((nrnpU ICam ^rljnnl Sjibraty Cornell University Library KF 1250.J24 V.1 Hand-book of the law of torts / 3 1924 019 310 345 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019310345 tU ^ornBooft Retries Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. ^ euccitvcf etftfemenf of fearing prindpfee in Mac&f fetter fgpe. 2. @ more e;rten^e^ commenf arg, efuciiftfing f ^ principfee. 3. (l^fee ftnii auf^fies. Published in regular octavo form, and sold at the uniform price of $3.75 P^f Dofume, tncfu^ing Mitjerg. (j^ (getv^g; 1. (llorfon on (J5iff6 anb (Uofeg (2i (S^.). 2. CfM&'6 Ctimimt &ftt». 3. ^^ipmftn'a Commsnjfeatw ^feftiing {2i 6i. ), 4. Cfftrft on Conf rftcte. 5. (gtatWa Conefifufionftf &at». 6. Setter on (Squitg. 7. Cfcirft on Criminaf ^oce^ure. 8. ^iffftng on ^afe0. 9. (Bfenn'e 3ntemcitionftf &at». -40i-Jfaggarb on Corte. (2 twfg.) g^ftrfg (geg^g; ^^tpman'e (Equitg ^feabing. ^mit^'e (Efemmtarg &at». Q|lc{|tefDeg on (Boibence. 3o^neon on (Ertraoriinarg (geme^iee. Qgfocft on ConBtruction anb 3nterprefation of featw. ^0 fotfotw: ganbfioofe of t^e £ftt» of Q^aifntmtg, ©ftntogee, Corporations, CoJ»e ^feaiing, (^encg, Se^eraf ^ocebure, ©omeefic (geffttione, (geaf ^ropertg, partner; 0^p, ^ritjftte 3ntemationaf feftUj, ©iminietrfttion, Car; riere, 3neurance, ^erfonaf ^operfg, ' Ship. Com. Law PI. 74. Generally, as to forms of trespass, see 3 Bl. Comm. 120, 151. And see 1 Chit. PI. 192, 193. 5 Id. 7.S. 07 3 BI. Comm. 49; Steph. PI. 6. LAW OF TORTS — 3 18 GENEKAL NATUIJE OF TORTS. [Ch. 1 arose the celebrated actions on the case, viz. action of assumpsit, which became in time an action ex contractu although it retained traces of the ex delicto character of its origin; the action of detinue, which is sometimes regarded as ex contractu, and sometimes as ex delicto, and sometimes as neither; =^ the action of conversion; and (the almost distinctive '° action ex delicto) trespass on the case. This action (trespass on the case) lay, not for direct or immediate in- vasion of another's right, but for conduct in which the wrong con- sisted in consequential damage. '"' In trespass, the liability was abso- lute. In case, the liability was dependent on results. Case lay for injury to absolute rights, not involving force, and where the dam- ages were consequential, as for keeping dangerous animals.'^ It lay also for invasion of relative rights, as seduction, or alienation of affection."^ It lay also especially for the large class of cases known now by the vague name of "negligence." °^ When trespass lay, and when case, was, at common law, an important question of pleading, because if the pleader mistook his remedy, he would be dismissed from court. *'*"^ Since the abolition of forms of action, ss Pol. Torts; Gilb. 6; Steph. PI. 18b; Peabody v. Hayt, 10 Mass. 35. 50 Jlills V. U. S., 48 Fed. 738; 1 Chit. 99; Browne, Action, 318, note t. «<) Cooper V. Landon, 102 Mass. 58; Sliip. Com. Law PI. 45, and cases there cited. 61 Sarcb v. Blackburn, 4 Car. & P. 297; Stumps v. Kelley, 22 111. 140. And see, generally. Cooper v. Landon, 102 Mass. 58; Singer v. Bender, G4 Wis. 172, 24 N. W. 903; Henry v. Ry. Co., 139 Pa. 289, 21 Atl. 157. 6 2 Clough V. Tenney, 5 Me. 446; Hornketh v. Barr, 8 Serg. & R. 35. 6 3 Coggs v. Bernard, Smith, Lead. Cas., 2 Ld. Raym. 909; Samuel v. Judin, G East, 333; Dearborn v. Dearborn, 15 Mass. 315; Church v. Mumford, 11 Johns. 479; Hamilton v. Plainwell Water-Power Co., 81 Mich. 21, 4,') N. W. 648. As to the distinctions as to force and immediate and direct or imme- diate and consequential injuries, see 1 Chit. PI. (16th Am. Ed.) 140, and cases cited; Cotteral v. Cummins, 6 Serg. & R. (Pa.) 341; Wlnslow v. Beal. 6 Call (Va.) 44; Scott v. Shepherd, 3 Wils. 403; Beckwith v. Shordike, 4 Burrows, 2093. 6 4 The difference between trespass and case is well illu'^trated by Espi- nasse. "Trespass on the case is an action brought for the recovery of dam- ages for acts unaccompanied with force, and which in their consequences only are injurious; for, though an act may be in itself lawful, yet if, in its effects or consequences, it is productive of any injui-y to another, It subjects the party to this action." 2 Esp. N. P. 597. [Cf. Wakeman v. Robinson, 1 Cll. 1] LAW OB' TORTS ADMINIS I'lCRED BY COURTJ OF COMMO.X LAW. 11) the mere technical question of procedure has lost importance. "= But the deep-seated distinctions in the law substantive involved are as much legal battle grounds as ever.''