiff, as it was further al- leged, would not have contracted said marriage if he had known the facts. Subsequently, and on July 29, 1891, owing to such pregnancy, she gave birth to a child, of which said Goldman was the father. The answer of Goldman was, in substance, a general denial. No answer was served by the other defendant, and no judgment was taken against her. The evidence tended to sustain the allegations of the complaint. Vann, J. (after stating the facts). The verdict of the jury has es- tablished as the facts of this case, beyond our power to review, that the plaintiff married Katie Moritz in the belief that she was a virtu- ous girl, induced by the representations of the defendant to that effect, when in fact she was at the time pregnant by the defendant himself. The case was submitted to the jury upon the theory that if Goldman, knowing that Katie was unchaste, by false representations that she was virtuous induced the plaintiff to marry her, he was entitled to recover damages, and the jury found a verdict in his favor for $2,000. While no precedent is cited for such an action, it does not follow that there is no remedy for the wrong, because every form of action, when brought for the first time, must have been without a precedent to sup- port it. Courts sometimes of necessity abandon their search for prece- dents, and yet sustain a recovery upon legal principles clearly applica- ble to the new state of facts, although there was no direct precedent for it, because there had never been an occasion to make one. In re- mote times, when actions were so carefully classified that a mistake in name was generaly fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur, so as to pre- vent a failure of justice. This was called an "action on the case," which was employed where the right to sue resulted from the peculiar cir- cumstances of the case, and for which the other forms of action gave » For discussion of principles, see Chapin on Torts, § 15. CASES or NOVEL IMPKESSION 17 no remedy. 26 Am. & Eng. Enc. Law, 694. For instance, the action for enticing away a man's wife, now well established, was at first earnestly resisted upon the ground that no such action had ever been brought. In an early case the court answered this position by saying: "The first general objection is that there is no precedent of any such action as this, and that, therefore, it will not lie; and the objection is founded on Litt. § 108, and Co. Lritt. 81b, and several other books. But this general rule is not applicable to the present case. It would be if there had been no special action on the case before. A special ac- tion on the case was introduced for this reason : That the law will never suffer an injury and a damage without a remedy, but there must be new facts in every special action on the case." Winsmore v. Green- bank, Willes, 577, 580. As was recently said by this court in an action then without precedent : "If the most that can be said is that the case is novel, and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal of the judg- ment." Piper v. Hoard, 107 N. Y. 7Z, 76, 13 N. E. 626, 629 (1 Am. St. Rep. 789). The question therefore is not whether there is any precedent for the action, but whether the defendant inflicted such a wrong upon the plaintiff as resulted in lawful damages. The defend- ant by deceit induced the plaintiff to enter into a marriage contract, whereby he assumed certain obligations, and became entitled to cer- tain rights. Among the obligations assumed was the duty of support- ing his wife in sickness and in health, and he discharged this obliga- tion by expending money to fit up ,rooms for housekeeping, in keeping house with his wife, and caring for her during confinement, when she bore a child, not to him, but to the defendant. Among the rights acquired was the right to his wife's services, companionship, and so- ciety. By the fraudulent conduct of the defendant, he was not only compelled to expend money to support a woman whom he would not otherwise have married, but was also deprived of her services while she was in childbed. He thus sustained actual damages to some ex- tent ; and as the wrong involved not only malice, but moral turpitude also, in accordance with the analogies of the law upon the subject the jury had the right to make the damages exemplary. By thus apply- ing well-settled principles upon which somewhat similar actions are founded, this action can be sustained, because there was a wrongful act in the fraud, that was followed by lawful damages, in the loss of money and services. The fact that the corruption of the plaintiff's wife was before he married her does not affect the right of action, as the wrong done to him was not by her defilement, but by the rep- resentation of the defendant that she was pure when he knew that she was impure, in order to bring about the marriage. It is difficult to see why a fraud which, if practiced with reference to a contract relating to property merely, would support an action, should not be given the same Chap.Oas.Toets — 2 18 THE TOET CONCEPT effect when it involves a contract affecting, not only property rights, but also the most sacred relation of life. Fraudulent representations with reference to the amount of property belonging to either party to a proposed marriage, made by a third person for the purpose of brmg- ing about the marriage, are held to constitute an actionable wrong, and the usual remedy is to require the person guilty of the fraud to make his representations good. Piper v. Hoard, supra ; Montefiori v. Monte- fiori, 1 W. Bl. 363, Ath. Mar. Sett. 484. In such cases the injury is more tangible, and the measure of damages more readily applied, than in the case before us; but both rest upon the principle that he who by falsehood and fraud induces a man to marry a woman is guilty of a wrong that may be remedied by an action, the amount of dam- ages to be recovered depending upon the circumstances of the particu- lar case. We have thus far considered the right of action as resting upon some pecuniary loss, which, although trifling in amount, may be recov- ered as a matter of right, leaving it to the jury, in their sound dis- cretion, as in a case for the seduction of a child or servant, to am- plify the damages by way of punishment and example. We think, however, that the action can be maintained upon a broader and more satisfactory ground, and that is the loss of consortium, or the right of the husband to the conjugal fellowship and society of his wife. The loss of consortium through the misconduct of a third person has long been held an actionable injury, without j>roof of any pecuniary loss. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553; Hutcheson v. Peck, 5 Johns. 196; Hermance v. James, 32 How. Prac. 142. As has been well said by a recent writer: "To entice away, or corrupt the mind and affection of, one's consort, is a civil wrong, for which the offender is liable to the injured husband or wife. The gist of the action is not in the loss of assistance, but the loss of consortium of the wife or husband, under which term are usually included the per- son's affection, society, or aid." Bigelow, Torts, 153. The damages are caused by the wrongful deprivation of that to which tlie husband or wife is entitled by virtue of the marriage contract. They rest upon the loss of a right which the marriage relation gives, and of which it is an essential feature. Whether that right is wrongfully taken away after it is acquired, or the person entitled to it is wrongfully prevented from acquiring it, does not change the effect or lessen the injury. While the plaintiff has not been actually deprived of the society of his wife, he has been deprived of that which made her society of any value, the same as if she had been seduced after marriage. Although the formal right to consortium may remain, the substance has been taken away. In other words, when he entered into the marriage rela- tion he was entitled to the company of a virtuous woman, yet through the fraud of the defendant that right never came to him. He has never enjoyed the chief benefit springing from the contract of mar- CASES OF NOVEL IMPKESSION 19 riage, which is the comfort, founded upon affection and respect, derived from conjugal society. If the defendant had deprived tlie plaintiff of his right to consortium after marriage, the law would have afforded a remedy by the award of damages. Yet the plaintiff, through the fault of the defendant, has suffered a loss of the same nature and to the same extent, except that, instead of losing what he once had, he has been prevented from getting it when he was entitled to it. This is a difference in form only, and is without substantial foundation. The injury, although effected by fraud before marriage, instead of by seduc- tion after marriage, was the same, and why should not the remedy be the same? While the metliod of inflicting the injury is not the same, as it is tortious in character, has substantially the same effect, and causes damages of the same nature and to the same extent, why should damages be recovered in the one case if not in the other? ^^'^here false representations are willfully made as to a material fact, for the purpose of inducing another to act upon them, and he does so act to his injury, he may recover such damages as proximately result from the deception. The representations in this case, as the jury has found, were made to promote tlie marriage, and they were false, as the defendant well knew. They were clearly material. The plaintiff acted upon them, and was thereby injured; for he made a contract entitling him to certain rights, which he has not received, and which the defendant knew he could never receive. Here are all the elements of a good cause of action founded upon fraud resulting in damage. The contract induced by the fraud was of a peculiar nature, but it was in law simply a contract, conferring certain rights, and imposing cer- tain obligations. While it is not agreeable to treat a subject of sacred importance upon this narrow basis, it is necessary to do so, for our law considers marriage in no otlier light than as a civil contract. If the defendant had induced the plaintiff to enter into any other contract by making false statements of fact, which if true would have made the contract more valuable, he would have been liable for all the dam- ages that naturally resulted. If he had induced the very marriage con- tract under consideration by representing to the plaintiff that he owed his proposed wife a certain sum of money, according to the common law, which entitles the husband to the personal property of his wife, he could have been compelled to mal<:e his representations good by the payment of that sum. Montefiori v. Montefiori, supra; Redman v. Redman, 1 Vern. 348 ; Neville v. Wilkinson, 1 Brown, Ch. Cas. 543 ; Scott V. Scott, 1 Cox, 378. These cases, as well as the more important case of Piper v. Hoard, supra, rest upon the principle that fraudulent representations as to the pecuniary condition of one party to a proposed marriage, made by a third person to the other party thereto, in order to promote the marriage, are actionable, and authorize the recovery of such damages as may be proved. In this case we have a representa- tion that did not relate to property directly, although it involved rights. 20 THE TOET CONCEPT in the nature of property, but did relate to character, and so vitally that its falsity was destructive of all happiness belonging to the plain- tiff by virtue of his marriage. The injury was not merely sentimental, for, as has been shown, it extended to a right which the law recognizes as of pecuniary value, and for the wrongful destruction of which it awards damages. We think that the facts found warrant the recov- ery, and, after examining all the exceptions, are of the opinion that the judgment should be affirmed, with' costs. All concur, except Bart- LETT, J., not voting. Judgment affirmed. EESPONSIBILITX CONDITION OF MIND 21 RESPONSIBILITY AS DEPENDENT UPON CONDITION OF MIND I. Voluntary Acts * 1. ACCIDBNT * STANLEY V. POWELL. (Queen's Bendi Division, [1891]. 1 Q. B. D. 86.) Denman, J. This case was tried before me and a special jury at the last Maidstone Summer Assizes. In the statement of claim the plaintiff alleged that the defendant had neghgently and wrongfully and unskilfully fired his gun and wounded the plaintiff in his eye, and that the plaintiff, in consequence, had lost his sight and suffered other damage. The defendant denied the negligence alleged. After the evidence on both sides, which was conflicting, had been heard, I left the three following questions to the jury: 1. Was the plaintiff injured by a shot from defendant's gun? 2. Was the defendant guilty of negligence in firing the charge to which that shot belonged as he did? 3. Damages. The undisputed facts were that on November 29, 1888, the defend- ant and several others were pheasant shooting in a party, some being inside and some outside of a wood which the beaters were beating. The right of shooting was in one Greenwood, who was of the party. The plaintiff was employed by Greenwood to carry cartridges and the game which might be shot. Several beaters were driving the game along a plantation of saplings towards an open drive. The plaintiff stood just outside a gate which led into a field outside the plantation at the end of the drive. The defendant was walking along in tliat field a few yards from the hedge which bounded the plantation. As he was walking along a pheasant rose inside the plantation; the de- fendant fired one barrel at this bird, and, according to the evidence for the defendant, struck it with his first shot. There was a considera- ble conflict of evidence as to details; but the jury must, I think, be taken to have adopted the version of the facts sworn to by the defend- ant's witnesses. They swore that the bird, when struck by the first shot, began to lower and turn back towards the beaters, whereupon the defendant fired his second barrel and killed the bird, but that a shot, glancing from the bough of an oak which was in or close to the hedge, and striking the plaintiff, must have caused the injury com- 1 For discussion of principles, see Chapin on Torts, §§ 17-25. 2 For discussion, of principles, see Chapin on Torts, § 17. 22 RESPONSIBILITY — CONDITION OF MIND plained of. The oak in question, according to tlie defendant's evidence, was partly between the defendant and the bird when the second bar- rel was fired, but it was not in a line with the plaintifif, but, on the con- trary, so much out of that line that the shot must have been diverted to a considerable extent from the direction in which the gun must have been pointed in order to hit the plaintiff. The distance between the plaintiff and the defendant, in a direct hne, when the second barrel was fired, was about thirty yards. The case for the plaintiff was entirely different; but I think it must be held that the jury took the defendant's account of the matter, for they found the second question left to them in the negative. Before summing up the case to the jury, I called the attention of the parties to the doctrine which seemed to have been laid down in some old cases, that, even in the absence of negligence, an action of trespass might lie; and it was agreed that I should leave the question of negligence to the jury, but that, if neces- sary, the pleadings were deemed to have been amended so as to raise any case or defence open upon the facts with liberty to the court to draw inferences of fact, and that the damages should be assessed con- tingently. The jury assessed them at f 100. I left either party to move the court for judgment; but it was afterwards agreed that the case should be argued before myself on further consideration, and that I should give judgment, notwithstanding that I had left the par- ties to move the court, as though I had originally reserved it for fur- ther consideration before myself. Having heard the arguments, I am of opinion that by no amendment that could be made consistently with the finding of the jury could I properly give judgment for the plaintiff. It was contended on his behalf that this was a case in which an action of trespass would have lain before the Judicature Acts ; and this contention was mainly found- ed on certain dicta which, until considered with reference to those cases in which they are uttered, seem to support that contention; but no decision was quoted, nor do I think that any can be found which goes so far as to hold, that if A. is injured by a shot from a gun fired at a bird by B., an action of trespass will necessarily lie, even though B. is proved to have fired the gun without negligence and without in- tending to injure the plaintiff or to shoot in his direction. The jury having found that there was no negligence on the part of the defendant, the most favorable way in which it is now possible to put the case for the plaintiff is to consider the action as brought for a trespass, and to consider that the defendant has put upon the record a defence denying negligence, and specifically alleging the facts sworn to by his witnesses, which the jury must be considered to have found proved, and then to consider whether those facts, coupled with the absence of negligence established by the jury, amount to an ex- cuse in law. The earliest case relied upon by the plaintiff was one in the year book VOLUNTARY ACTS 23 21 Hen. 7, 28 A., which is referred to by Grose, J., in the course of the argument in Leame v. Bray, 3 East, 593, to be mentioned presently in these words : "There is a case put in tlie year boolc 21 Hen. 7, 28 A., that where one shot an arrow at a mark which glanced from it and struck another, it was holden to be trespass." Returning to the case in the year book, it appears tliat the passage in question was a mere dictum of Rede, who (See 5 Foss' Lives of the Judges, p. 230) was at the time (1506) either a judge of the King's Bench or C. J. of the Common Pleas, which he became in October in that year, in a case of a very different kind from that in question, and it only amounts to a statement that an action of trespass may lie even where the act done by the defendant is unintentional. The words relied on are, "Mes 6u on tire a les buts et blesse un home, coment que est incontre sa volonte, il sera dit un trespassor incontre son entent." But in that very passage Rede makes observations which show that he has in his mind cases in which that which would be prima facie a tres- pass may be excused. The next case in order of date relied upon for the plaintiff was Weaver v. Ward, Hob. 134, decided in 1607. There is no doubt that that case contains dicta which per se would be in favor of the plaintiff, but it also contains the following summing up of the law applicable to cases of unintentional injury by acts which are prima facie trespasses : "Therefore no man shall be excused of a trespass * * * except it may be judged utterly witliout his fault" — showing clearly that there may be such cases. That case, after all, only decided that where the plaintiff and defendant were skirmishing as soldiers of the train-band, and the one, "casualiter, et per infortunium, et contra voluntatem suam" (which must be translated "accidently and involun- tarily"), shot the other, an action of trespass would lie, unless he could show that such involuntary and accidental shooting was done under such circumstances as utterly to negative negligence. Such cases may easily be supposed, in which there could be no two opinions about the matter ; but other cases may, as the present case did, involve considerable conflicts of evidence and opinion which until recently a jury only could dispose of. The case of Gibbons v. Pepper, 4 Mod. 104, decided in 1695, merely decided that a plea merely showing that an accident caused by a runaway horse was inevitable was a bad plea in an action of trespass, because, if inevitable, that was a defence un- der the general issue. It was a mere decision on the pleading and laid down nothing as regards the point raised in the present case. The concluding words of the judgment which show clearly the ratio deci- dendi of that case are these: "He should have pleaded the general issue, for if the horse ran away against his will he would have been found not guilty, because in such a case it cannot be said with any color of reason to be a battery in the rider." The more modern cases of Wakeman v. Robinson, 1 Bing. 213, and Hall v. Fearnley, 3 Q. B. 919, lay down the same rule as regards the pleading point, though tb" 24 RESPONSIBILITY CONDITION OF MIND former case may also be relied upon as an authority by way of dictum in favor of the plaintiff and the latter may be fairly relied upon by the defendant; for Wightman, J., in his judgment explains Wakeman V. Robinson thus : "The act of the defendant" (viz., driving the cart at the very edge of a narrow pavement on which the plaintiff was walking, so as to knock the plaintiff down) "was prima facie unjustifi- able, and required an excuse to be shown. When the motion in this case was first made, I had in my recollection the case of Wakeman v. Robinson. It was there agreed that an involuntary act might be a de- fence on the general issue. The decision indeed turned on a different point ; but the general proposition is laid down. I think the omission to plead the defence here deprived the defendant of the benefit of it, and entitled the plaintiff to recover." But in truth neither case decides whether, where an act such as discharging a gun is voluntary, but the result injurious without negli- gence, an action of trespass can nevertheless be supported as against a plea pleaded and proved, and which the jury find established to the effect that there was no negligence on the part of the defendant. The case of Underwood v. Hewson, 1 Str. 596, decided in 1724, was relied on for the plaintiff. The report is very short: "The de- fendant was uncocking a gun, and the plaintiff standing to see it, it went off and wounded him ; and at the trial it was held that the plain- tiff might maintain trespass strange pro defendente." The marginal note in Nolan's edition of 1795, not necessarily Strange's own composi- tion, is this, "Trespass lies for an accidental hurt;" and in that edi- tion there is a reference to Buller's N. P., p. 16. On referring to Buller, p. 16, where he is dealing with Weaver v. Ward, 14 Jac. 1, Hob. 134, I find he writes as follows: "So (it is no battery) if one soldier hurt another in exercise; but if he plead it he must set forth the circumstances, so as to make it appear to the court that it was in- evitable, and that he committed no negligence to give occasion to the hurt, for it is not enough to say that he did it casualiter, et per in- fortunium, et contra voluntatem suam; for no man shall be excused of a trespass, unless it be justified entirely without his default. Weaver V. Ward; and therefore it has been holden that an action lay where the plaintiff standing by to see the defendant uncock his gun was ac- cidently wounded. Underwood v. Hewson," T. 10 Geo. 1 per Fortescue and Raymond in Midd., Str. 596. On referring back to Weaver v. Ward, I can find nothing in a defence in the case of a trespass it is necessary to show that the act was inevitable. If inevitable, it would seem that there was a defence under the general issue ; but a distinc- tion is drawn between an act which is inevitable and an act which is excusable, and what Weaver v. Ward really lays down is that "no man shall be excused of a trespass except it may be judged utterly without his fault." Day V. Edwards, 5 T. R. 648, merely decides that where a man neg- VOLUNTARY ACTS 25 ligently drives a cart against tlie plaintiff's carriage, the injury being committed by tlie immediate act complained of, the remedy must be trespass, and not case. But the case upon which most reliance was placed by the plaintiff's counsel was Leame v. Bray, 3 East, 593. That was an action of tres- pass in which the plaintiff complained that the defendant with force and arms drove and struck a chaise which he was driving on the high- way against the plaintiff's curicle, which the plaintiff's servant was driving, by means whereof the servant was thrown out, and the horses ran away, and the plaintiff, who jumped out to save his life, was in- jured. The facts stated in the report include a statement that "the ac- cident happened in a dark night, owing to the defendant driving his carriage on the wrong side of the road, and the parties not being able to see each other, and that if the defendant had kept his right side there was ample room for the carriages to have passed without in- jury." The report goes on to state: "But it did not appear tliat blame was imputable to the defendant in any other respect as to the manner of his driving. It was therefore objected for the defendant that, the in- jury having happened from negligence and not wilfully, the proper rem- edy was by an action on the case, and not of trespass vi et armis ; and the plaintiff was thereupon nonsuited." On the argument of the rule to set aside the verdict the whole discussion turned upon the question whether injury was, as put by Lawrence, J., at page 596 of the re- port, immediate from the defendant's act, or consequential only from it, and in the result the nonsuit was set aside. But it clearly appears from the report that there was evidence upon which the jury might have found negligence, and indeed the defendant's counsel assumed it in the very objection which -prevailed with Lord Ellenborough when he nonsuited the plaintiff. There is nothing in any of the judgments to show that if in that case a plea had been pleaded denying any neg- ligence, and the jury had found that the defendant was not guilty of any negligence, but (for instance) that the accident happened wholly through the darkness of the night making it impossible to distinguish one side of the road from the other and without negligence on either side, the court would have held that the defendant would have been liable either in trespass or in case. All the cases to which I referred were before the Court of Exchequer in 1875, in the case of Holmes v. Mather, Law Rep. 10 Ex. 261, and Bramwell, B., in giving judgment in that case, dealt with them tlius : "As to the cases cited, most of them are really decisions on tlie form of action, whether case or trespass. The result of them is this, and it is intelligible enough: If the act that does an injury is an act of di- rect force vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being willful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the 26 RESPONSIBILITY CONDITION OP MIND proper form of action if it were wrongful. That is the effect of the decisions." This view of the older authorities is in accordance with a passage cited by Mr. Dickens from Bacon's Abridgment, Trespass, I., p. 706, with a marginal reference to Weaver v. Ward. In Bacon the word "inevitable" does not find a place. "If the circumstance which is spe- cially pleaded in an action of trespass do not make the act complained of lawful" (by which I understand justifiable even if purposely done to the extent of purposely inflicting the injury, as, for instance, in a case of self-defence) "and only make it excusable, it is proper to plead this circumstance in excuse; and it is in this case necessary for the defendant to show not only that the act complained of was accidental" (by which I understand that the injury was unintentional), "but likewise that it was not owing to neglect or want of due caution." In the present case the plaintiff sued in respect of aa injury owing to the defendant's negligence — there was no pretence for saying that it was intentional so far as any injury to the plaintiff was concerned — and the jury negatived such negligence. It was argued that neverthe- less,' inasmuch as the plaintiff was injured by a shot from the defend- ant's gun, that was an injury owing to an act of force committed by the defendant, and therefore an action would lie. I am of opinion that this is not so, and that against any statement of claim which the plaintiff could suggest the defendant must succeed if he were to plead the facts sworn to by the witnesses for the defendant in this case, and the jury, believing those facts, as they must now be taken by me to have done, found the verdict which they have found as regards neg- ligence. In other words, I am of opinion that if the case is regarded as an action on the case for an injury by negligence the plaintiff has failed to establish that which is the very gist of such an action; if, on the other hand, it is turned into an action for trespass, and the defendant is (as he must be) supposed to have pleaded a plea deny- ing negligence and establishing that the injury was accidental in the sense above explained, the verdict of the jury is equally fatal to the action. I am, therefore, of opinion that I am bound to give judgment for the defendant. As to costs, they must follow, unless the defend- ant foregoes his right. Judgment for the defendant. MOTIVE 27 II. Motive* RADER V. DAVIS. {Supreme Conrt of Iowa, 1912. 154 Iowa, 306, 134 N. W. 849, 38 L. R. A. [N. S.] 131, Ann. Cas. 1914A, 1245.') Deemer, J.* Plaintiff married one of defendant's daughters, Lillie Mae by name, in March of the year 1903, and as a result thereof one son was born in September of the year 1904. Because of plaintiff's ill treatment, the wife was compelled to leave him, and being without means she returned, with her son, to her father's home. Thereafter she commenced a divorce action against the plaintiff, and in September of the year 1905 she received a decree. * * * Plaintiff's former wife continued to live with defendant, her father, and some time in June of the year the child became sick, and as a result thereof died on or about July 16, 1909. Arrangements for the funeral were all made by the mother, and the defendant consented that it be held from his home. He at no time gave any directions as to how the services should be conducted or who should be permitted to attend; but there was enough testimony to justify a jury in finding that he, defendant, said to one Gray, who inquired for plaintiff as to whether or not he, plaintiff, could attend the funeral, "That he did not want them coming around him, and if they did they would do something they had not ought to do." Indeed, it is admitted in defendant's answer that at all times since the divorce decree was rendered he had denied plaintiff the right, privilege, or opportunity of entering in or upon his premises for any purpose. This denial of plaintiff's right to go upon the prem- ises seems to have been due to the fact that, some time after the sep- aration of plaintiff and his wife, he, plaintiff, and defendant had an altercation over the matter in which plaintiff assaulted the defendant and knocked him down in one of the streets of the city of Boone. The decrees entered in the divorce case, from which we have quoted, were not appealed from and were therefore binding upon the plaintiff herein. By the terms thereof, he was in effect forbidden from visit- ing his child at defendant's home, and was prohibited from visiting him elsewhere unless he paid the costs of the proceedings and the sum of $2 per month for the child's support. Neither of these things was done, so that it is clear plaintiff had no right to visit the child while at defendant's home. This is virtually conceded. But plaintiff insists that, when the child became sick and finally died, these facts so chang- : For discussion of principles, see Chapin on Torts, § 23. * A portion of the opinion Is omitted. 28 RESPONSIBILITY CONDITION OF MIND ed the situation that, as a matter of law, he had an absolute right not only to visit the child while alive, but also to attend its funeral after death. We do not think that the sickness of the child had the eiifect of modifying the decrees from which we have quoted. They were ei- ther absolute in terms or so qualified that plaintiff had no rights there- under until he performed the conditions imposed by the decrees. This he did not do. Assuming that the death of the child so changed conditions as that the decrees were inapplicable, we then have the question. Had plaintiff either an absolute or qualified right to attend the funeral of his child which was being held from defendant's house? He, of course, ob- tained no right by reason of his former wife having taken up her domicile with her parents. They were as much strangers to each other as if they had never been married. True, the child was of his own blood, but by decree of court he had lost all right of custody or control of the child, and it was for the mother to say how the body should be controlled, where the funeral services were to be conducted, and where and how the child should be buried. By plaintiff's misconduct (as con- clusively established by. the decree) he had forfeited all rights to the custody and control of the child which he might otherwise have had. So that plaintiff had neither an absolute nor a qualified right to control the disposition of the body of the child or the funeral arrangements. But it is said that he had the right to attend the funeral which was being held at defendant's house; and that whether he tried or not, and conceding defendant's lawful right to say who should come upon his private premises for any purpose, even to attend a funeral, yet if he, defendant, although acting within his strict legal rights, maliciously denied plaintiff the right to enter the premises to see his child, or to attend the funeral services, an action will lie. The questions thus presented are unique in character, and naturally there are no precedents which are directly in point. At common law the duty of providing sepulture and of carrying to the grave the dead body decently covered was cast upon the person under whose roof the death took place ; for such a person could not keep the body unburied nor do anything which prevented Christian burial. Commonwealth v. Susquehanna Coal Co., 5 Kulp (Pa.) 195 ; Scott V. Riley, 40 Leg. Int. (Pa.) 382. There was no duty, as we understand it, however, to conduct a pub- lic funeral, and, if there were, private funerals are so common in this country that we would not feel disposed to say that public services are required to be held. Defendant then was bound to provide sepulture and to carry the body to the grave ; but he was not required to invite any one onto his premises simply, to see the dead body or to have any sort of burial services for the public. It is fundamental of course that a man's dwelling house is "his castle," and that no one has the right to enter except upon invitation, express or implied. He may MOTIVE 29 exclude whom he will for good reason or for no reason, without lia- bility for damages, and may defend his home against all intruders, even to the extent of taking life. State v. Peacock, 40 Ohio St. 333 ; Pond V. People, 8 Mich. 150; State v. Scheele, 57 Conn. 307, 18 Atl. 256, 14 Am. St. Rep. 106; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. There is no implied invitation to any one to attend a funeral con- ducted from a private dwelling unless it be announced that such funeral is public, and even if so announced the license or invitation may be re- voked and any one denied the right to attend whose presence might be objectionable. It has even been held that the lord of the castle may so far exercise his authority as to say that his wife's relatives may not visit her, either in sickness or in health. Rogers on Domestic Relations, § 172. See, also, cases cited in 21 Cyc. at page 1147, among which is Shaw v. Shaw, 17 Conn. 189; Commonwealth v. Wood, 97 Mass. 225 ; Lawrence v. Lawrence, 3 Paige (N. Y.) 267. The mother gave no intimation that she wished the father to see the child either while sick or after death, and defendant certainly had the legal right to exclude plaintiff from his premises at any time and under all circumstances. But it is said that, although defendant has this legal right, he could not exercise the same maliciously, and that if his act in excluding plaintiff was malicious action will lie. It is true that in some circumstances the doing of a perfectly lawful or legal act maliciously will give ground for an action; but we do not think this exceptional rule should apply here. As the control of one's own dwelling is absolute, the intent with which he excludes one there- from is wholly immaterial. The rule of the common law everywhere prevailing where that system is in force is that the doing of an act, lawful in itself, does not become actionable even though done maliciously ; that is, in a vindictive way. Heald v. Carney, 11 C. B. 903, 73 E. C. L. 993; Boyson v. Thorne, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233; Kelly V. Railroad, 93 Iowa, 452, 61 N. W. 957 ; Bohn v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 22>7, 40 Am. St. Rep. 319. The civil law, however, deems an act otherwise lawful in itself illegal if done with the malicious intent of injuring a neighbor; but this prin- ciple has not found place in our law save in very limited sense. Chase- man V. Richards, 7 H. L. Cases, 388. Generally speaking "malicious motives make a bad act worse, but they cannot make that wrong which in its own essence is lawful." Dawson v. Kemper, 32 Ohio Law J. 15; Jenkins v. Fowler, 24 Pa. 308. See, also, notes to Letts v. Kessler, 40 L. R. A. 177. The case is not ruled by Dunshee v. Standard Oil Co., 152 Iowa, 618, 132 N. W. 371, 36 L. R. A. (N. S.) 263, and other like cases cited in the opin- ion which have introduced some exceptions to the general rule and in effect applied the civil law to the peculiar facts there appearing. In most, if not all, of these cases, the defendant sought to promote some 30 RESPONSIBILITY CONDITION OP MIND pecuniary or beneficial interest either of his own or of some stranger, and the question was whether or not the purpose was sufficiently di- rect and proximate to justify the conduct. See, also, upon this subject, Passaic Works v. Ely Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426, 62 L. R. A. 673, and exhaustive note, and an article in 18 Harvard: Law Review at page 411. In the instant case, the defendant did no injury to the property of plaintiff, nor was he intending to secure any profit to himself as ini the exceptional cases cited. Plaintiff had no right to attend the funeral, and defendant had the undoubted right to keep him off his premises. Having the right of selecting his guests or visitors, his malicious mo- tive in excluding one does not give that one a right of recovery. This is the effect of our holding in Rizer v. Tapper, 133 Iowa, 628, 110 N. W. 1038. There is no element of conspiracy in the case, and no ground for recovery is shown under any exceptional rules to which our attention has been called. It follows that the trial court was right in directing the verdict, and the judgment entered thereon must be, and it is, affirmed. LIABILITY RULES GOVBENINQ CAUSE AND EFFECT 31 LIABILITY UNDER LEGAL RULES GOVERNING CAUSE AND EFFECT I. Proximate Cause in General ^ MILWAUKEE & ST. P. RY. CO. v. KELLOGG. (Supreme Court of tlie United States, 1S76. 94 U, S. 469, 24 L. Ed. 256.) Error to the Circuit Court of Hie United States for the District of Iowa. Mr. Justice Strong ^ delivered the opinion of the court. This was an action to recover compensation for the destruction by fire of the plaintiff's sawmill 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 uncontroverted. From the bill of exceptions, it appears : That the "plaintiff alleged the fire was negligently communicated from the defendants' steamboat 'Jennie Brown' to an elevator built of pine lumber, and one hundred and twenty feet high, owned by the defendants, and standing on the bank of the river, and from the elevator to the plaintiff's sawmill and lum- ber piles, while an unusually strong wind was blowing from the ele- vator towards 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 the plaintiff's piles of lumber was three hundred and eighty- eight feet distant from it. * * * " 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 burn- ing 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 towards it, when the elevator was so combustible 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 towards and in the direction of the elevator, the de- 1 For discussion of principles, see Cliapln on Torts, § 26. 2 A portion of the opinion is omitted. 32 LIABILITY ROLES GOVERNING CAUSE AND EFFECT fendants carelessly and negligently allowed, permitted, and counseled (or, as stated in another count, "directed") the steamboat to approach and lie alongside of or in close proximity to the said elevator. This is something more than nonfeasance; it is positive action, the result, consequence, or outworking, as the jury have found it, of the want of such care as should have been exercised. * * * 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 negligence 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 recovery." 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 reasonably to be expected from the burning of the elevator; whether it was a result which, under the circumstances, would naturally follow from the burning of the elevator; and whether it was the result of the continued effect of the sparks from the steam- boat, 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. New York Central Railroad Co., 35 N. Y. 210, 91 Am. Dec. 49, and Pennsylvania Railroad Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431, 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 in- tended 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 wrongdoer, they have not been accepted as authority for such a doctrine, even in the states where the decisions were made. Webb v. Rome, Watertown & Ogdensburg Rail- road Co., 49 N. Y. 420, 10 Am. Rep. 389, and Pennsylvania Railroad Co. V. Hope, 80 Pa. 373, 21 Am. Rep. 100. And certainly they are in conflict with numerous other decided cases. Kellogg v. Chicago & Northwestern Railroad Co., 26 Wis. 224, 7 Am. Rep. 69; Perley v. Eastern Railroad Co., 98 Mass. 414, 96 Am. Dec. 645; Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63; Pent v. Toledo, Peoria & Warsaw Railroad Co., 59 111. 349, 14 Am. Rep. 13. The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the PROXIMATE CAUSE IN GENERAL 33 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 otlier 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 constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent 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 that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury, was the natural and probable consequence of the negligence or wrongful act, and th^t 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 sawmill and the piles of lumber. Most of these circumstances were ignored in the request for in- struction to the jury. Yet it is obvious that the immediate and insep- arable consequence of negligently firing the elevator would have been very different if the wind had been less, if the elevator had been a low building constructed of stone, if the season had been wet, or if the lumber and the mill had been less combustible. And the defend- ants 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 circumstances. 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 operat- ing 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 primary fault, and self-operating, which produced the injury. Here lies the difficulty. But the inquiry must be answered 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 im- perceptible as to be overlooked by a common mind. Thus, if a build- ing be set on fire by negligence, and an adjoining building be destroyed Chap.Cas.Toets — 3 34 LIABILITY RULES GOVERNING CAUSE AND EFFECT 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 burning of the first. Yet in truth, in a very legitimate sense, the immediate cause of the burning of the second was the burn- ing of the first. The same m'ight be said of the burning of the furni- ture in the first. Such refinements are too minute for rules of social conduct. In the nature of things, there is in every transaction a suc- cession of events, more or less dependent 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 a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the cir- cumstances existing at the time. If we are not mistaken in these opinions, the Circuit Court was cor- rect in refusing to affirm the defendants' proposition, and in submit- ting to the jury to find whether the burning of the mill and lumber was a result naturally and reasonably to be expected from tlie burning of the elevator, under the circumstances, and whether it was the result of the continued influence or effect of tlie 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 buirning 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. Judg- ment affirmed. INTERVENTION OE NATURAL FOKCB 35 II. Intervention of Natural Force * BISHOP V. ST. PAUL CITY RY. CO. (Supreme Court of Minnesota, 1S92. 48 Minn. 26, 50 N. W. 927.) Dickinson, j.* * * * The case presents the question as to whether the plaintiff's grave infirmities, which became manifest some time after the accident, were a result of the accident. The plaintiff was standing in the rear car or coach, supporting himself by holding on straps suspending from the upper part of the car for that purpose. When the car was thrown on its side, as it reached the curve in its rapid descent, he was thrown down, the impulse being such as to break his hold on the supporting straps. He immediately became uncon- scious, but regained consciousness in a few moments, and did not then seem to have been very seriously injured. On tlie right side of his head, above the ear, were a few cuts, apparently not very harmful, and a small contusion, the marks of which disappeared within a few days. He went about his business the same day, and continued to do so there- after for a considerable period of time. But while, according to the proof, he had always before tlie accident been in good health, and had never suffered the ills or exhibited the symptoms which followed it, the evidence goes to show that from that time on a marked change became manifest in his physical and mental condition. He became nervous and irritable; was troubled with inability to sleep; suffered a dull, heavy pain in the back of the head, extending sometimes further down the back. There was a feeling of pressure within the head, as though it would burst. When sleeping, the scene of the accident was repeatedly pictured to his mind in dreams. His mental functions were affected, his mind being "muddled" as he expresses it. These conditions did not pass away, but became more aggravated, and on the 5th of Sep- tember, some seven months after the accident, without other apparent cause than the circumstances here referred to, paralysis supervened, involving the whole left side. The paralytic condition still continues, and, according to the opinions of competent expert witnesses, will al- ways exist. The plaintiff was 50 years of age. While upon this ap- peal the facts must, without doubt, be taken to be as above indicated, the question was closely contested as to whether the paralysis, caused immediately by the rupture of a blood vessel in the brain, is a result of the accident and the shock and injury then received. A careful ex- amination of the voluminous evidence bearing upon this point shows that the verdict in favor of the plaintiff is certainly justified. The s For discussion of principles, see Cliapin on Torts, § 27. * A portion of the opinion is omitted. 36 LIABILITY RULES GOVERNING CAUSE AND EFFECT proof was chiefly the testimony of numerous competent medical ex- perts. The examination of these witnesses on both sides was conducted with marked intelligence, skill, and thoroughness; and while these witnesses, whose competency to testify on the subject is beyond ques- tion, do not agree in their opinions, it seems apparent that the jury were as well informed as they could be, from the nature of the case, to form a correct conclusion. It is needless to here enter into any ex- tended statement of the pathology of the case, as given by these wit- nesses, or to contrast the views and reasons given for their opinions. There is little or no controversy over the fact that the rupture of the blood vessel causing the paralysis is to be ascribed to a degeneration or impaired condition of the blood vessel, the process of which degew- eration might have extended over a considerable period of time before the occurrence of the rupture. But whether such degeneration or im- pairment of health of the blood vessels was or could have been caused by the accident and injury then received the experts disagree. Upon this point we will only say that the opinion of several competent wit- nesses is that it was so caused, and it may be added that one of the explanations given for such an opinion is that the physical concussion (which produced temporary unconsciousness) and the mental shock af- fected and impaired the nutrition of the nerve cells of the brain which preside over and control the circulation of blood in that organ, so that the blood vessels became distended from an excessive flow of blood, and gradually degenerated, and became weakened, until they were in- capable of resisting the pressure. In support of the opinions of ex- perts in favor of' the plaintiff's side of this issue are to be considered also the facts, which the evidence tended to show, of the health of the plaintiff up to the time of the accident ; that the ills which he suffered from that time on indicated an excess or unnatural pressure of blood in the brain; and that an examination of the plaintiff disclosed no disease or functional derangement of other organs to which the pa- ralysis might be attributed. * * * The instruction referred to in the ninth assignment of error was not, as applied to the case before the jury, erroneous. The injury re- ceived at the time of the accident was the proximate cause of the pa- ralysis, if it caused the disease in the course of which and ,a^ a result of which the paralysis followed. * * * FKIGHT AND MENTAL ANGUISH 37 III. Fright and Mental Anguish • MITCHELL V. ROCHESTER RY. CO. (Court of Appeals of New York, 1S96. 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 7S1, 56 Am. St. Eep. 604.) Martin, J. The facts in this case are few and may be briefly stated. On the 1st day of April, 1891, the plaintiff was standing upon a cross- walk on Main street in the city of Rochester, awaiting an opportunity to board one of the defendant's cars which had stopped upon the street at that place. While standing there and just as she was about to step upon the car, a horse car of the defendant came down the street. As tlie team attached to the car drew near, it turned to the right and came so close to the plaintiff that she stood between the horses' heads when they were stopped. She testified that from fright and excitement caused by the approach and proximity of the team she became unconscious and also that the result was a miscarriage and consequent illness. Medical testimony was given to the effect that the mental shock which she then received was sufficient to produce the result. Assuming that the evidence tended to show that the defendant's servant was negligent in the management of the car and horses, and that the plaintiff was free from contributory negligence, the single question presented is whether the plaintiff is entitled to recover from the defendant's negligence which occasioned her fright and alarm and resulted in the injuries already mentioned. While the authorities are not harmonious upon the question, we think the most reliable and bet- ter considered cases, as well as public policy, fully justify us in hold- ing that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury. Lehman v. Brooklyn City R. R. Co., 47 Hun, 355 ; Victorian Railways Commissioners v. Coultas L. R., 13 Appeal Cases, 222; Ewing v. P., C. & St. L. Ry. Co., 147 Pa. 40, 23 Atl. 340, 14 L. R. A. 666, 30 Am. St. Rep. 709. The learned counsel for the respondent in his brief very properly stated that "the consensus of opinion would seem to be that no recovery can be had for mere fright," as will be readily seen by an examination of the follow- ing additional authorities: Haile v. Texas & Pacific R. Co., 60 Fed. 557, 9 C. C. A. 134, 23 L. R. A. 774; Joch v. Dankwardt, 85 111. 331 ; Canning v. Inhabitants of WilHamstown, 1 Cush. (Mass.) 451; West- em Union Tel. Co. v. Wood, 57 Fed. 471, 6 C. C. A. 432, 21 L. R. A. 706; Renner v. Canfield, 36 Minn. 90, 30 N. W. 435, 1 Am. St. Rep. 654; Allsop v. Allsop, 5 Hurl. & Nor. (N. S.) 534; Johnson v. Wells 5 For discussion of principles, see Chapin on Torts, § 28. 38 LIABILITY RULES GOVERNING CAUSE AND EFFECT Fargo & Co., 6 Nev. 224, 3 Am. Rep. 245 ; Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303. If it be admitted that no recovery can be had for fright occasioned by the negligence of another., it is somewhat difficult to understand how a defendant would be liable for its consequences. Assuming that fright cannot form the basis of an action, it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nerv- ous disease, blindness, insanity, or even a miscarriage no way changes the principle. These results merely show the degree of fright or the extent of the damages. The right of action must still depend upon the question whether a recovery may be had for fright. If it can, then an action may be maintained, however slight the injury. If not, then there can be no recovery, no matter how grave or serious the conse- quences. Therefore the logical result of the respondent's concession would seem to be, not only that no recovery can be had for mere fright, but also that none can be had for injuries which are the direct con- sequences of it. If the right of recovery in this class of cases should be once establish- ed, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caus- ed by the negligent act of the defendant would not only be greatly in- creased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy. Moreover, it cannot be properly said that the plaintiff's miscarriage was the proximate result of the defendant's negligence. Proximate damages are such as are the ordinary and natural results of the neg- ligence charged and those that are usual and may, therefore, be ex- pected. It is quite obvious tht the plaintiff's injuries do not fall with- in the rule as to proximate damages. The injuries to the plaintiff were plainly the result of an accidental or unusual combination of circum- stances which could not have been reasonably anticipated, and over which the defendant had no control, and hence her damages were too remote to justify a recovery in this action. These considerations lead to the conclusion that no recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury. The orders of the General and Special Terms should be reversed and the order of the Trial Term granting a nonsuit affirmed with costs. All concur, except Haight, J., not sitting and Vann, J., not voting. Ordered accordingly. FKIQHT AND MENTAL ANGUISH 39 HICKEY V. WELCH. (St. Ixjuls Court of Appeals, Slissouri, 1901. 91 Mo. App. 4.) Plaintiff and her family occupied as their home a house belonging to Elizabeth Welch, wife of appellant. The premises adjoined defend- ant's residence. It was alleged that defendant broke down the fence, entered plaintiff's back yard, dug a ditch and threw up a bank of earth around the water-closet used by plaintiff's family to a height of five feet, making it dangerous and nearly impossible for plaintiff and her children to enter the closet. While doing so he grossly abused plain- tiff and her husband, applied vituperative and insulting language and epithets to them, pointed a pistol at plaintiff and threatened to shoot her and afterwards menaced her with a shotgun. Plaintiff had former- ly suffered from severe neurasthenia or nervous exhaustion, but a few months before she had entirely recovered. The acts of defendant were charged to have so terrified, shocked and humiliated her as to bring on a recurrence of the disease in a more violent form greatly impair- ing her health, causing her to suffer from numbness in her limbs, loss of memory, inability to concentrate her thoughts, constant pains, spas- modic jerkings and twitchings of the muscles, a recurrent vision of defendant pointing a gun at her, dread of insanity and other symptoms indicative of a profoundly disordered system. Defendant asked an instruction in the nature of a demurrer to the evidence at the close of plaintiff's evidence. The court refused and submitted the issue to the jury. A verdict was returned in plaintiff's favor for $200 actual and $300 punitive damages. GooDE, J.° It is claimed respondent was not physically injured by appellant and therefore her case must fail. There are several good answers to this contention. Some courts have gone so far in applying the rule that damages are not recoverable for mental anguish or fright as to practically hold that no injury, however serious, to a person's health as the result of a neg- ligent tort, even though insanity, epilepsy or some other fearful disease ensues, is actionable, if the tort produced terror, or anxiety ; it being assumed, apparently that these mental phenomena, instead of the wrongful act, were the cause of the subsequent malady. Mere alarm or distress of mind, is not, and ought not to be, a cause of action in itself. Trigg v. Railway Co., 74 Mo. 147, 41 Am. Rep. 305 ; Connell v. Telegraph Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. Rep. 575. Such emotions shortly pass off and the patient is as well as ever. They are easily feigned and often arise from trivial or imag- inary danger, and to make them actionable would, as has often been said, open the door to fraudulent demands and encourage litigation over fanciful and fictitious wrongs, when no real harm was done. Be- sides, there is no criterion by which to estimate the damages for mental 8 The statement of facts Is abridged and a portion of the opinion is omitted. 40 LIABILITY RULES GOVERNING CAUSE AND EFFECT disquietude, and if damages were allowed therefor, they would neces- sarily be conjectural and speculative. Pleasant emotions are not among the rights which the law safeguards — property, health, reputation, per- sonal liberty and security. But when a nervous disorder, acute or chronic, or an illness such as reputable physicians recognize as a gen- uine disease and can trace with reasonable certainty to its true cause, follows an unlawful act, no sound reason can be given why the party injured should not be compensated in damages, although there was no visible hurt at the time. Why should the fact that the sufferer was frightened cut him off from redress. Fright is itself a result of an agitation or shock to the nervous system, and when this shock is se- vere enough, it produces more than fright, namely an impairment of health in some forrn or other, and more or less serious. All emotions are due to minute physical changes in the nervous system and when the change resulting from the shock is extensive, it sometimes induces disease. The suffering thus occasioned is as much due to physical in- jury as that which results from an open wound on the surface of the body. If human bodies were composed only of bones, muscles and viscera, or if suffering could only be caused by injuring those parts, the theory of this legal doctrine would be accurate ; but it is matter of com- mon knowledge that a person may be physically whole and uninjured, to all appearances, and still be a great sufferer from nervous afflictions. A physical injury is at the basis of this class of disorders as of all oth- ers, but is too obscure to be readily observed. False pathology and physiology seem to have led to applications of the rule in question which were extremely unjust. The ancient superstition which found the proximate cause of mental and nervohs diseases in diabolical pos- session was scarcely more ridiculous than the theory that when an ail- ment of that kind follows a great fright, due to another's tortious act, the fright and not the tort is the proximate cause of the injury. Such diseases, like all others, have their origin in a physical lesion, not a metaphysical state. It was justly remarked by a learned jurist in a case of this kind: "As the relation between fright and injury to the nerves or brain structure of the body is a matter which depends en- tirely upon scientific or medical testimony, it is impossible for any court to lay down as a matter of law that, if negligence caused the fright and such fright in its turn so affected such structure as to cause injury to health, such injury cannot be a consequence which by ordinary course of thought would flow from the negligence, unless such injury ac- companied such negligence in point of time." Bell v. Great North- ern Railway, L. R. 26 Ir. Exch. Div. 428. It was said in Sloane v. Railway Co., Ill Cal. 668, 44 Pac. 320, 32 L. R. A. 193 : "It is a matter of general knowledge that an attack of sudden fright on an exposure to imminent peril has produced in in- dividuals a complete change in their nervous system and rendered one who was physically strong and vigorous, weak and timid; such a re- FRIGHT AND MENTAL ANGUISH 41 suit must be regarded as an injury to the body rather than the mind, even though the mind be at the same time injuriously affected." The cases which go to the length of holding that no recovery can be had for suffering following fright or injury occasioned by a tort do not agree in the reason for the rule. Some put it on the ground that it would multiply litigation too much to make such injuries ac- tionable; others on the ground that the damages are too remote and speculative; and still others on the ground that, because the agitated mental state of the injured person came between the wrongful act and the alleged injury, the act was not the proximate cause and such re- sults could not have been expected to flow from it. Mitchell v. Railway Co., 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604; International Tel. Co. v. Saunders, 32 Fla. 434, 14 South. 