^ " 8. Through these two classes of personal actions, the common law aaministered four kinds of obligations/^ or provided remedies for four kinds of recognized substan- tive rights, viz.: (a) Contracts pure and simple; (b) Quasi contracts; (c) Torts pure and simple; (d) Quasi torts. Contract. The common law administered obligations of contracts pure and simple. All true contracts grow out of the intention of the parties Bing. 213.] Thus,. where the defendant put up a spout on his own premises, this was an act lawful in itself; but when it produced an injury to the plain- tifC by conveying the water into his yard, trespass on th6 case was adjudged to lie for such consequential injury. Reynolds v. Clarke. 1 Strange, G34. So shooting of a gun, which in itself is an indifferent and lawful act, yet when by it the plaintiff's decoy was injiu-ed this action was held to lie. Keeble v. Hickeringill, 11 Mod. 131. Again, where the plaintifC tleclarod in case tliat the defendant furiously, negligently, and improperly drove his cart against the plaintiff's carriage, that it was overturned and broken, this was held ill on demuri'er, and that the action should be trespass vi et armis. Day v. Edwards, 5 Term K. 648. As to election between trespass and case, see Blin V. Campbell, 14 Johns. 432. Cf. Percival v. Hickey, 18 Johns. 250. And see Wilson v. Smith, 10 Wend. 324; Seneca R. R. Co. v. Auburn, 5 Hill. 170. 6B New Orleans J. & G. N. R. Co. v. Hurst, 36 Miss. 660; Howe v. Cooke, 21 Wend. 28. And see Ricker v. Freeman, 50 N. H. 420. «8 The importance of the distinction from a theoretical standpoint is mani- fest in discussions of the ultimate basis of liability in tort. Practically it is of great moment in determining, for example, connection as cause (con- spicuously in questions of damage), defense available (as of contributory negligence, independent contractor), the kind and extent of proof required of plaintiff (as the exercise of due care under the circumstances, or the breach of absolute duty). See Holmes v. Mather, L. R. 10 Exch. 261; John- son V. Philadelphia & R. R. Co., 163 Pa. St. 12T, 29 Atl. 854. 6 7 The propriety of this use of the term "obligation" has been questioned. GENERAL NATUKK OF TORTS. [Ch. 1 to the transaction, and are dictated only by their mutual and accord- ant wills. When this intention is expressed, the contract is ex- pressed. When this inteption is not expressed, but may be inferred, implied, or presumed from circumstances as really existing, then, and then only, is the contract thus ascertained properly called an "implied contract." °^ In all cases of contract the parties are deter- minate, and the rights in personam. Quasi Contract. The obligation of a quasi or constructive contract was imposed by law in certain cases, without reference to the intention of the parties, and was administered through personal actions, ex contractu. Here the parties are determinate, but the right is not so clearly in per- sonam. The substantive right was not contractual, but the com- mon law, providing no strictly appropriate remedy, invented the fic- tion of an implied contract to strain »n action ex contractu into use."" Thus a judgment for damages was called a "contract of record," to Jlr. Anson (Ans. Cont. 6) says that it is of the essence of obligation that the liabilities which it imposes are imposed on definite persons, and are them- selves definite; the rights which it creates are rights in personam. Even, however, if this he the case, certain torts are based upon rights in personam. The term as here used is, moreover, employed in this sense by Bentham, Aus- tin, Pollocli, and many other writers of eminence. And see Leake, Cont. 3; Clark, Cont. 13. "There are many obligations not within the definition of con- tract, all of which require the consent or agreement of the parties." Field, .1.. in Milford v. Com., 144 Mass. 64, 10 N. E. 516; Murdock Parlor Grate Co. v. Com., 152 Mass. 28, 24 N. E. 854. According to Austin, the difference be- tween sanction and obligation is this: "Sanction is evil, incurred or to be in- curred by disobedience to command. Obligation is liability to that evil, in. the event of disobedience. Obligation regards the future. An obligation to a past act, or an obligation to a past forbearance, is a contradiction in terms. If the party has acted or foreborne agreeably to the command, he has fulfilled the obligation wholly or in part. And here there is a certain difference be- tween positive and negative duties. The performance of a positive duty ex- tinguishes both the duty and the con-esponding right. A negative duty is never extinguished by fulfillment, thougli, if the right be extinguished by an- other cause, the duty ceases. 1 Aust. Jui-. 311, lect. 22. 68 2 Bl. Comm. 442; Clark, Cont. 752; Hertzog v. Hertzog, 29 Pa. St 465- 467; Mclntyre Tp. v. Walsh, 137 Pa. St. 3U2, 20 AU. 706; McSorley v. Faulk- ner (Com. PI. N. Y.) 18 N. Y. S. 460. 9 Clark, Cont. 753. Ch. 1] LAW OF TORTS ADMINISTERED BY COURTS OF COMMON I AW. 21 allow its revival by actions ex contractu.''" Again, where one has unjustly enriched himself at the expense of another, as where he has been paid money by mistake, and without giving anything in return, there is clearly no agreement, expressed or implied, between the par- ties. It would, however, be manifest injustice not to make the one enriched by mistake disgorge. The common law, to supply the de- ficiency of its remedies, invented the fiction of implied promise on the part of him to whom the money was paid to repay.''^ Accord- ingly money paid under mistake could be recovered on an implied promise, by action ex contractu, called indebitatus assumpsit.'^- And finally a quasi contract may also be said to be founded upon statutory ofScial or customary duty.''* Torts. The common law administered also the obligation of torts, pure and simple. These consisted of violations of legal duty in no wise connected with contract.^* Thus personal violence, assault and bat- tery; interference with freedom of locomotion, false imprisonment; improperly starting, or abusing properly started, legal proceedings, malicious prosecution; injury to reputation, libel and slander; an- 7 Louisiana v. Mayor, etc., of New Orleans, 109 V. S. 285, 3 Sup. Ct. 211. '71 Claris:, Cont. 764. 7 2 Merchants' Nat. Bank v. National Bank of tlie Commonwealth, 139 Mass. 513, 2 N. E. 89; Clark, Cont. 771. 73 State T. I. Co. v. HaiTis, 89 Ind. 363; Steamship Co. v. Joliffe, 2 Wall. 450; Mechem, Pub. Off. 674, note 5; Keener, Quasi Cont. 16. 7* A tort pure and simple is es^sentially different from a contract pure and simple, (a) The most substantial difference would seem to be that a tort pure and simple is independent of previous consent of the wrongdoer or of the injured one to bear the loss the tort may produce, whereas contract is always based on an agreement of minds, (b) The right involved in a toi-t of this kind is distinguished from that involved in such a contract in being in actual enjoyment at the time of the commission of a tort, while that of a contract is the right to the fulfillment of a promise made by some person. Innes, Torts, § 4. (c) The rule as to parties to an action on the contract and on the tort vary materially. Parties to a contract are determined by its terms. Contract rights axe in personam. Parties to a tort are indeterminate. Rights ex delicto are in rem. ilany persons may be liable for tort who cannot bind themselves by contract. Rights of contribution between defendants and judg- ment debtors are different in the two classes of actions; so, also, differs the effect of death of parties plaintiff or defendant, both at common law and 22 GENERAL NATURE OF TORTS. [Ch. 1 noyance or offense to the senses, or to the enjoyment of life and prop- erty, nuisance; a trespass to land or goods, — are all actionable wrongs, and are committed, not only without any consent, but de- spite the will, of the person injured. Here the parties were indeter- minate, and the rights in rem. Quasi TorU. The obligation of a quasi tort may be strictly said to include all species of actionable civil wrongs not included in the preceding three classes. It is, however, convenient to apply it in a broader sense, so as to include also all cases in which an action ex delicto lies upon a state of facts of which a contract is a necessary part^^' It may arise from a violation of a right or duty which the law prescribes, and which to a limited extent individuals may modify with respect to certain conventional or contractual relations which are entered into by agreement, or from the violation of a differeiit right or duty which the law recognizes as created by a range of facts of which a contract is a necessary part. When a passenger takes a train, he ordinarily holds, as evidence of the contract he has made with the common carrier, a ticket and a baggage check. The shipper holds a bill of lading. Upon this simple state of facts the law bases a complex system of rights and duties as to person and property. Part of this the parties may have contemplated, but most of it exists in the common law alone, and derives its origin, not from real consent, but from ancient history, under the statutes of the various states, (d) Finally, the remedy in an ac- tion on a tort is the award of damages only. On the other hand, while dam- ages may be' awarded in an action ex contractu, a contract may also be re- formed and specifically enforced. There is a material difference as to the measure of damage and the extent to which liability for consequences can be carried. Attention is called to the confusion likely to arise from attempts to distinguish a tort from a contract. It would seem that it conduces to dis- tinguish between tlie four kinds of common-law obligations, rather than merely between contracts and torts. 