148, 21 L. R. A. 810; Mentzler v. Telegraph Co., 93 Iowa, 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294. The case of Mitchell v. Rail- way Co., is remarkable in that a recovery was denied for a miscarriage, and the suffering incident thereto, which followed a great fright caus- ed by the defendant's tort. The opposite conclusion was reached, on more logical grounds we think, in Oliver v. Town of La Valle, 36 Wis. 592 ; Railway Co. v. Hunerberg, 16 111. App. 387. Regarding the first of the above reasons, it may be said that if the injury complained of is one which falls in the category of well-known diseases, whose symptoms physicians are familiar with, there is no more chance for imposition than in the case of other injuries, and hence no reason to apprehend a flood of meretricious litigation; if the litigation is meritorious it is the duty of courts to entertain it. Neither would the damages be more conjectural than where they are allowed for prospective injury and suffering; and damages for future injury may always be recovered if shown to be reasonably certain to occur. The answer to the other objection is that, when such an injury fol- lows a tort and is proved by competent testimony to have resulted from it, the tort is the proximate cause, according to the accepted mean- ing of the phrase. An act is a proximate cause of an injury in a legal sense, when the injury was the natural and probable consequence of the act in the light of attending circumstances. Nor is it necessary that the harmful resuk should immediately follow the tort, provided it is traceable directly to it without any other cause intervening. "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 into the market place. The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between 42 LIABILITY RULES GOVERNING CAUSE AND EFFECT ^ the wrong and the injury?" Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. And to defeat recovery on the ground of an intervening cause, it was ruled : "The new, independent, intervening cause must be one not produced by the wrongful act or omission, but independent of it and adequate to bring the injurious result. Whether the natural connection of events was maintained or was broken by such new, independent cause is generally a question for the jury." Mack V. Railway Co., 52 S. C. 323, 29 S. E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913. A plaintiff may obtain damages for concussion fol- lowing a jar. "Railway spine" is a frequent ground of recovery. If such a result is actionable when it develops later from a shock, why refuse relief when the shock is received through the mind ? Through the sense of sight or hearing instead of touch? In truth, the courts which deny relief for injuries folio wing, fright are so impressed with the injustice of the rule that they seize on any pretext to allow a re- covery — even the most frivolous legal wrong and however slight the immediate harm may be. City Transfer Co. v. Robinson, 12 Ky. Law Rep. 555 ; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370 ; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759. In this case there was abundant expert testimony to prove plaintiff's nervousness, or rather specific nervous disease, was due, with reasonable certainty, to the shock she received from defendant's conduct. That disease was unquestionably a physical injury, and we do not think she ought to be denied redress for it and the suffering of mind which went with it merely because she was paralyzed with terror at the time defendant abused and threatened her. If she had had mental anguish and nothing more, the case would be different. We think there is noth- ing inconsistent in this view with what was decided by our Supreme Court in Trigg v. Railway Co. or Connell v. Telegraph Co., supra. But nearly all the cases in which the rule was applied that no re- covery is permissible for mental anguish, fright or their sequelae were where the tort alleged was negligence. The decisions usually state that if the act was willful, malicious or accompanied by circumstances of inhumanity and oppression, an action lies for mental anguish, wheth- er physical harm was done or not. A precedent exactly deciding this proposition is not at hand ; but it is assumed to be the law in the text- books and in most of the cases which exonerate the defendant where negligence is the basis of the action. In Trigg V. Railway Co., 74 Mo. 147, 41 Am. Rep. 305, where the plaintiff sought to recover for anxiety on account of being carried by the defendant past her destination, it was said there were no circum- stances of aggravation, "such as malice, insult, wantonness, violence, oppression or inhumanity." That remark, however, was made in con- nection with the claim for punitive damages. So in Deming v. Railway Co., 80 Mo. App. 153, it was said: "The general rule is that mental anguish, when connected with bodily injury. FRIGHT AND MENTAL ANGUISH 43 IS tlie subject of damages, but it must be so connected in order to be included in the estimate of damages, unless the injury is accompanied by circumstances of malice, insult or inhumanity." Many of these cases are by passengers against railroad companies for being carried past their destination, as in the Trigg Case, or against telegraph com- panies by persons to whom messages were sent, for anxiety caused by failure to deliver the message promptly, such as Connell v. Telegraph Co., 116 Mo. 34, 22 S. W 345, 20 L. R. A. 172, 38 Am. St. Rep. 575. The Supreme Court of Massachusetts, in applying the rule, was careful to limit it to negligence cases, saying: "It is hardly necessary to add that this decision does not reach those classes of action where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution or arrest and some others. Nor do we include cases of acts of gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor's mind." Spade v. Railway Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. We have no doubt that where the act charged was willfully, wanton- ly or maliciously done, and especially where its obvious purpose was to wound, humiliate or oppress another, substantial damages may be given for the mental suffering it entailed. West v. Forrest, 22 Mo. 344. As- suming the testimony for the plaintiff in the present case to be true, it is emphatically one of that kind, the defendant's behavior having been atrocious. Moreover, the evidence tends to show the defendant's entrance and acts on plaintiff's premises constituted a forcible trespass, for which she is entitled to compensation; and her anguish on account of his violent and abusive conduct may be taken into account in connection with the trespass in aggravation of the damages. Larson v. Chase, supra; Meagher v. Driscoll, supra; Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476. Further, there was proof an assault was committed by defendant on plaintiff. "An assault is an inchoate battery. The wrong is putting a person in present fear of violence, so that any act fitted to have that effect on a reasonable man is an assault." Webb's Pollock on Torts, 251. Witnesses swore defendant pointed a pistol at plaintiff and threatened to shoot her, and likewise raised a shotgun in a menacing way. Those acts were an assault. Wharton's Criminal Law (10th Ed.) 1606; Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373; State v. Dooley, 121 Mo. 591, 26 S. W. 558. An action lies for such a disturb- ance of one's peace; and the resulting anxiety, fright, and other in- juries, mental or physical, may be considered in estimating the actual, not merely the punitive damages, as they say in any case where a personal injury is inflicted. Beach v. Hancock, 27 N. H. 223, 59 Am. Dec. 373; Barbee v. Reese, 60 Miss. 906; Canning v. Williamstown, 55 Mass. (1 Cush.) 451; Smith v. Railway Co., 23 Ohio St. 10; City 44 LIABILITY RULES GOVERNING CAUSE AND EFFECT Transfer Co. v. Robinson, 12 Ky. Law Rep. 555 ; Hewlett v. George, 68 Miss. 703, 9 South. 885, 13 L. R. A. 682; Shepard v. Railway Co., 77 Iowa, 54, 41 N. W. 564; Curtis v. Railway Co., 87 Iowa, 622, 54 N.W. 339; Railway Co. v.Flagg, 43 111. 364. * * * The foregoing considerations lead to an aiBrmance of the judgment, in which all concur. IV. Intervention of Voluntary Act ^ ALEXANDER v. TOWN OF NEW CASTLE. (Supreme Court of Indiana, 1888. 115 Ind. 51, 17 N. E. 200.) This action was brought by Alexander to recover for personal in- juries sustained by him through the alleged negligence of the defend- ant. The complaint charged 'that the town allowed an excavation to be made in the side of one of the streets, and negligently suffered this excavation to remain open and uninclosed, whereby the plaintiff, with- out fault on his part, fell into this excavation and was injured. The town answered: First, in denial; secondly, that the plaintiff had a warrant for the arrest of one Heavenridge, and as special constable was taking Heavenridge to jail, under an order from a justice of the peace, and in doing so attempted to pass the excavation in ques- tion, that when opposite the same Heavenridge seized the plaintiff and threw him into the excavation, whereby he was injured as charged in the complaint, and Heavenridge was enabled to escape. A demurrer to this answer, on the ground of insufficiency of facts to constitute a defense, was overruled. NiBLACK, C. J. (after stating the facts).' Complaint is first made of the overruling the demurrer to the second paragraph of the answer, and this complaint is based upon the claim that, as the pit or excava- tion so wrongfully and negligently permitted to remain open and uninclosed afforded Heavenridge the opportunity of throwing the plaintiff into it as a means of escape, it was, in legal contemplation, the proximate cause of the injuries which the plaintiff received. However negligent a person, or a corporation, may have been in some particular respect, he, or it, is. only liable to those who may have been injured by reason of such negligence, and the negligence must have been the proximate cause of the injury sued for. Where some independent agency has intervened and been the im- mediate cause of the injury, the party guilty of negligence in the first Instance is not responsible. On that subject Wharton, in his work on 1 For discussion of principles, see Chapin on Torts, § 29. » Portions of the opinion are omitted. INTEKVENTION OF VOLUNTARY ACT 45 the Law of Negligence, at section 134, says: "Supposing that if it had not been for the intervention of a responsible third party the de- fendant's neghgence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be an- swered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of inde- pendent responsible human action. I am negligent on a particular subject-matter as to which I^ am not contractually bound. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third per- son. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my neg- ligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative." So, if a house has been negligently set on fire, and the fire has spread beyond its natural limits by means of a new agency, for ex- ample, if a high wind arose after its ignition, and carried burning brands to a great distance, thus causing a fire and a loss of property at a place which would have been safe but for the wind, the loss so caused by the wind will be set down as a remote consequence, for which the person setting the fire should not be held responsible. 1 Thompson, Negligence, 144. * * * Heavenridge was clearly an intervening, as well as an independent, himian agency in the infliction of the injuries of which the plaintiff complained. The circuit court, consequently, did not err in overruling the demurrer to the second paragraph of the answer. * * * Judgment [for the defendant] affirmed. 1. Foreseeable Intervention • LANE V. ATLANTIC WORKS. (Snpreme Judicial Court of Massachusetts, 1872. Ill Mass. 136.) Tort. The declaration was as follows : "And the plaintiff says that the defendants carelessly left a truck, loaded with iron, in Marion street, a public highway in Boston, for the space of twenty minutes and more; and the iron on said truck was so carelessly and neg- ligently placed that it would easily fall off ; and that the plaintiff was walking in said highway, and was lawfully in said highway, and law- fully using said highway, and in the exercise of due care; and said » For discussion of principles, see Chapln on Torts, § 29. 46 LIABILITY RULES GOVERNING CAUSE AND EFFECT iron upon said truck was thrown and fell therefrom upon the plaintiff in consequence of the defendants' carelessness, and the plaintiff was severely bruised and crippled," etc. The plaintiff introduced evidence,^" that the defendants left a truck with a bar of iron on it standing in front of their work^ on Marion street, which was a public highway in Boston ; that the iron was not fastened, but would easily roll off the truck ; that the plaintiff, then 7 years old, and a boy about the same age named James Conners„ were walking, between six and seven in the evening on the side of Marion street opposite the truck and the defendants' works ; that Hor- ace Lane, a boy 12 years old, being near the truck, called to them to come over and see him move it; that the plaintiff and Conners said they would go over and watch him do it; that they went ov^r ac- cordingly; that the plaintiff stood near the truck to see the wheels-, move, as Horace Lane took hold of the tongue of the truck ; that Horace Lane moved the tongue somewhat; that the iron rolled off and injured the plaintiff's leg; and that neither the plaintiff nor Con- ners touched the iron or truck at all. The defendants introduced evidence tending to show that the iron. was fastened securely on the truck, which was drawn from the defend- ants' works into the street at four o'clock in the afternoon; that the- boys removed the fastenings; that Horace Lane placed the boys one on each side of the truck; that he turned the tongue of the truck round; that he and Conrjers then took hold of the iron and rolled it off ; that the plaintiff had his hands on the iron or on the truck when the iron rolled oft' on him; and that the boys were engaged in the common enterprise of rolling off the iron and moving the truck. There was no evidence that Horace Lane had any lawful purpose or object in moving the truck, or any right to meddle with it. The defendants requested the judge to give, besides other rulings, the following: "2. In order to make the plaintiff a participator or joint actor with Horace Lane, in his conduct in meddling with the truck for an un- ' lawful purpose, it was not necessary for him to have actually taken hold of the tongue, or the iron, or the truck, to help or aid in moving it. It is enough if he joined with him in a common object and purpose voluntarily, went across the street on his invitation for that avowed purpose, and stood by the truck to encourage and aid, by his presence, word or act, the accomplishment of the purpose. "3. While it is true that negligence alone on the part of Horace Lane, which contributed to the injury combining with the defendants' necrligence, would not prevent a recovery, unless the plaintiff's negli- gei.ce also concurred as one of the contributory causes also, yet, if the fault of Horace Lane was not negligence, but a voluntary meddling with the truck or iron, for an unlawful purpose, and wholly as a !» The statement of facts is abridged and part of tlie opinion is omitted. INTEKVEXTION OF TOLUNTART ACT 47 sheer trespass, and this culpable conduct was the direct cause of the injury, which would not have happened otherwise, the plaintiff can- not recover." The judge did not give the ruling requested, but gave rulings, which, so far as they are now material, were as follows : "The city ordinance is proper to be put in evidence and to be con- sidered by the jury upon the question of negligence, although it is not conclusive proof that the defendants were in point of fact negli- gent in the act of leaving the truck there. It is a matter of evidence, to be weighed with all the other evidence in the case. "If the sole or the direct cause of the accident was the act of Horace I^ane, the defendants are not responsible. If he was the culpable cause of the accident, that is to say, if the accident resulted from the fault of Horace Lane, they are not responsible. But if Horace Lane merely contributed to the accident, and if the accident resulted from the joint negligence of Horace Lane in his conduct in regard to mov- ing the truck and the negligence of the defendants in leaving it there, where it was thus exposed, or leaving it so insecurely fastened that this particular danger might be reasonably apprehended therefrom, then the intermediate act of Horace Lane will not prevent the plaintiff from recovering, provided he himself was in the exercise of due and reason- able care. If the plaintiff himself participated in the act of Horace Lane no further than to go there and be a witness to this transaction which Horace Lane proposed to perform, crossing over the street by his invitation, and witnessing him move this truck, that would not make him such a participator in the wrongful act of Horace Lane as to prevent his recovery, provided he himself was in the exercise of reasonable care. "If, however, he was actually engaged in the wrongful act of Hor- ace Lane, if he was actually engaged in disturbing this truck, and mov- ing the fastenings which had been put upon it in order to prevent it from being disturbed, and was actively participating in the act of Horace Lane, then he cannot recover. But if the act of the plaintiff was limited to crossing the street for the purpose of witnessing the act done by Horace Lane, in answer to his invitation, and no active participation was taken by the plaintiff other than that, it would not prevent his recovery, provided he himself was in the exercise of due and reasonable care." At the close of his charge to the jury the judge read the second rul- ing prayed for by the defendants, and said : "If the plaintiff took an active participation in it, as I before in- structed you, or went there as a joint actor, for the purpose of en- couraging Horace Lane in it, he cannot recover.' If he went there attracted by curiosity only, at the invitation of the party who was about to move the truck, Horace Lane, then he may recover ; provided you are further satisfied that, in what he did, he was in the exercise of 48 LIABILITY RULES GOVBENING CAUSE AND EFFECT the due and reasonable care that should be expected of a person of his age." The jury returned a verdict for the plaintiff for $6,000, and the de- fendants alleged exceptions. Colt, J. In actions of this description, the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experi- ence of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not ex- cuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise. Whether in any given case the act charged was negligent, and whether the injury suffered was, within the relation of cause and effect, legally attributable to it, are questions for the jury. They present oftentimes difficult questions of fact, requiring practical knowledge and experience for their settlement, and where there is evidence to justify the verdict it cannot be set aside as matter of law. The only question for the court is, whether the instructions given upon these points stat- ed the true tests of liability. * * * 3. The last instruction asked was rightly refused. Under the law as laid down by the court the jury must have found the defendants guilty of negligence in doing that from which injury might reasonably have been expected, and from which injury resulted; that the plaintiff was in the exercise of due care; that Horace Lane's act was not the sole, direct, or culpable cause of the injury ; that he did not purposely roll the iron upon the plaintiff; and that the plaintiff was not a joint actor with him in the transaction, but only a spectator. This supports the verdict. It is immaterial whether the act of Horace Lane was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against. McDonald v. Snelling, 14 Allen, 290, 295, 92 Am. Dec. 768 ; Powell v. Deveney, 3 Cush. 300, 50 Am. Dec. 738 ; Barnes v. Chapin, 4 Allen, 444, 81 Am. Dec. 710; Tutein v. Hurley, 98 Mass. 211, 93 Am. Dec. 154; Dixon v. Bell, 5 M. & S. 198; Mangan v. Atterton, L. R. 1 Ex. 239; Illidge v. Goodwin, 5 C. & P. 190; Bur- rows V. March Gas Co., L. R. 5 Ex. 67, 71; Hughes v. Macfie, 2 H. & C. 744. Exceptions overruled. INTEKVENTION OF VOLUNTAKT ACT 49 2. Involuntary Intervention^* ECKERT Y. LONG ISLAND R. CO. (Court of Appeals of New York, 1871. 43 N. T. 502, 3 Am. Rep. 721.) Action in the City Court of Brooklyn, by the plaintiff as adminis- tratrix of her husband, Henry Eckert, deceased, to recover damages for the death of the intestate, caused as alleged by the negligence of the defendant, its servants and agents, in the conduct and running of a train of cars over its road. The case, as made by the plaintiff, was that the deceased received an injury from a locomotive engine of the defendant, which resulted in his death, on the 26th day of November, 1867, under the following circumstances : He was standing in the afternoon of the day named, in conversa- tion with another person about fifty feet from the defendant's track in East New York, as a train of cars was coming in from Jamaica at a rate of speed estimated by the plaintiff's witnesses of from twelve to twenty miles an hour. The plaintiff's witnesses heard no signal either from the whistle or the bell upwDn the engine. The engine was constructed to run either way without turning and it was then run- ning backward with the cowcatcher next the train it was drawing, and nothing in front to remove obstacles from the track. The claim of the plaintiff was that the evidence authorized the jury to find that the speed of the train was improper and negligent in that particular place, it being a thickly populated neighborhood and one of the sta- tions of the road. The evidence on the part of the plaintiff also showed that a child three or four years old was sitting or standing upon the track of the defendant's road as the train of cars approached and was liable to be run over, if not removed; and the deceased, seeing the danger of the child, ran to it, and, seizing it, threw it clear of the track on the side opposite to that from which he came, but, continuing across the track himself, was struck by the step or some part of the locomotive or tender, thrown down, and received injuries from which he died the same night. The evidence on the part of the defendant tended to prove that the cars were being run at a very moderate speed, not over seven or eight miles an hour, that the signals required by law were given, and that the child was not on the track over which the cars were passing, but on a side track near the main track. 11 For discnssion of principles, see Chapln on Torts, § 29, Chap.Cas.Tobts — 1 50 LIABILITY RULES GOVERNING CAUSE AND EFFECT So far as there was any conflict of evidence or question of fact, the questions were submitted to the jury. At the close of the plaintiff's case, the counsel for the defendant moved for a nonsuit upon the ground that it appeared that the deceased's negligence contributed to the injury and the motion was denied and an excfeption taken. After the evidence was all in, the judge was requested by the counsel for the defendant to charge the jury, in different forms, that if the deceased voluntarily placed himself in peril from which he received the injury, to save the child, whether the child was or was not in danger, the plain- tiff could not recover and all the requests were refused and exceptions taken, and the question whether the negligence of the intestate con- tributed to the accident was submitted to the jury. The jury found a verdict for the plaintiff and the judgment entered thereon was af- firmed, on appeal, by the Supreme Court and from the latter judg- ment the defendant has appealed to this court. GrovEr, J. The important question in this case arises upon the exception taken by the defendant's counsel to the denial of his motion for a nonsuit, made upon the ground that the negligence of the plain- tiff's intestate contributed to the injury that caused his death. The evidence showed that the train was approaching in plain view of the deceased, and had he for his own purposes attempted to cross the track, or with a view to save property placed himself voluntarily in a position where he might have received an injury from a collision with the train, his conduct would have been grossly negligent, and no re- covery could have been had for such injury. But the evidence further showed that there was a small child upon the track, who, if not rescued, must have been inevitably crushed by the rapidly approaching train. This the deceased saw, and he owed a duty of important obligation to this child to rescue it from its extreme peril, if he could do so with- out incurring great danger to himself. Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a rea- sonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances, he believed that he could, it was not negligence to malce an attempt so to do, although be- Heving that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to con- stitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of propeity, knowingly and Voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence which will preclude a INTERVENTION OF VOLUNTARY AC3T 51 recovery for an injury so received; but when the exposure is for the purpose of saving life it is not wrongful, and therefore riot negligent, unless such as to be regarded either rash or reckless. The jury were warranted in finding the deceased free from negligence under the rule as above stated. The motion for a nonsuit was therefore" properly de- nied. That the jury were warranted in finding the defendant guilty of negligence in running the train in the manner it was running requires no discussion. None of the exceptions taken to the charge as given, or to the refusals to charge as requested, affect the right of recovery. Upon the principle above stated, the judgment appealed from must be affirmed, with costs. Church, C. J., and Pbckham and Rapallo, J J., concur. Allen, J., wrote a dissenting opinion, in which FoLGER, J., con- curred. Judgment affirmed. 52 PEFENSE3 DEFENSES I. Necessity * SUROCCO V. GEARY. (Supreme Court of Caiifornia, 1853. 3 Cal. 69, 58 Am. Dec. 385.) Murray, Chief Justice,^ delivered the opinion of the court. Hsy- DENFELDT, Justice, concurred. This was an action, commenced in the court below, to recover dam- ages for blowing up and destroying the plaintiffs' 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 prog- ress of the conflagration then raging. It was in proof that the fire passed over and burned beyond the building of the plaintiffs, and that at the time said building was de- stroyed they were engaged in removing their property, and could, had they not been prevented, have succeeded 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 prosecutes 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 adjacent, 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 conflagra- tion, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. "It is re- ferred by moralists and jurists to the same great principle which jus- tifies the exclusive appropriation 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 1 For discussion of principles, see Cliapin on Torts, § 36. 2 The statement of facts is omitted. NECESSITY 53 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 precisely on the same ground of necessity. See American Print Works v. Lawrence, 21 N. J. Law, 248, 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 conflagration, or to raise bulwarks for the defence of a city, are made use of as illustrations, rather than as abstract cases, in which its exercise is permitted. At such times the individual rights of property give way to the higher laws of impending necessity. A house on fire, or those in its immediate vicinity, which serve to communicate the flames, becomes ^ nuisance, which it is lawful to abate, and the private rights of the individual yield to the considera- tions of general convenience, and the interests 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 perfectly 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 pri- vate 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 bene- fit of the individual or the city, but not properly of the state. The counsel for the respondent has asked, Who is to judge of tlie necessity of the destruction of property? This must, in some instances, be a difficult matter to determine. 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 exigen- cies of the case. If a building should be torn down without apparent or actual necessity, the parties concerned would undoubtedly be lia- ble 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 difficulty would not be obviated by making the parties responsible in 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 54 DEFENSES 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 compelled to fall back upon the rules of the common law. The evidence in this case clearly establishes the fact that the blow- ing up of the house was necessary, as it would have been consumed had it been left standing. The plaintiffs cannot recover 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 sit- uaite; and if in such cases a party was held liable, it would too fre- quently 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 de- fendant. Judgment reversed. PROCTOR V. ADAMS. (Supreme Judicial Court of Massachusetts, 1873. 113 Mass. 376, 18 Am. Rep. 500.) Tort, in the nature of a trespass quare clausiim, for entering the plaintiff's close and carrying away a boat. At the trial it appeared that the premises described in the declaration were- a sandy beach on the sea side of Plum Island, and that the defendants went there, be- tween high and low water mark, January 19, 1873, and against the objection and remonstrances of the plaintiff's tenant, carried away a boat worth $50, which they found lying there. 'The defendants offered evidence that upon the night of January 18, 1873, there was a severe storm ; that the next morning they went upon the beach to see if any vessels or property had been cast ashore ; that they found a boat lying upon the beach twenty-five feet below high water mark, which had apparently been driven ashore in the storm; that in order to save it, they endeavored to haul it upon tlie beach, and succeeded in putting it near the line of high water mark ; that, not thinking it secure, they, the next day, pushed it into the water, and carried it around into Plum Island river, on the inside of the island; that they at once advertised it in the Ipswich and Newburyport papers ; that they shortly afterwards delivered it to one Jackman, who claimed it as agent for the underwriters of the wrecked steamer Sir Francis, and who paid them $12 for their services and expenses. The court ruled that these facts, if proved, would not constitute a defence, and proposed to instruct the jury as follows : NECESSITY 55 "If the land upon which the boat was found and taken possession of by the defendants was in possession or occupation of the plain- tiff, the defendants' entry upon it without permission of tlie plaintiff was an unlawful entry. "If the defendants, having made an unlawful entry upon the plain- tiif 's land, there took and therefrom carried a boat, for any purpose affecting the boat as derelict or wrecked property, they are liable to the plaintiff for their unlawful entry upon the land in nominal dam- age, and also, the boat not being their property, but a wreck, in damages for the imlawful taking and carrying away of the boat, to the value of the boat." The defendants requested the court to rule that, upon the case pre- sented, the law would imply a license, but the court declined so to rule. The defendants then declined to go to the jury, and the court instructed the jur}- to return a verdict for the plaintiff for $51, and reported the case to this court Gray, C. J. The boat, having been cast ashore by the sea, was a wreck, in the strictest legal sense. 3 Bl. Com. 106 ; Chase v. Corcoran, 106 jNIass. 286, 288. Neither the finders of the boat, nor tlie owner of the beach, nor the commonwealth, had any title to the boat as against its former owner. Body of Liberties, art. 90; Anc. Chart. 211; 2 Mass. Col. Rec. 143; St. 1814-15, c. 169; Rev. St. 1836, c. 57; Gen. St 1860, c. 81 ; 3 Dane, Ab. 134, 136, 138, 144 : 2 Kent, Com. 322, 359. But the owner of the land on which the boat was cast was under no duty to save it for him. Sutton v. Buck, 2 Taunt. 302, 312. If the boat, being upon land between high and low water mark, owned or occupied by the plaintiff, was taken by the defendants, claim- ing it as their own, when it was not, the plaintiff had a sufficient right of possession to maintain an action against them. Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678; Dunwick v. Sterry, 1 B. & Ad. 831. But if, as the evidence offered by them tended to show, the boat was in danger of being carried off by the sea, and they, before the plain- tiff had taken possession of it, removed it for the purpose of saving it and restoring it to its lawful owner, they were not trespassers. In such a case, though they had no permission from the plaintiff or any other person, they had an implied license by law to enter on the beach to save the property. It is a very ancient rule of common law that an entry upon land to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger, is not a trespass. 21 H. VII, 27, 28, pi. 5; Bro. Ab. Trespass, 213; Vin. Ab. Trespass (H. a. 4) pi. 24 ad fin. ; (K. a.) pi. 3. In Dunwick v. Sterry, 1 B. & Ad. 831, a case very like this, Air. Justice Parke (afterwards Baron Parke and Lord Wensleydale) left it to the jury to say whether the defendant took the property for the benefit of the owners, or under a claim of his own and to put the plaintiffs to proof of their title. In Barker v. Bates, 13 Pick. 255, 23 Am. Dec. 678, upon which the plain- 56 DEFENSES tiff mainly relies, the only right claimed by the defendants was as finders of the property and for their own benefit. The defendants are therefore entitled to a new trial. As the an- swer was not objected to, and the declaration may be amended in the court below, we have not considered the form of the pleadings. - New trial ordered. II. Acts of State » BURON V. DENMAN. (Court of Exchequer, 1848. 2 Exch. 167.) The defendant, a naval commander, stationed off the coast of Africa, with instructions to suppress the slave trade, fired the barracoons of plaintiff, a 'Spaniard, and liberated the slaves. These proceedings were reported to the Lords of the Admiralty and to the Foreign and Colonial Secretaries of State, and were adopted and ratified by them. Parke, B.* (in summing up). * * * The principal question is whether the conduct of the defendant, in carrjdng away the slaves, and committing the other alleged trespasses, can be justified as an act of state, done by authority of the Crown. It is not contended that there was any previous authority. If the defendant had merely instruc- tions according to the terms of the treaty set out in the act of Par- liament, those instructions would only have extended to the stopping of ships in the high seas, within the limits agreed to by the treaty with the Spanish crown. Therefore the justification of the defendant de- pends upon the subsequent ratification of his acts. A well-known maxim of the law between private individuals is, "Omnis ratihabitio retrotrahitur et mandato sequiparatur." If, for instance, a bailiff dis- trains goods, he may justify the act either by a previous or subsequent authority from the landlord; for, if an act be done by a person as agent, it is in general immaterial whether the authority be given prior or subsequent to the act. If the bailiff so authorized be a trespasser, the person whose goods are seized has his remedy against the principal. Therefore, generally speaking, between subject and subject, a subse- quent ratification of an act done as agent is equal to a prior authority. That, however, is not universally true. In the case of a tenant from year to year, who has, by law, a right to a half year's notice to quit, if such notice be given by an agent, without the authority of the land- lord, the tenant is not bound by it. Such being the law between private individuals, the question is, whether the act of the sovereign, ratify- 8 For discussion of principles, see Chapln on Torts, § 36. * The statement of facts is rewritten and a portion of the opinion la omitted. ACTS OF STATE 57 ing the act of one of his officers, can be distinguished. On that subject I have conferred with my learned bretliren, and they are decidedly of opinion that the ratification of tlie Crown, communicated as it has been in the present case, is equivalent to' a prior command. I do not say that I dissent; but I express my concurrence in their opinion with some doubt, because, on reflection, tliere appears to me a considerable distinction between the present case and the ordinary case of ratifica- tion by subsequent authority between private individuals. If an in- dividual ratifies an act done on his behalf, the nature of the act re- mains unchanged, it is still a mere trespass, and the party injured has his option to sue either ; if the Crown ratifies an act, the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass. Whether the remedy against the Crown is to be pursued by petition of right, or whether the injury is an act of state without remedy, except by appeal to the justice of the state which inflicts it, or by application of the individual suffering to the government of his country, to insist upon compensa- tion from the government of this — in either view, the wrong is no long- er actionable. I do not feel so strong upon the point as to say that I dissent from the opinion of my learned brethren; therefore you have to take it as the direction of the court, that if the Crown, with knowl- edge of what has been done, ratified the defendant's act by tlie Secre- taries of State or the lyOrds of the Admiralty, this action cannot be maintained. In the documents which have been read there is ample evidence of ratification, for the Secretary of State for Foreign Affairs, the Lords of the Admiralty, and the Secretary of State for the Colonial Department, on receiving the report of the Governor of Sierra Leone, and the account of the transactions given by the defendant himself, expressed their approbation of what he had done. The acts, indeed, have never been published, and that is one of the circumstances which created a doubt in my mind. But, although the ratification was not known before this action was commenced, that fact makes no difference in the opinion of the court. A previous command would be unknown, if given verbally ,' and a subsequent ratification, though unknown, will have the same effect. , It is argued, on the part of the plaintiff, that the Crown can only speak by an authentic instrument under the Great Seal, and that, therefore, the ratification ought to have been under the Great Seal. We are clearly of opinion that, as the original act would have been an act of the Crown, if communicated by a written or parol direction from the Board of Admiralty, so this ratification, communicated in the way it has been, is equally good. I should observe that the court are of opinion that it is not necessary for the defendant to prove the pleas 58 DEFENSES which expressly state the authority of the Crown; for if this act, by adoption, becomes the act of the Crown, the seizure of the slaves and goods by the defendant is a seizure by the Crown, and an act of state for which the defendant is irresponsible, and, therefore, entitled to a verdict on the plea of "Not guilty." The jury found that the Crown had ratified the act of the defend- ant, with full knowledge of what he had done, whereupon a verdict was taken for him on the fourth, ninth, and sixteenth pleas. A verdict was found for the plaintiff on the pleas of not possessed of the slaves and goods and the plea of "Not guilty," was entered, by consent, for the plaintiff. F. Robinson tendered a bill of exceptions to the above ruling; but the plaintiff afterwards obtained an order to discontinue, certain terms of settlement of this and other similar actions having been agreed to. Ill, Illegal Conduct of Plaintiff" WELCH v. WESSON. (Supreme Judicial Court of Massachusetts, 1856. 6 Gray, 505.) Action of tort for running down the plaintiff on the highway and breaking his sleigh. Merrick, J. It appears from the bill of exceptions to have been fully proved upon the trial that the defendant willfully ran down the plaintiff and broke his sleigh, as is alleged in the declaration. No jus- tification or legal excuse of this act was asserted or attempted to be shown by the defendant ; but he was permitted, against the plaintiff's objection, to introduce evidence tending to prove that it was done while the parties were trotting horses in competition with each other for a purse of money, the ownership of which was to be determined by the issue of the race. And it was ruled by the presiding judge that, if this fact was estabUshed, no action could be maintained by the plaintiff to recover compensation for the damages he had sustained, even though the injury complained of was willfully inflicted. Under such instruc- tions, the jury returned a verdict for the defendant. We presume it may be assumed as an undisputed principle of law that no action will lie to recover a demand, or a supposed claim for damages, if, to establish it, the plaintiff requires aid from an illegal transaction or is under the necessity of showing, and depending in any degree upon an illegal agreement, to which he himself had been a party. Gregg V. Wyman, 4 Cush. 322 ; Woodman v. Hubbard, 25 N. H. 67, 6 For discussion of principles, see Chapin on Torts, § 36. ILLEGAL CONDUCT OF PLAINTIFF 59 57 Am. Dec. 310; Phalen v. Clark, 19 Conn. 421, 50 Am. Dec. 253; Simpson v. Bloss, 7 Taunt. 246. But this principle will not sustain the ruling of the court, which went far beyond it, and laid down a much broader and more comprehensive doctrine. Taken witliout qualifica- tion, and just as they were given to the jury, the instructions import that, if two persons are engaged in the same unlawful enterprise, each of them, during the continuance of such engagement, is irresponsible for willful injuries done to the property of tlie other. No sucli propo- sition as this can be true. He who violates the law must suffer its pen- alties; but yet in all other respects he is under its protection, and en- titled to the benefit of its remedies. But in this case the plaintiff had no occasion to show, in order to maintain his action, that he was engaged, at the time his property was injured, in any unlawful pursuit, or that he had previously made any illegal contract. It is true that, when he suffered the injury, he Was acting in violation of the law ; for all horse trotting upon wagers for money is expressly declared by statute to be a misdemeanor punish- able by fine and imprisonment. St. 1846, c. 200. But neither the ■contract nor the race had, as fjLr as appears from the facts reported in the bill of exceptions, or from the intimations of the court in its rul- ing, anything to do with the trespass committed upon the property •of the plaintiff. That he had no occasion to show into what stipulations the parties had entered, or what were the rules or regulations by which they were to be governed in the race, or whetlier they were in fact engaged in any such business at all, is apparent from tlie course of the proceeding at the trial. The plaintiff introduced evidence tending to pro\e the wrongful acts complained of in the writ, and the damage done to his property, and there rested his case. If nothing more had been shown, he would clearly have been entitled to recover. He had not attempted to derive assistance either from an illegal conti'act or an illegal transaction. It was the defendant, and not the plaintiff', who had occasion to invoke assistance from proof of the illegal agreement and conduct in which both parties had equally participated. From such sources neither of the parties should have been permitted to derive a benefit. The plaintiff sought nothing of this kind, and the mutual misconduct of the parties in one particular cannot exempt the defend- ant from his obligation to respond for the injurious consequences of his own illegal misbehavior in another. Exceptions sustained. 60 DEFENSES IV. License • EVANS V. WAITE. (Supreme Court of Wisconsin, 1892. 83 Wis. 286, 53 N. W. 445.) This is an action to recover damages for personal injuries alleged to have been inflicted by defendant upon plaintiff. It is charged in the complaint that: "On July 4, 1891, while the plaintiff was lawfully rid- ing on horseback on the public highway in company with defendant, the defendant being then and there armed with a revolver loaded with powder and a leaden ball, negligently and carelessly discharged the said revolver so that the ball therefrom struck the plaintiff in the hip, and passed on through the flesh into his thigh where it became lodged and imbedded so that it was impracticable to remove the same, and that the said ball so fired from the revolver in the hands of the defend- ant caused a deep, painful and dangerous wound." It, is further alleged that the defendant is a minor of about the age of eighteen years. The defendant answered by his guardian : (1) A general denial ; and (2) that the plaintiff was guilty of contributory negligence in that he enticed the defendant to go with him for the purpose of shooting, and that while the parties were shooting the plaintiff was accidentally in- jured, and not through any negligence of the defendant. On the trial it was proved that the defendant was a minor ; that on the occasion mentioned in the pleadings he was armed with a revolver ; and that the plaintiff was wounded, as charged in the complaint, by a bullet discharged from the revolver by accident, when in the hands of the defendant. The circuit judge held that, because the defendant was a minor and was armed with a revolver in violation of chapter 329, Laws of 1883 (S. & B. Ann. St. § 4397b), he was liable to the plaintiff for the injury, without regard to the question of negligence. There- upon the jury were instructed to find for the plaintiff and to assess damages for the injury. The court confined the recovery to compen- satory damages. The jury assessed plaintiff's damages at $375, nearly $150 of which was for actual necessary expenses incurred by the plain- tiff, and for loss of time by reason of the injury. A motion for a new trial was denied, and judgment entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment. Lyon, C. J. In Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538, it was held that if two persons, by mutual consent, in anger fight together, each is liable to the other for actual damages. « For discussion of principles, see Chapin on Torts, § 36. RELEASE AND COVENANT NOT TO SUE 61 The fighting being unlawful, the consent of either party is no bar to the action. The authorities upon which the decision is based are cited in the opinion. The rule of that case applies here. It was unlawful for the defendant to be armed with a revolver when the plaintiff was injured, and hence he is liable for any injury inflicted by him with such weapon. It is immaterial that the plaintiff was consenting to the defendant being so armed and to his use of the revolver. Such is the rule of Shay v. Thompson, 59 Wis. 540, 18 N. W. 473, 48 Am. Rep. 538. The only effect of such consent was to confine the recovery to •compensatory damages, and it was so restricted. The question of negligence is also immaterial. True the complaint charges that the defendant was negligent, but it also contains a suffi- cient statement of a cause of action based upon the fact that the defend- ant was unlawfully armed with the revolver with which he wounded the plaintiff. Were there any defect in the complaint in that view of the case, it was amendable, for the whole transaction was fully proved on the trial without objection. This brings the case within the rule which allows the pleading to be amended to correspond with the proofs, or permits a variance between the pleadings and proofs to be disre- garded. We fail to find any error disclosed in the record. By the Court. The judgment of the circuit court is affirmed. V. Release and Covenant Not to Sue ' GILBERT v. FINCH. ersonal chastisement for al- leged 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 circum- PUBLIC OFFICERS 71 stances, the verity of this record can be impeached. It is sufificient to observe that it cannot be impeached in this action or in any civil ac- tion 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 attor- neys, 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 judg- ment must therefore be affirmed, and it is so ordered. Judgment affirmed. RUSH V. BUCKLEY. (Supreme Judicial Court of Jlaine, 1905. 100 Me. 322, 61 Atl. 774, 70 L. K. A. 464, 4 Ann. Cas. .318.) WiSwELL, C. J.* The plaintiff had been arrested upon two occa- sions, brought before the Augusta municipal court, tried, convicted, sentenced to pay a fine in each case, and committed to jail in default of such payment, upon warrants issued by that court. The offense al- leged in the complaint and warrant in each case was the violation of an ordinance of the city of Augusta regulating public carriages therein, and which prohibited all persons from driving such a carriage in the city of Augusta without a license therefor, under a penalty therein provided. In these two cases, reported and argued together, the plain- tiff sues the judge of the municipal court who issued tlie warrants, the officer who served them, and the persons who made the two com- plaints for false imprisonment, upon the ground that the ordinance had never gone into effect, and was void, because it never had been published in some newspaper printed in Augusta, as required by the statute authorizing such ordinances. Rev. St. c. 4, § 93, par. 9. * * * We finally come to a consideration of the question as to whether, under the circumstances which have already been stated, the judge of 3 The statetoent of facts and a portion of the opinion are omitted. 72 PARTIES the municipal court is liable in damages to the plaintiff for any of the acts done by him. The rule is we'll established that judges of courts of superior jurisdiction are not liable to civil actions for their judicial acts, even where such acts are in excess of their jurisdiction. As to whether this immunity from civil liability is equally applicable to a judge of an inferior court, or to a magistrate of limited jurisdiction, is a question about which the authorities are not in entire accord. We favor the doctrine, towards which, we think, there is a strong tendency in more recent judicial opinion, that where a judge of an inferior court, or a magistrate, is invested by law with jurisdiction over the general subject-matter of an alleged offense — that is, has the power to hear and determine cases of the general class to which the proceeding in question belongs — and decides, although erroneously, that he has juris- diction over the particular offense of which complaint is made to him, or that the facts charged in the complaint constitute an offense, and acts accordingly in entire good faith, such erroneous decision is a ju- dicial one, for which he should not be, and is not, liable in damages to a party who has been thereby injured. We can perceive of no good reason why the judge of general local, but inferior, jurisdiction should not be as fully protected against the consequences of his erroneous judicial decision concerning a matter within the limits of his g'eneral jurisdiction over offenses of the same general nature as should judges of superior courts for their judicial mistakes. In the application of this doctrine, the distinction must be observed between mere excess of jurisdiction and the clear absence of all juris- diction over the subject-matter. This distinction was very clearly pointed out in the case of Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646, a leading case upon the question of judicial liability. In illustra- tion of this distinction, the court in that case said : "Thus, if a probate court, invested only with authority over 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 want- ing in the court and this being necessarily known to its judge, his com- mission would afford no protection to him in the exercise of the usurp- ed authority. 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 law made an offense, and proceed to the arrest and trial of a party charged with such acts, 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 PUBLIC OFFICERS 73 officer is called upon to consider and determine relate to his jurisdic- tion, or that of the court held by him, or the manner in which the jurisdiction shall be exercised; and tlie same principle of exemption from liability which obtains for errors committed in the ordinary pros- ecution of a suit, where there is jurisdiction of both subject and person, appHes in cases of this kind, and for the same reasons." The particu- lar appropriateness of this language above quoted to this case is ap- parent. Numerous well-considered decisions of courts of high authority may be cited in support of the doctrine which we have already stated. In Brooks V. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137, it was held that a justice of the peace, who acted in good faith, and who had jurisdiction of the person and of the subject-matter, was not civilly liable in damages to the person injured for holding an un- constitutional ordinance valid and enforcing it by imprisoning the per- son charged with the ^'iolation of it. In that case it is said : "The Con- stitution guaranties no man immunity from arrest. It guaranties him a fair and impartial trial. It has provided him with appellate courts, to which he may resort for the correction of errors committed by the inferior courts. With this he must be content. These inferior tribu- nals should be left to the exercise of their honest judgment, and when they have so exercised it they are exempt from civil liability for errors. This is the only rule which can secure a proper administration of our criminal laws. The interests of the individual must in such case yield to the interests of the public." In Robertson v. Parker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. 889, it was held that where a judge of limited or inferior juris- diction secures jurisdiction of a'person or cause, but in the progress of his investigation or proceeding decides that he has greater powers than he actually possessed, and therefore pronounces a judgment or sentence in excess of his powers and void, he is not personally an- swerable to a person subjected to imprisonment under such judgment. In Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, where this question is considerably discussed, the court said in its opinion : "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 mat- ter of law and fact, has not jurisdiction over the particular case, there- by in all cases he incurs a liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer, having general powers of adjudication, 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 un- reasonable as it is impohtic." And again: "Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an ^ct is a judicial one, and such officer is not liable in a suit to the person affected by his decision, whether such de- 74 PAETIES cision be right or wrong ; but when no facts are present, or only such facts as have neither legal value nor color of legal value in the affairs, then in that event for the magistrate to take jurisdiction is not in any manner the performance of a judicial act, but simply the commission of an official wrong. This criterion seems a reasonable one. It pro- tects a judge against the consequences of every error of judgments, but it leaves him answerable for the commission of wrong that is prac- tically willful. Such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression." In Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254, the court held that a judicial officer of an inferior court was not liable in a civil action to the plaintiff for inflicting a pun- ishment upon him under a void ordinance. In that case the court dis- cusses the question of the distinction between the immunity of a judge of a superior and of an inferior court, and, after citing many cases herein referred to, as well as others, lays down this rule : "But all judicial officers stand upon the same footing and must be governed by the same rules. It follows from what has been said that where the court has jurisdiction of the subject-matter of the offense, and the presiding officer erroneously decides that the court has jurisdiction of the person committing it, or commits an act in excess of his jurisdic- tion, he will not be liable in a civil actidin for damages." In Henke v. McCord, 55 Iowa, 378, 7 N. W. 623, it was decided that a justice of the peace, who enforces an ordinance which is void for want of power in the city to enact it, cannot be held liable therefor in a civil action for damages. In Thompson v. Jackson, 93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 92, it was decided that a justice of the peace, like judges of the superior courts, is protected from personal liability for judicial acts in excess of his jurisdiction, if he acted in good faith, believing that he had jurisdiction. The court there said : "The cur- rent of legal thought is that the distinction [between judges of su- perior and of inferior courts] is unreasonable, unjust, illogical, and ought not to obtain." In Bell v. McKinney, 63 Miss. 187, it was held that where a magistrate had authority to require a person brought before him to give bail for his appearance at a superior court, but, under an erroneous judgment as to the extent of his authority and in good faith, tried such person, and, upon his conviction, sentenced him to pay a fine or be imprisoned, the magistrate was held not liable in damages to the person aggrieved. We are aware of some decisions wherein a different conclusion has been reached, of which, perhaps. Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438, may be a leading case; but we prefer the more liberal doctrine already stated, which is so abundantly supported by the authorities already referred to, as well as by others. The facts already stated bring the case of the judge who acted upon the original PUBLIC OFFICERS lO complaints entirely within this doctrine of immunity from civil liability for judicial errors. He was the judge of the Augusta municipal court, a court of record, having original jurisdiction over all offenses of tliis character, tlie violation of city ordinances, within the limits of his ter- ritorial jurisdiction. His court had jurisdiction over the general sub- ject-matter, as we have already defined that expression, and as it is defined in Hunt v. Hunt, 72 N. Y. 217, 2S Am. Rep. 129. As we have already seen, the city had express statutory authority to pass such an ordinance, and it had been duly passed by the city council and published among the ordinances of the city, although not published, as required by statute before taking effect, in a newspaper. The judge had ever)' reason to believe that all of the preliminaries required by statute had been complied with, and had no knowledge or reason to suppose that tliis particular ordinance had not been published in a newspaper as required. There is no suggestion that he did not act in entire good faith in the premises. He therefore should not be held liable in damages to the plaintiff, whose rights were fully protected by the opportunity to appeal from an erroneous decision to an appellate court, where the error might be corrected. Suppose this objection to the validity of the ordinance had been raised at the hearing, and the judge had then decided, although errone- ously, that the ordinance as a matter of fact had been published as the statute required; it would hardly be claimed that he was liable because of this erroneous decision upon the question of fact. Or sup- pose, the point being made, he had decided as a matter of law, still erroneously, perhaps, that the statute was merely directory and that the ordinance was valid and effective, notwithstanding the fact that it never had been pubHshed in a newspaper; it could then hardly be claimed that he was liable in damages to a party aggrieved for his erroneous judicial decision of a question that arose and had to be passed upon by him in his judicial capacity during the course of the proceedings. He is not more liable, in our opinion, because of the fact that he had no knowledge of this failure as to one of the preliminary requisites, and because the point was not made at the hearing before him. For these reasons, none of these defendants are liable, and the entry will be: Judgment for defendants. 76 PARTIES 2. Ministerial Officers ' BAIR V. STRUCK. (Supreme Court of Montana, 1903. 29 Mont. 45, 74 Pac. 69, 63 li. B. A. 481.) HoLLOWAY, J.° This action was commenced by the plaintiff, Bair, to recover damages from the defendant for injury to personal property. The complaint alleges that in August, 1899, the plaintiff was the owner of ISO head of Merino bucks, which had lately been imported into this state from the state of Oregon; that the defendant was deputy sheep inspector for Yellowstone county, and as such took the sheep from the possession of the plaintiff, and subjected them to certain quarantine regulations ; that none of the sheep were diseased ; that the defendant wrongfully and negligently prepared the materials used for dipping the sheep, and put therein carbolic acid or other poisonous matters in such quantities that 69 head of said sheep were killed, and the remain- ing 81 so badly injured as to render them unfit for breeding purposes, for which they were purchased. The prayer of the complaint was for $2,100 damages. The defendant admitted in his answer that he was deputy sheep inspector, and that as such he dipped the sheep in ques- tion on August 20, 1899, and denied the other material allegations of the complaint. By way of an affirmative defense the defendant alleged that the dipping of the -sheep in question was done by him under and by virtue of a quarantine proclamation issued by the Governor Of Mon- tana on April 15, 1899. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for $1,055.50, and from the judgment entered for the amount of the verdict and costs, and from an order denying the defendant a new trial, these appeals are taken. It is earnestly contended that the complaint shows on its face that in the discharge of his duties the defendant acted as a quasi judicial officer, and therefore is not liable for damages arising from his negligence, and would only be liable for such damages as were occasioned by his will- ful or wanton misconduct, and no such misconduct is alleged. Such portions of the Political Code as are applicable to the facts of this case read as follows : "Sec. 3034. Whenever the Governor, by proclamation, quarantines' [sheep] for inspection as provided in the next section any sheep brought into Montana, the deputy inspector of the county in which such sheep may come, must immediately inspect the same, and if he finds that they are infected with scab, or any other infectious disease, he must cause the same to be held within a certain limit or place in his * For discussion of principles, see Chapin on Torts, § 42. » A portion of the opinion is omitted. PUBLIC OFFICEKS 77 said county, to be defined by him, until such disease has been eradicated, as provided in the next preceding section. "Sec. 3035. Whenever the Governor has reason to believe that any disease mentioned by this article has become epidemic in certain lo- calities in any other state or territory, or that conditions exist that ren- der sheep likely to convey disease, he must thereupon by proclamation, designate such localities and prohibit the importation from them of any sheep into this state, except under such restrictions as he, after consultation with the veterinary surgeon, may deem proper." Acting under the authority of these sections, the Governor of Mon-' tana, on April IS, 1899, issued a proclamation, the pertinent portions of which read as follows : "Whereas, I have reason to believe that con- ditions exist which render the class of sheep herein designated rams, or bucks, or stock sheep, when brought into this state, liable to convey the disease known as 'scab,' it is hereby ordered that all rams, or bucks, or stock sheep, imported into the state of Montana, from any other state or territory of the United States or foreign countries whatsoever, must when shipped be loaded at point of starting into properly disin- fected car or cars, and shipped in such properly disinfected car or cars into this state, where, upon arrival at the state line of Montana, or the closest available point thereto where the sheep are to be unloaded to be driven to destination in the state, and before being turned upon the public domain or upon private premises, and all rams, bucks, or stock sheep driven into or through any portion of this state from any adjoining state or country, avoiding all quarantine yards and areas, shall be held at such point or points as may be hereinafter designated and there dipped under the supervision of the state veterinarian through the deputy sheep inspector of the county into which the sheep are to remain, and said sheep shall be dipped in some recognized and reliable dip known to be efficient in the cure of scab, twice, the second dip to occur within 10 days or between 10 and 12 days after the first dipping." Under the foregoing provisions it was made the duty of the Governor to determine what sheep, not themselves diseased, should be quarantin- ed, and to prescribe the quarantine regulations. In doing so he doubt- less acted in a quasi judicial capacity, and, having once determined that fact, and having prescribed such regulations in his proclamation, the only duty devolving upon the defendant was to carry such regulations into effect. But it is contended that under the provisions of the Governor's proc- lamation — "said sheep shall be dipped in some recognized and reliable dip, known to be efficient in the cure of scab" — the defendant was called upon to exercise his judgment and discretion in determining the material to be used and the method of its application, and in this he acted in a quasi judicial capacity. With this contention we cannot agree. The law contemplates that only men who, by their skill and experience, are competent, shall be appointed such deputies, and in- vested with tlie duty of carrying into execution this police power of 78 PARTIES the state. The mere fact that such officers are called upon to exercise some discretion or judgment in selecting materials to be used and the manner of their use does not change the character of their acts from ministerial to judicial or quasi judicial ones. Experience teaches that few, if any, ministerial officers are not called upon to exercise some judgment or discretion in the performance of their official duties. But, if the contention of the appellant be sustained, the distinction between ministerial and quasi judicial acts is practically abolished. As distin- guishing between acts quasi judicial and acts ministerial in their char- ■ acter, the following definitions we think correctly state the law : "Quasi judicial functions are those which lie midway between the judicial and ministerial ones. The lines separating them from such as are thus on their two sides are necessarily indistinct; biit, in general terms, when the law, in words or by implication, commits to any officer the duty of looking into facts, and acting upon them, not in a way which it specifi- cally directs, but after a discretion in its nature judicial, the function is termed quasi judicial." Mechem on Public Officers, § 637; Bishop on Noncontract Law, §§ 785, 786. "Where a power rests in judgment or discretion, so that it is of a judicial nature or character, but does not involve the exercise of the functions of a judge, or is conferred upon an officer other than a judicial officer, the expression used is generally 'quasi judicial.' * * * ^j^g officer may not in strictness be a judge; still, if his powers are discretionary, to be exerted or withheld according to his own view of what is necessary and proper, they are in their natur? judicial." Throop on Public Officers, § 534. "A minis- terial act may perhaps be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the m.an- date of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act done." Id. § 537; Flournoy V. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; Pennington v. Streight, 54 Ind. 376. " * * * In the same line, a ministerial act has also been defined as an act performed in a prescribed manner, in obedience to the law or the mandate of legal authority, without regard to, or the exercise of, the judgment of the individual upon the propriety of the acts being done." Mechem on Public Officers, § 657. An act is not necessarily taken out of the class styled "ministerial" because the officer performing it is nevertheless vested with a discretion respecting the means or the method to be employed. Such is not the judgment or dis- cretion which is an essential element of judicial action. McCord v. High, 24 Iowa, 336; Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65; Mechem on Public Officers, § 658 ; Ency. Law (2d Ed.) 377. The same doctrine is announced in Hicks v. Dorn, 42 N. Y. 47. In this case the plaintiff, Hicks, was the owner of a canal boat, and the defendant was the superintendent of repairs in charge of one section of the Erie Canal. Along this canal was a dry dock, into which plain- tiflf's boat had been taken for repairs. In May, 1865, there was a vio- lent spring rain, which raised the water in the canal to such an extent PUBLIC OrFICEKS 79 tlaat in some places it ran over the banks, and it became necessary to open the waste gates connected with the dry dock to let ofif the surplus water. The captain commenced moving the boat into the canal, and vchen about half way through the gates in the canal, the water having run rapidly out of tliat compartment of the dry dock, the boat was left resting upon the sill of the waste gate, about one-half of the boat ex- tending into the canal and the other half in the dry dock. In order to render the canal navigable, it became necessary to move the boat ; and several methods for the accomplishment of this purpose were open to the superintendent, one of which was cutting up and removing the boat so as to close the gates, and this method he pursued as the most expeditious for accomplishing his purpose. An action having been brought against him by the owner of the boat, among other defenses set up was that in performing his duties the defendant had acted in a quasi judicial capacity, and could not be held liable except for wanton misconduct on his part. In disposing of this contention the court said : "It is claimed that the defendant, in determining to remove this boat, and in the removal of it, had a judicial discretion to exercise; and hence that he is not liable, in a civil action, for the manner in which he exercised this discretion. I am unable to see in what sense the de- fendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair, and it was not left to his discretion to determine whether he would discharge that duty or not. The law made it an imperative duty, and, if he had neglected to perform it, he would have been liable civilly for damages sustained by any person from his neglect of duty. In the discharge of this duty, thus impera- tively imposed upon him by law, he acted ministerially. It is true that he was bound to exercise his discretion as to the methods and instru- mentalities to be employed, and this is true of all ministerial officers ; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the defendant was bound to discharge his ministerial duties in a prudent, careful manner, without infringing up- on the rights of private individuals, or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured." The question involved in this controversy is not whether the policy adopted was wise, but whether a wrong was done in the details of its execution. We are of the opinion that in the discharge of his duty the defendant acted in a ministerial capacity only. * * * 80 PAKTIES PEOPLE V. WARREN. (Supreme Court of New York, 1843. 5 Hill, 440.) Certiorari to the Oneida general sessions, where the defendant was convicted of an assault and battery upon one Johnson, a constable. Johnson arrested the defendant on a warrant issued by the inspectors of election of the city of Utica for interrupting the proceedings at the election by disorderly conduct in the presence of the inspectors. 1 R. S. (1st Ed.) p. 137, § Zl. The warrant was regular and sufficient upon its face. The defendant resisted the officer and for that as- sault he was indicted. The defendant offered to prove that he had not been in the presence or hearing of the inspectors at any time during the election and that Johnson knew it. The court excluded the evidence and the defendant was convicted. He now moved for a new trial on a bill of exceptions. Per Curiam. Although the inspectors had no jurisdiction of the subject matter, yet as the warrant was regular upon its face, it was sufficient authority for Johnson to make the arrest and the defendant had no right to resist the officer. The knowledge of the officer that the inspectors had no jurisdiction is not important. He must be gov- erned and is protected by the process, and cannot be affected by any- thing which he has heard or learned out of it. There are some dicta the other way; but we have held on several occasions that the officer is protected by process regular and legal upon its face whatever he may have heard going to impeach it. New trial denied. INFANTS 81 II. Infants' SLAYTON V. BARRY. (Supreme Judicial Court of Massachusetts, 1900. 1T5 Mass. 513, 56 N. E. 574, 49 L. E. A. 560, 78 Am. St. Rep. 510.) Morton, J. The declaration in this case is in two counts. The sec- ond count is in trover for the goods described in the first count. The first count alleges, in substance, that the defendant, intending to de- fraud the plaintiff, deceitfully and fraudulently represented to him that he was of full age, and thereby induced the plaintiff to sell and deliver to him the goods described, and, though often requested, had refused to pay for or return the goods, but had delivered them to persons unknown to the plaintiff. The case is here on exceptions to the refusal of the presiding judge to give certain instructions requested by the plaintiff, and to his ruling ordering a verdict for the defendant. The question is whether the plaintiff can maintain his action. He could not bring an action of contract, and so has brought an action of tort. The precise question presented has never been passed upon by this court. Merriam v. Curmingham, 11 Cush. 40, 43. In other jurisdic- tions it has been decided differently by different courts. We think that the weight of authority is against the right to maintain the ac- tion. Johnson v. Pie, 1 Lev. 169, 1 Sid. 258, 1 Keb. 905 ; Grove v. Xevill, 1 Keb. 778 ; Jennings v. Rundall, 8 Term R. 335 ; Green v. Greenbank, 2 Marsh. 485; Price v. Hewett, 8 Exch. 146; Wright v. Leonard, 11 C. B. (N. S.) 258; De Roo v. Foster, 12 C. B. (N. S.) 272 ; Gilson V. Spear, 38 Vt. 311, 88 Am. Dec. 659; Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R- A. 561, 15 Am. St. Rep. 931; Ferguson v. Bobo, 54 Miss. 121 ; Brown v. Dunham, 1 Root (Conn.) 272 ; Geer V. Hovey, Id. 179; Wilt v. \\'elsh, 6 Watts (Pa.) 9; Burns v. Hill, 19 Ga. 22; Kilgore v. Jordan, 17 Tex;. 341 ; Benj. Sales (6th Ed.) 23; Cooley, Torts (2d Ed.) 126; 2 Add. Torts, § 1314. See, contra, Fitts V. Hall, 9 N. H. 441; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53 ; Wallace v. Morss, 5 Hill (N. Y.) 391. The general rule is, of course, that infants are liable for their torts. Sikes V. Johnson, 16 Mass. 389 ; Homer v. Thwing, 3 Pick. 492 ; Shaw V. Coffin, 58 Me. 254, 4 Am. Rep. 290 ; Vasse v. Smith, 6 Cranch, 226, 3 L. Ed. 207. But the rule is not an unlimited one. It is to be applied with due regard to the other equally well settled rule, that, with cer- 9 For discussion of principles, see Chapin on Torts, § 43. Chap.Oas.Toets — 6 82 PARTIES tain exceptions, they are not liable on their contracts; and the domi- nant consideration is not that of liability for their torts, but of pro- tection from their contracts. The true rule seems to us to be as stated in Association v. Fairhurst, 9 Exch. 422, 429, where it was sought to hold a married woman for a fraudulent misrepresentation, namely : If the fraud "is directly connected with the contract, * * * and is the means of effecting it, and parcel of the same transaction," then the infant will not be liable in tort. The rule is stated in 2 Kent, Comm. (8th Ed.) § 241, as follows : "The fraudulent act, to charge him [the infant], must be wholly tortious; and a matter arising ex con- tractu, though injected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action." In the present case it seems to us that the fraud on which the plaintiff relies was part and parcel of the contract, and di- rectly connected with it. The plaintiff cannot maintain his action with- "■out showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his ca- pacity to contract, and that pursuant to that contract there was a sale and delivery of the goods in question. Whether, as an original proposi- tion, it would be better if the rule were as laid down in Fitts v. Hall, supra, and Hall v. Butterfield, supra, in New Hampshire, and Rice v. Boyer, supra, in Indiana, we need not consider. The plaintiff relies on Homer v. Thwing, supra; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105 ; and Walker v. Davis, 1 Gray, 506. In Walker v. Davis, supra, there was no completed contract, and the title did not pass. The sale of the cow by the defendant operated, therefore, clearly, as a conversion. Badger v. Phinney, supra, was an action of replevin ; and it was held that the property had not passed, or if it had, that it had reyested in the plaintiff in consequence of the defendant's fraud. The plaintiff maintained his action independently of the contract. In Hom- er V. Thwing, supra, the tort was only incidentally connected with the contract of hiring. We think that the exceptions should be overruled. So ordered. SERVANTS AND AGENTS 83 III. Servants and Agents* VAN ANTWERP v. LINTON. (Supreme Court of New York, General Term, First Department, 3.895. 89 Hun, 417, 35 N. Y. Supp. 31S, affirmed 157 N. Y. 716, 53 N. E. 1133.) Parker, J. This appeal brings up a judgment entered on the dis- missal of the complaint after tlie opening address to the jury by plain- tiff's counsel, which was taken down. vFrom the complaint and open- ing, it appears that the plaintiff was injured by the fall of the grand stand at the Yale-Princeton football game on Thanksgiving Day, 1890, on grounds in possession of the Brooklyn's Limited, a corporation or- ganized under the laws of the state of New York. The action was brought against the Brooklyn's Limited and Messrs. Linton, Chauncey, and Wallace, who were appointed a committee of the board of direc- tors of the Brooklyn's Limited, to put the grounds in condition for the exhibition of the game. The Brooklyn's Limited made default, and the question presented to the trial court, upon the motion to dis- miss the complaint, was whether, from the complaint and opening, a cause of action against the individual defendants was stated. It was conceded that the individual defendants did not have any lease from the Brookl)-n's Limited, nor any one else, running to them; and the sole ground upon which the plaintiff sought to charge them with lia- bility was that they were appointed a committee by the directors of the corporation to erect a stand, and otherwise provide for the recep- tion and convenience of the public, and that by reason of their negli- gent omission of duty there was a defective construction of the stand, which led to its falling, resulting in injury to the plaintiff. As it was conceded that the Brooklyn's Limited was a domestic corporation duly organized under the laws of this state, and in possession of tlie prem- ises when the stand was erected, and also at the time of the accident, liability against the individual defendants could not be predicated upon their being directors, officers, or stockholders in such corporation. De- marest v. Flack, 128 N. Y. 205, 28 N. E. 645, 13 L. R. A. 854. That they were the agents of the corporation in directing and superintend- ing the erection of the stand was assumed by the learned trial judge, as he was bound to do, upon the complaint and opening ; and ,he reach- ed the conclusion that the acts with which they were charged consti- tuted nonfeasance, and not misfeasance. If he was right in such re- spect, it is conceded that the complaint was properly dismissed; for, whatever may be the rule in other jurisdictions, it is conceded that in this state an agent or servant is not liable to third persons for non- 7 For discussion of principles, see CSiapln on Torts, § 46. 84 PARTIES feasance. As between himself and his master, he is bound to serve him with fidelity; and for a breach of his duty he becomes liable to the master, who, in turn, may be charged in damages for injuries to third persons occasioned by thenonfeasance of the servant. For misfeasance the agent is generally hable to third parties suffering thereby. The distinction between nonfeasance and misfeasance has been expressed by the courts of this state as follows: "If the duty omitted by the agent or servant devolved upon him purely from his agency or em- ployment, his omission is only of a duty he owes his principal or mas- ter, and the master alone is liable ; while, if the .duty rests upon him in his individual character, and was one that the law imposed upon him independently of his agency or employment, then he is liable." Appellant urges that although these individual defendants were charged by the corporation with the duty of erecting this stand, and the acts complained of consisted in omitting to provide for a con- struction of sufficient strength to withstand the strain to which it was subjected, nevertheless they were guilty of misfeasance, rather than nonfeasance. With commendable diligence, he has brought to our at- tention authorities in other jurisdictions tending to support his con- tention ; but we refrain from their consideration, because it is our un- derstanding that the courts of this state have determined otherwise. In Murray v. Usher, 117 N. Y. 542, 23 N. E. 564, the plaintiff, while employed upon a platform in a sawmill belonging to two of the de- fendants, sustained injuries, by reason of its falling, which occasioned his death. His administrator brought an action against the owners of the mill and one Lewis, who was their superintendent having gen- eral charge of the business, and being specially instructed to look after the necessary repairs, which included the duty of inspecting the plat- form from time to time to see that it was kept in a safe condition. Judgment was recovered against all of the defendants. In the court of appeals the question of the superintendent's liability was considered; the court holding that the omission of the superintendent to perform the duty devolving upon him constituted nonfeasance, for which he was not liable in a civil action, but that his employers were. That case, it will be observed, is directly in point with the one under consideration. Lewis, the superintendent, neglected to perform the duty which his employers had devolved upon him, and such neglect led to the fall of the platform, which caused plaintiff's injury. In this case the de- fendants were engaged in superintending the erection of the stand As more than one was charged with such duty, they were called a com- mittee. But when the duties devolved upon them were of tlie same general character as in Murray's Case, and the charge is that the fall of the stand was due to their neglect to properly discharge the obliga- tions put upon them by the corporation. In Burns v. Pethcal, 75 Hun, 437,- 27 N. Y. Supp. 499, an attempt was made to recover of a fore- man for the loss of the life of an employe, due, it was charged, to the SERVANTS AND AGENTS 85 omission of the foreman to warn the dead man of the danger of work- ing in a particular place. There was a recovery at the circuit, but the general term reversed the judgment; holding that a servant is not liable jointly with his master, where the negligence of the servant con- sists of an omission of a duty devolved upon him by his employment, although he may be liable where he omits to perform a duty which rests upon him in his individual character, and one which the law imposes upon him independently of his employment. These cases fully sustain the decision of the trial court. The judgment should be af- firmed, with costs. Van Brunt, P. J., concurs. Foi,i.ETT, J., dissents. LOUGH V. JOHN DAVIS & CO. (Supreme Court of "Washington, 1902. 30 Wash. 204, 70 Pac. 491, 59 L B. A, 802, 94 Am. St. Eep. 848.) Dunbar, J.* This is an action against an agent, who was author- ized to rent and repair the tenement house described in the complaint, for permitting the house to become unsafe for want of repairs, from which cause the plaintiff was injured. Paragraph 2 of the complaint is as follows : "That at all said times, and for a long time before, the above-named defendant, Sheldon R. Webb, has been and still is the owner of that certain real property known as lots 8 and 9, in block 38, of A. A. Denny's addition to the city of Seattle, and of the build- ings thereon situated, and that the above-named defendant John Davis & Co. has had, and still has, sole and absolute control and management of said real property as the servant and agent of said Sheldon R. Webb, with full power, authority, and direction from their said prin- cipal to rent and repair the same, and to keep the same in repair and safe condition for tenants." The other pertinent allegations are, to the effect that a wide veranda, extending along two sides of the build- ing about 15 feet from the ground, was used in common by all of the tenants, and was inclosed by a railing ; that the railing was allowed to become old, rotten, and unsafe through the negligence of the defend- ants, and that, while the plaintiff was playing on said veranda, by rea- son of the unsafe condition, the railing gave way, and she fell from said veranda from a height of IS feet and more from the ground, and was injured, etc. To this complaint the defendant John Davis & Co. interposed a demurrer on the ground that it did not state facts suffi- cient to constitute a cause of action against it, the demurring defendant. There was no appearance by Sheldon R. Webb. The demurrer was sustained, and the plaintiff electing to stand on her complaint, judgment was entered on the demurrer. From such judgment sustaining the demurrer this appeal was taken. * * • • A portion of the opinion is omitted. 86 ' PARTIES It is the contention of the respondent tliat the law is well settled that for a misfeasance the agent is personally liable, but that he is never liable for a mere nonfeasance ; and that, the respondent being charged only with a nonfeasance or neglect to do its duty, and not with any misfeasance or act which it ought not to do, the complaint on its face shows that it is not liable, and that the demurrer was therefore prop- erly sustained. This rule is announced by some of the law writers and many of the courts. One of the leading cases sustaining this doc- trine is Delaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Rep. 456, where it was held that under the doctrine of both the common and civil law agents are not liable to third persons for nonfeasance or mere omissions of duty, being responsible to such parties only for the actual commission of those positive wrongs for which they would be other- wise accountable in their individual capacity under obligations common to all men. In this case a balcony which needed repairs fell, fatally injuring the plaintiff; and, while the agent was not responsible for tlie injured party's being in the house at that particular time, — ^he hav- ing obtained entrance by means of a key obtained from some one else, — the case is discussed and the judgment based upon the doctrine above announced. This is also the established doctrine in New York. The case of Carey v. Rochereau (C. C.) 16 Fed. 87, is a Louisiana c;ase, and bases its decision on Delaney v. Rochereau, supra, without dis- cussion. Labadie v. Hawley, 61 Tex. 177, 48 Am. Rep. 278, held, in accordance with the same rule, that an agent renting his principal's house with authority to construct a cooking range was not liable for injury to an adjoining proprietor, caused by the use of the range; citing Story, Ag. 309, and other authorities. In Feltus v. Swan, 62 Miss. 415; it was held that an agent in charge of a plantation was not liable to the owner of an adjoining plantation for damage resulting from the malicious neglect and refusal of the agent to keep open a drain which it was his duty as such agent to keep open. The announce- ment of this doctrine is accredited by many of the courts indorsing it to the opinion in Lane v. Cotton, 12 Mod. 472, but it was, as a matter of fact, announced only incidentally in that case in a dissenting opinion. The question of the responsibility of the agent could not have been be- fore that court, for the action was against a postmaster for the loss of a letter which was taken from the mail by a clerk, and it was only the responsibility of the master, and not that of the servant or agent, which was under discussion. The reason assigned to sustain this rule is that the responsibility must arise from some express or implied ob- ligations between the particular parties standing in privity of law or contract with each other. If this be true, it is difficult to see what difference there is in the obligation to their principal between the commission of an act by the agents which they are bound to their principal not to do and the omission of an act which they have obli- gated themselves to their principal to do. They certainly stand in SERVANTS AND AGENTS 87 privity of law or contract with their principal exactly as much in the one instance as in the otlier, for the obligation to do what ought to be done is no more strongly implied in the ordinary contract of agency than is tlie obligation not to do what ought not to be done. This rea^ son for the rule not being tenable, and no other reason being obvious, the rule itself ought not to obtain; for jurisprudence does not con- cern itself with such attenuated refinements. It rests upon broad 'and comprehensive principles in its attempt to promote rights and redress wrongs. If it takes note of a distinction, such distinction will be a practical one, founded on a difference in principle, and not a distinc- tion without a difference ; and there can be no distinction in principle between the acts of a servant who puts in motion an agency which, in its wrongful operation, injures his neighbor, and the acts of a servant who, when he sees such agency in motion, and when it is his duty to control it, negligently refuses to do his duty, and suffers it to operate to the damage of another. There is certainly no difference in moral responsibility, there should be none in legal responsibility. Of course, if the omission of the act or the nonfeasance does not involve a non- j>erformance of duty, then the responsibility would not attach. If it does involve a nonperformance of duty to such an extent that the agent is liable to the principal for the damages ensuing from his neg- lect, there is no hardship in compelling him to respond directly to the injured party. Such practice is less circuitous than that which neces- sitates first the suing of the master by the party injured, and then a suit by the master against the servant to recoup the damages. But the honorable judge who wrote the opinion in Delaney v. Roch- ereau, supra, was mistaken in his announcement that the civil law in- dorsed the distinction upon which his decision was based, for, while the doctrine is stated in the Justinian Code that no man could usually be made liable for a mere omission to act, it was otherwise when the omission to act involved a negligence of duty. Domat argues that, as an agent is at liberty not to accept the order and power which are given him, so he is bound, if he does accept the order, to execute it; and, if he fail to do so, he will be liable for the damages which he shall have occasioned by his not acting. Under the Aquilian law the dis- tinction between omission and commission was not recognized under such circumstances. In the ninth Digest of the Aquilian law the fol- lowing instance is given: One servant lights a fire, and leaves it to another. The latter neglects to check the fire at the proper time and place, and a villa is burned. The first servant was charged with no negligence, because it was his duty to light the fire, and it is argued, very sensibly, that, if the second could not be charged because not putting out the fire was simply an omission of duty, there would be a miscarriage of justice. Is the keeper of a drawbridge, whose duty it is to close the draw after a ship passes through, and who negligently fails to perform that duty, allowing a car loaded with passengers to 88 PARTIES be hurled into the river below, to escape responsibility to the injured, while the man who attempts to operate it, but, in so attempting, op- erates it negligently and unskillfully, is held responsible? Instances in the ordinary transactions of life might be multiplied almost without end, the very statement of which shows conclusively the fallacy of the rule. The attempt by the courts to maintain this indistinguishable dis- tinction has led to many inconsistent decisions. Thus, in Albro v. Jaquith, 4 Gray (Mass.) 99, 64 Am. Dec. 56, the plaintiff was not al- lowed to recover pf the superintendent of a canal company for damages caused by negligence in the management of the apparatus used for the purpose of generating, containing, and burning inflammable gas; the superintendent being the agent of the company, and being charged witli carelessly, negligently, and unskillfully managing the business. It was held that he was not charged with any direct act of misfeasance, but only with nonfeasance, and that there was no redress, because, as the court said, the obligation to be faithful and diligent was founded in an express contract with his principal. As we have before indicat- ed, this would be equally true of the acts of commission or misfeasance in his stewardship. But in Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741 — ralso a Massachusetts case, and decided the same year — it was held that an agent who negligently directed water to be admitted to a water pipe was liable to a third person, because such action was mis- feasance. In that case it was not claimed that the admission of water to the pipe was negligent or wrongful, but the negligent act or omis- sion was in allowing the pipe to become obstructed — certainly as pure an omission or nonfeasance as could be conceived of. But the court, in order to maintain the distinction which it deemed itself bound by precedent to do, virtually obliterated the distinction by the following circuitous reasoning : "The defendant's omission to examine the state of the pipes in the house before causing the water to be let on was a nonfeasance. But if he had not caused the water to be let on, that nonfeasance would not have injured the plaintiff. If he had examined the pipes, and left them in a proper condition, and then caused the let- ting on of the water, there would have been neither nonfeasance nor misfeasance. As tlie facts are, the nonfeasance caused the act done to be a misfeasance. But from which did the plaintiff suffer? Clearly, from the act done, which was not less a misfeasance by reason of it being preceded by a nonfeasance." Much more cogent and judicial is the reasoning of the same court many years after in Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437, where an agent of premises was held responsible to a third person, for suffering to remain sus- pended from a room a tackle block, which fell upon and injured the plaintiff. The court, speaking through Chief Justice Gray, said : "The principal reason assigned was that no misfeasance or positive act of SERVANTS AND AGENTS 89 wrong was charged, and that for nonfeasance, — which was merely neg- ligence in the performance of a duty arising from some express or im- plied contract with his principal or employer, — an agent or servant was responsible to him only, and not to any third person. It is often said in the books that an agent is responsible to third persons for mis- feasance only, and not for nonfeasance. And it is doubtless true that, if an agent never does anything towards carrying out his contract with his principal, but wholly omits and neglects to do so, the principal is the only person who can maintain any action against him for the non- feasance. But if the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway, and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safe- guards. This is not nonfeasance, or doing nothing; but it is misfea- sance, doing improperly." There is still another class of cases which hold what seems to us to be the correct doctrine, viz., that the obliga- tion, whether for misfeasance or nonfeasance, does not rest in con- tract at all, but is a common-law obligation devolving upon ever,y re- sponsible person to so use that which he controls as not to injure an- other, whether he is in the operation of his own property as principal or in the operation of the property of another as agent. One of the leading cases maintaining this view is Baird v. Shipman, a case decided in 1890, and reported in 132 111. 16, 23 N. E. 384, 7 L. R. A. 128, 22 Am. St. Rep. 504. There it was held that an agent who has complete control of a house belonging to an absent principal, and who lets the house in a dangerous condition, promising to repair it, is responsible to the third person injured by an accident caused by want of such repair. There is nothing to distinguish this case from the case at bar excepting the promise to repair, and that does not seem to have been deemed by the court an important feature; but the case was decided upon the broad principle above announced. Said the court : "It is not his contract with the principal which exposes him to or protects him from liability to third persons, but his common-law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon tlae duties of agency, nor can its breach be excused by the plea that his principal is chargeable. If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts" — citing ap- provingly Osborne v. Morgan, supra. * * * There is some contention in respondent's brief on the alleged bar- renness of the allegations of the complaint, but we think the allega- 90 PARTIES tions were ample to show that the respondent was authorized to keep the building in repair; that it undertook that office or duty, and was in complete control of the work. It is alleged that it was in absolute control and management, with full power, authority, and direction to repair, and to allege that it agreed to do so would only be to allege the agreement to do the duty which the law imposed upon it after it had assumed the control and management which is alleged. Our conclusion is that the complaint states a cause of action against the respondent. The judgment is therefore reversed, with instructions to the lower court to overrule the demurrer to the complaint. Rbavis, C. J., and AndERS, Mount, and FullErton, JJ., concur. PAETIE3 31 PARTIES (Continued): I. Corporations 1. Municipal, * EDDY V. VILLAGE OF ELLICOTTVILLE. (Supreme Court of New Xork, Appellate Division, Fourtli Department, 1898. 35 App. Div. 256, 54 N. Y. Siipp. SOO.) Adams, J. The facts of this case, succinctly stated, are as follows, viz. : The defendant is a municipal corporation, created under the provi- sions of the general act of 1870 relative to the incorporation of vil- lages (chapter 291) and the acts amendatory thereof. In virtue of the authority and power conferred upon it by the provisions of that act, it is alleged, and not denied, that "the defendant kept, maintained, possessed, and controlled a village lockup, situate on the public square in said village of Ellicottville, in which the defendant and its police officers regularly confined, and caused and suffered to be incarcerated and confined therein, persons who were from time to time arrested for violations of the ordinances of said defendant and of the criminal laws of this state." It appears that in the evening of February 17, 1897, the plaintiff's husband and intestate was arrested by one of the defendant's peace officers for intoxication, and confined in the lockup for the entire night; that while thus confined he contracted a severe cold, which terminated in pneumonia, from which disease he died in about one week thereafter. It further appears that at the time the plaintiff's intestate was thus imprisoned the lockup was, and for a con- siderable period prior thereto had been, in a dilapidated condition ; that many of the windows thereof were broken; that the room in which the intestate was confined was not warmed ; that he was conse- quently exposed to cold weather and draughts, which came in through the broken windows, and was compelled to pass the night without any suitable protection therefrom ; and that, as a result of such exposure, he contracted the disease which terminated his life. The foregoing facts are all alleged in the complaint, and, inasmuch as the complaint was dismissed upon the opening of the plaintiff's counsel, they must, for the purposes of this review, be accepted as the truth of the case. Kennedy v. Mayor, etc., 73 N. Y. 365, 29 Am. Rep. 169. The main question, therefore, which we are called upon to decide, 1 For discussion of principles, see Chapin on Torts, | 51 (A). 92 PARTIES is whether, assuming these facts to be true, they constitute a cause of action against this defendant ; or, in other words, whether the defend- ant, a municipal corporation, is, in the circumstances of this case, lia- ble for a negligent omission of duty which.it is admitted caused the death of the plaintiff's intestate. As introductory to a consideration of this question, it will be de- sirable, we think, to understand precisely what rights and liatilities attached to the defendant when, availing itself of the provisions of the act of 1870, it acquired corporate existence. A municipality, although a political division of the state, possesses two separate and distinct powers, one of which may be termed governmental or public, and the other private or corporate. Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332; Lloyd v. City of New York, 5 N. Y. 369, 55 Am. Dec. 347. In the exercise of the first of these powers the city or village is invested with the quality of sovereignty, while in the exercise of the second it occupies the same relation to the individual that any other corporate body does. Obviously, therefore, it is of the first impor- tance that the true line of demarkation between these two powers should be ascertained, in order that it may be determined under which class or division the present case falls, for, if the duty of maintaining a village lockup or jail in a safe and healthful condition is a corporate one — that is, if it is one which falls within the second definition of municipal powers — then clearly the defendant is liable in a civil ac- tion to any individual who may have suffered damage in consequence of its omission to perform that duty; whereas, if the duty is purely public or governmental in its character, it is equally clear that no lia- bility for a like omission would attach. Reynolds v. Board, 33 App. Div. 88, 53 N. Y. Supp. 75. The ascertainment of this dividing line is a problem which in many instances may prove somewhat difficult of solution, but, as was said in the case last cited, "when that line is as- certained it is not difficult to determine the rights of the parties, for the rules of law are clear and explicit which establish the rights, im- munities, and liabilities of the (municipality) when in the exercise of each class of powers." It is not contended, as we understand it, that the defendant is responsible by reason of any statutory requirement that it shall keep the building in question in a safe and healthful con- dition, and it necessarily follows that, if any liability whatever attaches for an omission of duty in that regard, it is simply an implied one. Now, the basis of an implied municipal liability for negligence is- either an obligation which rests upon the municipality in respect of its special or local interests, or else it is one under which it voluntarily assumes an undertaking from which it derives some benefit or ad- vantage, or for which it expects to receive a consideration. Dill. ]\Iun. Corp. (4th Ed.) §§ 980, 981. To illustrate: It was held, in a very early case, that a municipal corporation was responsible for the neg- ligence and unskillfulness of its agents and servants in the construe- COEPOKATION8 93 tion of a dam on the Croton river; it appearing that the dam was a part of the work undertaken pursuant to an act of the legislature by which the city was supplied with water. Bailey v. Mayor, etc., 3 Hill, 531, 38 Am. Dec. 669; New York v. Bailey, 2 Denio, 433. More re- cently such a corporation was adjudged liable to an individual for damage to his lands resulting from the omission of the city to keep its sewers in a proper state of repair. Lloyd v. City of New York, su- pra; Barton v. City of Syracuse, 36 N. Y. 54. In still another case, where a municipal corporation was charged with the duty of properly maintaining a dock, from which presumably it derived some profit or advantage, it was held liable for damage to a third party resulting from a negligent omission of that duty. Kennedy v. Mayor, etc., su- pra. And this court has very recently held that a county which owned and conducted a farm in connection with, and for the benefit of, cer- tain charitable and penal institutions, was liable to an adjoining owner for injuries to his premises resulting from the pollution of a stream of water passing over the same. Lefrois v. Monroe Co., 24 App. Div. 421, 48 N. Y. Supp. 519.= Many other like cases might be cited which would furnish ample illustration of the distinction which the law makes between a power which is sovereign and one which is simply corporate. It would seem, however, that those to which reference has already been made demon- strate quite clearly that the maintaining of a village jail in a safe and healthful condition is an act which does not properly fall within the second class of municipal powers, as hereinbefore defined ; and con- sequently it only remains to be determined whether or not such an act may be termed a governmental power. Inherently, as well as by legislative enactment, the defendant, as one of the political divisions of the state, is invested with certain po- lice powers, by the exercise of which, through its police officers, it is authorized and enabled to protect the lives and property of its citizens. City of Rochester v. West, 29 App. Div. 125, 51 N. Y. Supp. 482. Among the powers thus conferred is that of arresting the violators of the law, and this, of course, includes the power to imprison ; for it would be useless to arrest such offenders if no place were provided in which to confine them while undergoing punishment. If, then, in the exercise of this power, the defendant caused the intestate to be ar- rested, it will hardly be contended, we assume, that the village would have been liable for any injury which might have resulted to such in- testate by reason of the negligent or unskillful conduct of the officer who, in the performance of his duty, caused the arrest to be made. And it seems equally clear that, witliin well-settled principles, no liabili- ty would have attached to the village by reason of the failure of the officer in charge of the jail to provide the intestate with such things as were essential to his health and comfort while he was undergoing con- 2 Reversed on appeal, 162 N. Y. 563, 57 N. E. 185, 50 L. R. A. 206 (1900). 94 PARTIES finemu.i in that institution. Maxmilian v. City of New York, 62 N. Y. 160, 20 Am. Rep. 468. If this be conceded, as we think it must be, it is difficult to assign any sufficient reason for holding the defendant liable for its omission to keep its jail or lockup in suitable condition; for this is a duty which it is called upon to perform only in its public or governmental capacity, and it is also one the performance of which is, of necessity, committed to the police officers of the municipality. Lorillard v. Town of Monroe, 11 N. Y. 392-394, 62 Am. Dec. 120. We have been unable to find any case arising in this state in which the precise question which is here presented has received adjudication, and there is much conflict of authority in the decisions of other states bearing upon that question. In one case, quite similar in some of its features to the one under consideration, the supreme court of North Carolina held that a municipality was liable for the death of a person confined in the city prison, the jury having found that his death was "accelerated by the noxious air of the guardhouse" (Lewis v. City of Raleigh, 77 N. C. 229) ; and this doctrine was followed more recently by the same court in another case arising out of a state of facts even more strikingly like those alleged in the complaint herein (Shields v. Town of Durham, 116 N. C. 394, 21 S. E. 402) ; while in Edwards v. Pocahontas (C. C.) 47 Fed. 268, the court, after alluding to the dis- tinction between counties and municipal corporations proper, says that if a municipahty, having power to maintain a jail, although not requir- ed to do so, undertakes to exercise the power, it will be liable for the negligent exercise of it in keeping the jail in such a filthy and unfit condition that the health of a prisoner is injured thereby. It seems to be universally conceded that a county, by reason of the fact that it is a political division of the state, created for convenience, is under no liability in respect of torts, except as the same is imposed by statute; and for the same reason it is stated by an eminent text writer: "Such organizations as townships, school districts, road dis- tricts, and the like, though possessing corporate capacity and power to levy taxes and raise money for their respective public purposes, have been very generally considered not to be liable in case, or other form of civil action, for neglect of public duty, unless such liability be created by statute." And he adds: "A county, though it has power to erect and repair public buildings, and to levy and collect a tax for that purpose, is not responsible, in the absence of a statute making it so, for injuries resulting from the unsafe and dangerous condition of county buildings." Dill. Mun. Corp. (4th Ed.) § 963. In our opinion, the village of Ellicottville is as much a political division of the state as is the county in which it is located; and, this being the case, no reason suggests itself to our mind why, in circumstances like those disclosed by the record in this case, it should be subject to any other or different rule of liability for the omission of a public COKPOEATIONS - 95 duty. That this view of the matter is not without substantial support can be readily demonstrated by reference to adjudications which are certainly entitled to as much weight and consideration as those already cited. In Blake v. City of Pontiac, 49 111. App. 543, it was held that, the keeping of a city jail is an act which the city is empowered to do only in its public capacity; that the same is within the police power of the city ; and that consequently the city is not responsible for the wrongful acts of its agents in omitting to properly maintain that insti- tution. In another case, arising in the same state, where it was charg- ed that the defendant had created and maintained a "noisome, un- healthy, and uncomfortable prison," it was said by the court that ■'while the trustees and other officers might, by illegal and unwarrant- ed exercise of power, render themselves individually liable, that would not render the town liable." Town of Odell v. Schroeder, 58 111. 353. So, too, in the states of West Virginia, Minnesota, and Kansas, it has been held that the duty and function of keeping a jail are plainly and properly governmental in character, and fall within the rule that mu- nicipal corporations are not liable for acts done and powers exercised in that capacity. Brown's Adm'r v. Town of Guyandotte, 34 W. Va. 299, 12 S. E. 707, 11 L. R. A. 121; Gullikson v. McDonald, 62 Minn. 278, 64 N. W. 812; La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272, 13 Am. St. Rep. 285 ; City of New Kiowa v. Craven, 46 Kan. 114, 26 Pac. 426. These cases are all directly in point, and they are in perfect accord with the views to which we have given expres- sion, as well as with the principle which we are satisfied ought to be applied to the present case, and which, when applied, necessarily leads to an affirmance of the judgment appealed from. Judgment affirmed, with costs. All concur. 2. Charitable* DOWNS v. HARPER HOSPITAi;. (Supreme Court of Michigan, 1894. 101 Mich. .555, 60 N; W. 42, 25 L. E. A. 602, 45 Am. St. R«p. 427.) Grant, J. Plaintiff's decedent and husband became insane from disease, and, by advice of his physician, was conveyed to Harper Hos- pital. He was violent, and was confined in a room in the third story of the building, which was especially arranged for such patients, having a framework of iron over the windows. The deceased wrenched this iron framework off, jumped from the window, and was killed. Plain- » For discussion of principles, see Chapin on Torts, § 51 (B.) 96 PARTIES tiff brings this suit to recover damages for the benefit of herself and children, alleging negligence on the part of the defendant. Defendant is a body corporate organized under Act No. 242, Laws 1863, entitled "An act for the incorporation of hospitals or asylums in cases where valuable grants or emoluments have been made to trustees for such pur- poses," and, at the time the alleged right of action is said to have ac- crued, was engaged in maintaining at Detroit the hospital commonly known as "Harper Hospital." In the declaration it is alleged that on or about January 26, 1890, Downs was ill, and was so disordered in mind from the effects of disease and pain that he became and was temporarily insane, violent, and dangerous, so that it became neces- sary to place him under restraint and skillful medical treatment to pre- vent him_ from harming himself and others, and to effect his cure ; that the defendant, at the request of plaintiff, and well knowing Downs' mental and physical condition, received him into Harper Hospital as a patient, and, in consideration of the payment of $2 per day, agreed to give Downs proper medical treatment, and to keep and restrain him so that he should suffer no bodily injury which he might inflict upon himself, and to have the room in which he was confined secure, with a proper and sufficient guard, framework, or other suitable protection over the window of such room, and so securely fastened that Downs, when confined in the room, would not be able to tear away the frame- work or grating over the window and throw himself therefrom, and to keep him properly handcuffed, so that he could not injure himself by tearing away the framework or bars over the window, or by throw- ing himself out of the window, and also to keep some suitable person constantly in attendance upon him. It is further alleged that the de- fendant, in disregard of its alleged duties and obligations, wrongfully, carelessly, and negligently failed to safely keep and care for and give medical attendance to Downs, and so keep and restrain him that his body should suffer no injury, and his life should be preserved from injury which he might produce by his own conduct and actions; that the defendant did not have the room where Downs was confined se- cure, and with a proper and sufficient guard, framework, or other suit- able protection over the window, and so securely fastened that Downs, when confined in the room, could not tear away the framework or grating over the window, and throw himself therefrom; that the de- fendant did not keep Downs properly handcuffed, so that he could not do himself injury by tearing away the framework or bars and throw- ing himself out of tlie window, and did not keep some suitable person constantly in attendance upon him. It is further alleged that the de- fendant, well knowing Downs' mental and physical condition, and that he was temporarily insane, violent, and liable to injure himself and others, and to throw himself from the window of the room where he was confined,, removed the handcuffs from Downs' wrists, placed him. CORPOKATIONS 97 alone and unattended, in the padded room of the hospital, where insane persons are usually placed, and did not have the grating or framework over the window of such room properly constructed or properly se- cured and fastened, and that such framework or grating was made and fastened in such an insecure, unsafe, careless, and negligent man- ner that Downs, while insane, pulled down the ironwork and grating from the window, and threw himself therefrom, falling a distance of about 35 feet to the pavement, thereby receiving such injuries as to cause his death on January 29, 1890. At the conclusion of the evi- dence the court directed a verdict for the defendant, for the reason that the defendant was a charity which could not be made liable for a tort. The organization of the defendant had its origin in two deeds — one executed February 3, 1859, by Walter Harper, and the other by Ann Martin, March 10th, the same year. The lands therein described were conveyed to seven prominent citizens of Detroit in trust for the found- ing of a hospital. The purpose was stated in the deed by Mr. Harper to be "the institution, erection, and maintenance of a hospital in the city of Detroit, or in the immediate vicinity thereof, for the succor, care, and relief of such aged, sick, and poor persons who shall apply for the benefit of the same, and who shall seem to my trustees hereof to be proper subjects of such aid as their means will enable them to afford." The particular scheme for founding the hospital, and all the details, were left to be devised and controlled by the trustees. It also provided ■for organizing and permanently maintaining a school for the instruc- tion of youth in the different arts and trades, after the manner of what is known in Prussia as the "Flintenberg School." The deeds also pro- vided that, if the legislature should enact a law enabling a corpora- tion to be formed for the purposes named in them, the trustees might convey all the lands and funds to a corporation formed therefor. The trust was accepted by the trustees, and under the law above referred to the trustees conveyed the property to the defendant, a corporation. May 17, 1863. Other bequests have been made to the defendant for the same purpose, which in one year amounted to over $100,000. The cor- porators receive no compensation or dividends. It is purely an elee- mosynary institution, organized and maintained for no private gain, but for the proper care and medical treatment of the sick. Hospital phy- sicians and attendants are, and of course must be, paid. The receipts have not always been sufficient to meet ordinary expenses, and one year a private citizen gave $1,000 towards the deficiency. The law under which the defendant is organized recognizes it as a charity; exempts its property from taxation; provides that its funds shall be used faithfully and exclusively for the purposes of its organization, and that it may receive, by gift, grant, or devise, any property, but only for the purpose for which it is incorporated. It has no shares, and Chap. Cab . Tobts — 7 98 PARTIES is not a stock corporation. If the contention of the learned counsel for the plaintiff be true, it follows that the charity or trust fund must be used to compensate injured parties for the negligence of the trustees, or architects and builders, upon whose judgment reliance is placed as to plans and strength of materials; of physicians employed to treat patients; and of nurses and attendants. In this way the trust fund might be entirely destroyed, and diverted from the purpose for which the donor gave it. Charitable bequests cannot be thus thwarted by negligence for which the donor is in no manner responsible. If, in the proper execution of the trust, a trustee or an employe commits an act of negligence, he may be held responsible for his negligent act ; but the law jealously guards the charitable trust fund, and does not permit it to be frittered away by the negligent acts of those employed in its execution. The trustees of this fund could not by their own direct act divert it from the purpose for which it was given, or for which the act of the legislature authorized the title to be vested in the defend- ant. It certainly follows that the fund cannot be indirectly diverted by the tortious or negligent acts of the managers of the fund, or their employes, though such acts result in damage to an innocent beneficiary. Those voluntarily accepting the benefit of the charity accept it upon this condition. The fact that patients who are able to pay are required to do so does not deprive the defendant of its eleemosynary character, nor permit a recovery for damages on account of the existence of contract re- lations. The amounts thus received are not for private gain, but con- tribute to the more effectual accomplishment of the purpose for which the charity was founded. The wrongdoer, in a case of injury, but not the trust fund, must respond in damages. This proposition seems too clear to require argument or authority. It is not, however, inap- propriate to remark that better facilities for the care, cure, and treat- ment of the sick, both of the poor, and of those who are able to pay, are secured by the establishment of hospitals like that of the defendant. These facilities are increased by the receipt of money from those who are able to pay in whole or in part for the benefits received. Several hospitals of this character exist in this state, founded by private mu- nificence. Obviously, they would not have been founded if their donors had known, or ever supposed, that their charitable purposes might be thwarted by the verdicts of juries for the negligent acts of those who must necessarily be employed in the execution of the charity. The fol- lowing authorities appear to sustain the above position: Hospital v. Ross, 12 Clark & F. 507; McDonald v. Hospital, 120 Mass. 432, 21 Am. Rep. 529; Gooch v. Association, 109 Mass. 558; Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495 ; Railway Co. v. Artist 9 C C A. 14, 60 Fed. 365. In what we have said, we are not to be understood as intimating any EMPLOYERS 99 opinion as to whether there is any liabiHty of the trustees for the al- leged defect in the construction of the room where the deceased was confined, or of those who were intrusted with his care and treatment. This question was not passed on by tlie court below, and we express no opinion upon it. The judgment is affirmed. Montgomery, J., did not sit. The odier justices concurred. II. Employers 1. For Wrong of Servant or Agent * PALMERI V. A^ANHATTAN RY. CO. (Court of Appeals of New York, 1892. 