7 5 The use of the term "quasi tort" may be open to the objection that It is not the same as the use of the same term in the civil law. This terminology of the civil law, however unjustly ci-iticised, can scarcely be said to be one strictly followed by the common law. See Pol. Torts, 18, note s. iCloreover, the term as here used applies alike to breaches of statutoi-y, customary, and conventional duties, which also might be called violations of quasi contracts. Ch. 1] LAW OK TORTi ADMINISTERED BY COURTS OF COMMON LAW. 23 the legislation of the judges, and from statutes. Such rights and duties are not properly contractual, nor is their breach a contractual wrong; as, for example, where a passenger is assaulted by a servant of the common carrier, or injured by its negligence. In the case of master and servant, this is even more marked. The contract of em- ployment, generally informal, incomplete, oral, and containing no more than an agreement of wages, work, and time of payment, en- tails liability and secures rights or superimposes duties implied ''^ by law, with respect to the relation, unknown to the parties, and in large measure to lawyers, and, as to most material matters, in a number of instances, to the courts, prior to the decision of the case in issue. Thus it will be seen that the courts implied into the contract the doctrine of assumption of risk of the employment by the servant, and especially the risk of the negligence of a fellow servant. Never- theless it is the contract, without which the relationship could not exist, which brings these rights into existence; and the rights and duties vary with the contracts. Thus a railroad company owes one set of duties to the person in its contract to carry a passenger, an- other to its employ^, and a still different set of duties to a person with whom it has no contract. The same principle applies in a large measure to the reciprocal rights and duties of physicians and patient, attorney and client, owner and architect or contractor, and in many other cases, as a telegraph company and the sender of a message, a vendor and vendee, a bank and a depositor, and the like. There is a body of law outside of the agreement of the parties prescribing rights and defining duties not directly contemplated by the parties, but a breach of which is actionable as a tort. The degree to which the causes of action in quasi torts depend upon contract is apparent in the normal rule that only parties and Keener, Quasi Cont. ; Whittaker v. Collins, 25 Am. Law Rev. 695. And see Amos, Jur. 295. But these objections, on reflection, will, it is thought, not prove as real as apparent. The substantial advantages in clearness and sim- plicity and good authority (Underh. Torts; Ring. Torts; Shearw. Torts) seem to justify the application of quasi tort here made. Mr. Shearwood suggests the terms "pure and impm-e torts." »« fost, p. 990, "Negligence," "Master and Servant." 24 GENERAL NATURE OF TORTS. [Ch. 1 privies to such contract can recover for its violation. There are, however, a number of eases in which persons who are not parties to the contract may sue for its violation. "V\'hile thus the omission to perform a contract obligation is not a tort, unless that omission is also an omission of a legal right, such legal duty may arise, not only out of certain conventional relations, but also out of a wider range of facts, of which a contract is an ele- ment, giving rise to a legal duty due from every man to his fellows, to respect the rights of property and person, and refrain from invad- ing them by force or fraud or carelessness. This duty applies to both willful and to negligent wrongs. The law does oot allow a party to use a violation of contract obligation as an instrument of oppression and damage to accomplish his purpose, and then to interpose the contract as a limitation of his liability.'^ Therefore, where a party willfully broke his con- tract with another to restore a depot to its original location near the latter's land, so as to precipitate foreclosure of a mortgage exe- cuted by the latter, by depriving him of restoration in value be- cause of the return of the depot, this was held an actionable tort.''* And on the same principle liability will attach in favor of strangers because of negligence in connection with a contract. Thus, in deal- ing with dangerous things the owner or keeper owes a duty to the world to avoid doing harm; and this duty applies although he may have sold the dangerous thing to some other person than the person injured. So, in dealing with property under contract, any negli- gence which damages another's property is actionable, although the person complaining was not a party to the contract. In quasi torts it would seem that persons are sometimes deter- minate and sometimes indeterminate, and that the rights are some- times in rem and sometimes in personam. 7 7 Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609. 7 8 Rich V. New York Cent. R. Co., 87 N. Y. 382, per Finch, X And see Louis- ville, St. L. & T. Ry. Co. v. Neafus, 93 Ky. 53, 18 S. W. 1030. Of. Dawe v. Morris, 149 Mass. 188, 21 N. E. 313 (where plaintiff's cause of action was held to be contract, not tort); and see Whittaker v. Collins, 84 Minn. 299, 25 N. W. 632. Ch. 1] LAW OP TORTS ADMINISTERED BY COURTS OF COMMON LAW. 2-5 9. The common la^w observed no distinct or strictly log- ical rule with respect to the administration of these four kinds of obligations by means of the two forms of per- sonal action. It sometimes allow^ed the enforcement of a tort or a quasi tort through an action ex contractu and of a contract and quasi contract through an action ex delicto." The normal application of these two forms of action to the four kinds of obligations would have been to administer wrongs based on contract '" and quasi contracts *^ through actions ex contractu, and wrongs based on torts *^ and quasi torts through actions ex delicto. In a large measure this was carried out, but there were many variations and a confusing inconsistency in the application of the forms of remedy to the obligation. Contract Sued ex Delicto. Even certain actions which are really based on a contract and might be sued ex contractu may be brought in the form of an action ex delicto to evade either a statute or the ordinary provisions of law. Thus, the statute of frauds required guaranties to be in writ- ing to avail. Instead of suing on a parol guaranty, therefore, ac- tions were brought, in order to evade the statute, on the tort in deceit on allegation of false representations as to credit. The statute had no application to torts. By this means parol evidence was admitted, not to prove the guaranty, but the falseness of the 7 8 Clai-k, Cont 7G6. For a note as to th? right of election of one who has been held liable for the tort or breach of contract of another, between an action founded on an express promise of indemnity, if such there be, or on the im- plied assumpsit raised by the payment of the obligation of the other, or upon the theory of subrogation. See 30 Abb. N. C. 173. 80 Livingston v. Cox, G Pa. St. 3G0; Link v. Jarvis (Cal.) 33 Pac. 206; Rus- sell i& Co. V. Polk County Abstract Co., 8T Iowa, 233, 5i N. W. 212; City of Ft. Wayne v. Hamilton, 132 Ind. 4ST, 32 N. E. 324; Pennsylvania Co.,v. Dolau, 6 Ind. App. 109, 32 N. E. 802. Even under the Code, a complaint sh6Tving a cause of action in tort is not sustained by proving a cause of action on con- tract. De Graw v. Elmore, 50 N. Y. 1. si Keener, Quasi Cont. c. 1; Clark, Cont. 7.")2. 82 Wilson V. Haley Live-Stock Co., 153 U. S. 3li-47, 14 Sup. Ct. 7U8. 2'> GEXEKAL NATURE OF TORTS. [Ch. 1 I'epresentations. Such actions were so successful that Lord Ten- teiden's act was passed to make the statute of frauds cover, as to these points, both actions ex contractu and actions ex de- licto.^^ As will be seen, some persons, as infants and married women, were under a legal disability making them incapable of contracting, but a recovery could be had for their torts. Accord- ingly, a person, whenever he could, would sue ex delicto rather than ex contractu. Thus, if an infant should hire a horse and abuse it, it would be to the bailor's interest to sue on the tort, because he could not recover on the contract.'* Quasi Contract Sued ex Contractu, or ex Delicto. While the ordinary quasi contract is sued ex contractu on the fiction of a promise, an action ex delicto is sometimes brought for the breach of statutory duty. Thus, a sheriff may be liable for negli- gence with respect to his statutory duty.