133 N. Y. 261, 30 N. E. 1001, 16 L. K. A. 136, 28 Am. St Rep. 632.) Gray, J. Quite recently we had occasion to consider a case where the ticket agent of a railroad company directed the arrest, by police officers, of a person in the railroad station, whom he suspected of be- ing a counterfeiter, and the company was thereafter sued for false im- prisonment. In that case the facts were briefly stated, that the ticket agent had been notified by the police authorities to watch for men of a certain description, suspected of passing counterfeit bills. Upon a certain occasion two men came into the station, and one of them tend- ered a bill in payment for tickets. The agent suspected them of being the counterfeiters wanted by the police, and thought the bill looked "queer," but nevertheless took it, and gave back the change with the tickets, saying nothing to them. He then sent for a police officer, to whom he pointed out the men, who were there on the station platform. The bill was subsequently pronounced to be genuine, and the man was discharged. We held that the company was not responsible in damages, because the agent was not, in what he did, acting within the scope and line of his duty. His acts were not such as could be deemed to be per- formed in the course of his employment, or such as, were demanded for the protection of his employer's interest, but rather those of a citizen desirous of aiding the police in the detection and arrest of persons suspected of being engaged in the commission of a crime. His duty, as the particular agent of the company, was to have refused to accept and change the bill tendered in payment for passage tickets, if he sup- posed it was not genuine ; and, when he did accept it, his only purpose could have been to further the efforts of the police authorities by such a step, and could not possibly be considered as something which his em- ployers or his employment required of him. I refer to the case of * For discussion of principles, see Chapin on Torts, § 53 (1). 100 PARTIES Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. 952, 14 L. R. A. 791, 26 Am. St. Rep. 539 (decided January, 1892). In the present case, however, the acts of the ticket agent were of a different character. The plaintiff purchased a ticket of the agent at the elevated railroad station, and passed through to take the cars, after some altercation about the amount of the change. The ticket agent immediately after- wards came out upon the platform of the station, charged her with hav- ing given him a counterfeit piece of money, and demanded another quarter in place of the one given him. She insisted upon her money being genuine, and refused to give another quarter or to hand back the change. He became angry, and called her a counterfeite'r and a com- mon prostitute. He placed his hand upon her, and told her not to stir until he had procured a policeman to arrest and to search her. He de- tained her in the station for a while, but let her go when he failed to get an officer. This action was then brought to recover damages because of injury sustained from the unlawful imprisonment, or the restraint imposed upon the plaintiff's person, accompanied by the slanderous words, publicly spoken, concerning her. The jury believed her story, and the judgment which she has recovered the appellant seeks to avoid principally upon the ground that the ticket agent was acting outside of the scope of his employment in doing the acts complained of. The ap- peal must fail. This is not like the Mulligan Case. Here the agent was acting for his employers, and with no other conceivable motive; losing his temper and injuring and insulting the plaintiff upon the oc- casion. He believed that plaintiff had passed a counterfeit piece of money upon him, and thus had obtained a passage ticket and good money in change. What he djd was in the endeavor to protect and to recover his employer's property ; and if, in his conduct, he committed an error, which was accompanied by insulting language and the deten- tion of the person, the defendant, as his employer, is legally responsible in an action for damages for the injury. For all the acts of a servant or agent which are done in the prosecution of the business intrusted to him the carrier becomes civilly liable, if its passengers or strangers receive injury therefrom. The good faith and motives of the servant are not a defense, if the act was unlawful. Once the relation of car- rier and passenger entered upon, the carrier is answerable for all con- sequences to the passenger of the willful misconduct or negligence of the persons employed by it in the execution of the contract which it has undertaken towards the passenger. This is a reasonable and necessary rule, which has been upheld by this court in many cases, of which Weed V. Railroad Co., 17 N. Y. 362, -72 Am. Dec. 474; Hamilton v. Railroad Co., 53 N. Y. 25 ; Stewart v. Railroad Co., 90 N. Y. 588, 43 Am. Rep. 185; and Dwindle v. Railroad Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611 — are sufficient instances. What materially distinguishes the present from the Mulligan Case is that there the servant of the company was not acting for tlie pro- EMPLOYERS IPAoi tection of the company's interests, but went quite outside of tlife iNe .of his duty to perform a supposed service to the community by prolM^u^^ ing the arrest of criminals whom he knew tlie authorities were en- deavoring to apprehend. That did not enter into tlie transaction of his employer's business, ^^^lereas here the ticket agent clearly was en- gaged about the company's affairs, but, in the belief of the jury, unlaw- fully detained the plaintiff, and insulted her by slandering her charac- ter. It is needless to consider the case of Mali v. Lord, 39 N. Y. 381, 100 Am. Dec. 448, so much relied upon by the appellant. There is no parallel between the case of a clerk in a store, who has a person arrested and searched upon suspicion of a theft, and whose general employ- ment could not warrant such an act, and the present case, of an agent who is considered to be invested by the carrier with a discretion and a duty in matters of his employment, from which an autliority is inferable to do whatever is necessary about it. Though injury and insult are acts in departure from the authority conferred or implied, neverthe- less, as they occur in the course of the employment, the master becomes responsible for the wrong committed. Judge Andrews, in Rounds v. Railroad Co., 64 N. Y. 129, 21 Am. Rep. 597, points out the distinguish- ing principle of these cases, and refers to Mali v. Lord in the course of his opinion. The oft'er by defendant, upon plaintiff's cross-examination, to show that she was an habitual litigant, was properly excluded. It had noth- ing to do with the issue, and, if true, would not prove her unworthy of belief, any more than it would follow from her admission of its truth that the litigations which such a tendency had encouraged were not upon meritorious groxm^ds. The testimony of the witness Murphy, a bystander upon the oc- casion, as to the ticket agent's conversation with him, I think, was ad- missible, as occurring simultaneously, and as illustrating somewhat the transaction; but, even if questionable, the defendant appears to have objected to the testimony after it was in, and obtained no ruling by motion to strike out. AVhen, subsequently, upon it appearing to the court that the plaintiff did not hear the conversation, an objection to the testimony continuing was considered proper by the judge, and was at once sustained. The judgment should be affirmed, with costs. All concur. 102 PARTIES STRANAHAN BROS. CATERING CO. v. COIT." (Supreme Court of Ohio, 1S96. 55 Ohio St. .398, 45 N. E. 634, 4 L. R. A. [X.'S.] 506.) Plaintiff, a corporation, alleged that it was engaged in the business of bakers, caterers and in the manufacture of butter, cheese, candies and other confectionery; that defendant had furnished to plaintiff about 120,000 pounds of milk ; that at the time he brought the first quantity- he had promised and agreed to bring nothing but milk of a superior quality ; but he had in fact furnished milk which was adulterated and made foul by stale, filthy and impure water, knowing at the time that it was to be mixed with other milk in plaintiff's factory and to be used in plaintiff's business ; that by reason of said adulterated milk the product of plaintiff's factory was greatly lessened and damaged to the damage of the plaintiff in the sum of $4,000. At the trial defendant offered evidence to show that he did not water the milk or know that it had been watered, and that he had in his employ one Ed. Miller, who without defendant's knowledge, for the purpose of injuring defendant, had maliciously watered the milk. The plaintiff, upon this question, requested the court to charge the jury as follows : "If the jury shall find that the milk of defendant was delivered at its factory watered, then the defendant would be liable for the damages that necessarily and directly resulted therefrom, even though the defendant did not water such milk, or authorize it to be done, or know the same was or had been watered, if the jury shall find it was watered by one Ed. Miller, the employe of defendant." But the court refused to charge the jury as requested, but did charge the jury upon this question as follows : "If it appear to you that the milk was adulterated by Miller maliciously, to injure Coit, and was without Coit's knowledge so delivered to the factory adulterated, then Mr. Coit is not liable to defendant for any damage resulting to them from such adul- terated milk. Mr. Coit, however, would remain liable for the amount of water delivered, but only because it was not milk." No other or further charge upon this subject was given to the jury, nor was the above charge in any way modified, changed, or withdrawn, but was, without change or modification, given by the court to the jury as the law by which they were to be governed in arriving at a verdict in the case. Exceptions to the refusal to charge as requested, and to the charge as given, were duly entered by plaintiff. Verdict for $185, for defend- ant and against plaintiff, was rendered, and a judgment thereon, and for costs, entered, which was affirmed by the circuit court. The plain- tiff asks reversal of these judgments. 6 For discussion of principles, see Chapin on Torts, § 53 (2). EMPLOYERS 103 Spear, J- (after stating the facts).' The questions arising on the record are: (1) 'Whether or not Coit is Hable for the acts of Miller which produced tlie injury; (2) whether or not the plaintiff's dam- ages, in case the jury found it sustained damages, could embrace all the injiin- arising from the adulterated character of tlie milk deliver- ed ; (3) if not, whether, in'an)- -v-iew, the true rule is that, in case the jury found tliat the milk was adulterated by Miller maliciously, to in- jure Coit, and was, without Coit's knowledge, so delivered to tlie fac- tory adulterated, plaintiff was entitled to a rebate for the water, so tliat Coit would be liable only for the amount of the water delivered, be- cause it was not milk. The inquiry involves, primarily, a consideration of the liability of the master, although, reduced to its last analysis, it is an inquiry as to the proper rule of damages. Upon the face of tilings it is apparent, that the question regarded as the controlling one is whether or not Coit is in any way responsible for tlie acts of JNIil- ipr •(* ^ ^ It is important to observe a distinction between liabilitv for tlie ma- licious acts of an agent with respect to one with whom the principal holds contractual relations, — acts affecting tlie performance of the con- tract, — and with respect to others who may have suffered injury by rea- son of the agent's torts, as a failure to observe this distinction has re- sulted in apparent confusion of terms botli in text-books and decisions. The distinction referred to is made apparent in an old English case. A traveler employed a livery stable keeper to drive him safely to his des- tination. The driver purposely and needlessly, to gratify his own per- sonal maUce, went out of his way to collide with anotlier carriage, by which one riding therein was injured. The collision also injured the traveler. The action by the former against the master was predicated whoUv on tlie claim that he was liable for the malicious act of his sen.-ant, committed without authority, and not in the line of his serv- ice. An action by the traveler would have rested on the failure of the liver\man to perform his contract. And, as to the latter proposition, Prof. W'harton, in his work on Agency and Agents (section 487), gives this terse rule : "Principal who contracts to do a particular thing is lia- ble for agent's torts which prevent the performance of the contract." One principle seems to be well settled by tlie later authorities, viz.: That if the act of the servant which has occasioned the mischief is within the scope of the employment, the fact that it was maliciously done does not affect the question of the master's liability under a proper rule of damages. Coming, now, to the case at bar were tlie acts of Miller, which caused the injury, in law the acts of his employer? That is, were tliey within the scope of his duties, or were they outside and beyond ? And here we must not mistake the acts which caused the damage. At first 6 The statement of facts is abridged and parts of the opinion of Spear, J., and all of the dissenting opinion of Bradbury, .T., are omitted. 104 PAETIE3 blush it might seem that these acts were the watering of the milk, and those were not within any authority from the master. But not so. The putting of the water in the milk would have been quite innocuous, so far as plaintiff is concerned, had the compound not been delivered to the factory. It was the delivery there which produced the harm. In those acts of delivery Miller stood for and represented his master. Clearly, those deliveries were done in the course of his employment, "in the execution of the service for which he was engaged by the mas- ter." Under such conditions, why should the master not be liable ? He had contracted to deliver pure milk, and, in trusting that duty to his servant, why had he not, applying the principle announced by Judge Story, held out that servant as fit to be trusted, and warranted his fidel- ity and good conduct in all matters connected with the performance of that contract? Why, in reason, should the loss occasioned by the ras- cality of the defendant's servant be thrown on the plaintiff? The lat- ter had no voice in his selection ; no control over his conduct. Does the servant's motive change the nature of the damages ? Does it make the failure of the defendant to perform his contract any the less ob- vious, or any the less serious in results? As remarked by White, J., in Railroad Co. v. Young, 21 Ohio St. 524, 8 Am. Rep. 78: "Where a person is injured by the acts of a servant, done in the course of his employment, we see no good reason why the motive or intention of the servant should operate to discharge the master from liability. If the nature of the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention, it is not perceived how the presence of such intention can be held to excuse the master." And would any intelligent legal mind suppose for a moment that, the alleged contract being found, if the delivery of the objec- tionable compound at the factory had been through the mere negligence of the servant, the defendant would not be liable? Surely not. Nor does the enforcement of the rule of damages hereinbefore indicated in- volve punishment of one for the malicious act of another. If it were proposed to inflict punitive damages on the master where he is innocent of wrong intent, then that inequitable result would follow. But so long as compensation, and compensation only, is the rule, the motive of the servant not entering into the case one way or the other, the master is not held for the motive ; he is held only for the act. So, in this case, if the testimony of the plaintiff tended to prove that Coit knew of the condition of the milk at the time of the delivery, as the record would imply, then proof to the contrary was competent, but for the purpose only of excluding a right to recover punitive damages. This contract involved reciprocal duties, and gave corresponding le- gal rights. The defendant was to deliver pure milk ; the plaintiff was to pay good money. Now, suppose, instead of this action, there were a suit of the defendant against the plaintiff for his season's milk, $1,150, and the company had pleaded payment. At the trial it appeared EMPLOYERS 105 that, on the day the account was due the company had given the money to one of its employes, with directions to go to the vendor and pay for the milk, and he had gone to the residence of the vendor and counted out, as the vendor supposed, $1,150, and taken a receipt to the com- pany. The next day, when a deposit in bank was attempted, it was found that a portion of tlie money was counterfeit. Suppose the testi- mony to further show that the employe, out of malice towards the company and greed in his own interest, had substituted counterfeit money and paid that. Would tlie company have a defense ? The bills paid looked like good currency, as the milk delivered looked like pure milk. In fact both were tainted. Is tliere any real difference in the two cases ? Is it not a failure to perform a contract in both ? True, the method of making proof of damages is different; it is simple in one case, and much less so in the other. But, when arrived at, the result is precisely the same. It is compensation in both cases, — the making of the injured party whole. Our case is essentially dissimilar from that of Railroad Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373, where the defendant was exonerated. If Miller had got into a quarrel with the manager of the factory, about the delivery of milk, for in- stance, and, to gratify his own personal resentment, had lashed the other with the defendant's whip, which had been furnished him to drive the horses with, we would have had a case parallel with the one above cited. The view here indicated finds support in tlie broad prin- ciple that where one of two innocent persons must suffer he must be the sufferer who puts it in the power of the wrongdoer to cause the loss. "He, certainly, who trusts most, must suffer most." He through whose agency the loss occurred must sustain it. It is a principle found- ed on the highest considerations of justice and expediency. The rule is elucidated in the opinion by Minshall, J., in the recent case of Schurtz V. Colvin, 55 Ohio St. 274, 45 N. E. 527, and special reference is here made to that opinion for argument and illustrations. See, also. Quick V. jNIilligan, 108 Ind. 419, 9 N. E. 392, 58 Am. Rep. 49; Blight V. Schenck, 10 Pa. 293, 51 Am. Dec. 478; Le Neve v. Le Neve, 3 Atk. 646. If the foregoing conclusions are correct, it follows that the in- structions given the jury did not cover the case before them. The case made was the case which, within the allegations of the petition, the evidence tended to prove. The vital points were the agreement to de- liver pure milk, the delivery under it, the character of the milk de- livered, and the resulting damage; and the questions the jury needed instructions upon, in case they found for the plaintiff on these proposi- tions, were, the liability or nonliability of Coit, and the measure of dam- ages in case he was to be held. The instruction given was if the adul- teration was done by Miller mahciously, to injure Coit, and the delivery of the adulterated article was without Coit's knowledge, he was not lia- ble for any damage ; which if we are right in the principles of law applicable to the case, was erroneous. The court also added that Coit 106 PARTIES would remain liable for the amount of water delivered, because it was not milk. This means, we suppose, that, on Coit's cross-petition, he would not be allowed to recover pay for water. Of course he could not; but this instruction ignores any duty to deliver milk not adulterated, and would be proper in a case where the quantity delivered was the only question involved. But here was involved the question of dam- ages for the impaired character of the article delivered, and it is diffi- cult to see how, upon the view most favorable to Coit, the rule would not have been the ordinary commercial rule, viz. the difference between the value of the milk delivered and what its value would have been had no water been mixed with it. Swan's Treatise (14th Ed.) 784; American note to Benj. Sales (6th Ed.) 906. * * * 2. For Wrong of Independent Contractor ' ATLANTA & F. R. CO. v. KIMBERLY. (Supreme Court of Georgia, 1891. 87 Ga. 161, 13 S. E. 277, 27 Am. St Rep. 231.) Simmons, J.' Kimberly sued the railroad company for damages, and alleged in his declaration "that while the company was construct- ing its road it made a deep cut, and piled the fresh earth therefrom near his dwelling house, and dammed up a small stream, and ponded the water therefrom near the house; and that it also stationed near the house a camp of convicts, whom it was using in said construction, and permitted the filth accumulating in the sinks of this camp and oth- erwise therein from the convicts to flow from the camp, and be de- posited a few jards from the house, by reason of which the air in and around the house became infected with noxious scents, malaria, and other substances injurious to health, whereby plaintiff and his wife both became sick, and endured great pain and suffering, and were unable to attend to their" daily duties," etc. The defense of the railroad com- pany was that it did not do the acts complained of in the declaration ; that, if they were done at all, they were done by the Chattahoochee Brick Company, an independent contractor, which it had employed to build the railroad from Atlanta to Senoia. On the trial of the case the jury found a verdict for the plaintiff, and the defendant made a motion for a new trial on the various grounds set out therein, which was over- ruled, and it excepted. The main question argued before us was whether under the facts of this case the railroad company was Uable for the damages sustained 7 For discussion of principles, see Chapin on Torts, § 54, 8 Portions of the opinion are omitted. EMPLOTEKS 107 by Kimberly. The general rule of law upon this subject is: Where an individual or corporation contracts with another individual or cor- poration exercising an independent employment for the latter to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods, and not subject to the employer's control or orders except as to the results to be obtained, the employer is not liable for the wrongful or negligent acts of the contractor or of the contractor's servants. Code, § 2962; Harrison v. Kiser, 79 Ga. 588, 4 S. E. 320. And see tlie following text- books and cases tlierein cited : 1 Lawson, Rights, Rem. & Pr. § 295 ; 2 Thomp. Xeg. 899 et seq. ; Id. 909-913 ; 2 Wood, Ry. Law, § 284. Also, 1 Add. Torts, 302; Cooley, Torts, 644; Bish. Non-Cont. Law, § 606; Pierce, R. R. 2S(>-291 ; 1 Rorer, R. R. 468-470; A\'hit. Smith, Xeg. 171 et seq. ; ^^'ood, Nuis. 77, p. 81 ; Dicey, Parties (2d Amer. Ed.) 468 et seq. See especially the following cases : Peachey v. Row- land, 22 Law J. C. P. 81, 13 C. B. 182; Cuff v. Railroad Co., 35 N. J. Law, 17. 10 -\xn. Rep. 205 ; Clark v. Railroad, 39 Mo. 184, 90 Am. Dec. 458; McCafferty v. Railroad Co., 61 N. Y. 178, 19 Am. Rep. 267; Hughes V. Railway Co., 15 Amer. & Eng. R. Cas. 100; Hilliard v. Richardson, 3 Grav (j\Iass.) 349, 63 Am. Dec. 743 ; Eaton v. Railway Co., 19 ^le. 520, 8 Am. Rep. 430; Railway Co. v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696 ; Railway Co. v. Fitzsimmons, 18 Kan. 34 : Painter v. Pittsburgh, 46 Pa. 220. To the general rule there are several exceptions : (1) Where the work is wrongful in itself, or, if done in the ordinary manner, would result in a nuisance, the employer will be liable for injury resulting to third persons, although the work is done by an independent contrac- tor. This is upon the principle that if one contracts with another to commit a nuisance, he is a cotrespasser by reason of his directing or participating in the work; in other words, the rule is that, "if the act or neglect which produces the injury is purely collateral to the work contracted to be done, and entirely the result of tlie wrongful acts of the contractor and his workman, the proprietor is not liable; but if the injury directly results from the work which the contractor engaged and was authorized to do, he is equally liable with the contractor." 2 Thomp. Xeg. 903. See, also, authorities cited supra. (2) If, according 10 previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefull}' performed, the employer will be liable, and not the contractor, because, it is said, it is incumbent on him to foresee such danger, and take precautions against it; and this is the principle upon which the cases of Bower v. Peate, 1 O. B. Div. 321; Tarry v. Ashton, Id. 314; and Pickard v. Smith, 10 C. B. (X'. S.) 470 — relied on by the defendant in error, were decided. And in this exception is included the principle that where the injury is caus- ed by defective construction which was inherent in the original plan of the employer, the latter is Hable. See authorities cited supra ; also Robbins v. Chicago, 4 Wall. 657, 18 L. Ed. 427; Boswell v. Laird, 8 108 PARTIES Cal. 469, 68 Am. Dec. 345 ; Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23, 1 Am. St. Rep. 739. For instance, if any person employs another to erect a building, and the plan of the building is defective, the walls being too thin and weak, and the building while in process of erection falls, and causes injury to a third person, the employer, and not the contractor, is liable. Or, if a contractor is employed to build a sewer, and the employer agrees to furnish the materials, and the sewer- pipe furnished by the employer is too small, and damage is sustained by reason thereof, the employer is liable. (3) The next exception is where the wrongful act is the violation of a duty imposed by express contract upon the employer ; for where a person contracts to do a cer- tain thing he cannot evade liability by employing another to do that which he has agreed to perform. For instance, where a company un- dertook to lay waterpipes in a city, agreeing with the city that it would "protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible ■ for all damages which might occur by reason of the neglect of their employes in the premises," and the company let out the work to a contractor, who used a steam- drill in such a manner as to frighten a traveler's horse and injure the traveler, it was held by the supreme court of the United States tliat the company was liable. Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485. (4) The next exception is where a duty is imposed by statute. The per- son upon whom a statutory obligation is imposed is liable for any injury that arises to others from its nonperformance or in consequence of its having been negligently performed, either by himself or by a contractor employed by him. Thus, where the statute imposed upon a railroad company, as a duty to the proprietors of inclosures through which the road passed, the obligation of placing stockguards, and preserving or supplying fences, on the right of way, and protecting the inclosure from injury, in the construction of its road, the company was held liable for the failure to perform such duty, though resulting from the negligence of a contractor. Railroad Co. v. Meador, SO Tex. 77. And it was up- on this principle that the cases of Wilson v. White, 71 Ga. 506, 51 Am. Rep. 269; Gray v. Pullen, 5 Best & S. 970; Hole v. Railroad Co., 6 Hurl. & N. 488; and Railroad Co. v. McCartliy, 20 111. 388, 71 Am. Dec. 285 — relied upon by counsel for the defendant in error, were de- cided. And the case of Hinde v. Navigation Co., 15 111. 72, also rehed upon for the defendant in error, falls under the same principle. In that case the charter imposed upon the company the duty of paying for all material taken for the use of its work, and expressly gave a remedy against the company; and it was held that the company could not by delegating its work to a contractor escape liability for material taken . by him for the work; especially as he was working under the immedi- ate supervision and direction of the engineer of the company. (5) The employer may also make himself liable "by retaining the right to di- rect and control the time and manner of executing the work, or by in- terfering with the contractor and assuming control of the work, or EMPLOYEES 109 some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference. But merely taking steps to see that the contractor carries out his agreement, as having the wrork supervised by an architect or superintendent, does not make the employer liable ; nor does reserving the right to dismiss incompetent workmen." 1 Lawson, Rights, Rem. & Pr. 299 ; Harrison v. Kiser, supra. (6) The employer may also be held liable upon the ground that he has ratified or adopted the unauthorized wrong of the independent contractor. See Harrison v. Kiser, supra ; 2 Thomp. Neg. 903. 915. Applying the foregoing principles to the facts of this case, we find tliat the railroad company made a contract with the Chattahoochee Brick Company, whereby the latter agreed to build the former's road from Atlanta to Senoia, according to certain specifications; and the railroad company did not retain anycontrol over the contractor as to the method or manner of doing the work. The construction company was to furnish the labor and all the materials, including the pipes with which the sewers or culverts were to be built. AU the control reserved by the road was that its superintendent was to see that the road was built according to the contract. There is no indication in the record outside of some loose and illegal declarations of third parties, the ad- mission of which as evidence we will speak of presently, tending to show that the railroad company had any authority, power, or control over the construction, as to the manner or means of doing the work. This being true, the railroad company, under the general rule above announced, is not liable for the negligent acts done by the contractor. It was argued by the able counsel for the defendant in error that the building of a railroad necessarily results in a nuisance, unless certain precautions are taken to prevent it; that the low places by which the surrounding lands are drained and from which the water is carried off must be filled up, and, unless certain precautions are taken to pro- vide an escape for the water, a nuisance necessarily results; and that the railroad company cannot escape liability by having the work done by an independent contractor. If the premises of counsel are true, the conclusion might also be true ; but if a railroad is built properly we do not think any nuisance will result from the building. * * * Nor is there any legal evidence to show that it would fall within tlie second exception. It is claimed that the pond of water was caused by the sewer pipes being too small to carry it off, but there is no evi- dence that the railroad company directed that this particular size of pipe should be placed at that point. It is true there are some declara- tions of Hammond and English to the effect that the superintendent or- dered it to be put there, but these declarations were illegal, and should have been excluded. If it should be shown upon the next trial that this particular size of pipe was placed at that point by direction of the company, or if the specifications in the contract required it to be placed there, and it should be further shown that this part of the plan 110 PARTIES was inherently defective, and that it caused this nuisance, and the plain- tiff sustained injury thereby, the railroad company would be liable. But if the railroad company did not direct this particular size of pipe to be placed at that point, or its plans and specifications did not require it, and it was put there by the contractor according to his own judg- m.ent, and negligently placed above the bed of the stream, then the rail- road company would not be liable, although it may have had notice from the plaintiff that in his opinion the pipe was too small. If the railroad company had no control over the contractor as to the manner in which he should build the sewer or put in the pipe, any notice which the plaintiff might give its officers would not make it liable. The con- tractor being in an independent employment, whatever he does outside of or beyond his contract is a collateral act for which the employer is not liable. He is not the servant or agent of the employer, and the em- ployer cannot be held liable for any acts of negligence committed or omitted by him outside of his contract. Where the work he is engaged to do is lawful, the law presumes that he will do it in a lawful manner ;. and if he does it illegally he is liable and not the employer. Nor do the facts of the case bring it within the third or the fourth exceptions. There was no duty imposed upon the railroad company, either by contract, or by statute, to do this particular work, or to do it in a particular way. Its charter does not impose upon it the duty of building" the road, and does not specify the manner in which it shall be built ; nor is any liability imposed upon it for acts of the kind com- plained of in this case. The authorities all hold that a railroad com- pany has the right to make a contract with other parties for the con- struction of its road, and it is held that a contract of this character is not such a delegation of its chartered rights as to render the com- pany liable for unauthorized wrongs committed by the contractor or his servants while engaged in the work. * * * As we have already seen, the case does not come within the fifth exception, for there is no legal evidence that the railroad company had ^ any control over the construction, as to the manner or means of doing the work. Nor does it come within the next exception, for the facts do not show any ratification of the wrongful acts of the contractor. It is not shown when the company accepted tlie road from the contractor. The evidence does show that the work near the plaintiff's house was done either in March, April, or May, and that about the 1st of June the plaintiff and his wife became sick. But under the contract the road was not to be turned over to the company until several months after this. The company not being in possession of the road at the time the plaintiff received the injury from the nuisance, and there be- ing no evidence to show that it knew there was a nuisance, it cannot be said that the company ratified any act of its contractor which created a nuisance. * * * JOINT AND SEVERAL LIABILITY IJ t III. Joint and Several Liability 1. Single Injury • SLATER V. MERSEREAU. (Court of Appeals of New York, 1876. 64 N. T. 13S.) This action was brought to recover damages for injuries alleged to have resulted from defendant's negligence. The referee found sub- stantially that plaintiffs were lessees and occupants, of the first floor and basement of certain premises in the city of New York ; that defendant on or about April 8, 1864, had entered into a contract with the owners of lots adjoining the premises occupied by plaintiffs by which defend- ant agreed to erect and finish a new building on said lots ; that defend- ant entered upon the performance of the contract and subcontracted a portion of the work to Moore & Brj'ant, the latter agreeing to furnish the materials and do the mason work, also with McKensie & Co., the latter to furnish the materials for and complete the plumber's work and gas fitting, which included the putting up of a leader from the roof to the sewer in the street; that defendant reserved to himself and performed the carpenter's work, including the rafters and planking of the roof ; that on or about July 21, 1868, defendant had completed all the carpenter work of the roof, and the plumbers had constructed a pipe connected with the roof which was carried some distance down the wall of the building and which it was intended to connect with the sewer by a continuation of the pipe ; that the pipe could not be continued until the wall down which it was carried was cut to ac- commodate it; that defendant had failed to direct Moore & Bryant to make the necessary cuttings in the wall and omitted to provide any means for carrying off the rainwater; that large quantities of rain- water which had fallen upon the roof ran into the cellar and soaked through into the plaintiff's premises ; that ]\Ioore & Bryant had erect- ed the vault and sidewalks in such a negligent manner as to permit large quantities of rain water to flow from the street which united with that from the roof and soaked through into plaintiff's premises injur- ing their stock of goods. Miller, J.^" * * * The defendant, not being liable for the neg- ligence of Moore & Bryant, as subcontractors, could he be liable for the damages which followed, upon the ground stated by the referee in his report. It is true that the defendant and Moore & Bryant were not jointly interested in reference to the separate acts which produced the » For discussion of general principles, see Chapin on Torts, § 57 (O). 10 The statement of facts is abridged and a portion of the opinion omitted. 112 PARTIES damages. Although they acted independently of each other, they did act at the same time in causing the damages, etc., each contributing to- wards it, and although the act of each, alone and of itself might not have caused the entire injury, under the circumstances presented there is no good reason why each should not be liable for the damages caused by the different acts of all. The water from both sources commingled together and became one body concentrating at the same locality soaking through the wall into the plaintiffs' premises and injuring the plaintiffs' property; and it cannot be said that the water which the defendant's negligence caused to flow upon the plaintiffs' premises and which be- came a portion of all which came there, did not produce the damages complained of. The water with which each of the parties were in- strumental' in injuring the plaintiffs was one mass and inseparable, and no distinction can be made between the different sources from whence it flowed, so that it can be claimed that each caused a separate and dis- tinct injury for which each one is separately responsible. The case presented is not like that where the animals belonging to several own- ers do damage together and it is held that each owner is not separate- ly liable for the acts of all, as there is only a separate trespass or wrong against each. Van Steenburgh v. Tobias, 17 Wend. 562, 31 Am. Dec. 310; Auchmuty v. Ham, 1 Denio, 495; Partenheimer v. Van Order 20 Barb. 479. No such division can be made of the separate acts in {he case at bar, and it bears some analogy to that of Colegrove v. Harlem & N. H. R. Co. and N. Y. & N. H. R. R. Co., 13 N. Y. Super. Ct. 382, 20 N. Y. 49, 75 Am. Dec. 418, where the injury was caused by concur- ring negligence in the management of the trains of two railroad com- panies which came in collision, and the defendants were held jointly liable. The collision was but a single act caused by the separate neg- ligence of different parties which together produced the result. Here also the contractor and subcontractors were separately negligent and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caiised at one and the same time. It is no defense for a person against whom neg- ligence which caused damage is proved, to prove that without fault on his part the same damages would have resulted from the act of another (Webster v. H. R. R. R. Co., 38 N. Y. 260), and as the case stands the referee was justified in holding that the defendant was responsible for the entire damages. There was no error in the admission or rejection of evidence, and no ground is shown for reversing the judgment. Judgment affirmed, with costs. All concur. Judgment affirmed. JOINT AND SEVEEAL LIABILITY 113 2. Separate Injuries ^^ LITTLE SCHUYLKILL NAVIGATION, R. & COAL CO. v. RICHARD'S ADM'R. (Supreme Court of Pennsylvania, 1S68. 57 Pa. 142, 98 Am. Dec. 209.) The declaration contained two counts. The first was for injury to the forge dam of plaintiff upon the Little Schuylkill river by reason of defendants, by their servants and employes, casting and throwing into said river, above the dam, and near to and along the said stream large quantities of coal dirt, slate and loose earths, which by action of the water were carried down to and filled up the said dam. Besides the mines of the defendants, there were a number of others on the Little Schuylkill and its tributaries, above Hecla Forge, ownedby dif- ferent owners, entirely independent of the defendants and having no connection with them. The dam was filled by the coal dirt coming down these several streams into it from all these mines. Agnew, J.^^ All the assignments of error, from the 4th to the lltla, inclusive, involve substantially the same question, and may be consid- ered together. The plaintiff's intestate was the owner of a dam and water power upon the Little Schuylkill river. In process of time, from 1851 to 1858, the basin of the dam became filled with the coal dirt, washed down by the stream from the mines above, of several owners upon Little Schuylkill, Panther creek, and other tributaries. They were separate collieries, worked independently of each other. The plaintiff seeks to charge the defendants below with the whole injury caused by the filling up of his basin. The substance of the charge and answers to points was, that if at the time the defendants were engaged in throwing the coal dirt into the river, about ten miles above the dam, the same thing was being done at the other collieries, and the defendants knew of this, they were liable for the combined result of all the series of deposits of dirt from the mines above from 1851 till 1858. The aspects of the case were varied, by deposits being made on and along the banks of the streams, which were carried away by ordinary rains and freshets; but the above is the most direct state- ment of the injury alleged, and is taken therefore as the test of the principle laid down by the court. The doctrine of the learned judge is somewhat novel, though the case itself is new; but, if correct, is well calculated to alarm all riparian owners, who may find themselves by a slight negligence overwhelmed by others in gigantic ruin. 11 For discussion of general principles, see Chapin on Torts, § 57 (C). IS Tlie statement of facts is abridged and a portion of tbe opinion omitted. Chap.Oas.Tobts — 8 114 PARTIES It is immaterial what may be the nature of their several acts, or how small their share in the ultimate injury. If, instead of coal dirt, others were felling trees and suffering their tops and branches to float down the stream, finally finding a lodgment in the dam with the coal dirt, he who threw in the coal dirt, and he who felled the trees would each be responsible for the acts of the other. In ^ the same manner separate trespassers who should haul their rubbish upon a city lot, and throw it upon the same pile, would each be liable for the whole, if the final result be the only criterion of liability. But the fallacy lies in the assumption that the deposit of the dirt by the stream in the basin is the foundation of liability. It is the immediate cause of the injury, but- the ground of action is the negligent act above. The right of ac- tion arises upon the act of throwing the dirt into the stream — this is the tort, while the deposit below is only a consequence. The liability, therefore, began above with the defendant's act upon his own land, and this act was wholly separate, and independent of all concert with others. His tort was several when it was committed, and it is difficult to see how it afterwards became joint, because its consequences united with other consequences. The union of consequences did not increase his injury. If the dirt were deposited mountain high by the stream his dirt filled only its own space, and it was made neither more nor less by the accretions. True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty, caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injury that others do. This is bad logic and hard law. Without concert of action no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for, if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we should find them jointly sued, then the want of concert and the several liability of each would be apparent. These principles are fully sustained by the following cases : Russell v. Tom- linson et al., 2 Conn. 206; Adams v. Hall, 2 Vt. 9, 19 Am. Dec. 690; Van Steenburgh v. Tobias, 17 Wend. (N. Y.) 562, 31 Am. Dec. 310; Buddington v. Shearer, 20 Pick. (Mass.) 477 ; Auchmuty v. Ham, 1 Denio (N. Y.) 495 ; Partenheimer v. Van Order, 20 Barb. (N. Y.) 479. These were cases where the dogs of several owners united in killing sheep, and where the cattle of different owners broke into an inclosure and united in the damage. The concert and united action of the dogs JOINT AND SEVERAL LIABILITY 115 and cattle were held to create no joint liability of tlieir owners, not- withstanding the difficulty of determining tlie several injury done by the animals of each. The rule laid down in the last case was that, where the owner of the garden could not prove the injury of each cow, the jury would be justified in concluding that each did an equal injury. Several cases were cited in opposition, but do not, in our opinion, support the doctrine of the charge. In Stone v. Dickinson, 5 Allen (Mass.) 29, 81 Am. Dec. 727, where an officer made an arrest at the same instant upon nine writs, and the parties were held jointly liable for the trespass, the ground of action was the arrest itself, a single act, incapable of division or separation, but being authorized by all, all were held to have been concerned in the ver\' act, which each authorized the same agent to commit. In Colegrove v. N. Y. &: N. H. and N. Y. & Harlem Railroad Companies, 20 N. Y. 492, 75 Am. Dec. 418, the two companies were using the same track by joint arrangement governed by common rules, the col- lision of their trains was owing to mutual and concurring negligence and the injury which was single was therefore their concurrent and direct act. They were held to be jointly liable because of their joint use of the track, their common duty to all travelling the road, and their concurrent negligence in the direct act which caused the injury. The case of the party wall in this state was put on the same ground. The distinction between that case and this was sharply defined by our brother Strong. It was there said that the maintenance of an inse- cure partv wall was a tort in which both participated. The act was single, and it was the occasion of the injury. The case is not to be confounded with actions of trespass brought for separate acts done by two or more defendants. Then if there be no concert, no common intent, there is no joint liability. Here, the keeping of the wall safe was a common duty, and a failure to do so was a common neglect. Klauder v. McGrath, 35 Pa. 128, 78 Am. Dec. 329. In principle Bard et al. V. Yohn, 26 Pa. 482, more resembles this case. There the ef- fects of the independent acts of the defendants on the opposite sides of the street united in causing the injury, but they were not jointly liable, because there was no concert in the acts themselves. * * * Judgment reversed and a venire facias de novo awarded. 116 PARTIES 3. Ratification** DEMPSEY V. CHAMBERS. (Supreme Judicial Court ot Massachusetts, 1891. 154 Mass. 330, 28 N. E. 279, 13 L. B. A. 219, 26 Am. St. Rep. 249.) Action by Patrick Dempsey against James Chambers for the neg- ligence of one McCullock in unloading coal ordered by plaintiff from defendant. McCullock was not the servant of defendant, and under- took to deliver the coal without his direction or knowledge, and in do- ing so broke a pane of glass in the window of plaintiff's building. Afterwards, and with full knowledge of the accident and delivery of the coal by McCullock, defendant presented a bill therefor to plain- tiff, and demanded payment. Trial to the court, judgment for plain- tiff, and defendant excepts. Holmes, J. This is an action of tort to recover damages for the breaking of a plate-glass window. The glass was broken by the neg- ligence of one McCullock 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 [him] was ratified by the defend- ant, and that such ratification 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 delivery of the coal by McCullock, became responsible for his negligence in the delivery of the coal." The defendant exsepted 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 the 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 consequences any principle which we believe to have been part of the common law simply because the grounds of policy on which it must be justified seem to us to be hard to find, and probably to have belonged to a different state of society. It is hard to explain why a master is hable to the extent that he is for the negligent acts of one who at the time really is his servant, act- ing within the general scope of his employment. Probably master and servant are "feigned to be all one person" by a fiction which is an IS For discussion of principles, see Chapia on Torts, § 57 (E). JOINT AND SRVERAL LIABILITY 117 echo of the patria potestas and of the EngUsh frankpledge. Byington V. Simpson, 134 Mass. 169, 170, 45 Am. Rep. 314; Fitzh. Abr. "Cor- one," pi. 428. Possibly the doctrine of ratification is another aspect of the same tradition. The requirement that tlie 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, 21 N. E. 947; 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., and cases next cited. The earliest instances of liability by way of ratification in the Eng- lish law, so far as we have noticed, were where a man retained prop- erty acquired through the wrongful act of another. Y. B. 30 Edw. I. 128 (Roll's Ed.), 38 Lib. Ass. 223, pi. 9; s. c. 38 Edw. Ill, 18; 12 Edw. IV. 9, pi. 23 ; Plowd. 8 ad fin. 27, 31, See Bract. 158b, 159a, 171b. But in these cases the defendant's assent was treated as relat- ing back to the original act, and at an early date the doctrine of rela- tion 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 also justify it. Y. B. 7 Hen. IV. 34, pi. 1. This decision is quahfied in Fitzh. Abr. "Bayllye," pi. 4, and doubted in Brooke, Abr. "Trespass," pi. 86, but it has been followed and approved so continuously and in so many later cases that it would be hard to deny that the common law was as ' there stated by Chief Justice Gascoigne. Godb. 109, 110, pi. 129; 2 Leon. 196, pi. 246; Hull v. Pickersgill, 1 Brod. & B. 282; Muskett V. Drummond, 10 Barn. & C. 153, 157; Buron v. Denman, 2 Exch. 167, 178; Secretary of State v. Sahaba, 13 Moore, P. C. 22, 86; Cheet- ham V. Mayor, etc., L. R. 10 C. P. 249; Wiggins v. U. S., 3 Ct. CI. 412. If we assvune 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 com- mand would not have justified the act. It never has been doubted tliat a man's subsequent agreement to a 'trespass done in his name and for his benefit amounts to a command so far as to make him answer- able. The ratihabitio mandato comparatur of the Roman lawyers and the eadier cases (D. 46, 3, 12, § 4; D. 43, 16, 1, § 14; Y. B. 30 Edw. 1. 128) has been changed to the dogma asquiparatur ever since the days of Lord Coke. 4 Inst. 317. See Brooke, Abr. "Trespass," pi. 113, Co. Litt. 207a; Wing. Max. 124; Com. Dig. "Trespass," C. 1; Railway Co. 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 a case of a bare personal tort. Adams v. Free- man, 9 Johns. (N. Y.) 117, 118; Anderson and Warberton, JJ., in Bishop V. Montague, Cro. Eliz. 824. If a man assaulted another in the street out of his own head, it would seem ratlier strong to say that if 118 PARTIES he merely called himself my servant, and I afterwards assented, with- out more, our mere words would make me a party to the assault, al- though in such cases the canon law excommunicated the principal if the assault was upon a clerk. Sext Dec. 5, 11, 23. Perhaps the ap- plication 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. & M. 409, 4 Barn. & Adol. 614; Smith v. Lozo, 42 Mich. 6, 3 N. W. 227); 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 Me. 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 established. Perley v. Georgetown, 7 Gray, 464 ; Bishop v. Montague, Cro. EHz. 824 ; Sander- son V. Baker, 2 W. Bl. 832, 3 Wils. 309; Barker v. Braham, 2 W. Bl. 866, 868, 3 Wils. 368 ; Badkin v. Powell, Cowp. 476, 479 ; Wilson v. Tumman, 6 Man. & G. 236, 242 ; Lewis v. Read, 13 Mees. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 799; Railway Co. v. Broom, 6 Exch. 314, 326, 327; Roe v. Railway Co., 7 Exch. 36, 42, 43 ; Ancona v. Marks, 7 Hurl. & N. 686, 695; Condit v. Baldwin, 21 N. Y. 219, 225, 78 Am. Dec. 137; Exum V. Brister, 35 Miss. 391 ; Railway Co. v. Donahoe, 56 Tex. 162; Mur- ray v. Lovejoy, 2 Cliff. 191, 195, Fed. Cas. No. 9,963. See Lovejoy v. Murray, 3 Wall. 1, 9, 18 L. Ed. 129; Story, Ag. §§ 455, 456. The question remains whether the ratification is established. As we understand the bill of exceptions, McCuUock took on himself to deliver the defendant's coal for his benefit, and as his servant, and the defend- ant afterwards assented to McCuilock's assumption. The ratification was not directed specifically to McCuilock's trespass, and that act was not for the defendant's benefit, if taken by itself, but it was so con- nected with McCuilock'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 consistency 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 anoma- lous 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 ab initio. The relation existing, the mas- ter 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 Gibson'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 office, and afterwards had misused the goods, and Gibson ratified the seizure, he thereby became a trespasser ab initio, although not privy to the JOINT AND SEVERAL LIABILITT 119 misusing which made him so; and this proposition is stated as law in Com. Dig. "Trespass," C. 1 ; Elder v. Bemis, 2 Mete. 599, 60S. In Coomes v. Houghton, 102 Mass. 211, tlie alleged servant did not pro- fess to act as servant to the defendant, and the decision was that a subsequent payment for his work by tlie defendant would not make him one. For these reasons, in the opinion of a majority of the court, the exceptions must be overruled. Exceptions overruled. 4. Indemnity and Contribution ** TRUSTEES OF VILLAGE OF GENEVA v. BRUSH ELECTRIC CO. (Supreme Court of New York, General Term, Fifth Department, 18S9. 50 Hun, 5S1, 3 N. Y. Supp. 595.) r>wiGHT, J. This was an action over, by the plaintiffs, on a judg- ment recovered against them by one IMaloney for personal injuries caused by an obstruction maintained by the defendant in one of the streets of the plaintiff's village. The defendant was under a contract with the plaintiffs to light the streets of the village by electricity. A contract to that purpose was first made in May, 1884, with the "Brush- Swan Electric Light Company of New England." Under that con- tract the defendants designated the places where the electric lamps should be put, one of which places was at the intersection' of Ex- change and Jackson streets. Thereupon the Brush-Swan Company, early in June, 1884, for the purpose of supporting the lamp so located, erected the pole which constituted the obstruction complained of in the action of !Maloney. It was erected on tlie east side of Exchange street, and, together with a pole diagonally opposite on Jackson street, served to support the wires from which a lamp was suspended over the inter- section of the two streets. Afterwards the Brush-Swan Company transferred all its rights and interests under the contract above men- tioned to the defendant ; and on the 5th of December, 1884, the latter company entered into a contract with the plaintiffs, by which it under- took, with unimportant modifications, "to fulfill the conditions of the said agreement of the Brush-Swan Electric Light Company." On the 2d day of June, 1885 (the above-mentioned contracts having ex- pired by limitation), the parties to this action entered into a new con- tract to the same purpose, which contained the provision, "Lamps to be about 35 feet high, and to be as now located ;" and on the 10th day of the same month the accident occurred which was the basis of the former action. The pole then stood as it had been originally placed 1* For cliscusslon of principles, see Chapln on Torts, § 58. 120 PARTIES by the former contractor, a year before. No objection had ever been made by the plaintiff to its location, but, on the contrary, as the court below expressly finds, it had been permitted to remain there "by the consent of the plaintiffs." This finding is one of fact, made in re- sponse to the request of the defendant, and is, of course, conclusive upon the plaintiffs, who have neither appealed from the judgment, nor excepted to any of the findings. There is a further finding to the ef- fect "that general directions were given to the agent of the Brush- Swan Electric Corhpany to set said pole inside of the curb." This finding was excepted to, and seems to have been without evidence tending to sustain it. Code Civil Proc. §§ 992, 993. There was no di- rection which specified or included this pole. The only general direc- tion given, at 'any time, on the subject of the location, of poles related to those employed in an experimental circuit which was set up by the Brush-Swan Company, before any contract was made, and which did not include the pole or the location in question. We have, then, the affirmative finding that the plaintiffs consented to the maintenance of this pole by the defendant in the position in which it was located when the contract was assumed by the latter, and in which it remained when the injury was sustained for which judgment was recovered. By that judgment the pole so located was adjudged to be a nuisance, for which the plaintiff was responsible to the party injured. But the court, at the circuit, found as a conclusion of law that "as between the plaintiff and defendant herein the pole in question was not maintained by the concurrence of the plaintiff." It is not made quite clear what distinc- tion was intended between the terms "consent" and "concurrence," or in what sense it can be said that this pole was maintained with the consent, and without the concurrence, of the plaintiffs. If the main- tenance of the pole had involved any affirmative action on the part of the defendant, it might have been said that such action was without the participation or co-operation of the plaintiffs; but, as we have seen, no such action was involved. The defendant had neither set, nor reset,' nor repaired the pole. It had simply left it (with the consent of the plaintiffs) where it was placed by the former contractor. Or if the injury for which recovery was had, had resulted from the use of the pole, it might properly have been found that the plaintiflfs did not participate in such use. But it must be observed, it was in the loca- tion, and not in the use, of the pole that the nuisance consisted. No wrongful or negligent use was alleged or proved. The injury to Ma- loney resulted, not from any use of the pole, but only from its location. That it was permitted to remain in that location, with the consent of the plaintiffs, is affirmatively found ; and, as we have seen, no further concurrence on the part of the plaintiffs was, in the nature of the case, possible. Under these circumstances, consent and concurrence seem to be convertible terms. Such being the case, the plaintiflfs are in the position of joint wrongdoers— in the same fault with the defendant— JOINT AND SEVERAL LIABILITY 121 and hence not entitled to claim indemnity or contribution from the latter. The general rule, which denies indemnity or contribution to joint wrongdoers, is elementary. The cases in which recovery over is per- mitted in favor of one who has been compelled to respond to the par- ty injured are exceptions to the general rule, and are based upon princi- ples of equity. Such exceptions obtain in two classes of cases : First, where the party claiming indemnity has not been guilty of any fault ex- cept technically or constructively, as where an innocent master is held to respond for the tort of his servant acting within the scope of his em- ployment; or, second, where botli parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury. Very familiar illustrations of the second class are found in cases of recovery against municipalities for obstructions to the highways caused by private persons. The fault of the latter is the creation of the nuisance; that of the former, the failure to re- move it in the exercise of its duty to care for the safety of the public streets. The first was a positive tort, and the efficient cause of the in- jury complained of ; the latter, the negative tort of neglect to act upon notice, express or implied. Of the latter class are the cases, cited by counsel for the respondents, of Village of Port Jarvis v. Bank, 96 N. Y. 550; Village of Seneca Falls v. Zalinski, 8 Hun, 575 ; City of Roch- ester V. Montgomery, 72 N. Y. 65; Lowell v. Railroad Co., 23 Pick. (Mass.) 24, 34 Am. Dec. 33. The case at bar is distinguished from these and all similar cases, by the fact, affirmatively found by the court, that the plaintiffs consented to the maintenance of the pole in the position in which the defendant received it from the former con- tractor. In most of the cases of this class the notice to the municipali- ty, which charges it with negligence, is constructive merely (see Lowell V. Railroad Co., supra) ; but, even though the fact of negligence be es- tablished by proof of express notice, the fault of the municipality is negative, and the latter is not in the same fault, or in pari delicto, with the wrongdoer. To this case we think the language of the court by Allen, J., in Johnson v. Oppenheim, 55 N. Y. 280, is fully applicable: "As one who has consented to an act cannot maintain an action for any loss sustained by him, so no one can-avoid an obligation or relieve himself from a duty to another, by the act of a third party to which he has consented." On the grounds indicated we think the first con- clusion of law, to the effect that the pole in question was not main- tained with the concurrence of the plaintiffs, and the final conclusion, that the plaintiffs are entitled to recover against the defendant, were not warranted by the findings of fact, or by the evidence in the case. For these reasons the judgment should be reversed and a new trial granted; costs to abide event. All concur. 122 CONFLICT OF LAWS CONFLICT OF LAWS I. Transitory and Local Actions* ELLENWOOD V. MARIETTA CHAIR CO. (Supreme Court of the United States, 1895. 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913.) Gray, j.2 * * * By the law of England, and of those states of the Union whose jurisprudence is based upon the common law, an action for trespass upon land, like an action to recover the title or the possession of the land itself, is a local action, and can only be brought within the State in which the land lies. Livingston v. Jef- ferson, 1 Brock. 203, Fed. Gas. No. 8,411; McKenna v. Fisk, 1 How. 241, 247, 11 L. Ed. 117; Northern Indiana Railroad v. Michigan Cen- tral Railroad, 15 How. 233, 242, 251, 14 L. Ed. 674; Huntington v. Attrill, 146 U. S. 657, 669, 670, 13 Sup. Ct. 224, 36 L. Ed. 1123; British South Africa Co. v. Companhia de Mocambique, [1893] App. Cas. 602 ; Cragin v. Lovell, 88 N. Y. 258 ; Allin v. Connecticut River Co., 150 Mass. 560, 23 N. E. 581, 6 L. R. A., 416; Thayer v. Brooks, 17 Ohio, 489, 492, 49 Am. Dec. 474; Kinkead's Code Pleading, § 35. The original petition contained two counts, the one for trespass upon land, and the other for taking away and converting to the de- fendant's use personal property; and the cause of action stated in the second count might have been considered as transitory, although the first was not. McKenna v. Fisk, above cited ; Williams v. Breedon, 1 Bos. & Pul. 329. But the petition, as amended by the plaintiff, on motion of the . defendant, and by order and leave of the court, contained a single count, alleging a continuing trespass upon the land by the defendant, through its agents, and its cutting and conversion of timber growing thereon. This allegation was of a single cause of action, in which the trespass upon the land was the principal thing and the conversion of the timber was incidental only, and could not, therefore, be main- tained by proof of the conversion of personal property, without also proving the trespass upon real estate. Cotton v. United States, 11 How. 229, 13 L. Ed. 675; Fames v. Prentice, 8 Cush. (Mass.) 337; Howe V. Willson, 1 Denio (N. Y.) 181 ; Dodge v. Colby, 108 N. Y. 445, 15 N. E. 703; Merriman v. McCormick Co., 86 Wis. 142, 56 N. W. 743. The entire cause of action was local. The land alleged to have been trespassed upon being in West Virginia, the action could 1 For discussion of principles, see Chapin on Torts, § 59. 2 A portion of tlie opinion is omitted. WRONGFULNESS BY LEX LOCI 123 not be maintained in Ohio. The Circuit Court of the United States, sitting in Ohio, had no jurisdiction of the cause of action, and for this reason, if for no other, rightly ordered the case to be stricken from its docket, although no question of jurisdiction had been made by de- murrer or plea. British South Africa Co. v. Companhia de Mocam- bique, [1893] App. Cas. 602, 621; Weidner v. Rankin, 26 Ohio St. 522 ; Youngstown v. Moore, 30 Ohio St. 133 ; Ohio Rev. St. § 5064. Judgment affirmed.' II. Wrongfulness by Lex Loci * LE FOREST v. TOLMAN. (Supreme Judicial Court of Massachusetts, 1S75. 117 Mass. 109, 19 Am. Rep. 400.) Gray, C. J."* In order to maintain an action of tort, founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foundation of the action must at least be actionable or punishable by the law of the place in which it is done, if not also by the law of the place in which redress is sought. Smith v. Condry, 1 How. 28, 11 L. Ed. 35, s. c. 17 Pet. 20; The China, 7 Wall. 53, 64, 19 L. Ed. 67; Blad's Case, 3 Swanst. 603; Blad v. Bamfield, 3 Swanst. 604; General Steam Navi- gation Co. V. Guillou, 11 M. & W. 877; Phillips v. Eyre, E. R. 4 Q. B. 225, 239, and L. R. 6 Q. B. 1 ; The Halley, L. R. 2 Adm. 3, and L. R. 2 P. C. 193 ; Stout v. Wood, 1 Blackf. (Ind.) 71 ; Wall v. Hos- kins, 27 N. C. 177 ; Mahler v. Norwich & New York Transportation Co., 35 N. Y. 352; Needham v. Grand Trunk Railway, 38 Vt. 294; Richardson v. New York Central Railroad, 98 Mass. 85. In the case at bar, the injury sued for was done to the plaintiff in New Hampshire by a dog owned and kept by the defendant in Massa- chusetts. Such an action could not be maintained at common law, without proof that the defendant knew that his dog was accustomed to attack and bite mankind. Popplewell v. Pierce, 10 Cush. 509; Pressey v. Wirth, 3 Allen, 191. No evidence of such k5:iowledge, or of the law of New Plampshire, was introduced at the trial. Nor is it contended that the defendant would be liable to any action or indict- ment by the laws of that state. 3 Compare Stone v. V. S., 167 TJ. S. 178, 182, 17 Sup. Ct. 77S, 42 L. Ed. 127 (1897) where it is pointed out that the principal case proceeded on the theory that the allegations of the petition presented a single cause of action in which the trespass upon the land was the principal thing and the conversion of the property was incidental only. 4 For discussion of principles, see Chapin on Torts, § 60. 5 The statement of facts Is omitted. 124 CONFLICT OF LAWS The plaintiff relies upon the statute of this commonwealth, which provides that "every owner or keeper of a dog shall forfeit to any person injured by it double the amount of the damage sustained by him, to be recovered in an action of tort." Gen. St. 1860, c. 88, § 59. This statute is not a penal, but a remedial, statute, giving all the dam- ages to the person injured. Mitchell v. Clapp, 12 Cush. 278. It does not declare the owning or keeping of a dog to be unlawful, but that if the dog injures another person, the owner or keeper shall be liable, without regard to the question whether he had or had not a license to keep the dog. The wrong done to the person injured consists not in the act of the master in owning or keeping, or neglecting to re- strain, the dog, but in the act of the dog for which the master is re- sponsible. The defendant having done no wrongful act in this commonwealth, and the injury for which the plaintiff seeks to recover damages having taken place in New Hampshire, and not being the subject of action or indictment by the laws of that state, this action cannot be main- tained. Exceptions sustained. PART II SPECIFIC TORTS— INFRINGEMENT OF PERSONAL SECURITY I. Assault* BEACH V. HANCOCK. (Supreme Court of Judicature of New Hampshire, 1853. 27 N. H. 223, 59 Am. Dec. 373.) Trespass for an assault. At the trial it appeared that the plaintiff and the defendant were engaged in an angry altercation, when the defendant stepped into his office and brought forth a gun, which he pointed in an excited and threatening manner at the plaintiff, who was standing three or four rods distant. The gun was not loaded, but this fact was not known to the plaintiff. The evidence tended to show that the defendant snapped the gun twice at the plaintiff. The court ruled that pointing 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 further 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 would have to encourage dis- turbances and breaches of the peace. Defendant excepted to both of these instructions. Gilchrist, C. j.2 * * * One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, that each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of per- sonal harm. But it must be a reasonable fear of which we complain. And surely it is not tmreasonable for a person to entertain a fear of personal injury when a pistol is pointed at him in a threatening man- 1 For discussion of principles, see CtapiQ on Torts, § 61. 2 The statement of the case is abridged and a portion of the opinion omitted. , (125) 126 SPECIFIC TORTS INFRINGEMENT OP PERSONAL SECURITY ner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort if such things could be done with impunity. We think the defendant guilty of an assault, and we perceive no reason for taking any exception to the remarks of the court. Finding trivial damages for breaches of the peace, damages incommensurate with the injury sustained, would certainly lead the ill disposed to con- sider an assault as a thing that might be committed with impunity. But, at all events, it was proper for the jury to consider whether such a result would or would not be produced. Flanders v. Colby, 28 N. H. 34. Judgment on the verdict. TUBERVILLE v. SAVAGE. (Court of King's Bench, 1669. 1 Mod. 3.) Action of assault, battery, and wounding. The evidence to prove a provocation was that the plaintiff put his hand upon his sword and said, "If it were not assize time, I would not take such language from you." The question was if that were an assault. The court agreed that it was not; for the declaration of the plaintiff was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault. Therefore, if one strike another upon the hand or arm or breast, in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at an- other and miss him, this is an assault ; so if he hold up his hand against another in a threatening manner and say nothing, it is an assault. II. Battery 1. Defense of Person » THOMASON v. GRAY. (Supreme Court of Alabama, 1S86. 82 Ala. 291, 3 South. 38.) 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 of March, 1886. The cause was tried on issue joined on the plea of not guilty, and resulted in a verdict for the plain- tiff, "for $2(X) compensatory damages," on which judgment was ren- dered in his favor. On the trial, as appears from the bill of exceptions, 3 For discussion of principles, see Chapin on Torts, § 63 (A). BATTEET 127 the evidence showed that the difficulty between the parties occurred in December, 18S5, at the defendant's store or place of business in the town of Oxford ; that the plaintiff had gone to town in a wagon, witli a load of apples and other produce for sale, and having bargained with the defendant for the sale of some apples, went to his house or place of business to deliver them ; that a dispute there arose between them, in which each used abusive words towards the other ; and which resulted in a personal rencontre, the plaintiff being struck in the back with a piece of scantling, and badly cut in the neck. As to tlie cir- cumstances attending the difficult}^ the evidence was conflicting; the testimony oi each party tending to show that the other was the ag- gressor. The plaintiff, according to the evidence adduced by him, "was a ybuth fifteen or sixteen years old, and weighed about 108 pounds, while the defendant was a good-sized man." For the purpose of show- ing 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 undetermined ; and he duly except- ed to the ruling of the court excluding this evidence. The court gave the following charges to the jury on the request 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 be- lieve from the evidence that the defendant's retaHation was dispropor- tionate to and excessive of the necessit}' or provocation received, they must find for the plaintiff." (2) "If the jury believe from all the evi- dence that the defendant brought on the difficulty, then he cannot in- voke the doctrine of self-defence." (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 exemplary or punitive damages as a punish- ment to the defendant if the assault was attended with circumstances of aggravation." (4) "The jury may look to the size and age of the par- ties, if proved in determining the amount of force necessary to be used by the defendant in putting plaintiff out of the house." The de- fendant duly excepted to each of these charges, and he here assigns them as error, together with the exclusion of the evidence offered and excluded. SuMMERViLLE, J. There may no doubt be cases of assault and bat- tery, as well as mere assault which would sustain a civil action for damages, and yet not be punishable criminally by indictment. An as- sault with an unloaded gun or pistol might be one of this character ; as would also a battery resulting from the fault or negligence of the defendant, without any criminal intent. 2 Green. Ev. § 85 ; Chap- man v. State, 78 Ala. 463, 56 Am. Rep. 42. The only difference as to proof would be that a civil action might be sustained by a preponder- ance of evidence, producing the proper conviction in the mind of the 128 SPECIFIC TOETS INFRINGEMENT OF PERSONAL SECURITY jury, 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 indict- able 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 beat- en. Self-defence 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-defence, because it would be allowing him to take advantage of his own wrong. So the doctrin^ being based on necessity, the party resorting to it can go no further, in doing damage or violence to his adversary, than what is reasonably necessary and unavoidable. His retaliation cannot 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 defendant in putting .the plaintiff off of his premises. The jury might more readily conclude that a man of proportionally large size would be more culpable in re- sorting 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 exemplary damages ; and these we need not consider, for the reason that the ver- dict of the jury and judgment of the court show expressly a recovery only for compensatory damages. If error, therefore, which we do not decide, such rulings would be error without injury. Affirmed. 2. Defense op Property* SCRIBNER V. BEACH. (Supreme Court of New York, 1S47. 4 Benio, 448, 47 Am. Dec. 265.) Trespass for assaulting, beating and wounding the plaintiff. Plea not guilty, with notice of son assault demesne, and that the assault was committed in the defence of the defendant's personal property, * For discussion of principles, see Chapin on Torts, § 63 (B). BATTERY 129 namely, a pit of charcoal and a coal rake. The trial took place at the Greene circuit in May, 1844, before Parker, Cir. J. It appeared that the affair which gave rise to the action happened in August, 1842, on a piece of land in Catskill, of which tlie defendant had been in possession about three years before. He removed to Her- kimer county and the plaintiff succeeded to the occupancy of the land, and had burned a coal pit upon it, and was engaged in taking the coal to market, \\hile he was absent for that purpose, the defendant came to the pit and commenced raking out the coal with a rake he found there, having a wagon in readiness to take the coal away. While thus engaged the plaintiff came there and asked the defendant what he was doing. Defendant said if he came there he would show him. Upon this the plaintiff took hold of the rake with a view of taking it from the defendant, who letting go, with one hand knocked the plaintiff down. As he arose he again took hold of the rake, but the defendant pulled it away, and with it aimed a blow at the plaintiff's head, which the latter sought to prevent by putting up his hand. The rake struck his arm near the wrist and fractured the bone. The defendant offered to show that he had title to the land upon which the coal pit was burned, which was uncultivated and unimprov- ed; and that the coal was made from his wood cut upon that land. The plaintiff's coimsel objected to this evidence, and the objection was sustained and the evidence excluded. Verdict for the plaintiff $150. The defendant moves for a new trial on a case. By the Court, JEWETT, J. Self-defence is a primary law of nature, and it is held an excuse for breaches of the peace and even for homi- cide itself. But care must be taken that the resistance does not exceed the bounds of mere defence, prevention or recovery, so as to become vindictive ; for then the defender would himself become the aggressor. The force used must not exceed the necessity of the case. Elliott v. Brown, 2 Wend. 497, 20 Am. Dec. 644; Gates v. Lounsbury, 20 John. 427 ; Gregory v. Hill, 8 T. R. 299 ; Baldwin v. Hayden, 6 Conn. 453 ; 3 Bl. Com. 3 to 5; 1 Hawk. P. C. 130; Cockcroft v. Smith, 2 Salk. 642; Curtis v. Carson, 2 N. H. 539. A man may justify an assault and battery in defence of his lands or goods, or of the goods of another delivered to him to be kept. Hawk. P. C. b. 1, c. 60, § 23; Seaman v. Cuppledick, Owen's R. 150. But in these cases, unless the trespass is accompanied with violence, the owner of the land or goods will not be justified in assaulting the tres- passer in the first instance, but must request him to depart or desist, and if he refuses, he should gently lay his hands on him for the pur- pose of removing him, and if he resist with force, then force suffi- cient to expel him may be used in return by the owner. Weaver v. Bush, 8 Term R. 78 ; Butler's N. P. 19 ; 1 East P. C. 406. It is other- wise if the trespasser enter the close with force ; in that case the owner may without previous request to depart or desist, use violence in re- Chap.Cas.Tobts — 9 130 SPECIFIC TORTS INFRINGEMENT OF PERSONAL SECURITY turn, in the first instance, proportioned to the force of the trespasser, for the purpose, only, of subduing his violence. "A civil trespass," says Holroyd, J., "will not justify the firing a pistol at the trespasser, in sudden resentment or anger. If a person takes forcible possession of another's close, so as to be guilty of a breach of the peace, it is more than a trespass; so if a man with force invades and enters the dwelling house of another. But a man is not authorized to fire a pistol on every invasion or intrusion into his house; he ought, if he has a reasonable opportunity, to endeavor to remove the trespasser without having recourse to the last extrem- ity." Mead's Case, 1 Lewin, C. C. 185 ; Roscoe's C. Ev. 262. The rule is that, in all cases of resistance to trespassers, the party resisting will be guilty in law of an assault and battery, if he resists with such violence that it would, if death had ensued, have been manslaughter. Where one manifestly intends and endeavors, by violence or surprise, to commit a known felony upon a man's person (as to rob, or murder, or to commit a rape upon a woman), or upon a man's habitation or property (as arson or burglary), the person assaulted may repel force by force; and even his servant then attendant on him, or any other person present, may interpose for preventing mischief; and in the latter case the owner, or any part of his family, or even a lodger with him, may kill the assailant, for preventing the mischief. Foster's Crown Law, 273. The resumption of the possession of land and houses by the. mere act of the party is frequently allowed. Thus a person having a right to the possession of lands may enter by force, and turn out a person who has a mere naked possession, and cannot be made answerable in damages to a party who has no right, and is himself a tort feasor. Although if the entry in such case be with a strong hand, or a multi- tude of people, it is an offence for which the party entering must answer criminally. Hyatt v. Wood, 4 John. 150, 4 Am. Dec. 258; Sampson v. Henry, 13 Pick. (Mass.) 36. In respect to personal property, the right of recaption exists, with the caution that it be not exercised violently, or by breach of the peace ; for, should these accompany the act, the party would then be answer- able criminally. But the riot, or force, would not confer a right on a person who had none ; nor would they subject the owner of the chat- tel to a restoratioft of it, to one who was not the owner. Hyatt v. Wood, supra. In the case of personal property, improperly detained or taken away, it may be taken from the house and custody of the wrongdoer, even without a previous request ; but unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands on the wrongdoer to recover it. Weaver v. Bush, supra; Com. Dig. Pleader, 3, M. 17; Spencer v. McGowen, 13 Wend. 256. ^ In one branch of the defence the defendant set up son assault de- mesne. That was overthrown by evidence showing a manifest dis- BATTERY 131 proportion between the battery given and the first ^ssault. Even a wounding was proved. The defendant also relied upon a defence of his possession of certain personal property, which he insisted was in- vaded by the plaintiff, and in the defence of which he committed the assault. To sustain this defence he proposed to prove that the coal pit was on new and unimproved land to which he had title, and that the wood from which the coal was made was cut from this land with- out any authority from him; but this evidence was rejected. The object of strife between the parties was the possession of the rake, not the coal. The plaintiff is not shown to have committed a single act tending to disturb the defendant in his possession of the latter. The o\vnership of the coal, therefore, was not a material fact. But admitting that the defendant had a legal title to the coal, and that the plaintiff's object in regaining possession of the rake was to use it as a means of retaking the possession of the coal, still, the defendant could not justify the zcouiidiiig merely in defence of his possession. Gregory v. Hill, supta. Unless the plaintiff first attempted forcibly to take the coal, of which there was no proof, I think the evidence was immaterial, and was properly overruled. New trial denied.* 3. Recaption and Entry {A) Personal Property * COMMONWEALTH v. DONAHUE. (Supreme Judicial Court of Massachusetts, 1SS9. 14S Mass. 520, 20 N. E. 171, 2 L. E. A. 623, 12 Am. St. Kep. 591.) Holmes, J. This is an indictment for robbery, in which the defend- ant has been found guilty of an assault. The evidence for the com- monwealth was that the defendant had bought clothes amounting to S21.55 of one ^Mitchelman, who called at the defendant's house by ap- pointment for his pay; that some discussion arose about the bill, and that the defendant went up stairs, brought down the clothes, placed them on a chair and put $20 on a table, and told jMitchelman that he could have the money or tlie clothes; that JMitchelman took the money, and put it in his pocket, and told the defendant he owed him $1.55, whereupon the defendant demanded his money back, and, on Mitchelman refusing, attacked him, threw him on the floor, and choked him, until Mitchelman gave him a pocketbook containing $29. The defendant's counsel denied the receiving of the pocketbook, and 5 Compare Hannabalson t. Sessions, infra, p. 180. 6 For discussion of principles, see Cbapin on Torts, § 63 (C). 132 SPECIFIC TORTS INFRINGEMENT OF PERSONAL SECURITY said that he could show that the assault was justifiable under the cir- cumstances of the case, as the defendant believed that he had a right, to recover his own money by force, if necessary. The presiding jus- tice stated that he should be obliged to rule that the defendant would not be justified in assaulting Mitchelman to get his own money, and that he should rule as follows : "If the jury are satisfied that the de- fendant choked and otherwise assaulted Mitchelman, they would be warranted in finding the defendant guilty, although the sole motive of the defendant was by this violence to get from Mitchelman by force money which the defendant honestly believed to be his own." Upon this the defendant saved his exceptions, and declined to intro- duce evidence. The jury were instructed as stated, and found the defendant guilty. On the evidence for the commonwealth, it appeared, or, at the low- est, the jury might have found, that the defendant offered the $20 to Mitchelman only on condition that Mitchelman should accept that sum as full payment of his disputed bill, and that Mitchelman took the money, and at the same moment, or just afterwards, as part of the same transaction, repudiated the condition. If this was the case, since Mitchelman, of course, whatever the sum due him, had no right to that particular money except on the conditions on which it was offered (Commonwealth v. Stebbins, 8 Gray, 492), he took the money wrong- fully from the possession of the defendant; or the jury might have found that he did, whether the true view be that the defendant did not give up possession, or that it was obtained from him by Mitchel- man's fraud (Commonwealth v. Devlin, 141 Mass. 423, 431, 6 N. E. 64; Chisser's Case, T. Raym. 275, 276; Regina v. Thompson, Leigh & Cave, 225; Regina v. Stanley, 12 Cox, C. C. 269; Regina v. Rod- way, 9 C. & P. 784; Rex v. WilHams, 6 C. & P. 390; 2 East, P. C. c. 16, §§ 110-113). See Regina v. Cohen, 2 Denn. C. C. 249, and cases infra. The defendant made a demand, if. that was necessary — which we do not imply — before using force. Green v. Goddard, 2 Salk. 641 ; Polkinhorn v. Wright, 8 Q. B. (N. S.) 197; Commonwealth V. Clark, 2 Mete. 23, 25 ; and cases infra. It is settled by ancient and modern authority that under such circumstances a man may de- fend or regain his momentarily interrupted possession by the use of reasonable force, short of wounding, or the employment of. a danger- ous weapon. Commonwealth v. Lynn, 123 Mass. 218; Common- wealth V. Kennard, 8 Pick. 133; Anderson v. State, 6 Bax. (Tenn.) 608; State v. Elliot, 11 N. H. 540, 545 ; Rex v. Milton, Mood. & Malk. 107; Y. B. 9 Ed. IV. 28, pi. 42; 19 Hen. VI. 31, pi. 59; 21 Hen. VL 27, pi. 9. See Seaman v. Cuppledick, Owen, ISO; Taylor v. Mark- ham, Cro. Jac. 224, s. c. Yelv. 157, 1 Brownl. 215; Shingleton v. Smith, Lutw. 1481, 1483; 2 Inst. 316; Finch, Law, 203; 2 Hawk. P. C. c. 60, § 23; 3 Bl. Com. 121. To this extent the right to protect one's possession has been regarded as an extension of the right to pro- tect one's person, with which it is generally mentioned. Baldwin v. BATTERY 133 Hayden, 6 Conn. 453 ; Y. B. 19 Hen. VI. 31, pi. 59; Rogers v. Spence, 13 M. & W. 571, 581 ; 2 Hawk. P. C. c. 60, § 23 : 3 Bl. Com. 120, 131. "We need not consider whether this explanation is quite adequate. There are weighty decisions which go further than those above cited, and which hardly can stand on the right of self-defense, but involve other considerations of policy. It has been held that even where a con- siderable time had elapsed between the wrongful taking of the de- fendant's property and the assault, the defendant had a right to re- gain possession by reasonable force, after demand upon the third per- son in possession, in like manner as he might have protected it without civil liability. WTiatever the true rule may be, probably there is no difference in this respect between the civil and the criminal law. Blades v. Higgs, 10 C. B. (N. S.) 713, 12 C. B. (N. S.) 501, 13 C. B. (N. S.) 844, 11 H. L. Cas. 621 ; Commonwealth v. McCue, 16 Gray, 226, 227. The principle has been extended to a case where the de- fendant had yielded possession to the person assaulted, through the fraud of the latter. Hodgeden v. Hubbard, 18 Vt. 504, 46 Am. Dec. 167. See Johnson v. Perry, 56 Vt. 703, 48 Am. Rep. 826. On the other hand, a distinction has been taken between the right to main- tain possession and the right to regain it from another wlio is peace- ably established in it, although the possession of the latter is wrongful. Bobb v. Bosworth, Litt. Sel. Cas. (Ky.) 81, 12 Am. Dec. 273. See Barnes v. Martin, 15 Wis. 240. 82 Am. Dec. 670; Andre v. Johnson, 6 Blackf. (Ind.) 375; Davis v. W^hitridge, 2 Strob. (S. C.) 232; 3 Bl. Com. 4. It is unnecessary to decide whether in this case, if Mitcliel- man had taken the money with a fraudulent intent, but had not repudi- ated the condition until afterwards, the defendant would have had any other remedy than to hold him to his bargain, if he could, even if he knew that jNIitchelman still had the identical money upon his person. If the force used by the defendant was excessive, the jury would have been warranted in finding him guilty. Whether it was excessive or not was a question for them ; the judge could not rule that it was not, as matter of law. Commonwealth v. Clark, 2 Mete. 23. Therefore the instruction given to them, taken only literally, was cor- rect. But the preliminary statement went further, and was erroneous ; and, coupling that statement with the defendant's offer of proof, and his course after the rulings, we think it fair to assume that the in- struction was not understood to be limited, or indeed to be directed, to the case of excessive force, which, so far as appears, had not been mentioned, but that it was intended and understood to mean that any assault to regain his own money would warrant finding the defendant guilty. Therefore the exceptions must be sustained. It will be seen that our decision is irrespective of the defendant's belief as to what he had a right to do. If the charge of robbery had been persisted in, and the difficulties which we have stated could have been got over, we might have had to consider cases like Regina 134 SPECIFIC TORTS INFRINGEMENT OF PERSONAL SECURITY V. Boden, 1 C. & K. 395, 397 ; Regina v. Hemmings, 4 F. & F. 50 ; State V. Hollyway, 41 Iowa, 200, 20 Am. Rep. 586. Compare Common- wealth V. Stebbins, 8 Gray, 492; Commonwealth v. McDuffy, 126 Mass. 467. There is no question here of the effect of a reasonable but mistaken belief with regard to the facts. State v. Nash, 88 N. C. 618. The facts were as the defendant believed them to be. Exceptions sustained. (B) Real Property '' BRISTOR V. BURR. (Court of Appeals of New Xork, 1S90. 120 N. Y. 42T, 24 N. E. 937, 8 L. K. A. 710.) Bradley, J. The action was brought to recover for an alleged as- sault upon and forcible eviction of the plaintiff from a house in which he was residing, and for the alleged conversion of certain of his per- sonal property, then in the house at Spring Valley in the county of Rockland. The plaintiff was a member of the Newark conference of the Methodist Episcopal Church, by which he was stationed as a preacher in March, 1885, at Spring Valley, and continued to preach in the church at that place until the 15th of January, 1886, when he was suspended from all ministerial services and church privileges. This was done in accordance with the rules and discipline of the Meth- odist Church and was effectual as a suspension until the then next annual conference in March following. From the time he went to that place to preach, the plaintiff, with his family resided in a house which had, for several years, been occupied by the Methodist minis- ters as a parsonage. On March 17, 1886, the defendants forcibly eject- ed the plaintiff from the house. It is of that act and the alleged con- version of his goods then in the parsonage that the plaintiff complains. The trial court held, as matter of law, and instructed the jury, that the eviction of the plaintiff was illegal, and that upon that branch of the case the question was one of damages only for them to determine. And upon the exception to that instruction and exception to the re- fusal of the court to charge and submit to the jury, as requested by the defendant's counsel, certain propositions bearing upon the subject arise the main questions presented for consideration. They pertained, not only to the relation of the plaintiff to the premises, but to the per- sons assuming to act as trustees of the church and to the right of the trustees to assume any control of the parsonage. Although it was not directly proved that the Spring Valley Church T For discussion of principles, see Chapin on Torts, § 63 (C). BATTEKT 135 was a corporation, it may, from what did appear, be inferred and as- sumed that it was such, as no question was raised to the contrary. The temporalities belonging to the church were under the control of the trustees. Laws of 1813, c. 60, § 4. The parsonage was owned by the Mutual Life Insurance Company, and was held for a parsonage under a demise from that company, and whether it was rented to the trustees or to a society known as the Ladies' Guild was one of the questions upon which evidence was given. While the defendants contended that the church or tlie trustees of it, as such, were tenants of the insurance company, it was claimed on the part of the plaintiff that such society rented the premises and that it was not within the control of the trustees. If this society could be treated as an independent one, out- side of the authority of the church, and the fact as to where the ten- ancy from the insurance company was located became material, there would, upon the evidence, have been a question for the jury. It is, at least, very questionable whether that society could be treated other- wise than as an instrumentality within the church organization to aid in the accomplishment of its legitimate objects, and for that purpose a mere agency of the religious corporation. In the view taken of the case the determination of that question does not, nor does the official character of those defendants whO' assumed to act as trustees in what they did, seem to be essential here for consideration. It sufficiently appears by the record before us to indicate that an unfortunate controversy arose in the church and congregation and that there was a want of that generous Christian spirit which should charac- terize the action of religious societies. But it is not the province of the court to deal with those considerations. It is the legal aspect only of the situation which can have treatment here. \\^hen the plaintiff went to Spring Valley, pursuant to the direc- tion of the conference to perform the services as minister of the church there, the house was furnished to him as a place of residence. He lawfully went into occupancy of the parsonage. If that occupancy was the actual possession of it by him, at the time of his eviction, the defendants were chargeable with liability for assaulting and forcibly expelling him from the house. And this was so, irrespective of the mere right to the possession, as in that case there was no justification for the apphcation of such force to eject the plaintiff, although the defendants, as trustees, may have had the right to reduce the premises to possession by means of legal process and proceedings. Parsons v. Brown, 15 Barb. 590; BHss v. Johnson, 73 N. Y. 529; McMillan v. Cronin, 75 N. Y. 474. It is, however, contended on the part of the defendants that the plaintiff was a mere servant of the church and that in that relation only he resided in the house. If that were so, and if the trustees as lessees of the insurance company had the control of the house, the plaintiff had no possession of it, and the trustees had the right to remove him from it and on his refusal to go to use al) 136 SPECIFIC TORTS INFRINGEMENT OF PERSONAL SECURITX the force essential to do so. In such case the possession would be theirs and not his. Haywood v. Miller, 3 Hill, 90; Comstock v. Dodge, 43 How Prac. 97; Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158. But it is difficult to see that the relation of master and serv- ant existed between the trustees of the church they represented and the plaintiff. It does not appear that he was hired by that religious corporation, or that it assumed any legal obligation to pay him for his services as minister. He was placed there by the conference pur- suant to the regulation and discipline of that church denomination and no contractual relation existed between the Spring Valley church and the plaintiff. Landers v. F. S. M. E. Church, 97 N. Y. 120. This church, being subject to such disciplinary regulations, had not within itself legitimately the power to deny to the plaintiff when so stationed there the right to exercise his ministerial duties or to exclude him from its church edifice devoted to that service. People ex rel. v. Conley, 42 Hun, 98. This it seems is deemed essential to the maintenance of the system of church government and its integrity. And to as- sure the application of its property and revenues to the uses of the church and purposes connected with it, the statute has prohibited their diversion to other objects. Laws of 1875, c. 79, § 4. The articles of the discipline of the Methodist Episcopal Church were put in evi- dence, but are not set forth in the record. It may be assumed that they furnished no aid to the defendants in their bearing upon the rela- tion between the local church and its minister. While the church could not itself, through its own officers exercise power over its min- ister, it was not without the means of relief from his ministrations when for sufficient cause they should become otherwise than reli- giously fit for or satisfactory to the congregation. This relief, for some reason of no concern here, was accomplished through the constituted authority. Whether his suspension would effectually result in the severance of the plaintiff's relation as the minister of this church was dependent upon the action of the annual conference, which was then to go into session in the latter part of March. This was the situation at the time of his eviction from the parsonage. It evidently was con- templated that when he ceased to be the minister of the church he would leave the parsonage. But in the occupation of the house his re- lation was not that of a servant of the church or trustees in the sense sought to be applied, to render him a trespasser on his refusal to leave it. No other relation than that of possession was consistent with the use and enjoyment of it as a parsonage in view of his duties as pastor, which are not supposed to be wholly discharged in the public services at the church. Otherwise, his occupancy and its privileges would be at the will of the trustees and he be liable, or might be subjected to intrusion at their pleasure. There appears to have been nothing so far as appears in the circum- stances under which he went into the house or in his relation to the BATTERT 137 church or its trustees, which so qualified his occupancy as to render it otherwise than possession by him. This is presumptively the relation assumed to premises by a party who lawfully enters upon them as a- place of abode, and occupies them as such; and any less right than that which possession furnishes is dependent upon some understand- ing, express or implied, denying such relation. None appears in this case so qualifying the character of the occupancy of the plaintiff. And he had the right to protection against eviction by violence without the aid of legal process. It is unnecessary to consider the question whether he was a tenant at will and entitled to a month's notice, or whetlier legal proceedings may have been effectually taken with a shorter or without any notice for his removal. In view of the fact that the plaintiff was in actual possession of the house at the time in question, the use of the force used by the defend- ants to expel him from the house was without justification! Whether the plaintiff had established his alleged claim for the con- version of the property was treated as a question of fact, which was submitted to the jury. We do not understand that any question of law was raised by any exception bearing specially upon this branch of the case. Nor is it seen that there was any error in leaving that question to the jury. No other exceptions seem to require consideration. The judgment should be affirmed. All concur except Foi,ieople." This publication greatly injured the plaintiff in his office as senator, and in his reputation, and brought him into public ridicule and contempt. The plaintiff demands $30,000 and 'costs. The words more especially libelous are : "Prayer to Bucksniff ;" "Divine favor of Senator Bucksniff;" "The legislative god of Winnebago county;" "His majesty, Bucksniff;" "We are sensible, O dearly- beloved Bucksniff, of thy great wisdom and power, and humbly beseech thee;" "Know thou, O divine senator, compared with whom all other senators are merely ciphers ;" "Know thou, also, mighty, eloquent, and beautiful senatorial god ;" "Forget, O mighty being, the advice of thy friends, the little republican ward gods, and look with thy mighty right eye alone to the good of the city ;" "Thou divine South Side dictator, we implore," etc.; "Third ward omnipotence." The grounds of the demurrer are: (1) That the article is not libel- ous ; (2) that it is privileged ; (3) that the innuendoes cannot make the matter libelous which is otherwise not so. The complaint charges that the defendant published the article maliciously, and of and concerning the plaintiff. It begins in the form and heading of a prayer to Buck- sniff (meaning the plaintiff). The name itself is libelous. It is a nickname which is a name of reproach, and an opprobrious appellation, and is in the similitude of "Pecksniff," one of the familiar and most contemptible characters in Dickens, and readily suggests that name to the reader, and it is re- peated several times. It is used to excite ridicule and contemptuous derision. He is called "Senator Bucksniff" to more clearly show it was meant for the plaintiff. The article is of and concerning the plain- tiff as senator of Winnebago county. He is also called "His majesty, Bucksniff," "A legislative god," "Dearly-beloved Bucksniff," "Divine senator," "Mighty being," "Omnipotence." These appellations may mean that he is vain, self-conceited, pompous, self-aggrandizing, and 166 INJ0EIES TO REPUTATION DEFAMATION assumes a despotic and god-like character above his constituents and all other men, and has to be prayed to and beseeched for legislative favors; or it may be, and probably is, ironical, v^fhich is a kind of ridicule which expresses a fault and apparent assent, but meaning the opposite,— that is, that he is not the greatest, but the smallest and meanest ; or sarcastical or satirical, indicating scorn, contempt, a taunt or a gibe. These very words and phrases are per se libelous. "That which is written or printed and published, calculated to injure the character of another, by bringing him into ridicule or contempt," or "tends to prejudice him in his office," is libelous per se, by all the au- thorities. The address to the pjaintiff as "O dearly-beloved Bucksniff," is ironical and contemptuous, meaning the opposite, — Abated, despised Bucksniff. The whole article, in its general scope and meaning, is calculated to injure the plaintiff in his reputation and character, both as a citizen and a senator, by bringing him into shame, disgrace, hatred, scorn, ridicule, and contempt, and is grossly libelous. Cary v. Allen, 39 Wis. 483 ; Cottrill v. Cramer, 43 Wis. 242 ; Solverson v. Peterson, 64 Wis. 198, 25 N. W. 14, 54 Am. Rep. 607; Bradley v. Cramer, 59 Wis. 309, 18 N. W. 268, 48 Am. Rep. 511; Lansing v. Carpenter, 9 Wis. 541, 76 Am. Dec. 281 ; Spiering v. Andrae, 45 Wis. 330, 30 Am. Rep. 744. The phrases, "beautiful senatorial god," "And look with thy mighty right eye alone," are explained by a colloquium, not by an innuendo, as claimed by the learned counsel of the appellant. "An innuendo is to define the defamatory meaning which the plaintiff sets on the words, and show how they came to have that defamatory mean- ing, and how they relate to.the plaintiff." A colloquium is the state- ment of extraneous facts and circumstances necessary to fully under- stand the defendant's words. The complaint states that these words were spoken "to sneer at and ridicule the deformity of the plaintiff, caused by a partial paralysis of one side of his face and body." The learned counsel of the appellant contends that they have no such meaning. But that is a question for the jury, on the proof of the facts stated. It is difficult to understand what these phrases do mean, if they have not reference to some bodily deformity that gives the plain- tiff's face an ugly or disagreeable appearance. The word "beautiful" is used ironically, to mean the opposite most clearly, and the "mighty right eye alone" would indicate that the other eye was closed or injur- ed. It seems very probable that the explanation in the colloquium is the correct one. With this explanation, the phrases are clearly libel- ous, as exciting ridicule, contumely, and shame. Are the above words and phrases privileged? "A privileged com- munication is a fair comment by a public journal upon a matter of public interest." Starkie, Sland. & L. (Ed. 1877) 332. If this article was a fair or reasonable comment upon the plaintiff's official conduct as state senator, or upon his neglect of his legislative duties, and that was all, it might be privileged. The only part of the article that DEFENSES 1C7 can be called a comment upon his legislative conduct as state senator is as follows: "His majesty, Bucksniff, under the pretense," etc., "intends to defeat these amendments [of the Oshkosh city charter] by procrastination and delay until it is too late for their adop- tion by the legfislature in time for lie spring election." This part of the article, standing alone, would scarcely be libelous ; but if so, it might be also privileged. But those parts of the article, and the most of it, which we have considered above, have no necessary connection with this unobjectionable comment. They are not comments, in any sense, upon the plaintiff's legislative course of action. They are simply gibes, taunts, and contemptuous and insulting phrases ; and most of them personally addressing and alluding to the plaintiff, and inde- pendent of and distinct from any reasonable comments upon his per- sonal or official derelictions of duty, and are not justified or excused by them. They are clearly not privileged, by any principle of law The libelous matter of the article is not enlarged by the innuendoes. The office and use of an innuendo are stated above, and are in the com- plaint. It is used mostly, and properly, to show the person to whom the libelous matter relates. The second count of the complaint clearly states a good cause of action, and the demurrer was properly overruled. The order of the circuit court is affirmed, and the cause remanded for further proceedings at law. IV. Defenses 1. Fair Comment '■^ Sm JOHN CARR, Knt., v. HOOD et al. (London Sittings, after Trinity Term. ISOS. 1 Camp. 355, note, 10 R. R. 701, note.) The declaration stated that the plaintiff, before the publishing of any of the libels thereinafter mentioned, was the author of a certain book entitled "The Stranger in France," a certain other book entitled "A Northern Summer," a certain other book entitled "The Stranger in Ireland," which said books had been respectively published in 4to, yet that defendant, intending to bring upon plaintiff great contempt, laughter and ridicule, falsely and maliciously published a certain false, scandalous, malicious, and defamatory libel, in the form of a book, of and concerning the said books, of which the said Sir John was the author as aforesaid, which same libel was entitled "My Pocket Book, or Hints for a Ryghte Merrie and Conceited Tour," in quarto, to be 11 For discussion of principles, see Chapin on Torts, §§ 72, 73. 168 INJURIES TO REPUTATION DEFAMATION called, "The Stranger in Ireland in 1805" (thereby alluding to the said book of the said Sir John, thirdly above mentioned), by a Knight Er- rant (thereby alluding to the said Sir John), and which same libel con- tained therein a certain false, scandalous, malicious, and defamatory print, of and concerning the said Sir John, and of and concerning the said books of the said Sir John, 1st and 2ndly above mentioned, there- in called "Frontispiece," and entitled "The Knight (meaning the said Sir John) Leaving Ireland with Regret," and containing and represent- ing in the said print, a certain false, scandalous, and malicious, defam- atory, and ridiculous representation of the said Sir John, in the form of a man of ludicrous and ridiculous appearance, holding a pocket handr kerchief to his face and appearing to be weeping, and also containing therein, a certain false, malicious, and ridiculous representation of a man of ludicrous and ridiculous appearance, following the said repre- sentation of the said Sir John, and representing a man loaded with, and bending under the weight of, three large books, one of them having the word "Baltic," printed on the back thereof, etc., and a pocket hand- kerchief appearing to be held in one of the hands of the said repre- sentation of a man, and the corners thereof appearing to be held or tied together, as if containing something therein, with the printed word "Wardrobe" depending therefrom (thereby falsely, scandalously and maliciously meaning and intending to represent, for the purpose of rendering the said Sir John ridiculous, and exposing him to laughter, ridicule and contempt, that one copy of the said 1st mentioned book of the said Sir John, and two copies of the said book of the said Sir John 2ndly above mentioned, were so heavy as to cause a man to bend under the weight thereof, and that his the said Sir John's wardrobe was very small, and capable of being contained in a pocket handkerchief. The declaration concluded by laying as special damage that the plain- tiff had been prevented and hindered from selling to Sir Richard Philips, Knt., for £600, the copyright of a certain book of which the plaintiff was the author, containing an account of a tour by him through part of Scotland. Plea, Not guilty. Lord EllEnborough, as the trial was proceeding, intimated an opinion, that if the book published by the defendants only ridiculed the plaintiff as an author, the action could not be maintained. Garrow for the plaintiff allowed that, when his client came forward as an author, he subjected himself to the criticism of all who might be disposed to discuss the merits of his works ; but that criticism must be fair and liberal; its object ought to be to enlighten the public, and to guard them against the supposed bad tendency of a particular pub- lication presented to them, not to wound the feelings and to ruin the prospects of an individual. If ridicule was employed it should have some bounds. While a liberty was granted of analyzing literary pro- ductions, and pointing out their defects, still he must be considered as a libeler whose only object was to hold up an author to the laughter and contempt of mankind. A man with a wen upon his neck perhaps DEFENSES 169 could not complain if a surgeon in a scientific work should minutely describe it, and consider its nature and the means of dispersing it ; but surely he might support an action for damages against any one who should publish a book to make him ridiculous on account of this in- firmity, with a caricature print as a frontispiece. The object of the book published by defendants clearly was by means of immoderate ridicule to prevent the sale of plaintiff's works and entirely destroy him as an author. In the late case of Tabart v. Tipper, his Lordship had held that a publication by no means so offensive or prejudicial to the object of it, was libelous and actionable. Lord Ellenborough. In that case the defendant had falsely ac- cused the plaintiff of publishing what he had never published. Here the supposed libel has only attacked those works of which Sir John Carr is the avowed author; and one writer in exposing the follies and errors of another may make use of ridicule however poignant. Ridicule is often the fittest weapon that can be employed for such a purpose. If the reputation or pecuniary interests of the person ridi- culed suffer, it is damnum absque injuria. Where is the liberty of the press if an action can be maintained on such principles? Perhaps the plaintiff's "Tour Through Scotland" is now unsaleable ; but is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and in- anity of his compositions? Who would have bought the works of Sir Robert Filmer after he had been refuted by Mr. Locke? But shall it be said that he might have sustained an action for defamation against that great philosopher, who was labouring to enlighten and ameliorate mankind? We really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous ; otherwise the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Re- flection on personal character is another thing. Shew me an attack on the moral character of this plaintiff, or any attack upon his char- acter unconnected with his authorship, and I shall be as ready as any judge who ever sate here to protect him; but I cannot hear of malice on account of turning his works into ridicule. The counsel for the plaintiff still complaining of the unfairness of this publication, and particularly of the print affixed to it, the trial proceeded. Lord Ellenborough said : Every man who publishes a book com- mits himself to the judgment of the public, and any one may com- ment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right. In the present case, had the party writing the criticism followed the plaintiff into domestic life for the purposes of slander, that would have been libelous; but no passage of this sort has been produced, and even the caricature does 170 INJURIES TO REPUTATION DEFAMATION not affect the plaintiff, except as the author of the book which is ridiculed. The works of this gentleman may be, for aught I know, very valuable ; but whatever their merits, others have a right to pass their judgment upon them — to censure them if they be censurable, and to turn them into ridicule if they be ridiculous. The critic does a great service to the public, who writes down any vapid or useless publication, such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash. I speak of fair and candid criti- cism; and this every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury; because it is a loss which the party ought to sustain. It is in short the loss of fame and profits to which he was never entitled. Nothing can be conceived more threatening to the liberty of the press than the species of action before the court. We ought to resist an attempt against free and liberal criticism at the threshold. The Chief Justice concluded by directing the jury that, if the writer of the publication complained of had not traveled out of the work he criticised for the purpose of slander, the action would not lie ; but if they could discover in it anything personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly. Verdict for the defendants. ^^ 2. Privilegb (A) Absolute Privilege '• SCOTT V. STANSFIELD. (Court of Exchequer, 1868. L. R. 3 Exch. 220.) Declaration, for that the plaintiff carried on the business of an ac- countant and scrivener, and the defendant spoke and published of and concerning him, in relation to his said business, the words fol- lowing: "You," meaning the plaintiff, "are a harpy, preying on the vitals of the poor." Plea, that at the time when the alleged grievance was committed, the defendant was the judge of a certain court of record, being the County Court of Yorkshire, and spoke and published the words com- plained of when he was sitting in the said court, and acting in his 12 Compare Buckstaff v. Vlall, supra, p. 164. 