*^ Indeed the common law freely recognized the right to sue for the negligent performance of a contract either ex contractu or ex delicto, whether there was actual *" damage or not.*^ And in general it would seem that, when a person has suffered injury from the neglect of duty which another has impliedly promised to perform, the action may be in tort or on contract, at the former's option, whether that duty be implied into a contract or arises from a statutory enactment.** ssPasley v. Freemnn, 3 Term R. 51; Lyde w. Barnard, 1 Mees. & W. 101; Tatton V. Wade, 18 C. B. 371-381; AVade v. Tatton, 25 Law J. C. P. 210; Rice V. Manley, 66 N. Y. 82; DeCol. Guar. 8* Post, p. 158, "Infants." 85 Post, pp. 126, 130, 133, "Public Otflcers," "Register of Deeds," "Sheriffs." «6 An apothecary could be sued for breach of implied contract to use rea- sonable skill and care or for tortious negligence followed by actual damage. Seare v. Prentice, 8 East, 348; Livingston v. Cox, 6 Pa. St. 360. »^ If a banker improperly dishonors a' customer's check, the customer may bring suit in tort, although no actual damages h.ive been sustained. Marzetti v. Williams, 1 Barn. & Adol. 415. So, if a bailee negligently dam- ages goods intrusted to him, he may be sued in tort, although ha commits a breach of the contract of bailment. Hayn v. CuUiford, 4 C. P. Div. 182; Coggs V. Bernard, 2 Ld. Raym. 909; Smith, Lead. Cas.; Boorman v. Brown, 3 Q. B. 511. Or he may be sued in assumpsit. See Zell v. Duukle, 156 Pa. St. 353. ss An action against a sheriff for damages for failure to permit plaintiff €il. 1] LAW OF TORTS ADMINISTERED BY COURTS OF Cu.MJION LAW. 27 Torls Sued ex Contmctu. PerLaps the most singular anomaly in the application of the law adjective to the law substantive is to he found in the ruling of the common-law courts that an action on the contract will lie for a tort pure and simple. Thus, assumpsit lies for seduction, and if a man commits a crime, as by stealing goods of another, the latter may waive the tort and sue in assumpsit, although there is no contract.*' It was not unnatural that certain cases which are in themselves ambiguous should have been regarded from a point of view both of tort and of contract as sustaining an action either ex contractu or ex delicto."" Thus, if goods have been sold, not by mistake but because of actionable fraud, the seller may sue in tort for damages because of deceit, or ex contractu in assumpsit for the value of the goods." ^ Quasi Torts. With respect to quasi torts the confusion is perhaps inextricable. It seems that there are two distinct classes of cases: (1) Where a to obtain bail is in case. Taylor v, Sniitli (.Ala.) 10 South. 029; Pittsburgh v. Grier, 22 Pa. St. 54-65; Lightly v. Clouston, 1 Taunt. 112, per Mansfield, J. so Clark, Cont. 766, 768; Hill v. Davis, 3 N. H. 384; Gordon v. Bruner, 49 Mo. 570; Halleck v. Mixer, 10 Cal. 574; Hawk v. Thorn, 54 Barb. 104. In as- sumpsit on contract of sale and purcliase, the action not being for money had and received by defendant through the sale of goods unlawfully taken from plaintiff, It is not necessary to allege or prove a sale of the converted property. Galvin v. Mac Mining & Milling Co. (Mont.) 37 Pac. 366. "\Miere a complaint is in assumpsit on contract of sale and purchase, and the proof dis- closes a tortious detention and unwarranted refusal to deliver the property to plaintiff on his demand therefor, there is no variance. Id. But see Diiwns v. Finnegan (Minn.) 59 N. W. 981. So where money is obtained by fraud, but only when the money is the plaintiff's. Westcott v. Sharp, 50 N. ,T. Law, 392, 13 Atl. 243. A cause of action ex contractu and for conversion en delicto may arise out" of same transaction, and be united in same proceeding. Craft Refrigerating Mach. Co. v. Quinnipiac Brewing Co., 63 Conn. .5.j1, 29 Atl. 70. 00 Right to waive a tort and sue in assumpsit is subject to the limitation that thereby defendant is not deprived of any benefit which he would have derived under the appropriate form of action on tort. 2 Greenl. Ev. § 120, citing Linden v. Hooper, Cowp. 414-419; Anscomb v. Shore, 1 Camp. 28.";; loung V. Marshall, 8 Bing. 43; and many other cases. 01 Hill V. Perrott, 3 Taunt. 274. One who has been induced to make a pur- chase by fraudulent representations may waive the tort, and sue in assump- 28 GENERAL NATURE OF TORTS. [Cll. I contract has created a duty between the parties and privies, a, breach of which is actionable under rules already considered, but in addition to this the contract has either repeated or put in force the common-law duty gorerning the relation or situation, a party or privy to the contract may sue ex contractu for breach of the contractual duty, or ex delicto for the breach of the common-law duty. Thus, by way of contrast, a stranger injured in a railroad accident can sue the company only ex delicto, while a passenger- can sue either ex contractu or ex delicto."^ The limitations which the contracts themselves may contain may affect the rights of the parties to the contract materially. If a contract should stipulate against liability for negligence in a jurisdiction whfere such a stipu- lation is enforced it might happen that the passenger in the case supposed could not recover, while a mere stranger might. (2) With respect to the right of third persons to recover in an action ex de- licto for injury arising from a state of facts of which the breach of a contract is an essential part, three propositions may be made: (a) The mere contract creates no duty the violation of which give& rise to a cause of action on behalf of a stranger, (b) The contract of limitation on liability does not affect a stranger to the contract. (c) The contract excludes no liability, and does not prevent recov- ery by a stranger for the malicious, fraudulent, or negligent act of a party to the contract."^ Effect of Abolishing Forms of Action. With the abolition of forms of action, artificial distinctions in- volved in the choice of remedies — the juggling with remedies — - should disappear. Mr. Keener has said as to quasi contracts, par- ticularly with reference to the fiction of implied promise where the sit. Steiner v. Olisby (Ala.) 15 South. 612. Article by KeenRr. 6 Harv. Law Rev. 223-269. And see Mr. Ames' History of Assumpsit in 2 Harv. Law- Rev. 64; Clark, Cont. 766. Plaintiff may -waive tort, and sup in assumpsit for benefits received by -wrongdoer through conversion of property, though the latter has not disposed of the property converted; but intent to waive tort must appear on the face of pleading. Braithwaite v. Allien (N. D.) 5S N. W. 133. 9 2 Post, p. 902, "Negligence"; Wilt v. Welsh, 6 Watts, 9; M'Call v. Forsyth, 4 Watts & S. 179. 93 Post, p. 904. Ch. IJ LAW Olf' TORTS ADMINISTERED BY COURTS OF COMMON LAW. 29 tort is waived, and action is brought on the contract: "The con- tinuance of such a fiction (existing for the purposes of a remedy only) cannot be justified, to say nothing of its extension, in those jurisdictions where all forms of action have been abolished. In «uch jurisdictions the inquiry should be, not as to the remedy for- merly given by the common law, but as to the real nature of the Tight." "* In quasi torts there is every reason for the trial of the case on the plain and simple substantive right of the party. Nevertheless the distinction retains great importance. While forms of action have been abolished in England, the question of costs in the su- perior court is still dependent on the accurate observance of the •distinction.*" In Massachusetts the action on the tort is one of the three forms •of civil action. In Pennsylvania, under the recent practice act, there is a similar modification of the common law.''" . In other ■states the old common-law form of action is still in use. Even in •Code states there has been comparatively little success achieved in the elimination of many of the common-law anomalies. This is due perhaps not so much to the conservatism of courts as to the natural and imavoidable connection between the law substantive and the law adjective."^ Moreover, the tendency is naturally to bring ac- tions which may be really ex contractu in the form of actions ex ■delicto, because in tort the rule as to the measure of damages re- •coverable is more favorable, and the extent to which wrongful conse- 9i Keener, Quasi Cont. IGO; Pig. Torts, 7. oBPontifox V. Midland Ry. Co., 3 Q. B. Div. 23; Bryant v. Herbert, 3 C. P. Div. 389; Shaw v. Coffin, 58 Me. 254. 8 8 See Jolinson v. Philadelpliia & R. R. Co., 163 Pa. St. 127, 29'Atl. 854. 9 7 In Minnesota, tlie importance of tlie distinction between actions ex con- tractu and ex delicto has been denied with emphasis. Serwe v. Noi-thern Pac. R. Co., 48 Miun. 78, 50 N. W. 1021. But a demurrer to a complaint in an action against a physician for malpractice was there sustained because it ap- peared from the complaint that the defendant had a partner, who -n'as not made a party defendant. Whittaker v. Collins, 34 Minn. 299, 25 N. W. C32. If this action had been in tort, and the parties were tort feasors, one or all ■oould have been sued. If it was in contract, both should have been made j)artie3. 