18 For discussion of principles, see Cliapln on Torts, | 73 (3). DEFENSES 171 ■capacity as such judge, and was as such judge hearing and trying a cause in which the now plaintiff was defendant, the hearing and de- termination of which was within tlie jurisdiction of the said court. RepHcation, that the said words so spoken and pubHshed by the de- fendant were spoken falsely and maliciously, and without any reason- able, probable or justifiable cause, and without any foundation what- ever, and not bona fide in the discharge of his duty as judge as afore- said, and were wholly uncalled for, immaterial, irrelevant, and impertinent, in reference to, or in respect of, the matters before him, and were wholly unwarranted on the said occasion, of all which prem- ises the defendant had notice before and at the time of the committing of the said grievance, and then well knew. To this replication the defendant demurred, and the plaintiff joined in the issue thus raised. Martin. B.^* It seems to me quite clear that words spoken under the circumstances stated in these pleadings are not the subject of an action of slander. The plea states that the defendant at the time when he spoke the words complained of, was sitting as the judge of a court of record, and spoke them while acting in his capacity of judge, and trying a cause within his jurisdiction in which the present plain- tiff was the defendant. If the words spoken under such circumstances were the subject of an action of slander, tlie most mischievous conse- quences would ensue; no judge would then be able freely to admin- ister justice, for if it were alleged, as is the case here, that he spoke falsely and maHciously, and not bona fide in the discharge of his duty, and that what he said was irrelevant to the matter in hand, a jury would have to determine the question whether what he said in the course of a case which he had jurisdiction to try was or was not said under the circiunstances so alleged. What judge could try a case with any degree of independence if he was to be afterwards subject to have his conduct in the administration of justice commented on to a jury, and the propriety of it determined by them? It appears to me that the opinion expressed by Chief Justice Kent, in the American case cited,^° puts this matter upon its proper foundation, and states, that which is both sound law and good sense in reference to it. I do not think we are really deciding anything new, for to my mind the de- cisions of the Court of Queen's Bench have gone the full length of our present decision. Judgment for the defendant. 1* The statement of the case Is abridged and the concurring opinions of Kelly, C. B., and BramweU and Channell, B. B., are omitted. 15 Xates V. Lansing, 5 Johns. (N. I.) 282 (1810) ; Id., 9 Johns. 395, 6 Am. Dec. 290 (1811). 172 INJUEIES TO REPUTATION DEFAMATION (B) Qualified Privilege " WASON V. WALTER. (Court of Queeii's Bench, 1868. L. H. 4 Q. B. 73.) A petition of the plaintiff was presented to the House of Lords charging a high judicial officer with having made a false statement to his own knowledge, in order to deceive a committee of the House of Commons, and praying inquiry and the removal of the officer if the charge was found true. A debate ensued on the presentation of the petition, and the charge was utterly refuted. In the course of the debate, statements disparaging to the character of the plaintiff were made by the Lord Chancellor and other Lords. The Times newspa- per published a faithful and correct report of these proceedings in the House of Lords, including the debate. The plaintiff sued the propri- etor of the Times for libel. The defendant pleaded "Not guilty." At the trial, the Lord Chief Justice told the jury that if they were satisfied that the matter charged as a libel in the first count was a faith- ful and correct report of the proceedings in the House of Lords, and of the speeches delivered on the occasion, he directed them in point of law that it was a privileged publication, and one which was not the subject of a civil action, and they should find for the defendant on that count. There was a verdict for the defendant. Afterwards a rule was ob- tained for a new trial, on the ground of a misdirection in charging the jury that the publication of the libel was privileged if they should find it to be a true and faithful report of the debate in the House of Lords. CocKBURN, C. J.^' * * * 'pjjg main question for our decision is whether a faithful report in a public newspaper of a debate in either house of parliament, containing matter disparaging to the character of an individual, as having been spoken in the course of the debate, is ac- tionable at the suit of the party whose character has thus been called in question. We are of opinion that it is not. Important as the question is, it comesTiow for the first time before a court of law for decision. Numerous as are the instances in which tlie conduct and character of individuals have been called in question in parliament during the many years that parliamentary debates have been reported in the public journals, this is the first instance in which an action of libel, founded on a report of a parliamentary debate has come before a court of law. There is, therefore, a total absence of di- 18 For discussion of principles, see Chapin on Torts, § 73 (3). 17 The statement of the case and the opinion are abridged. DEFENSES 173 rect authority to guide us. There are, indeed, dicta of learned judges having reference to the point in question, but they are' conflicting and inconclusive, and, having been unnecessary to the decision of the cases in which they wrere pronounced, may be said to be extrajudicial. In the case of Rex v. Wright, 8 T. R. 293, Lawrence, J., placed the reports of parliamentary debates on the same footing with respect to privilege as is accorded to reports of proceedings in courts of justice, and ex- pressed an opinion that the former were as much entitled to protection as the latter. But it is to be observed that in that case the question re- lated to the pubhcation by the defendant of a copy of a report of a committee of tlie House of Commons, which report the House had or- dered to be printed, not to the publication of a debate unauthorized by the House. * * * Decided cases thus leaving us without authority on which to pro- ceed in the present instance, we must have recourse to principle in or- der to arrive at a solution of the question before us, and fortunately we have not far to seek before we find principles in our opinion ap- plicable to the case, and which will afford a safe and sure foundation for our judgment. It is now well established that faithful and fair reports of the proceedings of courts of justice, though the character of individuals may incidentally suffer, are privileged, and that for the publication of such reports the publishers are neither criminally nor civilly respon- sible. The immunity thus afforded in respect of the publication of proceedings of courts of justice rests upon a t\vofold ground. * * * The other and broader principle on which this exception to the general law of libel is founded is that the advantage to the community from publicity being given to the proceedings of courts of justice is so great that the occasional inconvenience to individuals arising from it must yield to the general good. It is true that with a view to dis- tinguish the publication of proceedings in Parliament from that of pro- ceedings of courts of justice it has been said that the immunity ac- corded to the reports of the proceedings of courts of justice is grounded on the fact of the courts being open to the public, while the houses of Parliament are not ; as also that by the publication of the proceedings of th6 courts the people obtain a knowledge of the law by which their dealings and conduct are to be regulated. But in our opinion tlie true ground is that given by Lawrence, J., in Rex v. Wright, namely, that : "Though the publication of such proceedings may be to the disadvan- tage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be uni- versally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience of the private persons whose conduct may be the subject of such pro- ceedings." In Davison v. Duncan, 7 E. & B. 231, Lord Campbell says : "A fair account of what takes place in a court of justice is privileged. 174 INJURIES TO REPUTATION DEFAMATION The reason is that the balance of public benefit from publicity is great- It is of great consequence that the public should know what takes place in court; and the proceedings are under the control of the judges. The inconvenience, therefore, arising from the chance of in- jury to private character is infinitesimally small as cornpared to the convenience of publicity." And Wightman, J., says : "The only foun- dation for the exception is the superior benefit of the publicity of ju- dicial proceedings which counterbalances the injury to individuals,, though that at times may be great." * * * We entirely concur with Lawrence, J., in Rex v. Wright, 8 T. R„ 298, that the same reasons which apply to the reports of the proceed- ings in courts of justice apply also to the proceedings in Parliament. It seems to us impossible to doubt that it is of paramount public and. national importance that the proceedings of the houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends. * * * The analogy between the two cases is in every respect complete. If the rule has never been applied to the reports of parliamentary pro- ceedings till now, we must assume that it is only because the occasion has never before arisen. If the principles which are the foundation of the privilege in the one case are applicable to the other, we must not hesitate to apply them, more especially when by so doing we avoid the glaring anomaly and injustice to which we have before adverted. Whatever disadvantages attach to a system of unwritten law, and of these we are fully sensible, it has at least this advantage, that its elas- ticity enables those who administer it to adapt it to the varying con- ditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has, in many respects, only gradually developed itself into anything like a satisfactory and settled form. ' The full liberty of public writers to comment on the conduct and motive of public men has only in very recent times been recognized. Comments on govern- ment, on ministers and officers of state, on members of both houses of Parliament, on judges and other public functionaries, are now made- every day, which half a century ago would have been the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the dis- charge of public duties? Again, the recognition of the right to pub- lish the proceedings of courts of justice has been of modern growth.. DEFENSES 175 Till a comparatively recent time the sanction of the judges was thought necessary even for the publication of the decisions of the courts upon points of law. * * * It is to be observed that the analogy between the case of reports of proceedings of courts of justice and those of proceedings in Parlia- ment being complete, all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other ; a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection. Our judgment will in no way interfere with the decisions that the publication of a single speech for tlie purpose or with the effect of injuring an individual will be unlawful, as was held in the cases of Rex v. Lord Abingdon, 1 Esp. 226, and Rex v. Creevey, 1 M. & S. 273. * * * Rule discharged. BROW V. HATHAWAY. (Supreme Judicial Court of Massachusetts, 1866. 13 Allen, 239.) Tort for slander. The declaration contained two counts, and the words set forth as slanderous were as follows: "You (meaning the plaintiff) entered our shop and took fifty-eight dollars' worth of goods." "She (meaning the plaintiff) took the goods and has stolen other things before. She stole the goods we missed." "My wife ac- cuses Josephine of entering her shop with a key Monday night, and taking fifty-eight dollars' worth of goods." "When we took account of stock, I accused her to my wife of taking two hundred dollars' worth, either in goods or money." "If I do not (meaning, If I do not lose any-more goods), I shall certainly say it was Josephine ; and if I do, I shall lay it to her." "There has been as good girls as she was, as far as I know, accused of stealing, and owned up to it." "There have been a great number of innocent persons convicted without doubt, and you might be." "When we took account of stock I ac- cused her then to my wife, of taking to the amount of two hundred dollars, either in goods or money, and told her it was time to dis- charge Josephine, and go into the front part of the shop herself." The answer denied the speaking of the words, and set forth, amongst other things, that the defendant's wife was engaged in busi- ness in Fall River, and he was interested therein with her, and the plaintiff had been employed by her in the business, and various ar- ticles and sums of money had been missed from the shop; and, if the defendant spoke the words charged, they were spoken in good faith, without mahce, for the sake of public justice, in the prosecution of an inquiry into a suspected crime, in matters where his interest was 176 INJURIES TO REPUTATION DEFAMATION concerned, to enable him to protect his interest, and in the belief that they were true. At the trial in the superior court, before Vose, J., the plaintiff in- troduced evidence tending to prove the speaking of the words al- leged. The defendant thereupon introduced evidence tending to prove that he with his wife kept a milliner's shop in Fall River; that the plaintiff was employed there in 1864 ; that the other persons employed there were his wife and son; that on taking an account of stock in July, 1864, he discovered a deficit of some two hundred dollars which he could not account for; that he afterwards missed more goods; and that he suspected the plaintiff and discharged her in December, 1864, without informing her of his suspicions or assigning any rea- sons except that he thought he could do better in his front shop. There was also evidence tending to prove that on the night of Janu- ary 9, 1865, some person familiar with the premises entered the shop and stole about fifty dollars' worth of 'goods, of a kind such as the plaintiff had expressed a desire for; that on the morning of January 10th the defendant reported his loss at the police office of the city, and a police officer, without having any warrant, went with him to the house of the plaintiff's mother, where the plaintiff lived, and were in- vited in by the plaintiff, and upon an inquiry by the mother what they wanted the defendant answered that some one had entered his shop, and he then proceeded to use the words charged in the declaration in the presence of the plaintiff, and her mother and younger sister and the police officer. Permission to search the premises was granted, , but no goods were found. The defendant testified that whatever he said or did was in good faith, without malice, and because he believed his suspicions to be true. The defendant thereupon contended that the words constituted a privileged communication, for the making of which he was not liable. But the judge instructed the jury that if the defendant used the words and language alleged in the declaration he would be legally liable therefor, although they might have been used under the circumstances testified, and although he might have believed them to be true, and have had no malicious design to defame the plaintiff. The jury returned a vei'dict for the plaintiff, with $49§.28 damages, and the defendant alleged exceptions. Wells, J. The defendant's wife having lost goods from her store,, and having grounds to suspect that the plaintiff had stolen them, the defendant applied to the chief of police, and, at his suggestion, went with a police officer to the house where the plaintiff resided with her mother, to make inquiry into the matter. No search warrant was taken, but a search was made by permission of the mother and the plaintiff. No stolen goods were found. This proceeding had no au- thority of law, but, with the assent of the householder, there was no impropriety in it ; and there is nothing in the case to show that it was DEFENSES 177 resorted to, or that the attendance of the police officer was procured, otherwise than in good faith and to secure a proper investigation for the discovery of the stolen goods. The words alleged as slanderous were spoken by the defendant on that occasion, in reply to the inquiry of the mother as to "what they wanted," and in explanation of their visit. They all related to the subject-matter of the supposed theft, and the grounds which the de- fendant had to suspect the plaintiff. This statement furnishes tlie con- ditions which establish the legal position of "privilege," rebutting the presumption of malice which the law would otherwise imply, and mak- ing it incimibent upon the plaintiff to show malice in fact in order to recover. The broad general principle is carefully stated in the case of Toogood V. Spyring, 4 Tyrwh. 582, which is referred to in nearly all the later de- cisions upon this subject, and its doctrines have been quoted and ap- proved by this court in Swan v. Tappan, 5 Cush. 104, and Gassett v. Gilbert, 6 Gray, 94. A narrower statement, applicable to the facts of the present case, is made by Lord Ellenborough in Delany v. Jones, 4 Esp. 191, namely : "If done bona fide, as with a view of investigating a fact, in which the party making it is interested, it is not libellous." To the same effect are Padmore v. Lawrence, 11 Ad. & El. 380, and Fowler v. Homer, 3 Camp. 294. In Blackham v. Pugh, 2 C. B. 620, Chief Justice Tindal says : "A communication made by a person imme- diately concerned in interest in the subject matter to which it relates, for the purpose of protecting his own interest, in the full belief that the communication is true and without any malicious motive, is held to be excused from responsibility in an action for a libel." This "privilege" is not defeated by the mere fact that tlie statements were made in the presence of others than the parties immediately in- terested nor that they were intemperate or excessive from overexcite- ment. Toogood v. Spyring, cited above; Dunman v. Bigg, 1 Camp. 269. Whether the subject-matter to which the communications relate the interest in it of the party making them, or his relations to it, are such as to furnish the excuse, is a question to be determined by the court, in in the first instance, assuming that they were made in good faith, in the belief that they were true, and with no motive of malice. If unnecessary publicity b6 given to the statements, or if they go beyond, what is reasonable in imputing crime, these circumstances may tend to show malice in fact; as well as evidence that the defendant knew them to be false, or had no sufficient reason to believe them true, or that he improperly sought or used the occasion to utter the defama- tory words. But, however strong the evidence from these sources may be, and however irresistible the conclusion of malice to be drawn there- from, it is a conclusion of fact, and is to be drawn by the jury, and Chap.Cas.Tobts — 12 178 INJURIES TO REPUTATION DEFAMATION not by the court. The judge who tried this cause instructed the jury- that, if the defendant used the words alleged, he was liable, "although he may have believed them to be true and may have had no malicious design to defame the plaintiff." This ruling, as it seems, must have been based upon the ground, either that the occasion was not one which furnished the excuse of "privilege," or that the defendant had, by some abuse of the privilege, lost the benefit of its protection. If upon the former ground, we think it was wrong as matter of law, both upon the authorities and upon principle. If upon the latter, it was a ques- tion not for the court, but for the jury. This case must be distinguished from those in which the party plead- ing the excuse of "privilege" is guilty of making use of the occasion to utter charges of a character foreign to its legitimate purpose. As, for instance, if this defendant had, in addition to his statements in re- lation to the supposed theft, gone on to criminate the plaintiff gen- erally, or to accuse her of unchastity, it would then have been the duty of the court, in an action for uttering such charges, to instruct the jury that as to such words, not appropriate to the legitimate objects of the occasion, it furnished the defendant no excuse whatever. But in this case the language all related to the subject of the theft which they were investigating, and it should have been left to the jury to determine, upon all the circumstances of the case, whether the defendant was guilty of actual malice. - Exceptions sustained. TRESPASS 179 TRESPASS I. To Land » DOUGHERTY v. STEPP. (Supreme Court of North Carolina, 1835. 18 N. C. 371.) This was an action of trespass quare clausum fregit, tried at Bun- combe on the last circuit, before his Honor Judge Martin. The only- proof introduced by the plaintiff to establish an act of trespass was that the defendant had entered on the unenclosed land of the plaintiff, witl> a surveyor and chain carriers, and actually surveyed a part of it, claim- ing it as his own, but without marking trees or cutting bushes. This his honor held not to be a trespass, and the jury, under his instruc- tions, found a verdict for the defendant, and the plaintiff appealed. RuFFiN, C. J. In the opinion of the court, there is error in the in- structions given to the jury. The amount of damages may depend on the acts done on the land, and the extent of injury to it therefrom. But it is an elementary principle that every unauthorised, and therefore unlawful entry, into the close of another, is a trespass. From every such entry against the will of the possessor, the law infers some dam- age ; if nothing more, the treading down the grass or the herbage, or as here, the shrubbery. Had the locus in quo been under cultivation or en- closed there would have been no doubt of the plaintiff's right to re- cover. Now our courts have for a long time past held that, if there be no adverse possession, the title makes the land the owner's close. Making the survey and marking trees, or making it without marking, differ only in the degree, and not in the nature of the injury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will make a willful entry into the land of another, upon an unfounded claim of right, innocent, which one, who set up no title to the land, could not justify or excuse. On the contrary, the pretended ownership aggravates the wrong. Let the judgment be reversed, and a new trial granted. Per Curiam. Judgment reversed. 1 For discussion of principles, see Chapln on Torts, |§ 75. 76. 180 TRESPASS HANNABALSON v. SESSIONS. (Supreme Court of Iowa, 1902. 116 Iowa, 457, 90 N. W. 93, 93 Am. St. Kep. 250.) Action at law to recover damages for an alleged assault and battery. It appeared that in a war of words the defendant had pushed the plaintiff's arm back from the defendant's side of a partition fence. There was a verdict and judgment for defendant, and plaintiff ap- peals. Weaver, j.2 * * * it is also said that the court erred in in- structing the jury that, if plaintiff leaned over the partition fence and attempted to interfere with the ladder, defendant had the right to use such force upon her as was reasonably necessary to cause her to de- sist, and to expel her from his premises. It is claimed that this instruc- tion is wrong. * * * The general doctrine announced in the in- struction is, in our judgment, correct. The mere fact that the plaintiff did not step across the boundary line does not make her any less a trespasser if she reached her arm across the line, as she admits she did. It is one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the center of the earth, but upward usque ad coelum, although it is, perhaps, doubtful whether owners as quarrelsome as the parties in this case will ever en- joy the usufruct of their property in the latter direction. The maxim, "Ubi pars est ibi est totum" — that where the greater part is, there is the whole — does not apply to the person of the trespasser, and the court and jury could therefore not be expected to enter into any inquiry as to the side of the boundary line upon which plaintiff preponderated, as she reached over the fence top. It was enough that she thrust her hand or arm across the boundary to technically authorize the defendant to demand that she cease the intrusion, and to justify him in using reason- able and necessary force required for the expulsion of so much of her person as he found upon his side of the line, being careful to keep with- in the limits of the rule, "Molliter manus imposuit," so far as was con- sistent with his own safety. Under the instructions of the court, the jury must have found that defendant kept within the scope of his le- gal rights in this respect, and that the alleged assault was not established by the evidence. The judgment of the district court is affirmed. 2 Ttie statement of the case is abridged and part of the opinion omitted. TO CHATTELS 181 II. To Chattels* WINTRINGHAM v. LAFOY. (Supreme Court of New York, 1827. 7 Cow. 735.) On error from the C. P. of the City and County of N. Y. The action in the court below was trespass de bonis asportatis by Lafoy against Wintringham. It appeared on the trial tiiat Wintringham was a constable, who held a fi. fa. issued by the Marine Court of the city, against the goods and chattels of one Gallis, and that Jan. 19, 1826, he levied on the articles in question, consisting of jewelry in the store occupied by Gallis, who was present at the levy. That Gal- lis informed the defendant below that the goods had been assigned by him (Gallis), and the defendant below said he was indemnified. That Gallis placed the articles on the glass case, so that the defend- ant below might look at them to ascertain their value. That the de- fendant below made an inventory, and said he would remove the goods, unless security was given that they would be forthcoming, to answer the execution. That security was, therefore, given, and the articles were left in the store. It further appeared that Dec. 21, 1825, Gallis had executed an assignment of all his property to the plaintiff below, Lafoy, for the purpose, first, of paying law expenses, then the debt of the plaintiff below, then certain other creditors named, and then the rest of his creditors. * * * Savage, C. J.* It is not denied that a debtor in failing circum- stances may prefer one of his creditors, or one set of creditors to an- other; nor is it pretended that any fraud in fact was proved in the court below. Indeed this was negatived by the proof and verdict of the jury. * * * Was there any evidence of a trespass? If a sheriff takes the goods of a stranger, he is liable in this action. It is contended, how- ever, that admitting the goods to belong to the plaintiff, the defendant did no tortious act. Every unlawful interference, by one person with the property or person of another, is a trespass. The defendant in the court below undertook to control the property levied on. He took it into his possession, though there was no manual seizing of it. He was about to take it away, and could have done so, but for the security giv- en him that it should be forthcoming upon the execution. He exercised dominion over it. This was enough to constitute him a trespasser, he having no authority. Trover lies against a defendant who undertakes 8 Tor discussion of principles, see Chapin on Torts, §§ 75, 76. * The statement of facts is abridged and part of the opinion is omitted. 182 TRESPASS to control property in defiance or exclusion of the owner. Reynolds V. Shuler, 5 Cow. 325, 326, and cases cited. The same doctrine is ap- plicable in trespass, as in trover, where the conversion is the tortious intermeddling with the goods of another. The judgment must be affirmed. III. Ab Initio » THE SIX CARPENTERS' CASE. (Court of King's Bencli, 1610. S Coke Rep. 146 a, 77 Reprint, 695.) In trespass brought by John Vaux against Thomas Newman, car- penter, and five other carpenters, for breaking his house, and for an assault and battery, 1 Sept. 7 Jac. in London, in the parish of St. Giles extra Cripplegate, in the ward of Cripplegate, etc., and upon the new assignment, the plaintiff assigned the trespass in a house called the Queen's Head. The defendants to all the trespass prseter fractionem domus pleaded not guilty; and as to the breaking of the house said, that the house praed' tempore quo, etc., et diu antea et postea, was a common wine tavern, of the said John Vaux, with a common sign at the door of the said house fixed, etc., by force whereof the defendants, prsed' tempore quo, etc., viz. hora quarta post meridiem into the said house, the door thereof being open, did enter, and did there buy and drink a quart of wine, and there paid for the same, etc. The plaintiff, by way of replication, did confess, that the said house was a common tavern, and that they entered into it, and bought and drank a quart of wine, and paid for it : but further said, that one John Ridding, servant of the said John Vaux, at the request of the said defendants, did there then deliver them another quart of wine, and a pennyworth of bread, amounting to 8d. and then they there did drink the said wine, and eat the bread, and upon request did refuse to pay for the same: upon which the defendants did demur in law: and the only point in this case was, if the denying to pay for the wine, or the nonpayment, which is all one (for every nonpayment upon request, is a denying in law) makes the entry into the tavern tortious. And first it was resolved ° when an entry, authority, or license, is giv- en to any one by the law, and he doth abuse it, he shall be a trespasser ab initio ; but where an entry, authority, or license is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is that 5 For discussion of principles, see Chapln on Torts, § 77. « A portion of the opinion is omitted. AB INITIO 183 in the case of a general authority or license of law, the law adjudges by tlae subsequent act, quo animo, or to what intent, he entered; for acta exteriora indicant interiora secreta. Vide 11 H. 4, 75 b. But when the party gives an authority or license himself to do anything, he cannot, for any subsequent cause, punish that which is done by his own authority or license, and therefore the law gives authority to enter into a common inn, or tavern, so to the lord to distrain ; to the owner of the ground to distrain damage-f easant ; to him in reversion to see if waste be done ; to the commoner to enter upon the land to see his cat- tle, and such like. Vide 12 E. 4, 8 b; 21 E. 4, 19 b; 5 H. 7, 11 a; 9 H. 6, 29 b; 11 H. 4, 75 b ; 3 H. 7, 15 b ; 28 H. 6, 5 b. But if he who enters into the inn or tavern doth a trespass, as if he carries away any- thing; or if the lord who distrains for rent, or the owner for damage- f easant, works or kills the distress ; or if he who enters to see waste breaks the house, or stays there all night; or if the commoner cuts down a tree, in these and the like cases, the law adjudges that he en- tered for that purpose; and because the act which demonstrates it is a trespass, he shall be trespasser ab initio as it appears in the said books. So if a purveyor takes my cattle by force of a commission, for the King's house, it is lawful ; but if he sells them in the market, now the first taking is wrongful ; and therewith agrees 18 H. 6, 19 b. Et sic de similibus. It was resolved per totam curiam that not doing cannot make the party who has authority or license by the law a trespasser ab initio, because not doing is no trespass, and, therefore, if the lessor distrains for his rent, and thereupon the lessee tenders him the rent and ar- rears, etc., and requires his beasts again, and he will not deliver them, this not doing cannot make him a trespasser ab initio; and therewith agrees 33 H. 6, 47 a. So if a man takes cattle damage-feasant, and the other offers sufficient amends and he refuses to redeliver them, now, if he sues a replevin, he shall recover damages only for the detaining of them, and not for the taking, for that was lawful; and therewith agrees F. N. B. 69, g. temp. E. 1 ; Replevin 27 ; 27 E. 3, 88 ; 45 E. 3, 9. So in the case at bar, for not paying for the wine, the defend- ants shall not be trespassers, for the denying to pay for it is no tres- pass, and therefore they cannot be trespassers ab initio ; and therewith agrees directly in the point 12 Edw. 4, 9 b. For there Pigot, Serjeant, puts this very case, if one comes into a tavern to drink, and when he has drunk he goes away, and will not pay the taverner, the taverner shall have an action of trespass against him for his entry. To which Brian, Chief Justice, said, the said case which Pigot has put is not law, for it is no trespass but the taverner shall have an action for debt. * * * 184 CONVEESION CONVERSION L Denial of Right Essential* SHEA V. INHABITANTS OF MILFORD. (Supreme Judicial Court of Massachusetts, 1888. 145 Mass. 525, 14 N. E. 769.) Tort for the conversion of personal property by plaintiff, Shea, against the inhabitants of the town of Milford. Trial in the superior court, where the jury returned a verdict for the defendant, and the plaintiff alleged exceptions. Aivi^EN, J. The property of the plaintiff alleged to have been con- verted by the defendants was on land belonging to and occupied by the defendant town. The town requested the plaintiff to remove the property to another place on the same parcel of land, and the plaintiff refused to do so, whereupon the defendants removed it to the place assigned by the town. The instruction that if the plaintiff unreasona- bly neglected to remove the property, and the defendants removed it to another part of the lot, doing no unnecessary damage, the plaintiff could not recover, was sufficiently favorable to the plaintiff, even if he occupied under a license which had not been revoked. The evi- dence negatived a conversion of the property by the defendants, and showed that they claimed no title to it, assumed no dominion over it, and did nothing in derogation of the plaintiff's title to it, and that all that was claimed by the defendants was the right to remove the goods from one place to another on their own land. All that was done was in assertion of their right in the land, and in recognition of the plain- tiff's right of property in the chattels. If the plaintiff had the right to occupy the land which he claimed, the act of the defendants was wrongful, and they would be liable to the plaintiff for damages for breach of contract, or for the trespass, but not for the value of prop- erty convei^ted to their own use. Farnsworth v. Lowery, 134 Mass. 512; Fouldes v. Willoughby, 8 Mees. & W. 540; Heald v. Carey, 11 C. B. 977. It is immaterial whether the plaintiff had an unrevoked license to occupy the land, and we express no opinion upon that ques- tion. Exceptions overruled. 1 For discussion of principles, see Oliapin on Torts, §§ 81-83. NONFEASANCE IS INSUFFICIENT 185 II. Nonfeasance is Insufficient* DAVIS V. HURT. (Supreme Court of Alabama, 1897. 114 Ala. 146, 21 South. 468.) Trover by Peter T. Hurt against \\'. F. Davis & Son to recover dam- ages for the alleged conversion by the defendants of three bales of cotton. Issue was joined upon the plea of the general issue. From a judgment for plaintiff, defendants appeal. Reversed. On the trial of the cause, as is shown by the bill of exceptions, the testimony for the plaintiff tended to show that he had purchased from certain parties warehouse certificates for three bales of cotton, which the holders of said certificates had stored with the defendants; that these certificates belonged to the plaintiff; and that subsequently, upon his making demand upon the defendants for the cotton which said certificates represented, the defendants were unable to find the cotton in their warehouse, and that, after diligent search by the plaintiff's agent and the defendants, the cotton was never found. It was further shown that the plaintiff had instructed the defendants to ship to his cotton merchant 45 bales of cotton, in which were included the 3 bales involved in this suit, and that only 42 bales of cotton were received by his cotton merchants ; the 3 bales which were not received being those involved in this suit. The testimony for the defendants tended to show that the defendants made a search for the cotton, with the agent of the plaintiff, and failed to find it, and that they afterwards made a diligent search in their warehouse for said cotton without finding it, and that the cotton vvas never shipped by the defendants, after a de- mand was made by the plaintiff for said cotton, nor was it delivered to any one else; and that the cotton was not in the possession of the defendants at the time the suit was brought. Upon the introduction , of all the evidence, the court, of its own motion, instructed the jury as follows : "If the jury believe from the evidence that the cotton in controversy was stored with the defendants as warehousemen for a reward, and the said defendants, upon demand, failed to deliver said cotton, or to account for its absence, then the defendants are liable in this action to the plaintiff for the value of the cotton and interest thereon from the time of such demand." To the giving of this part of the court's general charge the defendants duly excepted, and also separately excepted to the court's giving, at the request of the plain- tiff, the following written charges: (2) "That if the jury believe from all the evidence that, through negligence, defendants delivered the cot- ton to other parties, or shipped or disposed of it in violation of the or- 2 For discussion of principles, see Chapin on Torts, § 82. 186 CONVERSION ders of plaintiff, then they must find for the plaintiff, if plaintiff has never recovered cotton, or been paid for it." (3) "That there must be some evidence before the jury that the cotton was stolen, before the jury can consider that theory as a part of this case." (4) "In order to sustain trover, it is not necessary to show that the wrongful disposi- tion, appropriation, wasting, or destruction was criminal. It is only necessary to show that the disposition, etc., was made in violation of the property or possession of plaintiff by the defendants." The de- fendants requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (2) "Before the jury can find for the plaintiff in this case, they must be satisfied from the evidence that the defendants ex- ercised some unlawful assumption or dominion over the cotton in con- troversy in defiance or exclusion of the plaintiff's right; or else that the defendants withheld the possession of said cotton from the plain- tiff, claiming the title to said cotton in themselves, or inconsistent with the right of the plaintiff'." (3) "Before the jury can find for the plain- tiff in this case, they must be satisfied from the evidence that the de- fendants have either appropriated tlie cotton in controversy to their own use and enjoyment, or have destroyed it, or are exercising control of it in exclusion and defiance of the plaintiff's titlef or are withhold- ing the possession thereof from the plaintiff under a claim of title in themselves inconsistent with the plaintiff's claim." (4) "The burden of proof in the case is on the plaintiff to satisfy the jury from the evi- dence that the defendants have been guilty of the conversion of the three bales of cotton in controversy, and a mere failure to deliver the cotton on demand is not sufficient evidence of a conversion without more." (5) "Mere nondelivery by a warehouseman of cotton stored with him, on demand, will not support this action. There must be a conversion of the cotton by the warehouseman." The defendants as- sign as error the rulings of the court upon the charges. Brickell, C. J. Warehousemen are of the class of bailees bound to ordinary diligence, and, of consequence, liable only for losses oc- curring from the want of ordinary care. When, however, upon de- mand made, the bailee fails to deliver goods intrusted to his care, or does not account for the failure to make delivery, prima facie negli- gence will be imputed to him ; and the burden of proving loss without the want of ordinary care devolves upon him. Seals v. Edmondson, 71 Ala. 509 ; Prince v. State Fair, 106 Ala. 340, 17 Soiith. 449, 28 L. R. A. 716; Claflin v. Meyer, 75 N. Y. 260; Id., 31 Am. Rep. 467; Boies v. Railroad Co., 37 Conn. 272; Id., 9 Am. Rep. 347. The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive, knowledge of facts, if they exist, is best able to prove them. If the bailee to whose pos- session, control, and care goods are intrusted will not account for the failure or refusal to deliver them on demand of the bailor, the pre- sumption is not violent that he has been wanting in diligence, or that NONFEASANCE IS INSUFFICIENT 187 he may have wrongfully converted, or may wrongfully detain them. Or, if there be injury to or loss of them during the bailment, it is but just that he be required to show the circumstances, acquitting himself of the want of diligence it was his duty to bestow. When tlie bailee fails to return the goods on demand, the principal has an election of remedies. He may sue in assumpsit for a breach of the contract, or in case for negligence, or, if there has been a conversion of the goods, in trover for the conversion. Story, Bailm. §§ 191-269; Bank v. Wheeler, 48 N. Y. 492; Id., 8 Am. Rep. 564; Magnin v. Dinsmore, 70 N. Y. 410: Id., 26 Am. Rep. 608. The gist of the action of trover is the conversion. The right of property may reside in the plaintiff, en- titling him to pursue other remedies, but trover cannot be pursued without evidence of a conversion of the go'ods. , Glaze v. McMillion, 7 Port. 279; Conner v. Allen, 33 Ala. 515; Boiling v. Kirby, 90 Ala. 215, 7 South. 914, 24 Am. St. Rep. 789. In Conner v. Allen, supra, it was said by Rice, C. J. : "Trover is one of the actions the bounda- • ries of which are distinctly marked and carefully preserved by the Code. A conversion is now, as it has ever been, the gist of that ac- tion; and, without proof of it, the plaintiff cannot recover, whatever else he may prove, or whatever may be his right of recovery in an- other form of action." And he adopts the definition or description of a conversion given by Mr. Greenleaf : "A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plain- tiff's right, or in withholding the possession from the plaintiff under a claim of title inconsistent with his own." 2 Greenl. Ev. § 642. In Glaze V. McMillion, supra, it was said: "It is believed that all con- versions may be divided into four distinct classes: (1) By a wrong- ful taking, (2) by an illegal assumption of ownership, (3) by an illegal user or misuser, (4) by a wrongful detention." In Boiling v. Kirby, supra, there was a very full examination of the authorities, and dis- cussion of the essential elements or facts which must concur to consti- tute conversion in the sense of the law of trover, by McClellan, J., and the result declared was that ''conversion upon which recovery in tro- ver may be had must be a positive, tortious act. Nonfeasance, or neg- lect of legal duty, mere failure to perform an act obligatory by con- tract, or by which property is lost to the owner, will not support the action." The case is republished, with elaborate and instructive anno- tation by Mr. Freeman, 24 Am. St. Rep. 789-819. In Railroad Co. v. Kidd, 35 Ala. 209, it was held that "trover will not lie for a bare non- delivery of goods by a warehouseman, unless they are in his posses- sion, and he refuses to deliver them on demand." In Abraham v. Nunn, 42 Ala. 51, it was held that trover would not lie against a ware- houseman for the conversion of goods taken from his possession by an armed force, without negligence or complicity on his part. In Bank 188 CONVERSION ■ V. Wheeler, supra, the defendant had received for acceptance certain bills of exchange, and, at the demand of the person intrusting them to him, failed to return them, saying he could not find them, and might have torn them up with papers he considered of no value. It was held he was not liable in trover, there being no evidence of a voluntary or intentional destruction or loss of the bills ; though he was liable upon his implied promise to present the bills for acceptance, and, if not ac- cepted or paid, to give notice to the plaintiff. Without pursuing further an examination of authorities, it may safely be said that a mere failure by a bailee, on demand made, to de- liver goods which have been intrusted to him, is not a conversion which will support an action of trover, if he sets up no title hostile to or inconsistent with the title of the bailor, or has not appropriated them to his own use, or to the use of a third person, or exercised over them a dominion inconsistent with the bailment. All that can be fairly predicated of the facts found in the record is the mere failure to de- liver the cotton upon the demand of the plaintiff, possession of it not remaining with the defendant. There was no denial of the title of the plaintiff, nor dominion exercised over the cotton inconsistent with the terms of the bailment; no evidence of a conversion or appropriation of it to their own use or to the use of any third person by the defend- ants. The failure to deliver, unexplained, raises a presumption of negligence against them, and may involve them in a liability for a breach of the contract of bailment, or for negligence in the perform- ance of the duty springing from the contract; but it is not the con- version — the positive, tortious act — indispensable to maintain trover. From this view it results there was error in the instruction given vol- untarily by the court below. The second, third, and fourth instruc- tions given at the instance of the plaintiff do not, as is obvious from what we have said, find support in the evidence, and for that reason ought not to have been given, as their immediate tendency was to mis- lead the jury. The second, third, fourth, and fifth instructions re- quested by the defendant should have been given. Let the judgment be reversed, and the cause remanded for further proceedings in con- formity to this opinion. EXEKOISE OF DOMINION 189 III. Exercise of Dominion* SWIM V. WILSON, (Supreme Court of CaUfornia, 1S91. 90 Cal. 126, 27 Pac. 33, 13 L. R. A. 605, 25 Am. St. Rep. 110.) De Havbn, J. The plaintiff was the owner of 100 shares of stock of a mining corporation, issued, to one H. B. Parsons, trustee, and properly indorsed by him. This stock was stolen from plaintiff by an employe in his office, and delivered for sale to the defendant, who was engaged in the business of buying and selling stocks on commission. At the time of placing the stock in defendant's possession, the thief represented himself as its owner, and the defendant relying upon this representation, in good faith, .and without any notice that the stock was stolen, sold the same in the usual course of business, and subse- quently, still without any notice that the person for whom he had acted in making the sale was not the true owner, paid over to him the net proceeds of such sale. Thereafter the plaintiff brought this action to recover the value of said stock, alleging that the defendant had con- verted the same to his own use, and, the facts as above stated appear- ing, the court in which the action was tried gave judgment against de- fendant for such value, and from this judgment, and an order refus- ing him a new trial, the defendant appeals. It is clear that the de- fendant's principal did not by stealing plaintiff's property acquire any legal right to sell it, and it is equally clear that the defendant, acting for him and as his agent, did not have any greater right, and his act was therefore wholly unauthorized, and in law was a conversion of plaintiff's property. "It is no defense to an action of trover that the defendant acted as the'agent of another. If the principal is a wrong- doer, the agent is a wrongdoer also. A person is guilty of a conver- sion who sells the property of another without authority from the own- er, notwithstanding he acts under the authority of one claiming to be the owner, and is ignorant of such person's want of title." Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581 ; Coles v. Clark, 3 Cush. (Mass.) 399; Koch v. Branch, 44 Mo. 542, 100 Am. Dec. 324. In Stephens v. Elwall, 4 Maule & S. 259, this principle was applied where an innocent clerk received goods from an agent of his employer, and forwarded them to such employer abroad; and, in rendering his decision on the case presented. Lord Ellenborough uses this language : "The only ques- tion is whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit, when he sent the goods to his master ; but, 8 For discussion of principles, see Chapin on Torts, § 82. 190 CONVERSION nevertheless, his acts may amount to a conversion; for a person is guilty of conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under the authority of another, who had himself no authority to dispose of it." To hold the defend- ant liable, under the circumstances disclosed here, may seem upon first impression to be a hardship upon him. But it is a matter of everyday experience that one cannot always be perfectly secure from loss in his dealings with others, and the defendant here is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one whom it now appears was a thief, and, relying on his representations, he aided his principal to convert the plaintiff's property into money, and it is no greater hard- ship to require him to pay to the plaintiff the value of this property than it would be to take it away from the innocent vendee who pur- chased and paid for it. And yet it is universally held that the pur- chaser of stolen chattels, no matter how innocent or free from negli- gence in the matter, acquires no title to such property as against the owner, and this rule has been applied in this court to the innocent pur- chaser of shares of stock. Barstow v. Mining Co., 64 Cal. 388, 1 Pac. 349, 49 Am. Rep. 70S ; Sherwood v. Mining Co., 50 Cal. 413. The precise question involved here arose in the case of Bercich v. Marye, 9 Nev. 312. In that case, as here, the defendant was a stock- holder who had made a sale of stolen certificates of stock for a stran- ger, and paid him the proceeds. He was held liable, the court in the course of its opinion saying: "It is next objected that, as the defend- ant was the innocent agent of the person for whom he received the shares of stock, without knowledge of the felony, no judgment should have been rendered against him. It is well settled that agency is no de- fense to an action of trover, to which the present action is analogous." The same conclusion was reached in Kimball v. Billings, 55 Me. 147, 92 Am. Dec. 581, the property sold in that case by the agent being stolen government bonds, payable to bearer. The court there said: "Nor is it any defense that the property sold was government bonds payable to bearer. The bona fide purchaser of a stolen bond payable to bearer might perhaps defend his title against even the true owner. But there is no rule of law that secures immunity to the agent of the thief in^ such cases, nor to the agent of one not a bona fide holder. * * * The rule of law protecting bona fide purchasers of lost or stolen notes and bonds payable to bearer has never been extended to persons not bona fide purchasers, nor to their agents." Indeed, we discover no difference in principle between the case at bar and that of Rogers v. Huie, 1 Cal. 429, 54 Am. Dec. 300, in which case, Ben- nett, J., speaking for the court, said: "An auctioneer who receives and sells stolen property is liable for the conversion to the same ex- tent as any other merchant or individual. This is so both upon prin- ciple and authority. Upon principle, there is no reason why he should be exempted from liability. The person to whom he sells, and who has CONVERSION BY AGENT 191 paid the amount of tlie purchase money, would be compelled to deliv- er the property to the true owner or pay him its full value ; and there is no more hardship in requiring the auctioneer to account for the val- ue of tlie goods than there would be in compelling the right owner to lose them, or the purchaser from the auctioneer to pay for them." It is true that this same case afterwards came before the court, and it was held, in an opinion reported in 2 Cal. 571, 56 Am. Dec. 363, that an auctioneer, who in the regular course of his business receives and sells stolen goods, and pays over the proceeds to the felon, without no- tice that the goods were stolen, is not liable to the true owner as for a conversion. This latter decision, however, cannot be sustained on principle, is opposed to the great weight of authority, and has been practically overruled in the later case of Cerkel v. Waterman, 63 Cal. 34. In that case the defendants, who were commission merchants, sold a quantity of wheat, supposing it to be the property of one Williams, and paid over to him the proceeds of the sale before they knew of the claim of the plaintiff in that action. There was no fraud or bad faith, but the court held the defendants there liable for the conversion of the wheat. In this case it was the duty of the defendant to know for whom he acted, and, lonless he was willing to take the chances of loss, to have satisfied himself that his principal was able to save him harmless if in the matter of his agency he incurred a liability by the conversion of property not belonging to such principal. Judgment and order af- firmed. We concur: Garoutte, J.; McFarland, J.; Sharpstein, J. We dissent : Beatty, C. J. ; Paterson, J. IV. Conversion by Agent* LAVERTY V. SNETHEN. (Court of Appeals of New Xork, 1877. 68 N. Y. 522, 23 Am. Rep. 184.) Church, C. J. The defendant received a promissory note from the plaintiff, made by a third person, and indorsed by the plaintiff, and gave a receipt therefor, stating that it was received for negotiation and the note to be returned the next day or the avails thereof. The plaintiff testified, in substance, that he told the defendant not to let the note go out of his reach without receiving the money. The de- fendant, after negotiating with one Foote about buying the note, de- livered the note to him under the promise that he would get it dis- counted, and return the money to defendant, and he took away the * For discussion of principles, see Chapin on Torts, § 82. 192 CONVERSION note for that purpose. Foote did procure the note to be discounted, but appropriated the avails to his own use. The court charged that, if the jury believed the evidence of the plaintiff in respect to instructing the defendant not to part with the possession of the note, the act of defendant in delivering the note, and allowing Foote to take it away, was a conversion in law, and the plain- tiff was entitled to recover. The exception has been criticised as ap- plying to two propositions, one of which was unobjectionable, and therefore not available. Although not so precise as is desirable, I think that the exception was intended to apply to the proposition above stated, and was sufficient. The question as to when an agent is liable in trover for conversion is sometimes difficult. The more usual liabil- ity of an agent to the principal is an action of assumpsit, or what was formerly termed an action on the case for neglect or misconduct, but there are cases when trover is the proper remedy. Conversion is de- fined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. A constructive conversion takes place when a person does such acts in reference to the goods of another as amount in law to appropriation of the property to himself. Every unauthorized tak- ing of personal property, and all intermeddling with it, beyond the ex- tent of the authority conferred in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condi- tion or interfere with the owner's dominion, is a, conversion. Bouv. Law Diet, title "Conversion." Savage, C. J., in Spencer v. Blackman, 9 Wend. 167, defines it concisely as follows : "A conversion seems to consist in any tortious act by which the defendant deprives the plain- tiff of his goods." In this case the plaintiff placed the note in tlie hands of the defendant for a special purpose not only, but with re- stricted authority (as we must assume from the verdict of the jury) not to part with the possession of the note without receiving the money. The delivery to Foote was unauthorized and wrongful, because con- trary to the express directions of the owner. The plaintiff was en- titled to the absolute dominion over this property as owner. He had a right to part with so much of that dominion as he pleased. He did part with so much of it as would justify the defendant in delivering it for the money in hand, but not otherwise. The act of permitting the note to go out of his possession and beyond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff's property, which resulted in loss, and that interference and disposition constituted, within the general principles referred to, a con- version; and the authorities, I think, sustain this conclusion by a de- cided weight of adjudication. A leading case is Syeds v. Hay, 4 Term R. 260, where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plain- tiff's orders, though the plaintiff might have had them by sending for them, and paying the wharfage. Butler, J., said : "If one man who is CONVERSION BY AGENT 193 intrusted with the goods of another put them into the hands of a third person, contrary to orders, it is a conversion." This case has been re- peatedly cited by the courts of this state as good law, and has never, to my knowledge, been disapproved, although it has been distinguished from another class of cases upon which the defendant relies, and which will be hereafter noticed. In Spencer v. Blackman, 9 Wend. 167, a watch was delivered to the defendant to have its value appraised by a watchmaker. He put it in- to the possession of the watchmaker, when it was levied upon by virtue of an execution, not against the owner, and it was held to be a con- version. Savage, C. J., said : "The watch was intrusted to him for a special purpose, to ascertain its value. He had no orders or leave to deliver it to Johnson, the watchmaker, nor any other person." So, when one hires a horse to go an agreed distance, and goes beyond that distance, he is liable in trover for a conversion. Wheelock v. Wheel- wright, 5 Mass. 103. So when a factor in Buffalo was directed to sell wheat at a specified price, on a particular day, or ship it to New York, and did not sell or ship it that day, but sold it the next day at the price named, held that, in legal effect, it was a conversion. Scott v. Rogers, 31 N. Y. 676. See, also, Addison on Torts, 310, and cases there cited. The cases most strongly relied upon by the learned counsel for the appellant are Dufresne v. Hutchinson, 3 Taunt. 117, and Sarjeant v. Blunt, 16 Johns. 7Z, holding that a broker or agent is not liable in trover for selling property at a price below instructions. The distinc- tion in the two classes of cases, I apprehend, is that in the latter the agent or broker did nothing with the property but what he was author- ized to do. He had a right to sell and deliver the property. He dis- obeyed instructions as to price only, and- was liable for misconduct, but not for conversion of the property — a distinction which, in a practical sense, may seem technical, but is founded probably upon the distinction between an unauthorized interference with the property itself and the avails or terms of sale. At all events, the distinction is fully recognized and settled by authority. In the last case Spencer, J., distinguished it from Syeds v. Hay, supra. He said : "In the case of Syeds v. Hay, 4 Term R. 260, the captain disobeyed his orders in delivering the goods. He had no right to touch them for the purpose of delivering them on that wharf." The defendant had a right to sell the note, and if he had sold it at a less price than that stipulated, he would not have been liable in this action ; but he had no right to deliver the note to Foote to take away, any more than he had to pay his own debt with it. Morally there might be a difference, but in law both acts would be a conversion, each con- sisting in exercising an unauthorized dominion over the plaintiff's prop- erty. Palmer v. Jarmain, 2 M. & W. 282, is plainly distinguishable. There the agent was authorized to get the note discounted, which he did, and appropriated the avails. Parke, B., said: "The defendant Chap.Cas.Toets — 13 194 CONVERSION did nothing with the bill which he was not authorized to do." So in Cairnes v. Bleecker, 12 Johns. 300, where an agent was authorized to deliver goods on receiving sufficient security, and delivered the goods Dn inadequate security, it was held that trover would not lie, for the reason that the question of the sufficiency of the security was a mat- ter of judgment. In McMorris v. Simpson, 21 Wend. 610, Bronson, J., lays down the general rule that the action of trover "may be main- tained when the agent has wrongfully converted the property of his principal to his own use, and the fact of conversion may be made out by showing either a demand and refusal, or that the agent has without necessity sold or otherwise disposed of the property, contrary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own, and may be treated as a tort- feasor." The result of the authorities is that, if the agent parts with the property in a way or for a purpose not authorized, he is liable for a conversion ; but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, or takes inade- quate for sufficient security, he is not liable for a conversion of the property, but only in an action on the case for misconduct. It follows that there was no error in the charge. The question of good faith is not involved. A wrongful intent is not an essential element of the conversion. It is sufficient if the owner has been deprived of his prop- erty by the act of another assuming an unauthorized dominion and control over it. Boyce v. Brockway, 31 N. Y. 490. It is also insist- ed that the parol evidence of instructions not to part with the note was incompetent to vary the terms of the contract contained in the receipt. This evidence was not objected to not only, but the point was not taken in any manner. The attention of the court was not called to it, and the court made no decision in respect to it. * * * " All concur. Judgment affirmed. V. Unlawful Detention 1. Unquaufied Repusai,* BOARDMAN v. SILL. (At Nisi Prlus. Sittings after Michaelmas Term, 49 Geo. IH, 1 Campb. 410, note.) Trover for some brandy, which lay in the defendant's cellars and which when demanded he had refused to deliver up, saying it was his own property. At this time certain warehouse rent was due to 6 The remainder of the opinion is omitted. 8 For discussion of principles, see Chapin on Torts, § 82. UNLAWFUL DETENTION 195 the defendant on account of the brandy of which no tender had been made to him. The Attorney-General contended that the defendant had a lien on the brandy for the warehouse rent, and that till this was tendered, trover would not lie. But Lord EllEnborough considered that, as tlie brandy had been detained on a different ground and as no demand of warehouse rent had been made, the defendant must be taken to have waived his lien, if he had one, which would admit of some doubt. The plaintiff had a verdict. STEELE V. MARSICANO. (Supreme Court of California, 1S94. 102 Cal. 666, 36 Pac. 920.) Harrison, J. The defendant carries on the business of packing fruit at a warehouse on Battery street, in San Francisco, under the name of Overland Packing Company, and is also the president of the American Salt Company, and has his office or headquarters at the office of that corporation, on Sacramento street, in that city. On March 19, 1892, a man named Laton visited the office of the salt company, and in- quired for the defendant, saying that he wished to store some sugar with him at his place on Sacramento street. The defendant was absent from San Francisco, and the clerk in charge told him that they had no room ; and, on his inquiring whether he could store it with the Over- land Packing Company for a few days, the clerk, at his request, know- ing that he was acquainted with defendant, telephoned the inquiry to that place, and received an affirmative reply. Laton then visited the Overland Packing Company's place, and, upon seeing where the sugar was to be stored, said he would send it up. He then went to the of- fice of the plaintiffs, representing himself to be a broker for the de- fendant, and negotiated the purchase in his name of 21 tons of sugar, and directed that it be delivered to the Overland Packing Company. The plaintiffs employed their own drayman for that purpose, and when he reached the packing company's place, on Battery street, the foreman of that place, and one of his men, took it on the trucks and ran it into the building; and a receipt for its delivery was given to the drayman, in the name of the Overland Packing Company. The sugar was de- livered on the 22d of March, but the defendant did not learn of its dehvery until two days thereafter, when he immediately directed his foreman to tell Laton to take the sugar away, which he did, and Laton removed the sugar the next day. On the Monday following, which was collection day, the defendant received from the plaintiffs a statement of his account or purchase of the sugar, and immediately visited the office of the plaintiffs, and denied having made such purchase. The record does not show whether the plaintiffs made any explanation of the transaction with Laton, or what steps they took to investigate the transaction; but they seem to have become satisfied that the purchase 196 CON VERSION of the sugar had not been authorized by the defendant, as instead of bringing an action against the defendant for its value, they made a formal demand upon him, about two wreeks later, for its redelivery, and then brought this action, charging him with the conversion of the sugar. Judgment was rendered in the court below in favor of the plaintiffs, and the defendant has appealed. In order to charge the ' defendant with the conversion of the plain- tiffs' goods, he must be shown to have done some act implying the ex- ercise or assumption of title, or of a dominion over the goods, or some act inconsistent with the plaintiffs' right of ownership, or in repudia- tion of such right. A simple act of intermeddling with another's prop- erty, which does not imply any assertion of title or dominion over the property, and which is done in ignorance of the owner's claim thereto, and without any intention to deprive him of it, will not constitute a conversion. If I find a horse in my lot, I am not guilty of its conver- sion if I turn it into the highway. Nor is the warehouseman, who re- ceives goods from a wrongdoer, and afterwards redelivers them to him, in ignorance of the claim of another, guilty of their conversion. Conversion is a tort, and, to establish it, there must be a tortious act. "If a bailee have the temporary possession of property, holding the same as the property of the bailor, and asserting no title in himself, and in good faith, in fulfillment of the terms of the bailment, either as expressed by the parties or implied by law, restores the property to the bailor before he is notified that the true owner will look to him for it, no action will lie against him, for he has only done what was his duty." Nelson v. Iverson, 17 Ala. 216. See, also, Burditt v. Hunt, 25 Me. 422, 43 Am. Dec. 289. In Parker v. Lomard, 100 Mass. 408, where the defendant took possession of a warehouse in which there was certain cotton belonging to the plaintiff, but which the defendant, upon information to that effect received from his predecessor, entered upon his books as belonging to another, to whom he subsequently de- livered it, it was held that he was not liable for its conversion. In Hill V. Hayes, 38 Conn. 532, some stolen money had been delivered to the defendant by the thief, to be kept for him. The defendant had no knowledge that the money had been stolen, and in a few days gave it to a third party, to be redelivered to her bailor; but it was held that she was not guilty of conversion. See, also, Frome v. Dennis, 45 N. J. Law, 515 ; Loring v. Mulcahy, 3 Allen (Mass.) 575 ; Gurley v. Arm- stead, 148 Mass. 267, 19 N. E. 389, 2 L. R. A. 80, 12 Am. St. Rep. 555. A demand of the property, and a refusal to redeliver it, do not, of themselves, constitute conversion. They are merely evidence from which a conversion may be established, and, as evidence, may be re- pelled by proof that a compliance was impossible. Hill v. Covell, 1 N. Y. 522. A refusal is not evidence of conversion, unless the party had it in his power at the time to deli\ er up the goods. Kelsey v. Gris- wold, 6 Barb. (N. Y.) 436. In order to establish the conversion by mere proof of the demand and refusal, the plaintiff must also show UNLAWFUL DETENTION 197 the ability of the defendant to comply with the demand at the time it is made. Whitney v. Slauson, 30 Barb. (N. Y.) 276 ; Johnson v. Couillard, 4 Allen (Mass.) 446. Under these principles the judgment against the defendant cannot be sustained. As Laton had no authority to negotiate a purchase of the sugar for the defendant, the plaintiffs do not rely upon his pre- tended agency, but seek to charge the defendant with its conversion by reason of the acts done by himself ; claiming that the delivery of the sugar to the defendant, and his subsequent refusal to redeliver it upon their demand, constitute such conversion. But the delivery of the sugar to the defendant was not the result of any act or authority on his part. It was delivered there at the instance of Laton, and must be considered as a delivery to Laton. As Laton had no authority to bind the defendant, his direction to the plaintiffs to deliver the sugar at the defendant's place of business, and their delivery in pursuance thereof, cannot create any obligations against the defendant in refer- ence to the sugar. The taking of a receipt in the name of the Over- land Packing Company is immaterial. It did not establish any relation of contract between the plaintiffs and the defendant ; for it was shown by the plaintiffs that this delivery was made at the instance of Laton, and there was nothing in the receipt which indicated that the delivery was made in pursuance of a purchase on behalf of the defendant. The receipt was only a voucher to Laton that the plaintiffs had followed his direction, and had the same effect as though the sugar had been placed on board a vessel for transportation, or in some other warehouse, for which a drayman's receipt was given. It could not place the de- fendant under any obligation to the plaintiffs, for at the time of its delivery there was no statement on the part of the plaintiffs of the pur- pose with which it was brought to his place, and the defendant was justified in supposing that it was the sugar which Laton had requested might be placed there for a few days. The defendant must be con- sidered as having received the sugar from Laton, and as his bailee. Before the defendant had any knowledge of the relation of the plain- tiffs to the sugar, Laton had removed it from the defendant's packing house, at the direction of the defendant. This direction, and the re- moval, instead of being the exercise of any dominion or control over the sugar by the defendant, was for the purpose of avoiding its con- trol, and freeing himself from any connection with it. It was restoring the sugar into the hands and under the control of the party by whom it had been placed upon his property, and was the reverse of assuming any dominion or claim to it. When, subsequently the defendant visited the plaintiffs' place of business, in response to the bill for the sugar which they had sent him, and disclaimed the purchase, the plaintiff's do not seem to have acquainted him with the facts of the transaction, and did not question his declaration that he had not made the purchase until some two weeks later, when they made a formal demand for its redelivery. As, at this time, it was not in his power to comply with 198 CONVERSION tlie demand, his refusal did not constitute a conversion ; and as none of the previous acts done by him with reference to the sugar had been in the assertion of any dominion over it, or with any knowledge of the plaintiffs' rights, or from which any repudiation of their rights could be implied, he cannot be charged with the conversion. The judgment and order are reversed. We concur : Garouttb, J. ; Van Fleet, J. 2. QUAIJEIED Rei'usai,' BUFFINGTON v. CLARKE. (Supreme Court of Khode Island, 18S7. 15 R. I. 437, 8 Atl. 247.) Per Curiam. The plaintiff sues the defendant in trover for the con- version of a watch. The action was tried in the court of common pleas, where a verdict was rendered for the plaintiff, and comes be- fore us now on the defendant's petition for a new trial, on the ground that the verdict was against the evidence. The report of the testimony shows that the watch originally belonged to the plaintiff's father, who gave it to the plaintiff shortly before his death, and that the plaintiff allowed his father's widow to take and carry it, with the understand- ing that it should come back to him at her death. The watch remained in her possession until her death on September 13, 1884. She was a sister of the defendant, and died in his house, where she had been living for two or three years. There was some talk about the watch at the funeral, but no positive demand for it was made. Indeed, the plaintiff was not present at the funeral. A few days later the plaintiff sent a letter to the defendant demanding the watch. The defendant replied that his sister, the widow, had left a will which he had ; that he would have it probated at the earliest moment ; that the watch was safe; and that until somebody was appointed to take charge of his sister's effects he should not feel at liberty to pass the custody of it to anybody else. Thereupon the plaintiff began this suit ; the writ therein being dated September 25, 1884. It does not appear that the defend- ant had any knowledge that the watch belonged to the plaintiff in the life-time of his sister, and he himself testified that his sister always treated and spoke of it as her own. Neither does it appear that the defendant, at the time of the demand, had any possession of the watch other than as he had possession of the other effects of his sister, by their being in his house, nor that he asserted any claim or right to it. We do not think that the jury were warranted on this testimony in finding a conversion by the defendant. He did not absolutely refuse 1 For discussion ot principles, see Chapin on Torts, § 82. UNLAWFUL DETENTION 199 to deliver the watch to the plaintiff, but only declined to take it from among his sister's effects, and deliver it to him before the appointment of the executor. Proof of demand and refusal is only prima facie proof of conversion, and is ahvays open to explanation. When the refusal is only for a time, for the purpose of ascertaining ownership, no conversion can be inferred, unless the refusal is unreasonably pro- longed. The refusal must amount to a denial of the demandant's right in order to be a conversion. There does not appear to have been any- thing in the conduct of the defendant, or in the language used by him as reported, which could warrant the jury in finding a denial of the plaintiff's right, or anything more than a reasonable time to inquire into and ascertain his dut}^ Singer Mfg. Co. v. King, 14 R. I. 511; also in 24 Amer. Law Reg. (N. S.) 51, and note. Petition granted. 3. Quantum of Plaintiff's Interest * CITIZENS' BANK OF ST. LOUIS v. TIGER TAIL MILL & LAND CO. (Supreme Court of Missouri, Division No. 2, 1S90. 152 Mo. 14.5, 53 S. W. 902.) This is an action of trover for 86 piles of cottonwood lumber, of the alleged value of $5,000, of which plaintiff claims to have been the owner, and which it alleges was wrongfully converted by defendant to its own use. The petition alleges "that heretofore, to wit, on the 28th day of August, 1893, and ever since, plaintiff became, has been, and now is the owner of 86 piles of cottonwood lumber, known as and numbered 1 to 86, both numbers inclusive, situate in the yard of defendant at Tiger Tail, Tenn., and altogether containing 648,100 feet, which said personal property was and is of the value of, to wit, $5,000; that afterwards, to wit, on the day of May, 1894, said property came into the possession of the defendant, who then and there unlawfully converted the same to its own use, and disposed of same, to plaintiff's damage in the sum of $5,000," etc. Burgess, J.° The first question for consideration on this appeal is with respect to the sufficiency of the petition, which defendant con- tends fails to state a cause of action, in that it does not allege that plaintiff ever had possession of the lumber in question, or the right to its possession. The language of the petition is "that heretofore, to wit, on the 28th day of August, 1893, and ever since, plaintiff became, has been, and now is the owner; * * * that afterwards, to wit, on the day of May, 1894, said property came into the posses- 8 For discussion of principles, see Chapin on Torts, § 83. 9 The statement of facts is abridged and a portion of the opinion is omitted. 200 CONVERSION sion of the defendant, who then and there unlawfully converted the same to his own use, and disposed of the same, to plaintiff's damage," etc.; but it does not allege that plaintiff had the possession, or the right to the immediate possession, of the lumber at any time. In Darlington on Personal Property (page 36) the rule is announced that the action of trover "may be maintained only when the plaintiff has been in possession of the goods or has such a property in them as draws to it the right o£ poss'ession." See, also, 26 Am. & Eng. Enc. Law, 744, note 5, and authorities cited. The action must be bottomed on the right of property in the plaintiff, who must have the right of possession as well as the right of property at the time. Id. While the use of formal and technical averments, which were necessary at com- mon law to the statement of a cause of action, have been dispensed with by our Code, and are no longer necessary, the same material al- legations are necessary under it that were -necessary at common law ; and it is clear, we think, that at common law, in order to state a cause of action in trover, the petition should state that the plaintiff had the possession, or the right to the possession, of the property sued for at the time of the conversion (Bank v. Fisher, 55 Mo. App. 51) ; and as no such averment, either expressly or by implication, is made in the petition in this case, it must be held to fail to state a cause of ac- tion. * * * 4. Of^er to Return ^* CARPENTER v. MANHATTAN LIFE INS. CO. (Supreme Court of New Xork,, General Term, Second Department. 1880. 22 Hun, 47.) Barnard, P. J.^^ This is a hard action. The plaintiff was the owner of some hothouse plants which remained upon defendant's prem- ises by its assent, and to accommodate the plaintiff. The plaintiff was notified to remove them, and he delayed doing so for a considerable time ; but when he did endeavor to get them, the defendant refused to deliver them to the plaintiff. This was on Saturday, May 17, 1879. On Monday following, the defendant told the plaintiff he might have the plants. On Tuesday, May 20, 1879, this suit was commenced. The court charged the jury that the plaintiff was entitled to recover the difference between the market value of the property on Saturday and on Monday, when they were tendered back. We think in this charge the court erred. The conversion was made out by a refusal to deliver the property on Saturday. The plaintiff's right of action was then com- 10 For discussion of principles, see Chapln on Torts, § 84. 11 The statement of facts Is omitted. UNLAWFUL DETENTION 201 plete, and could not be destroyed without his consent. If, after a conversion, the goods are received back, either before or after suit brought, it goes to mitigate the damages, and no further. A party whose goods are converted, cannot be forced to receive them back. Livermore v. Northrup, 44 N. Y. 107;, Reynolds v. Shuler, 5 Cow. 323. The judgment should therefore be reversed and a new trial granted, costs to abide event. Dykman, J.: I concur with reluctance. Gilbert, J., dissented. Judgment and order denying new trial reversed and new trial grant- ed; costs to abide event. 202 WASTE WASTE 1 PROFFITT V. HENDERSON. (Supreme Court of Missouri, 1860. 29 Mo. 325.) This was an action by two of the children of David Proffitt, de- ceased, against John H. Henderson. Plaintiffs allege in their petition that David Proffitt at his death was seised of a certain tract of two hundred acres ; that by his last will he devised said land to his widow, Mary Proffitt for life and at her death to his children, John, Lucy, Elizabeth and Susan ; that said Mary Proffitt the widow, conveyed her interest in said land to defendant Henderson for fifty dollars; that Lucy Proffitt conveyed her interest also to the defendant; and that this portion, one-fourth, has been allotted in partition to defendant; that on the remaining one hundred and fifty acres, defendant on, etc., and since, etc., committed waste and injury to said land, by cutting and carrying away timber, to the amount of six hundred dollars; that the value of said land was diminished by having said timber cut and carried away as aforesaid to the amount of six hundred dollars ; that all the valuable rail timber on said land, and a large quantity of fire- wood were wrongfully and unlawfully cut and carried away from said land by the defendant; that by said waste and injury plaintiffs were damaged to the amount of four hundred dollars, which is two-thirds of the damages sustained to those who own the remaining interest in said land by the waste and injury aforesaid; that the value of the rail timber and firewood cut and carried away unlawfully and wrongfully by defendant is three hundred dollars; that plaintiffs are injured by losing the value of the timber thus cut and carried away to the amount of two hundred dollars, which is two-thirds of the damage sustained as aforesaid ; that they are damaged by the diminution in value of said land by the acts and doings above stated to the amount of four hun- dred dollars arid by losing the value of the timber as aforesaid to the amount of two hundred dollars ; that the plaintiffs are each entitled to one-third of the tract of one hundred and fifty acres at the death of Mary Proffitt. Plaintiff prayed judgment for six hundred dollars and that defendant be enjoined from cutting timber. The court sus- tained a demurrer to this petition. This constitutes the error com- plained of. EwiNG, Judge, delivered the opinion of the court. Waste is defined to be the destruction of such things on the land by a tenant for life or years as are not included in its temporary profits. In other words, it consists in such acts as tend to the permanent loss 1 For discussion of principles, see Chapin on Torts, § 86. WASTE 203 ■of the owner in fee or to destroy or lessen the vahie of the inheritance. 1 Hill, on Real Prop. 261. The American doctrine on tlie subject of waste, observes Chancellor Kent, is somewhat varied from the English law, and is more enlarged and better accommodated to the circum- stances of a new and growing country. In England the destruction of timber carries with it tlie idea of a permanent injury to the estate, as timber is scarce and forest trees are planted for useful as well as or- namental purposes, and are too valuable to permit the timber to be unnecessarily destroyed. It is not waste in this country to convert arable land into meadow, nor vice versa; nor is it waste to clear land by a tenant for life. But there is a due and reasonable medium to be observed according to the custom of farmers. To cut down all the timber on a tract of land and sell it would be waste, because it would be detrimental to tlie inheritance. ^NlcCullough v. Irvine's Ex'rs, 13 Pa. 338. But cutting timber and clearing land may, so far from being waste, often enhance the value of the inheritance ; and it is only when there is lasting damage to the reversionary interest, or its value has been lessened, that the tenant in such case is liable for waste. In Davis v. Gilliam, 40 N. C. 311, the doctrine is stated by Chief Justice , Ruffin thus: That, as the state of the country now is a ten- ant for life of land entirely wild, might clear as much of it for culti- vation as a prudent owner of the fee would ; and might sell the timber that grew on that part of the land. Clearing for cultivation, he says, has, according to the decisions, peculiar claims for protection and a sale of the timber from the field cleared may be justly made in com- pensation for clearing and bringing it into cultivation. But it seems altogether unjust that a particular tenant should take off the timber without any adequate compensation to the estate for the loss of it ; for he takes in that case not the product of the estate arising in his own time, but he takes that which nature has been elaborating through ages, being a part of the inheritance itself, and that too which imparts to it its chief value. The rule of pleading in such actions as this is that, if the plaintiff declare as reversioner for an injury done to his reversion, the decla- ration must allege it to have been done to the damage of his reversion, or must state an injury of such a permanent nature as to be neces- sarily injurious to his reversion. Jackson v. Peshed, 1 M. & S. 221 ; Potts V. Clarke, 20 N. J. Law, 542. Are the acts complained of as wrongful of such a nature as necessarily to result in an injury to the reversionary interest? The petition charges that defendant cut down and carried away all the valuable rail timber, and that the value of the timber so carried away is three hundred dollars, and that the land in consequence thereof is diminished in value to the amount of six hun- dred dollars. It is objected that the petition fails to show that the cutting of the timber was not necessary to the profitable enjoyment of the land, or that it was not done for the purpose of cultivation, and that it is not 204 WASTE alleged that the land is valuable for any purpose except the timber. As it respects the first of these objections to the petition, it is conceiv- ed that the profitable enjoyment of the land is not the proper criterion to determine the question of waste. There may be waste when there is such profitable enjoyment and there may be profitable enjoyment without waste. The cutting of the timber may have been necessary to the profitable enjoyment of the land according to the tenant's stand- ard of profit, and yet have been a great outrage upon the rights of the reversioner. It may have been more profitable to the tenant to have cut down and taken away the valuable timber, as the petition alleges, than to have used it in clearing the land or some portion of it. As to the next objection, that the petition is defective in not alleging that the timber was not cut for the purpose of cultivation, we think it clearly appears, though not so expressly stated, that it was not for this purpose. The defendant had purchased the interest of one of the owners in fee, being one-fourth of the tract of two hundred acres, which, under an order of partition had been set off to him, and thus merged his life estate as to that part of the fee, and upon the remain- ing portion of said tract one hundred and fifty acres, the waste is al- leged to have been committed. And the averment that all the valuable rail timber was cut down and carried away clearly enough negatives the idea of its having been used in clearing the land or for any other purpose on the premises. The other objection, that there is no alle- gation that the land was not valuable for any other purpose except timber, is not well taken; for, if the land is valuable for the timber only, it would surely be waste for a tenant to cut and carry away all the timber of any value. If useful for the timber alone, the tenant must in that case, as in all others, respect the rights of the owner of the inheritance and his enjoyment of it must be regulated accordingly. The other Judges concurring, the judgment will be reversed and the cause remanded. FRAUD 205 FRAUD I. Statement* 1. Promise LONG V. WOODMAN. (Supreme Judicial Court of Maine, 1870. 58 Me. 49.) Appleton, C. J.^ This is an action on the case for deceit. The defendant has filed a special demurrer to the declaration, which has been joined. The only inquiry arising is whether it sets forth any cause of action. When stripped of all inculpatory phraseology, the declaration al- leges the following facts : That on the 6th day of March, 1868, the de- fendant, and one George W. Reed, induced the plaintiff to convey to them certain real estate, described in the writ, by lending to him (the plaintiff) two hundred and thirty-six dollars, and by promising to give him a bond to reconvey the property in two years, upon the payment of said sum and interest; that after obtaining said deed they (the de- fendant and said Reed) refused to give said bond ; that on the 5th day of JNIarch, 1870, the plaintiff tendered to the defendant the sum of three hundred and fifty dollars, being said sum of two hundred and thirty-six dollars and interest thereon, and all other charges and ex- penses to which defendant had been put, on account of said property, including taxes and all other sums due from the plaintiff to the defend- ant ; and that he demanded a reconveyance of said property, which defendant then and there refused to, make. To entitle a party to maintain an action for deceit by means of false representations, he must, among other things, show that the defend- ant made false and fraudulent assertions, in regard to some fact or facts material to the transaction in which he was defrauded, by means of which he was induced to enter into it. The misrepresentation must relate to alleged facts or to the condition of things as then existent. It is not every misrepresentation, relating to the subject-matter of the contract, which will render it void or enable the aggrieved party to maintain his action for deceit. It must be as to matters of fact, sub- stantially affecting his interests, not as to matters of opinion, judg- ment, probability, or expectation. Hazard v. Irwin, 18 Pick. (Mass.) 95. An assertion respecting them is not an assertion as to any existent fact. The opinion may be erroneous ; the judgment may be unsound; 1 For discussion of principles, see Chapin on Torts, §§ 87, 88. 2 The statement of facts is omitted. 206 FRAUD the expected contingency may never happen ; the expectation may fail. An action of tort, for deceit in the sale of property, does not lie for false and fraudulent representations concerning profits that may be made from it in the future. Pedrick v. Porter, 5 Allen (Mass.) 324. An action for deceit in the sale of real estate cannot be sustained by proof of fraudulent misrepresentations as to the price paid by the ven- dor. Hemmer v. Cooper, 8 Allen, 334. So in criminal law, to sustain an indictment for cheating by false pretences, there must be direct and positive assertion as to some exist- ing matter of fact, by which the victim is induced to part with his money or property. A false representation, promissory in its nature, as to pay money or do some other act, has never been held to be the founda- tion of a criminal charge. Ranney v. People, 22 N. Y. 413. In an in- dictment for obtaining goods under false pretences, no statement of anything to take place in the future will constitute a pretence within the meaning of the statute. Glackan v. Com., 3 Mete. (Ky.) 232. A representation or assurance in relation to a future event is not a statu- tory false pretence. State v. Magee, 11 Ind. 154. Here the defendant, when or after he obtained his deed, promised "to make, execute, and deliver a good and sufficient bond," to recon- vey, upon certain conditions, the land conveyed to him and Reed, which upon request he refused to do. Here is no false representation or con- cealment of an existent fact. Yet this is the gist of the plaintiff's com- plaint, that a promise made has not been performed. Had it been performed, the plaintiff had no case. Here is a promise to do some future act ; but whether it be to pay money or give a bond is immaterial. If the promise had been to pay a sum of money instead of giving a bond, no action for deceit could have been maintained, though the money was not paid at the stipulated time. This case in no respect differs from a broken promise to pay for goods sold. The goods are delivered upon the expectation that the promise to pay will be performed. The deed was given upon the ex- pectation that the bond would be delivered in accordance with the prom- ise of the grantee. The declaration sets forth a promise to deliver a certain bond as therein described. It does not state whether it is in writing or not. There is no special plea denying it to be in writing. Lawrence v. Chase, 54 Me. 196. If the promise was in writing, it was for a sufficient con- sideration, and the plaintiff may maintain an action thereon. If not in writing it would be void by the statute of frauds. Lawrence v. Chase, 54 Me. 196. But a verbal promise within the statute is no false representation. It is a promise, for the violation of which the law fails to provide a remedy, in case of its nonperformance. In Fisher v. New York C. P., 18 Wend. (N. Y.) 608, the facts were somewhat similar to those in the case at bar. The plaintiff below leased certain premises to the defendant, and promised to make repairs thereon, which he refused STATEMENT 207 to do. Mr. Justice Cowan, in delivering the opinion of the court, uses tlie following language : "Fraud cannot be predicated of a promise not performed, for the purpose of avoiding a written instrument, or a bar- gain of any kind. This case is no more. A contrary doctrine would avoid almost every contract for a breach of which a suit is to be brought. I have only to sa\- tliat the tenant and defendant below were content to take the plaintiff's word. If that was not legally obligatory, then there has been a mistake of the law ; but the defendant could not set that up as fraud." The case of Com. v. Brenneman, 1 Rawle (Pa.) 314, resembles the present. In delivering the opinion of the court, Rogers, J., says: "There is no doubt that in the breach of promise, Henr}- Brenneman, in a moral point of view, was guilty of fraud ; but it was no more fraudulent than any other breach of trust or promise. There was no false representation or concealment of any existing fact, which constitutes the legal idea of fraud." Exceptions overruled. Kent, Walton, Barrows, Danforth, and ToplEy, JJ., concurred. 2. Opinion DEMING v. DARLING. (Supreme Judicial Court of Massachusetts, 1889. 148 Mass. 504, 20 N. E. 107,. 2 L. R. A. 743.) Holmes, J.-' This is an action for fraudulent representations al- leged to have been made to one Dr. Jordan, the plaintiff's agent for the purpose of inducing the plaintiff to purchase a railroad bond from the defendant. * * * Among the representations relied on, one was that the railroad mortgaged, which was situated in Ohio, was good security for the bonds ; and another was that the bond was of the very best and safest, and was an A No. 1 bond. With regard to these and the like, the de- fendant asked the court to instruct the jury "that no representations which the defendant might have made or did make to Dr. Jordan in relation to the value of the bond in question, or of the railroad, its terminals, and other property which were mortgaged to secure it, with other bonds, even though false, were representations upon which Dr. Jordan ought to have relied, and are not sufficient to furnish any grounds for this action," and also "that each of the expressions 'and that the same' (meaning said railroad and all the property covered by the mortgage) 'was good security for said bonds,' 'that said bond was of the very best and safest, and was an A No. 1 bond,' are expressions of s Portions of the opinion have been omitted. 208 FEATJD Opinion of value, and even though false, are not such representations as Dr. Jordan had a right to rely upon, and are not enough to furnish any grounds for this action." The court declined to give these instructions, and instead instructed the jury that "an expression of opinion, judgment, or estimate, or a statement of a promissory nature relating to vsrhat would be in the future, so far as they were expressions of opinion, if made in good faith, however strong as expressions of belief, would not support an action of deceit." It will be seen that the fundamental difference between the instruc- tions given and those asked is that the former require good faith. The language of some cases certainly seems to suggest that bad faith might make a seller liable for what are known as seller's statements, apart from any other conduct by which the buyer is fraudulently induced to forbear inquiries. Pike v. Fay, 101 Mass. 134. But this is a mistake. It is settled that the law does not exact good faith from a seller in those vague commendations of his wares which manifestly are open to difference of opinion, which do not imply untrue assertions concerning matters of direct observation (Teague v. Irwin, 127 Mass. 217), and as to which it always has been "understood, the world over, that such statements are to be distrusted." Brown v. Castles, 1 1 Cush. 348, 350 ; Gordon v. Parmelee, 2 Allen, 212; Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315; Poland v. Brownell, 131 Mass. 138, 142, 41 Am. Rep. 215 ; Bums v. Lane, 138 Mass. 350, 356. Parker v. Moulton also shows that the rule is not changed by the mere fact that the property is at a distance, and is not seen by the buyer. Moreover, in this case, market prices at least were easily accessible to the plaintiff. The defendant was known by the plaintiff's agent to stand in the position of a seller. If he went no further than to say that the bond was an A No. 1 bond, which we understand to mean simply that it was a first rate bond, or that the railroad was good security for the bonds, we are constrained to hold that he is not liable under the circumstances of this case, even if he made the statement in bad faith. See, further, Veasey v. Doton, 3 Allen, 380; Belcher v. Costello, 122 Mass. 189! The rule of law is hardly to be regretted, when it is considered how easily and insensibly words of hope or expectation are converted by an interested memory into statements of quality and value when the expectation has been disappointed. * * * Exceptions sustained. statement 209 3. Concealment* KIDNEY V. STODDARD. (Supreme Judicial Court of Massaehusetts, 1843. 7 Mete. 252.) Trespass upon the case for an alleged fraudulent representation by the defendant as to the credit of his son, Alden D. Stoddard, Jr., in the following letter to F. Delano, of New York: "Fairhaven, 9 mo. 27th, 1841. Frankhn Delano, Esq. — My Dear Sir: The bearer, my son, A. D. Stoddard, Jr., wishes to purchase a bill of goods in your city. Any assistance you can render him, by a recommendation or otherwise, will be gratefully received by him and much oblige your obedient servant who will take the liberty to say that A. D. S., Jr.'s, contracts, of whatever nature, will unquestionably be punctually at- tended to. Very respectfully, your friend, A. D. Stoddard." At the trial before Wilde, J., one Ammidon testified that he was agent of the plaintiffs ; that Stoddard, Jr., called on him in New York, about the 1st of October, 1841, to purchase some goods and referred him to Delano; that the witness called on Delano, who showed said letter to him and stated that he -was not acquainted with the young man, but knew his father and believed him to be a responsible man ; that from the knowledge he had of him he should believe he would see his son through, and that on the strength of the letter he should sell the young man goods to the amount of four or five hundred dollars ; that the witness at that time sold to the son goods to the amount of $260 and afterwards to the amount of $158.50; that the son afterwards applied for more goods, but the witness refused to sell him. The wit- ness testified that he would not have sold him the goods, had it not been for the said letter and the representations of Delano ; that no part of the debt had ever been paid; that he had never attempted to recover the amount of the young man ; that he had called on the defend- ant to effect a settlement, and told him that he (the witness) had un- derstood since the sales that his son was a minor at the time the letter was written ; that the defendant admitted that such was the fact, re- fused to pay the debt, and stated that his son had gone to sea on a whaling voyage. There was other evidence to show that the son was a minor when the letter was written, being between twenty and twenty-one years of age, and that he had then been in business, as a dealer in hats, a year or more. The judge instructed the jury that when a party intentionally con- * For discussion of principles, see Ohapin on Torts, §§ 87, 88. Chap.Cas.Toets — 14 21 D FRAUD ceals a material fact in giving a letter of recommendation it amounts to a false representation ; that the defendant, giving a letter in this case to an unlimited amount, was bound to communicate every material fact; that if he concealed the fact that the son vi^as a minor with the view to give him a credit, knowing or believing that he would not get a credit if that fact was known, it was fraud, and the plaintiff was enti- tled to recover; that it was immaterial whether there was any moral fraud ; and that every man was presumed to know the consequences of his own acts. The defendant's counsel requested the judge to instruct the jury that, if the defendant gave his opinion merely, he was not bound to com- municate any facts, and that, if he gave an honest opinion, he was not liable. But the judge refused so to instruct the jury. It was also contended by the defendant's counsel that the plaintiffs should have made an effort to recover the debt of the son. The jury found a verdict for the plaintiffs for the amount of the goods sold, and the defendant moved for a new trial on the ground that the jury were misdirected in matter of law. Hubbard, J. This cause has been argued with ability and feeling by the counsel for the defendant, who, it had been urged, was a fa- ther, and whose letter was written with strong expressions of parental confidence and affection, and at the same time without false allegations in it. But, while sympathy for a client is highly praiseworthy on the part of counsel, the court are required not to yield to sympathies, or to give way to compassion, but to administer the law in its integrity, although it may seem to bear hardly in particular instances. To bend the rules of law, to avoid the pressure in individual cases, would pro- duce uncertainty in the law itself, and in the end be subversive of justice. It is argued that the jury were compelled to find for the plaintiffs, on the mere concealment of a single fact by the defendant ; or, in other words, that the charge of the presiding judge was erroneous. But the jury was not directed to return a verdict for the plaintiffs, unless they found, as a fact, that the defendant concealed that his son was a minor, with a view to give him a credit and knowing or believing that he would not obtain a credit if that fact were known. It is very certain, as has been maintained by the defendant's coun- sel, that a mistaken opinion honestly given can never be taken as a fraudulent representation. This is true in principle and supported abundantly by autliorities. But the misfortune of the defendant's case is that the verdict of the jury rests not on the honest mistake of the defendant, but upon the ground of material concealment of a fact es- pecially within his knowledge ; a fact important to be known as it re- garded the credit of the son ; a fact designedly concealed and with the view of obtaining that credit for the son, which he, the father, knew or believed he could not obtain if that fact were known. STATEMENT 211 It needs no lengthened argument to establish the materiality of tlie fact. The result of this case is a sufficient witness of it. The plain- tiffs were induced by the letter, from which tliis fact was carefully excluded, to give a credit to the son which they would not otlierwise have given; and, as the direct consequence of it, they have sustained the' loss set out in the declaration. Here then are proved fraud and deceit on the part of defendant, and damage to the plaintiffs ; and these facts have long been held to constitute a substantial cause of action. From the time of the judgment in the great case of Pasley v. Freeman, 3 T. R. 51, to the present day, tlirough the long line of decisions both in England and America, the principle of that case, though with some statute modifications, remains unshaken and unimpaired. The case at bar has been likened to that of Tyron v. Whitmarsh, 1 ^letc. 1, 35 Am. Dec. 339, and the letters in the two cases have much similarity. But in that case, in which the authorities were carefully examined by the court, it was decided that the letter might have been written with an honest conviction of the truth of the assertions con- tained in it. But in the case at bar there was the designed conceal- ment of a ^act with intent to procure a credit which could not be ob- tained if the fact were made known ; and this tlie defendant well knew or believed. We think that tlie principles laid down in that case, though the verdict was set aside, are decisive of the present case. The court there say : "We are therefore of opinion that the question for the jury was whether the defendant knew that the assertion or opinion con- tained in his letter was false, or that he did not fully believe it to be true, or whether he did not conceal a material fact from the knowledge of the plaintiffs with the intention to deceive them. It is true, as the de- fendant's counsel have argued, that the defendant was not bound to disclose the facts on which his opinion was founded; but, if he kept back any material fact with the intent to deceive the plaintiffs, this would be fraudulent." So in Lobdell v. Baker, 1 Mete. 201, 35 Am. Dec. 358, a case, though very different in its facts, yet having features of resemblance to this, the court say : "There was no evidence that the defendant made any express declaration that the note sold was a valid note, and that the makers and indorsers were liable ; but we are all of opinion that if he fraudulently procured the indorsement of Swan, and then authorized Winslow to sell the note, without erasing the name of Swan, knowing as he did that Szvan was a minor, and not by law liable on the note, all this would be equivalent to an express af- firmation that the note was a valid contract, on which the makers of the note and the indorsers were by law liable." It was also argued, in arrest of judgment, that the plaintiff's could not recover, because they had made no attempt to procure the debt from the son; but it being apparent that the declaration set forth a good cause of action, the defendant's counsel, waiving the motion in arrest, argued that the plaintiffs had not made out a case for dam- 212 PEAUD ages, because they had not prosecuted the claim against the son to final judgment; as infancy is only a personal privilege, and there is no cer- tainty he would take advantage of it, and the court cannot presume that he will not pay an honest debt. But the son did not pay the de- mand when due. The plaintiffs therefore sustained the loss of which they complain, by reason of the false representation; and the injury being complete, the cause of action accrued without prosecuting a suit against the son. And, supposing the question turned on the point whether the plaintiff had used due diligence to collect the demand of the son, then it might well be replied that when the plaintiffs came to the knowledge of the fact that the son was a minor, and applied to the father for a settlement, he refused to pay the debt, and informed them that his son had gone to sea on a whaling voyage. If, therefore, the plaintiffs had been bound to pursue the son in the first instance — as we think they were not — still this state of facts would have justified them in not prosecuting the son before looking to the father for redress ; nor does it call on them to await his return, ad vana seu impossibilia non cogit lex. The jury then having established the fraud and deceit on the part of the defendant, and the damage to the plaintiffs, the motion to set aside the verdict is overruled. Judgment on the verdict. II. Intent to Cause Action • HENRY V. DENNIS. (Supreme Judicial Court of Maine, 1901. 95 Me. 24, 49 Atl. 58, 85 Am. St Kep. 365.) WiswELi., C. J.« For some time prior to May 1, 1896, Henry, the plaintiff in one of these suits, had been engaged in the wool business alone, under the name of W. S. Henry, Jr., & Co. On that day he formed a copartnership in the same business with one Charles C. Parsons, and the business was subsequently carried on in the firm name of Henry & Parsons. But after the formation of the firm Mr. Henry continued his individual business, in the name of W. S. Henry, Jr., & Co., to the extent of selling from time to time a quantity of wool which he had on hand at the time of the formation of the copartner- ship. On August 15, 1896, after the formation of the firm of Henry & Parsons, but while Mr. Henry was still selling on his own account the wool which he previously had on hand and which had not been For discussion of principles, see Chapi^^ on Torts, § 88(2). 6 The statement of facts except as-contalned in the opinion Is omitted. INTENT TO CAUSE ACTION 213 turned over to the firm, Henry wrote a letter to the Gardiner Woolen Company, in which he referred to an order for wool just received and in which he says : "At Mr. W. D. Eaton's request we sent you the little lot without any knowledge of your financial standing, but if we are to continue to ship you wool on 60 days' time, we feel justified in informing ourselves in that respect and we presume that you would prefer to have us inquire directly of you than of outside parties. * * * W^ill you kindly favor us with full particulars which we trust will warrant a continuation of our business relations to our mutual benefits." This letter was dictated by Mr. Henry, as shown by the letter, but was signed in the name of W. S. Henry, Jr., & Co. In reply to this letter of inquiry, the defendant, to whom the letter was turned over for reply, under date of August 24, 1896, wrote a letter directed to W. S. Henry & Co., which, it is claimed, contained false and material representations as to the financial standing and condition of the Gardiner \\'oolen Company, which were subsequently acted upon by Mr. Henry, both individually and as a member of the firm of Henry & Parsons, by making sales to the Woolen Company on credit, upon his o\\'n account and upon that of the firm. The plaintiffs, Henry in one case and Henry & Parsons in the other, being unable to collect of the Woolen Company the amounts due them, be- cause of its insolvency, brought these two actions to recover for the injuries sustained by them by reason of the alleged misrepresentations of the defendant. The two cases were tried together, and the jury found against the defendant in both cases. The only question now presented by the exceptions is whether or not the representations contained in the de- fendant's letter directed to W. S. Henry & Co. could have been so acted upon and relied upon by Mr. Henry as a member of the firm of Henry & Parsons that the defendant would be liable to that firm for any injury sustained by it on account thereof, as well as to Henry individually for any injury sustained by him for the same reason. It is urged in behalf of the defendant that he should not be and is not liable to the firm of Henry & Parsons for any misrepresentations contained in that letter, because the letter was not directed to the firm and because there was no privity between it and the defendant. The case shows that the defendant did not know of the existence of Mr. Par"Sons or of the firm of Henry & Parsons. But Henry was tlie active member of the firm, and one who made these sales upon credit to tlie Woolen Company, and the jury must have found that Henry was in- duced to make these sales upon credit, both for himself and for the firm, by the representations contained in the defendant's letter, and that in making the sales and in extending credit to the company, both individually and as a member of the firm, he relied upon these repre- sentations. No authority exactly in point has been called to our attention, but the 214 FRAUD general principles relative to the liability of a person for injuries caused by such misrepresentations, are well settled. One who makes a misrepresentation must, to render himself liable, have made it with the intention that it should be acted upon by the person to whom it is made or by one to whom he intended it should be communicated, and he is therefore responsible to such persons only as it was intended for. It is a general rule that a person cannot complain of false repre- sentations, for the purpose of maintaining an action of deceit, unless the representations were either made directly to him, with the inten- tion that they should be acted upon by him, or made to another per- son with the intention that they should be communicated to him and acted upon by him. A representation made to one person with the intention that it shall reach the ears of another and be acted upon by him, and which does reach him, and is acted upon by him to his in- jury, gives the person so acting upon it tlie same right to relief or redress as if it had been made to him directly. Am. & Eng. Encyc. of Law (2d Ed.) vol. 14, pp. 148 and 149, and cases there cited. See, also, Hunnewell v. Duxbury, 154 Mass. 286, 28 N. E. 267, 13 L. R. A. 733; Nash v. Minn. Title Ins. & Trust Co., 159 Mass. 437, 34 N. E. 625. Applying these general principles to the particular question here involved, we think that the defendant is liable to the firm for such injury as it suffered in consequence of the misrepresentations contained in his letter, whereby the firm was induced. to make sales of its goods to the Woolen Company upon credit. The answer of the defendant to the letter of inquiry was directed to a firm; its object was to ob- tain credit for the Woolen Company from a firm of which Henry was a member. True, the defendant did not know that Parsons was as- sociated in business with Henry, nor did he know, so far as the case shows, that Henry was also doing business alone under a firm name. But he must have contemplated that the contents of this letter would either be communicated to other members of any firm of which Henry was a partner, in that business, and be acted upon by the firm, or that Henry, acting for a firm, would be induced by his letter to give credit to the Woolen Company. The letter was not only intended for Henry, but as well for those associated with him in that business. It is of no consequence that the letter was directed to W. S. Henry & Co., when it was in fact relied upon by Henry as a member of the firm of Henry & Parsons. It is not necessary, in order for a defend- ant to be liable for the consequences of his misrepresentations, that he should know the names of the persons to whom the misrepresenta- tions may be communicated, provided he contemplated that they should be communicated to others and be acted upon by them. Here, as the case shows, Henry, to whom the misrepresentation was directly made, was induced thereby, as a member of the firm of Henry ACTION BY COMPLAINANT 215 & Parsons, to sell the firm's goods on credit, and tliereby the firm suf- fered. This is precisely what was within the intention of the defend- ant; he is consequently liable therefor. This result is in accordance with the ruling of the court at the trial. Exceptions overruled. III. Action by Complainant^ FOTTLER V. MOSELEY. (Supreme Judicial Court of Massachusetts, 1901. 179 Mass. 295, 60 N. E. 788.) Tort for deceit, alleging that, relying upon false and fraudulent representations of the defendant, a broker, that certain sales of stock of the Franklin Park Land Improvement Company in the Boston Stock Exchange from January 1 to March 27, 1893, were genuine transactions, the plaintiff revoked an order for the sale of certain shares of that stock held for him by the defendant, whereby the plain- tiff suffered loss. Writ dated February 17, 1896. At the trial in the Superior Court, Hopkins, J., at the close of the evidence, directed the jury to return a verdict for the defendant. The verdict was returned as directed; and the plaintiff alleged excep- tions. The findings warranted by the evidence are stated in the .opin- ion of this court. Besides the facts stated in the opinion, the following facts appeared in evidence: During the time in question, and for some time before, the plaintiff had been in the habit of buying and selling stocks through the defendant as a broker; and in January, 1891, the defendant, at the request of the plaintiff, agreed to carry for him, on margin, three hundred shares of Franklin Park Land & Improvement Company stock, which the plaintiff bought of one Moody Merrill. It appeared that Merrill had been an acquaintance of the plaintiff since 1880 or 1881 ; that the plaintiff and Merrill were codirectors of the Franklin Park Land & Improvement Company from June, 1891, till June, 1893, and were also codirectors in another corporation; that Merrill was president of the Highland Street Railway Company, was a man well known in Boston and of good reputation until he absconded in June, 1893, when the Franklin Park stock became of little or no value; that after 1892 Merrill and the plaintiff bought and sold stocks on joint account through the defendant. Hammond, J. The parties to this action testified in flat contradic- tion of each other on many of the material issues, but the evidence in behalf of the plaintiff would warrant a fifiding by the jury that on 1 For discussion of principles, see Chapln on Torts, § 88 (3). 216 FRAUD March 25, 1893, the plaintiff, being then the owner of certain shares of stock in the Franklin Park Land Improvement Company, gave an order to the defendant, a broker, who was carrying the stock for him on a margin, to sell it at a price not less than $28.50 per share; that on March 27th the defendant, for the purpose of inducing the plain- tiff to withdraw the order and refrain from selling, represented to the plaintiff that the sales which had been made of said stock in the mar- ket had all been made in good faith and had been "actual true sales throughout" that these statements were made as of personal knowl- edge of the defendant, and that the plaintiff believing them to be true and relying upon them was thereby induced to and did cancel his oral order to the defendants to sell and did refrain from selling, and that the statements were not true as to some of the sales in the open mar- ket of which the last was in December, 1892, and that the defendant knew it at the time he made the representations. The evidence Would warrant a further finding that in continuous reliance upon such repre- sentations the plaintiff kept his stock when he otherwise would have sold it until the following July, when its market value depreciated, and he thereby suffered loss. The defendant, protesting that he made no such representation and that the jury would not be justified in finding that he had, says that even upon such a finding the plaintiff would have no case. He contends that the representation was not material, that a false representation, to be material, must not only induce action, but must be adequate to induce it by offering a motive sufficient to influence the conduct of a mam of average intelligence and prudence, and that in this case the representation complained of, so far as it was false, was not adequate to induce action, because the fictitious sales were so few and distant in time, and that therefore it was not material. It may be assumed that the plaintiff desired to handle his stock in , the manner most advantageous to himself, and that the question whether he would withdraw his order to sell was dependent, somewhat at least, upon his view of the present or future market value of the stock; and upon that question a man of ordinary intelligence or pru- dence would consider whether the reported sales in the market were "true sales throughout," or were fictitious and what was the extent of each. It is true that a corporation may be of so long standing and of such a nature and the number of the shares so great and the daily sales of the stock in the open market so many and heavy that the knowledge that a certain percentage of the sales reported are not ac- tual business transactions would have no effect upon the conduct of an ordinary man. On the other hand, a corporation may be so small and of such a nature and have so slight a hold upon the public and tlie number of its shares may be so small and the buyers so few that the question whether certain reported sales are fictitious may have a very important bearing upon the action of such a man. Upon the evidence in this case we cannot say, as matter of law, that the representation so far as false was not material. This question is for the jury, who are ACTION BY COMPLAINANT 217 to consider it in the light of the nature of the corporation and its stand- ing in the market, and the other matters including such as those of which we have spoken. It is further urged by the defendant that one of the fundamental principles in a suit like this is that the representation should have been acted upon by the complaining party and to his injury; that at most the plaintiff simply refrained from action, and that "refraining from action is not acting upon representation" within the meaning of the rule ; and, further, that it is not shown that the damages, if any, suf- fered by the plaintiff are the direct result of the deceit. Fraud is sometimes defined as the "deception practiced in order to induce another to part with property or to surrender some legal right," Cooley, Torts (2d Ed.) 555, and sometimes as the deception which leads "a. man into damage by willfully or recklessly causing him to be- lieve and act on a falsehood," Pollock Torts (Webb's Ed.) 348, 349. The second definition seems to be more comprehensive than the first (see for instance Barley v. Walford, 9 Q. B. 197, and Butler v. Wat- kins, 13 Wall. 456, 20 L. Ed. 629), and while the authorities establish- ing what is a cause of action for deceit are to a large extent converti- ble with those which define the right to rescind a contract for fraud or misrepresentation and the two classes of cases are generally cited without any express discrimination, still discrimination is sometimes needful in the comparison of the two classes of cases. Pollock, Torts (Webb's Ed.) 352. If is true that it must appear that fraud should have been acted upon. It is a little difficult to see precisely what is meant by the con- tention that "refraining from action is not acting upon representation." If by refraining from action it is meant simply that the person de- frauded makes no change, but goes on as he has been going and would go whether the fraud had been committed or not, then the proposition is doubtless true. Such a person has been in no way influenced, nor has his conduct been in any way changed, by the fraud. He has not acted in reliance upon it. If, however, it is meant to include the case where the person defrauded does not do what he intended and started to do and would have done save for the fraud practiced upon him, the proposition cannot be true. So far as respects the owner of prop- erty, his change of conduct between keeping the property on the one hand and selling it on the other is equally great whether the first in- tended action be to keep or to sell ; and if by reason of fraud practiced upon him the plaintiff was induced to recall his order to sell and be- ing continuously under the influence of this fraud, kept his stock when, save for such fraud, he would have sold it, then with reference to this property he has acted upon the representation within the mean- ing of the rule as applicable to cases like this. Barley v. Walford, 9 Q. B. 197; Butler v. Watkins, 13 Wall. 456, 20 L. Ed. 629. The cases of Lamb v. Stone, 11 Pick, 527, Wellington v. Small, 3 Cush. 145, 50 Am. Dec. 719, and Bradley v. Fuller, 118 Mass. 239, 218 FEAUD upon which the defendant relies, are not authorities for the proposi- tion "that refraining from action is not acting upon representation." As to whether the loss suffered by the plaintiff is legally attributable to the fraud, much can be said in favor of the defendant, and a ver- dict in his favor on this as well as on other material points might be the one most reasonably to be expected upon the evidence, especially when it is considered that during the years 1892 and 1893 the plain- tiff was a director in the company; but we cannot decide the ques- tion as a matter of law. If the fraud operated on the plaintiff's mind continuously up to the time of the depreciation of the stock in June, 1893, so that he icept his stock when otherwise he would have sold it and such was the direct, natural and intended result, then we think the causal relation between the fraud and the loss is sufficiently made out. See Reeve v. Dennett, 145 Mass. 23, 29, 11 N. E. 938. Exceptions sustained. 1. Duty to Investigate ' JACOBSEN V. WHITELY. (Supreme Court of Wisconsin, 1909. 138 Wis. 434, 120 N. W. 285.) Action for damages from deceit. The plaintiff claimed that he was induced to buy capital stock at par to the amount of $3,000 in the Topliff Dry Goods Company, a corporation of this state, by fraudulent representations of the defendants to the effect that said company was doing a prosperous business, that its business was in a flourishing condition, that for the year 1904 it made a net profit in its business of over $4,000 and that the amount of its indebtedness was about $19,000 and its assets about $50,000, all with intent to induce plaintiff to buy said stock. Evidence was introduced of the making of said rep- resentations, of the material falsity thereof, of the extent of oppor- tunity and ability of the plaintiff to ascertain such falsity before the purchase of said stock, and also a large amount of testimony of his opportunity to learn the same after he had purchased it and before commencing suit, during a part of which period he continued in the employ of said corporation at $25 per week, and was also a director and stockholder therein. The making of fraudulent representations was also put in issue both by the pleadings and the evidence. At the close of the trial the court entered judgment of nonsuit, from which the plaintiff appeals. Dodge, J. As this case went off on nonsuit at the close of the plaintiff's evidence, it was only necessary to inquire whether there was any credible evidence which, taken with all intendments and rea- 8 For discussion of principles, see Chapin on Torts, § 88. ACTION BY COMPLAINANT 219 sonable inferences most favorably to the plaintiff, tended to establish the cause of action. It is undeniable that there was evidence that the defendants represented to the plaintiff that tlie corporation had assets of about $50,000; that its debts were only about $19,000; that it was doing a prosperous business and, earned a substantia] profit the preceding year; also that each of those statements was false; that plaintiff relied upon them ; and that the stock purchased was of less value than if the facts stated had been true. MateriaHty of such rep- resentations to the making of the contract cannot well be doubted. We presume, however, the court's reason for entering the nonsuit was, as counsel for respondents argues, that plaintiff had full oppor- tunity for knowing the falsity of the representations made to him before he purchased, and therefore could not and did not rely upon their truth. The rule of law is well established that a purchaser is not justified in relying upon the statements of the seller when their falsity is ob- vious to him, but this does not require that he shall meet every posi- tive statement with incredulity and must search to ascertain whether it is false. The law recognizes the duty of each to refrain from even attempted deceit of another with whom he deals, and the right of the latter to assume that he will do so. It is an unsavory defense for a man who by false statements induces another to act to assert that if the latter had disbelieved him he would not have been injured. Mc- Clellan v. Scott, 24 Wis. 81, 86; Tyner v. Cotter, 67 Wis. 482, 491, 30 N. W. 782. Nevertheless courts will refuse to act for the relief of one claiming to have been misled by another's statements who blindly acts in disregard of knowledge of their falsity, or with such oppor- tunity that by the exercise of ordinary observation, not necessarily by search, he would have known. He may not close his eyes to what is obviously discoverable by him. Northern S. Co. v. Wangard, 117 Wis. 624, 94 N. W. 785, 98 Am. St. Rep. 963 ; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932, and cases there cited ; Miller v. Hack- barth, 126 Wis. 50, 52, 105 N. W. 311. It is in this sense only that opportunity to know the truth will prevent recovery for deceit. Whether the situation presents or fails to present such opportunity is usually a question of fact. The intelligence or acuteness of plaintiff is one important element. Barndt v. Frederick, 78 Wis. 1, 11, 47 N. W. 6, 11 L. R. A. 199; Bowe v. Gage, 127 Wis. 245, 246, 106 N. W. 1074, 115 Am. St. Rep. 1010. Another is the reliance reposed by the buyer on the seller by reason of acquaintance or confidence. These and many other considerations have proper effect in deciding whether the truth was obvious, as appears in the various cases already cited and very many others. Lockwood v. Allen, 113 Wis. 474, 89 N. W. 492; Bostwick v. Mut. L. Ins. Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 h. R. A. 705; Mannel v. Shafer, 135 Wis. 241, 115 220 FEAUD N. W. 801 ; King v. Graef, 136 Wis. 548, 117 N. W. 1058, 20 L. R. A. (N. S.) 86, 128 Am. St. Rep. 1101. In the light of these principles, let us examine the evidence, at least in its tendency. The opportunities claimed to have been enjoyed by the plaintiff from which, it is asserted, he must have known of the falsity of the statements made to him are a visit to the store, with opportunity to observe the stock in trade and to examine the books. With reference to the first we think it entirely open to inference whether mere observation of a dry goods store which, according to defendants' evidence contained from $38,000 to $40,000 worth of varied stock, would have made obvious to the plaintiff the impossi- bility of the total assets of the company equaling $50,000. We appre- hend that no one without a careful examination how boxes and drawers were filled and whether with the more or less valuable kinds of stock, could form even an estimate within twenty-five per cent, of the fact, besides which, of course, such observation would give no light whatever on the amount of the accounts receivable, which were out- standing and which of course constituted assets. As to the books which were in evidence, they are voluminous set of double-entry books, covering all the details of purchases from day to day and of petty sales in a retail business. They consist of a ledger of nearly 600 pages, containing approximately 450 different accounts, several of which extend over many pages, not consecutively, but scattered throughout the book, without complete reference to each page in any index. The books and designation of the general ac- counts of the business are highly artificial and capable of giving or withholding information according as the examiner was familiar with the system of bookkeeping and also with the key to the exact meaning of the several accounts. For example, the merchandise account was closed in N January, 1905, with an entry indicating a gross profit on merchandise of some $9,000. Of course, a skilled bookkeeper would have understood that this apparent profit was subject to various de- ductions, but primarily for expense. Had he turned to the expense account, he would have found that to amount to but $2,600, but he would not have discovered that various classes of expenditures were not included under the caption "expense," such as salaries and wages, insurance, advertising— each of considerable amount. Thus, unless familiar not only with the theory of double-entry bookkeeping, but with the meaning in which the bookkeeper used the titles to the ac- counts, he might have been deluded into an understanding that much profits had been made. True, the profit and loss account would not have shown any net profit, but in order that he must be charged with notice of the profit and loss account it must appear that he had knowl- edge of any such general balance account, which by the way is usually a characteristic of double-entry bookkeeping in form at least. Two of the witnesses most familiar with these books testified that, while ACTION BY COMPLAINANT 221 the facts might have been learned from them, they were apparent only to a skilled bookkeeper — to him only after sufficient critical ex- amination to master the individual peculiarities. There was evidence that the plaintiff possessed no such skill ; that he had no familiarity at all with double-entry bookkeeping or with its theory ; that in his work as a dry goods clerk he had learned how to refer to certain accounts upon other sets of books, but nothing more. It seems to us, therefore, that the jury might well have drawn the conclusion that these books presented to him an incomprehensible maze of figures without meaning or significance, such as to bHnd rather than enlighten. One item upon which defendants dwell is the "bills payable" ac- count, which if understood would have shown an adverse balance of between $21,000 and $22,000 which they claim, witli the verbal in- formation to plaintiff that there was $9,000 of indebtedness in addi- tion to bills payable, as the fact apparently was, at once informed him that the indebtedness was as much as the fact $32,000. But here again a key to the bookkeeper's terminology was essential to any such deduction. What did bills payable mean? Did it include or ex- clude bills owing to wholesale merchants for goods ? The representa- tion to plaintiff was that $10,000 was owing to the bank and about $9,000 to such merchants. The total of $21,000 of the bills payable account would not be violently variant from the total, and on the page on which he must have looked it would have been apparent to a bookkeeper that at least one $3,000 item included in that account rep- resented indebtedness to J. V. Farwell & Co., well-known wholesale merchants; thus justifying an idea that the total covered not only indebtedness to the banks, but also indebtedness to merchants. There is also evidence tending to prove" that the only time when plaintiff sought to avail himself of the offered privilege of examining the books he was accompanied to the store on a Sunday by one of the defendants, who spread certain books upon a desk and then told him that he knew nothing about the bookkeeping and could not explain its meaning, whereby plaintiff was unable to gain any information there- from. The only other actual exhibition of books was made on an evening when plaintiff was called to the store by telephone just as he was retiring for the night. Books were spread upon the table, but all thre'e defendants were present and entered into various discussions with plaintiff and with each other as to the details of an arrangement by which he should come into the corporation the extent to which his name might be helpful and to which he should, for the welfare of the concern, have managerial prominence. We think on both occa- sions there was evidence from which the jury might have well be- lieved not only that no adequate opportunity for the examination nec- essary to the understanding of the books was enjoyed by plaintiff, but the action of the defendants was such as to divert him therefrom. To the foregoing facts may be added the consideration that thfe 222 FRAUD defendants were all long-time acquaintances of the plaintiff, some had been his fellow workmen many years before, and a considerable"' intimacy of friendship had been maintained between them for a long time. Under such circumstances it has often been held that a positive assertion of a fact by the proposed seller may be thought by the trier of facts a sufficient diversion of the purchaser from availing himself of quite obvious opportunities for examination. We cannot avoid the conviction that the inference as to whether or not the falsity of the alleged misrepresentations was so apparent to the plaintiff that he must have known it, by the exercise of that care and observation which a person of ordinary care of equal intelligence and undeirstanding would have exercised, was one for the jury, and that error was com- mitted in granting the nonsuit. * * * o By the Court. Judgment reversed, and cause remanded for new trial. IV. Falsity" LOMERSON V. JOHNSTON. (Court of Errors and Appeals of New Jersey, 1890. 47 N. J. Eq. 312, 20 AtJ. 675, 24 Am. St. Rep. 410.) Garrison, J.^^ We agree with the learned vice chancellor who heard this cause in all his conclusions upon the testimony. The case shows, in the clearest manner that Lomerson, the appellant, being in- volved with Mr. Johnston as surety and indorser, visited Mrs. Johns- ton for the purpose of securing himself against loss through the hus- band by obtaining from the wife a mortgage upon the house left to her by her father. The case further shows, and the vice chancellor so finds, that, in attaining this object, Lomerson made to Mrs. Johns- ton a number of statements, all tending to excite in her mind the live- liest apprehensions that her husband was about to be lodged in jail for debt. The court of chancery by its decree set aside the mortgage thus obtained, considering that it was executed under a species of du- ress. With the result reached we agree, resting our decision, how- ever, upon the ground that it is inequitable to permit the complainant to retain a security for the husband's debt obtained by allowing a false apprehension as to the husband's danger to affect the mind of the wife. That this apprehension was the sole consideration for the wife's compliance is not more clear than that the efficient element of that. » The remainder of the opinion is omitted. 10 For discussion of principles, see Chapin on Torts, § 88 (4). 11 The statement of facts is omitted. SCIENTER 223 apprehension, namely, the belief in the imminence of the anticipated arrest, was not only false, but was so to the knowledge of Lomerson. In order to establish a case of false representation it is not neces- sary that something which is false should have been stated as if it were true. If the presentation of that which is true creates an im- pression which is false, it is, as to him who, seeing the misapprehen- sion, seeks to profit by it, a case of false representation. In tlie pres- ent instance, Mrs. Johnston naturally gathered from the statements made to her by Lomerson that her husband had committed crimes for which he not only could and would be imprisoned, but that his arrest was at hand. The imminence of the danger was the sole motive for the execution of the mortgage. In any other view of the transaction her haste is incomprehensible. Notwithstanding the importance of the demand made upon her, she took no time to reflect, held no con- sultation with her friends, sought no advice. Her one object was to act quickly — ^to be beforehand. And yet this notion of the imminence of her husband's arrest was just the one part of the impression pro- duced upon her mind by Lomerson's statements, which was false, and which he knew to be false. From this time on the case becomes one of false representation, not because falsehoods were stated as if they were facts, but because the state of mind- produced falsely represented the facts. To take advantage of such a state of mind is to profit by a false representation. The decree below is afiirmed, with costs. For affirmance — The Chief Justice, Dixon, Garrison, Magie, Reed, Scudder, Van Syckel, Brown, Clement, Cole, Smith, Whitaker. For reversal — None. V. Scienter" DERRY V. PEEK. (House of Lords, 18S9. 14 App. Cas. 337.) Appeal from a decision of the Court of Appeal. The facts are set out at length in the report of the decisions below, 37 Ch. D. 541. For the present report the following summary will suffice: By a special act (45 & 46 Vict. c. 159) the Plymouth, Devonport & District Tramways Company was authorized to make certain tram- ways. By section 35 the carriages used on the tramways might be moved by animal power and, with the consent of the Board of Trade, by 12 For discussion of principles, see Chapin on Torts, § 88 (5). 224 FRAUD Steam or any mechanical power for fixed periods and subject to the regulations of the Board. By section 34 of the Tramways Act 1870 (33 & 34 Vict. c._ 78), which section was incorporated in the said special act, "all carriages used on any tramway shall be moved by the power prescribed by the special act, and where no such power is prescribed, by animal power only." In February, 1883, the appellants as directors of the company issued a prospectus containing the following paragraph : "One great feature of this undertaking, to which considerable im- portance should be attached, is, that by the special act of Parliament obtained, the company has the right to use steam or mechanical mo- tive power, instead of horses, and it is fully expected that by means of this a considerable saving will result in the working expenses of the line as compared with other tramways worked by horses." Soon after the issue of the prospectus the respondent, relying, as he alleged, upon the representations in this paragraph and believing that the company had an^absolute right to use steam and other mechan- ical power, applied for and obtained shares in the company. The company proceeded to make tramways, but the Board of Trade refused to consent to the use of steam or mechanical power except on certain portions of the tramways. In the result the company was wound up, and the respondent in 1885 brought an action of deceit against the appellants claiming dam- ages for the fraudulent misrepresentations of the defendants whereby the plaintiff was induced to take shares in the company. At the trial before Stirling, J., the plaintiff and defendants were called as witnesses. The effect given to their evidence in this House will appear from the judgments of noble and learned Lords. Stirling, J., dismissed the action; but that decision was reversed by the Court of Appeal (Cotton, L,. J., Sir J. Hannen, and Lopes, L,. J.), who held that the defendants were liable to make good to the plaintiff the loss sustained by his taking the shares, and ordered an inquiry, 37 Ch. D. 541, 591. Against this decision the defendants ap- pealed. Lord HbrscheIvL." My Lords in the statement of claim in this action the respondent, who is the plaintiff, alleges that the appellants made in a prospectus issued by them certain statements which were untrue, that they well knew that the facts were not as stated in the prospectus, and made the representations fraudulently, and with the view to induce the plaintiff to take shares in the company. "This action is one which is commonly called an action of deceit, a mere common law action." This is the description of it given by Cot- ton, L. J., in delivering judgment. I think it important that it should IS Parts of the opinion of Lord Herschell and all of the concurring opinions of Lord Chancellor Halsbury and of Lords Bramwell, Watson and Fitzgerald are omitted. SCIENTEB 225 be borne in mind that such an action differs essentially from one brought to obtain rescission of a contract on the ground of misrepre- sentation of a material fact. The principles which govern the two ac- tions differ widely. Where rescission is claimed it is only necessary to prove that there was misrepresentation; then, however honestly it may have been made, however free from blame the person who made it, the contract, having been obtained by misrepresentation, cannot stand. In an action of deceit, on the contrary, it is not enough to es- tablish misrepresentation alone ; it is conceded on all hands that some- thing more must be proved to cast liability upon the defendant, though it has been a matter of controversy what additional elements are req- uisite. I lay stress upon this because observations made by leai^ned judges in actions for rescission have been cited and much relied upon at the bar by counsel for the respondent. Care must obviously be observed in applying the language used in relation to such actions to an action of deceit. Even if the scope of the language used extend bej'ond the particular action which was being dealt with it must be re- membered that the learned judges were not engaged in determining what is necessary to support an action of deceit, or in discriminating with nicety the elements which enter into it. There is another class of actions which I must refer to also for the purpose of putting it aside. I mean those cases where a person with- in whose special province it lay to know a particular fact, has given an erroneous answer to an inquiry made with regard to it by a person desirous of ascertaining the fact for the purpose of determining his course accordingly, and has beefi held bound to make good the assur- ance he has given. Burrowes v. Lock, 10 Ves. 470, may be cited as an example, where a trustee had been asked by an intended lender, upon the security of a trust fund, whether notice of any prior incumbrance upon the fund had been given to him. In cases like this it has been said that the circumstance that the answer was honestly made in the belief that it was true affords no defence to the action. Lord Sel- borne pointed out in Brownlie v. Campbell, 5 App. Cas. at p. 935, that these cases were in an altogether different category from actions to re- cover damages for false representation, such as we are now dealing with. One other observation I have to make before proceeding to consider the law which has been laid down by the learned judges in the Court of Appeal in the case before your Lordships. "An action of deceit is a common law action, and must be decided on the same principles, ^vhether it be brought in the Chancery Division or any of the Common- Law Divisions, there being, in my opinion, no such thing as an equi- table action for deceit." This was the language of Cotton, L. J., in Arkwright v. Newbould, 17 Ch. D. 320. It was adopted by Lord Blackburn in Smith v. Chadwick, 9 App. Cas. 193, and is not, I think, open to dispute. Chap.Cas.Toets — ^15 226 FRAUD In the Court below Cotton, L,. J., said : "What in my opinion is a correct statement of the law is this, that where a man makes a state- ment to be acted upon by others which is false, and which is known by him to be false, or is made by him recklessly, or without care whether it is true or false, that is, without any reasonable ground for believing it to be true, he is liable in an action of deceit at the suit of any one to whom it was addressed or any one of the class to whom it was addressed and who was materially induced by the misstatement to do an act to his prejudice." About much that is here stated there cannot, I think, be two opinions. But when the learned Lord Justice speaks of a statement made recklessly or without care whether it is ' true or false, that is without any reasonable ground for believing it to be true, I find myself, with all respect, unable to agree that these are convertible expressions. To make a statement careless whether it be true or false, and therefore without any real belief in its truth, appears to me to be an essentially different thing from making, through want of care, a false statement, which is nevertheless honestly believed to be true. And it is surely conceivable that a man may believe that what he states is the fact, though he has been so wanting in care that the Court may think that there were no sufficient grounds to warrant his belief. I shall have to consider hereafter whether the want of reason- able ground for believing the statement mad^ is sufficient to support an action of deceit. I am only concerned for the moment to point out that it does not follow that it is so, because there is authority for say- ing that a statement made recklessly, without caring whether it be true or false, affords sufficient foundation for such an action. * * * It will thus be seen that all the learned judges concurred in think- ing that it was sufficient to prove that the representations made were not in accordance with fact, and that the person making them had no reasonable ground for believing them. -They did not treat the absence of such reasonable ground as evidence merely that the statements were made recklessly, careless whether they were true or false, and without belief that they were true, but they adopted as the test of liability, not the existence of belief in the truth of the assertions made, but whether the beHef in them was founded upon any reasonable grounds. It will be seen, further, that the court did not purport to be establishing any new doctrine. They deemed that they were only following the cases already decided, and that the proposition which they concurred in lay- ing down was established by prior authorities. Indeed, Lopes, L. J., expressly states the law in this respect to be well settled. This ren- ders a close and critical examination of the earlier authorities neces- sary. I need go no further back than the leading case of Pasley v. Free- man, 2 Smith's L. C. 74. If it was not there for the first time held that action of deceit would lie in respect of fraudulent representa- tions against a person not a party to a contract induced by them, the SCIENTEK 227 law was at all events not so well settled but that a distinguished judge, Grose, J., differing from his brethren on the bench, held that such an action was not maintainable. Buller, J., who held that the action lay, adopted in relation to it the language of Croke, J., in 3 Bulstrode, 95, who said : "Fraud without damage or damage without fraud gives no cause of action, but where these two concur an action lies." * * , * Having now drawn attention, I believe, to all the cases having a material bearing upon the question under consideration, I proceed to state briefly tlie conclusions to which I have been led. I think the au- thorities establish the following propositions: First, in order to sus- tain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) with- out belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudu- lent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the per- son to whom the statement was made. j I think these propositions embrace all that can be supported by de- cided cases from the time of Pasley v. Freeman down to Western Bank of Scotland v. Addie in 1867, Law Rep. 1 H. L. Sc. 145, when the first suggestion is to be found that belief in truth of what he has stated will not suffice to absolve the defendant if his belief be based on no reasonable grounds. I have shewn that this view was at once dissented from by Lord Cranworth so that there was at the outset as much authority against it as for it. And I have met with no further assertion of Lord Chelmsford's view until the case of Weir v. Bell, 3 Ex. D. 238, where it seems to be involved in Lord Justice Cotton's enunciation of the law of deceit. But no reason is there given in support of the view; it is treated as established law. The dictum of the late Master of the Rolls that a false statement made through care- lessness, which the person making it ought to have known to be un- true, would sustain an action of deceit, carried the matter still fur- ther. But that such an action could be maintained notwithstanding an honest belief that the statement made was true, if there were no reasonable grounds for the behef, was, I thmk, for the first time de- cided in the case now under appeal. In my opinion making a false statement through want of care falls far short of, and is a very different thing from, fraud, and the same may be said of a false representation honestly believed though on in- 228 FRAUD sufficient grounds. Indeed Cotton, L. J., himself indicated, in the words I have already quoted, that he should not call it fraud. But the whole current of authorities, with which I have so long detained your Lordships, shews to my mind conclusively that fraud is essential to found an action of deceit, and that it cannot be maintained where the acts proved cannot properly be so termed. And the case of Taylor V. Ashton, 11 M. & W. 401, appears to me to be in direct conflict with the dictum of Sir George Jessel, and inconsistent with the view taken by the learned judges in the court below. I observe that Sir Freder- ick Pollock, in his able work on Torts (page 243, note), referring, I presume, to the dicta of Cotton, L. J., and Sir George Jessel, M. R., says that the actual decision in Taylor v. Ashton, 11 M. & W. 401, is not consistent with the modern cases on the duty of directors of com- panies. I think he is right. But for the reasons I have given I am unable to hold that anything less than fraud will render directors or any other persons liable to an action of deceit. At the same time I desire to say distinctly that when a false state- ment has been made the questions whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for consideration. The ground upon which an alleged belief was found- ed is a most important test of its reality. I can conceive many cases where the fact that an alleged belief was destitute of all reasonable foundation would suffice of itself to convince the court that it was not really entertained, and that the representation was a fraudulent one. So, too, although means of knowledge are, as was pointed out by I^ord Blackburn in Brownlie v. Campbell, 5 App. Cas. at p. 952, a very dif- ferent thing from knowledge, if I thought that a person making a false statement had shut his eyes to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated that which was false. I have arrived with some reluctance at the conclusion to which I have felt myself compelled, for I think those who put before the pub- lic a prospectus to induce them to embark their money in a commer- cial enterprise ought to be vigilant to see that it contain such represen- tations only as are in strict accordance with fact, and I should be very unwilling to give any countenance to the contrary idea. I think there is much to be said for the view that this moral duty ought to some extent to be converted into a legal obligation, and that the want of reasonable care to see that statements, made under such circumstances, are true, should be made an actionable wrong. But this is not a mat- ter fit for discussion on the present occasion. If it is to be done the legislature must intervene and expressly give a right of action in re- spect of such a departure from duty. It ought not, I think to be done by straining the law, and holding that to be fraudulent which the tri- bunal feels cannot properly be so described. I think mischief is likely SCIENTEK 229 to result from blurring the distinction between carelessness and fraud, and equally holding a man fraudulent whether his acts can or cannot be justly so designated. It now remains for me to apply what I believe to be the law to the facts of the present case. * * * I agree with the court below that the statement made did not ac- curately convey to the mind of a person reading it what the rights of the company were, but to judge whether it may nevertheless have been put forward without subjecting the defendants to the imputation of fraud, your Lordships must consider what were the circumstances. By the General Tramways Act of 1870 it is provided that all carriages used on any tramway shall be moved by the power prescribed by the special act, and where no such power is prescribed, by animal power only. 33 & 34 Vict. c. 78, § 34. In order, therefore, to enable the company to use steam power, an act of Parliament had to be obtained empowering its use. This had been done, but the power was clogged with the condition that it was only to be used with the consent of the Board of Trade. It was therefore incorrect to say that the company had the right to use steam; they would only have that right if they obtained the consent of the Board of Trade. But it is impossible not to see that the fact which would impress itself upon the minds of those connected with the company was that they had, after submitting the plans to the Board of Trade, obtained a special act empowering the use of steam. It might well be that the fact that the consent of the Board of Trade was necessary would not dwell in the same way. upon their minds, if they thought that the consent of the Board would be obtained as a matter of course if its requirements were complied with and that it was therefore a mere question of expenditure and care. The provision might seem to them analogous to that contained in the General Tramways Act, and I believe in the Railways Act also, pro- hibiting the line being opened until it had been inspected by the Board of Trade and certified fit for traffic, which no one would regard as a condition practically limiting the right to use the line for the purpose of a tramway or railway. I do not say that the two cases are strictly analogous in point of law, but they may well have been thought so by business men. I turn now to the evidence of defendants. * * * (Lord Her- schell here reviewed the evidence of each of the five defendants.) As I have said, Stirling, J., gave credit to these witnesses and I see no reason to differ from him. What conclusion ought to be drawn from their evidence? I think they were mistaken in supposing that the consent of the Board of Trade would follow as a matter of course because they had obtained their act. It was absolutely in the discre- tion of the Board whether such consent should be given. The prospec- tus was therefore inaccurate. But that is not the question. If they believed that the consent of the Board of Trade was practically con- 230 FRAUD eluded by the passing of the act, has the plaintiff made out, which it was for him to do, that they have been guilty of a fraudulent misrep- resentation? I think not. I cannot hold it proved as to any one of them that he knowingly made a false statement, or one which he did not believe to be true, or was careless whether what he stated was true or false. In short, I think they honestly believed that what they asserted was true, and I am of opinion that the charge of fraud made against them has not been established. * * * Adopting the language of Jessel, M. R., in Smith v. Chadwick, 20 Ch. D. at page 67, I conclude by saying that on the whole I have come to the conclusion that the statement, "though in some respects inaccu- rate and not altogether free from imputation of carelessness, was a fair, honest and bona fide statement on the part of the defendants, and by no means exposes them to an action for deceit." I think the judgment of the Court of Appeal should be reversed. VI. Damage ^* URTZ V. NEW YORK CENT. & H. R. R. Co. (Court of Appeals of New York, 1911. 202 N. Y. 170, 95 N. B. 711.) The action is to recover the damages sustained by the plaintiff through the false representations made to her by the defendant. April 9, 1906, the plaintiff's husband and intestate was killed at a highway crossing of defendant's railroad through a collision between an engine of the defendant and a wagon in which the intestate was rid- ing. The team of the intestate was also killed and his wagon demol- ished. One McCormick was a division claim agent of defendant, and it was his duty to investigate the accident and report thfe facts to its chief claim agent with his opinion as to its liability. He investigated the circumstances surrounding the accident, and then entered upon a series of misrepresentations to both the plaintiff and defendant. The result of those to the defendant was that on April 17, 1906, he was au- thorized by it to settle with the plaintiff on the best terms he could within the sum of $2,500, and on April 27th the defendant forwarded to him its check for $2,250, payable to the- order of and to be deliv- ered to the plaintiff upon the execution by her of a voucher and a general release of her claim. On April 30th McCormick told the plain- tiff that he had looked up all the facts and talked with everybody who knew anything about the case; he had found out that the intestate was drunk and when a man told him that the train was coming he said he could take cafe of himself, and he didn't care whether the train was 1* For discussion of principles, see Chapin on Torts, § 88 C6). DAMAGE 231 coming or not; the train was going eight miles an hour and the bell was ringing and the whistle blowing; one could see up and down the track for half a mile at the point of the accident; he would pay well for the team and wagon but not for killing the intestate, as tlie law was now that they would not have to pay for anything only prop- erty; the team and wagon were worth about $200 and the defendant wanted to be liberal and made it $500, and that was all it would pay. The plaintiff on that occasion accepted $500 in full settlement of her claim and signed the voucher and release. She subsequently brought this action, alleging by her complaint that all the representations made by McCormick were false and fraudulent and induced her to make the settlement and demanding judgment for the damages she had there- by sustained. At the trial the plaintiff introduced evidence in proof of the false and fraudulent nature of the statements of McCormick and her reliance thereon, and the defendant introduced opposing evidence. The trial judge in his charge instructed the jury in substance that, if they found that the statements made by McCormick were misrepre- sentations of facts and were fraudulently made and were relied upon by the plaintiff, then she was entitled to recover as damages "the amount the plaintiff could reasonably obtain on a settlement where nothing but the true facts were given or relied upon, deduct from that the amount paid, and the residue would be the recovery. In other words, how much could the plaintiff reasonably have demanded and received from the defendant by way of settlement if these false repre- sentations had not been made ?" The defendant's counsel requested the. judge to charge that the plaintiff, in order to maintain the action, must show, in the first instance, that she had a valid and existing claim against the defendant originally, and the judge responded: "I refuse to charge in that language. She must show that there was a claim which was disputed and contested ; that she was alleging a claim based upon facts sufficient that she could reasonably apprehend that she had ^a just claim and that the defendant could also feel that she had a just claim." Proper exceptions thereto were taken. The verdict of the jury in favor of plaintiff was unanimously affirmed. Collin, J.'^^ In an action for the recovery of damages caused by the fraud of the defendant, the plaintiff must allege and prove that he has been injured by the fraud which he charges. The essential con- stituents of the action are firmly fixed and are tersely stated in Arthur V. Griswold, 55 N. Y. 400, as "representation, falsity, scienter, deception and injury." Pecuniary loss to the deceived party is absolutely es- sential to the maintenance of the action. Fraud and deceit alone do not warrant the recovery of damages. Deceit and injury must con- cur. Taylor v. Guest, 58 N. Y. 262; Ettlinger v. Weil, 184 N. Y. 179, 77N. E. 31. 15 A portion of the opinion of Collin, J., and all the dissenting opinion of Vann, J., Is omitted. 232 FEAUD In the action at tar the plaintiff was not defrauded by the transac- tions between herself and HcCormick unless, as a result thereof, she lost something of value. In case that result was a gain to her or pure- ly negative, representing neither gain nor loss, clearly thei-e is no room for the application thereto of any rule of damages; the enforcement of any measure of damages, when loss and damage are wholly lacking, is impossible and inconceivable. Dung v. Parker, 52 N. Y. 494 ; Hicks V. Deemer, 187 111. 164, 58 N. E. 252. In Hicks v. Deemer, supra, the action was to recover the damages sustained by the plaintiff because of the false representations on the part of the defendants, in that they induced the plaintiff to convey his interest in certain land under the erroneous belief created by defendants' deceit that he owned only a life estate therein, whereas, as he alleged, he was the owner in fee simple. At the trial the plaintiff gave evidence supporting his abso- lute ownership, and the defendants sought to prove that his sole es- tate was an interest for his life. The court held that plaintiff's right of action depended upon his ownership of the fee and that the trial court erred in refusing to charge the jury that before they could find injury and damage to the plaintiff they must find that he was the owner in fee simple of the land. The jury, in the case here, found that the deceit of the defendant moved the plaintiff to release unto the defendant, in consideratiofi of the sum of $500, whatever right or cause of action she had against it through the killing of her husband. Unless the right of action had a value and a value greater than $500, the plaintiff was not defrauded. If what she parted with had a value and a value less than or only equaf to the value of that which she received, she was not injured ; if great- er, she was injured and in a sum equal to its excess of value. The basic principle underlying all rules for the measurement of damages in actions for fraud and deceit is indemnity for the actual pecuniary ' loss sustained as the direct result of the wrong. Krumm v. Beach, 96 N. Y. 398. Neither advantage nor disadvantage resulting to the plain- tiff from the settlement enters in any way into our consideration. The question is. What was the value of that with which plaintiff parted and what was the value of that which she received ? If the plaintiff's claim against the defendant had been based upon an alleged promis- sory note made by defendant, and McCormick had effected a compro- mise thereof by false and fraudulent statements as to defendant's sol- vency and the existence of a counterclaim, she, in an action to recover her damages caused by the fraud, must have given evidence in proof of the validity of the note to afford the jury a starting point for the measurement of her damages, and if they found that the note was forged and not made by defendant, they would find also that she had sustained no damage and could not maintain the action. Unless she had the valid note of the defendant, she had and released in the com- promise nothing of value. Resuming the discussion of the present case, the jury were bound, having found the fraud, to determine whether DAMAGE 233 the plaintiff was injured through the fraud, and, if injured, the sum of her damages. In case the right of action had no value, she had gain- ed by the transaction and was not injured. It had no value what- ever if the true state of facts disclosed that it was an invalid and non- existing claim, or, in other words, that the defendant was not neg- ligent, or, if the defendant was negligent, that the intestate was not free from contributory negligence. If, however, the true state of facts would have established that the defendant was negligent and the in- testate free from contributory negligence, then the plaintiff had a valu- able right of action, the acquirement of which through the fraud may have injured her. Until the jury found the real facts and that they created a valid claim against the defendant, they had not a basis for estimating the damages the plaintiff had sustained. The action is not to enforce or vacate the compromise, but to recover the actual pecuniary loss sustained by the plaintiff. An alleged value of the claim based upon the accident and the death or facts sufficient to warrant the reason- able belief of the plaintiff that she had a just claim is of a nature too speculative and wagering to be recognized by the law in this action for fraud. The jury in considering the question of damages should first ascertain whether or not the plaintiff was originally entitled to a re- covery of some amount. Otherwise they could not determine whether, by executing the release, she parted with value, and if they could not determine that, they could not decide whether or not she was dam- aged. Through what method or by what means would they be able to know that the sum of $500 was not equal to the fair value of the right of action until they knew that the right of action had validity and would entitle her to some amount? She was entitled to the fair value of this disputed claim, but that value must be ascertained through a rule possessing reasonable certainty and working a reasonably just re- sult. If the jury determine that she was not originally entitled to re- cover, then their verdict would be for the defendant. If they deter- mine that she was entitled to recover, then they would proceed to meas- ure the damages, and the rule by which they should be guided there- in has been clearly expressed by us in Gould v. Cayuga County Nation- al Bank, 99 N. Y. 333, 2 N. E. 16. Assuming that the parties meant to avoid litigation and compromise their dispute, and that the true facts and defendant's contradiction of them were disclosed, how much could the plaintiff have reasonably demanded and the defendant reasonably have allowed as a final compromise above and beyond the $500, in fact allowed and received? That the jury must answer. They would take into view the probabilities of the successful enforcement of the cause of action, the probable extent and expense of the expected Htigation over this disputed claim, the law's delays, the probability of the con- tinuing solvency of the defendant and such other facts pertinent to the question of damages as the evidence presented. What under all the conditions and circumstances was this claim of the plaintiff, valid un- 234 PEAUD der the true, yet opposed, and contradicted, state of facts, worth for purpose of sale, transfer or cancellation, if anything at all, above the $500? * * * CuLLEN, C. J., Gray and Werner, JJ., concur with Collin, J. HiscocK, J., concurs with Vann, J. Haight, J,, absent. Judgment reversed, etc. SLANDER OF TITLE 235 SLANDER OF TITLE « DOOLING V. BUDGET PUB. CO. (Supreme Judicial Court of Massachusetts, 1SS7. 144 Mass. 258, 10 N. E. SOO, 59 Am. Rep. 83:) Tort, for an alleged libel, contained in the following words : "Prob- ably never in the history of the Ancient and Honorable Artillery Com- pany was a more unsatisfactory dinner served than that of Monday last. One would suppose, from the elaborate bill of fare, that a sumptu- ous dinner would be furnished by the caterer, Dooling ; but instead, a wretched dinner was served, and in such a way that even hungry bar- barians might justly object. The cigars were simply vile, and the wines not much better." At the trial in the Superior Court, before Pitman, J., the publica- tion of the words by the defendant was admitted. The plaintiff's counsel, in opening the case to the jury, stated that the plaintiif was a caterer in the city of Boston with a very large busi- ness, and acted as caterer upon the occasion referred to. Upon the statement of the plaintiff's counsel that he should offer no evidence of special damage, the judge ruled, without reference to any question of privilege that might be involved in the case, that the words set forth were not actionable per se, and that the plaintiff could not maintain his action without proof of special damage, and, the plaintiff's counsel still stating that he should offer no evidence of special damage, direct- ed a verdict for the defendant, and reported the case for the determina- tion of this court. If the ruling was correct, judgment was to be entered on the verdict ; otherwise the case to stand for a new trial. C. Allen, J. The question is whether the language used imports any personal reflection upon the plaintiff in the conduct of his busi- ness, or whether it is merely in disparagement of the dinner which he provided. Words relating merely to the quality of articles made, pro- duced, furnished, or sold by a person, though false and malicious, are not actionable without special damage. For example, the condemna- tion of books, paintings, and other works of art, music, architecture, and generally of the product of one's labor, skill, or genius, may be unsparing, but it is not actionable without the averment and proof of special damage, unless it goes further, and attacks the individual. Gott V. Pulsif er, 122 Mass. 235, 23 Am. Rep. 322 ; Swan v. Tappan, 5 Cush. 104; Tobias v. Harland, 4 Wend. (N. Y.) 537; Western Coun- 1 For discussion of principles, see Chapin on Torts, §§ 89, 90. 236 FRAUD ties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 Ex. 218; Young V. Macrae, 3 B. & S. 264; Ingram v. Lawson, 6 Bing. N. C. 212. Disparagement of property may involve an imputation on per- sonal character or conduct, and the question may be nice, in a particu- lar case, whether or not the words extend so far as to be libelous, as in Bignell v. Buzzard, 3 H. & N. 217. The old case of Fen v. Dixe, W. Jones, 444, is much in point. The plaintiff there was a brewer, and the defendant spoke of his beer in terms of disparagement at least as strong as those used by the present defendant in respect of the plaintiff's dinner, wines, and cigars; but the action failed for want of proof of special damage. In Evans v. Harlow, 5 Q. B. 624, 631, L,ord Denman, C. J., saidr "A tradesman offering goods for sale exposes himself to observations of this kind ; and it is not by averring them to be 'false, scandalous, malicious, and defamatory' that the plaintiff can found a charge of libel upon them." In the present case there was no libel on the plaintiff, in the way of his business. Though the language used was somewhat strong, it amounts only to a condemnation of the dinner and its accompani- ments. No lack of good faith, no violation of agreement, no promise that the dinner should be of a particular quality, no habit of providing dinners, which the plaintiff knew to be bad, is charged, nor even an excess of price beyond what the dinner was worth; but the charge was, in effect, simply that the plaintiff, being a caterer, on a single occasion, provided a very poor dinner, vile cigars, and bad wines. Such a charge is not actionable, without proof of special damage. Judgment on the verdict. INTERFERENCE WITH CONTRACTUAL RIGHTS 237 INTERFERENCE WITH CONTRACTUAL RIGHTS I. Prospective Contracts of Employment * FOLSOM V. LEWIS. erson, upon any theory of conspiracy. In the foregoing dis- cussion no distinction has been drawn between coercion of a single dealer or customer in the market and cbercion of a large number of dealers or customers. As a matter of fact, in these boycott cases we have presented in every instance coercion of a number of dealers or a class of dealers, and it is this sort of coercion of which the plaintiff complains. The tort in cases like Quinn v. Leatham and the present case consists essentially in the creation by coercion of an involun- tary combination, but the persons in combination are not conspirators and are not made defendants in the suit. The party defendant, wheth- er a single person or two persons, or ten persons, should, I think, plain- ly be regarded as a unit. III. Existing Contracts of Employment* BEEKMAN v. MARSTERS. (Supreme Judicial Court of Massachusetts, 1907. 195 Mass. 205, 80 N. E. 817, 11 L. R. A. [N. S.] 201, 122 Am. St. Rep. 232, 11 Ann. Cas. 332.) Bill by Gabriel E. Beekman against George E. Marsters for an in- junction. Reserved by single justice for the determination of the Su- preme Judicial Court. Injunction granted. « For the discussion of principles, see Chapin on Torts, § 93. 252 INTERFERENCE WITH CONTRACTUAL RIGHTS LoRiNG, J." This suit came before the single justice on the report of a master to which no exceptions had been taken by either party, and was reserved by him for our consideration and determination without any ruling or decision having been made. The master found that on November 21, 1906, a contract was made between the plaintiff and the Jamestown Hotel Corporation. The Jamestown Hotel Corporation is a corporation which is erecting or has erected a hotel within the grounds of the Jamestown Exposition to be held between April 26th and November 30th of this year. This hotel is known as the "Inside Inn," and is to be the only hotel within the exposition grounds. The plaintiff is the proprietor of a tourist agency, having an office at 293 Washington street, Boston. By the contract between the plaintiff and the hotel corporation the plaintiff agreed to represent the hotel corporation throughout the New England states, to establish subagencies in that territory, and to use every pos- sible endeavor personally and through his agents to book persons for the Inside Inn; and the defendant agreed "that you [the plaintiff] shall be our exclusive agent in said territory," to pay him (the plain- tiff) 25 cents a day for each person sent by him to the hotel, and to furnish the plaintiff with all necessary "literature." Immediately upon being thus appointed the exclusive agent of the hotel corporation the plaintiff prepared and issued a fall edition of his "Tickets and Tours," in which inter alia a description is given of the Jamestown Exposition and of the Inside Inn. Following this is the statement that the plaintiff has been appointed New England agent for the exposition "and exclusive representative of the Inside Inn." The defendant is found by the master to be a ticket and tourist agent, with an office at 298 Washington street, Boston. On January 11, 1907, he went to Norfolk, Va., and called upon the officers of the hotel corporation there. At this time he "had seen the contract be- tween the complainant and the hotel corporation, but had not read it, and knew that the company had practically consummated a contract making Beekman its sole representative in New England.'' The de- fendant at this interview told these officers "that it was a mistake for the corporation to give an exclusive agency in New England to any one man, and that more business would be brought to the company if all agents were given equal terms," and to enforce his arguments stat- ed that the business done by the plaintiff was insignificant and that the statement was false which was made in the summer edition of his "Tickets and Tours" that certain persons therein named had his tick- ets and tours for sale. It appeared that the summer edition of this catalogue had been shown to the hotel corporation by the plaintiff when he made his contract with it. The master found that "as a result of the solicitations or represen- tations made by the respondent, the Jamestown Hotel Corporation on « Portions of the opinion are omitted. EXISTING CONTRACTS OF EMPLOYMENT 253 or about January 11, 1907, entered into an oral contract with him, whereby it was agreed that the respondent should have the same rights that had been given to the complainant, and that he should be paid by the corporation 25 cents per capita per day for each guest whom he should secure for the Inside Inn." The defendant then wrote to all men named in the plaintiff's cata- logue except those having places of business in Canada, "and two or three others who appeared to have an independent agency business," telling them that the plaintiff had not an exclusive agency for New England and suggesting to them that they could get paid on the same footing as that upon which the plaintiff and defendant were to be paid, if they chose to act for themselves and not as subagents of the plaintiff. He also wrote to the New York, New Haven & Hartford Railroad Company, calling attention to the fact that some of the local ticket agents of that railroad company were advertised by the plain- tiff JLS having his tickets and tours on sale, and suggesting that the rail- road company would prefer to have all its agents strictly neutral in dealing with tourist concerns. * * * The result of the findings of the master must be tal