30 CIKNERAL MATURE OF TORTS. [<^h. 1 quences may be traced is much greater, and the right of election as to parties defendant is more favorable to the plaintiff, than in an ac- lion on the contract And the statute of limitation may bar an action on the contract when it will not bar an action on the tort."* THE LAW SUBSTANTIVE AS TO THE PERSON INJURED. 10. The la-w recognizes a normal right of every one against whom a tort is committed to secure legal redress therefor. But this right may be defeated by plaintiff's own conduct, as by his consent or his ow^n wrong. The Normal Right. This is another way of putting the familiar maxim that wher- ever there is a wrong there is a remedy."* The remedy in tort lies ordinarily at the suit of the person injured. The action cannot generally be brought by one person to the use of another.^"" But personal disability may in certain cases necessitate bringing an action in tort in the name of some person other than the party injured. Thus, an infant, or a person absolutely insane, can sue only through a guardian ^°^ or olher person designated by law. Damages thus recovered for a tort against an insane person go to his estate. This requirement as to the appointment of a guardian is part of the law adjective, and not of the law substantive. At common law the husband 8 Galveston, H. & S. A. R. Co. v. Roemer, 1 Tex. Civ. App. 191, 20 S. W. 843; Fricli V. Larned, 50 Kan. 776, 32 Pac. 383. And see Blakely v. Le Due, 22 Minn. 476. On tlie other hand, recovery may sometimes be had in contract, where it \yould be denied in tort; because of the death of one of the parties prior to the commencement of the suit. Post, c. 4, p. 320, note 148. 9 Post, p. 348. 100 Kansas City, M. & B. R. Co. v. Cantrell, 70 Miss. 329, 12 South. 344. 101 Though in suits conducted by a next friend the minors ought regularly to sue by him, yet, if the next friend sue in behalf of the minors, it is the same in substance. "Van Pelt v. Chattanooga, R. & C. R. Co., 89 Ga. 706 15 S. E. 622. Appearance in judicial proceedings is generally regulated by stat- ute. Plympton v. Hall, 55 Minn. 22, 56 N. W. 351; In re Hunter's Estate, 84 Iowa, 388, 51 N. W. 20; Redmond v. Peterson, 102 Cal. 595, 36 Pac. 923; Harlammert v. Moody's Adm'r (Ky.) 26 S. W. 2; Worthington v. Mencer, 96 Ala. 310, 11 South. 72. The infant plaintiff should sue as plaintiff, not the guardian as plaintiff. Perine v. Grand Lodge, A. O. U. W., 48 Minn. 82 50 N. W. 1022. Ch. 1] LAW SUBSTANTIVE AS TO THE PERSON INJUEKD. 31 brought an action in his own name for a tort to his wife. Damages recovered were really part of her estate, although they actually went to him together with all her other property.""" These apparent exceptions to the principle as stated, properly viewed, are really its adaptation to other branches of jurisprudence. Personal status, as a rule, is immaterial in the law of torts."' "For a Roman of the republic, and even of the empire down to Jus- tinian's time and later, the question, 'With what kind of a person have I to do?' had a very clear and prominent legal meaning, and no question could be more practical. However, there is a general tendency among modern authors to regard the law of persons as supplementary to the general body of legal rules." "* Capacity in fact is a material consideration, especially in cases of negli- gence.^"'' Consent. Before the conduct complained of, plaintiff may have actually or impliedly consented to what would otherwise be a tort. A foot- ball player cannot complain of damage suffered in accordance with the rules of the game. 'No action can be maintained for dam- ages arising from conduct to which the plaintiff consented, provided the conduct was not illegal, — that is, criminal. Consent, however, cannot make an illegal action lawful. A person can only consent to the commission of lawful acts. His consent justifies only so far as it goes. A patient may lawfully consent to a surgical operation on him. This consent justifies the physician in performing the operation, but not in committing an assault. A prize fight is illegal, and, notwithstanding the consent of the parties in participating in it, one of them may sue the other for damages. Plaintiff's consent operating as a bar to his recovery may be sub- sequent to the wrong complained of. Thus, if he has executed a release or accepted something in satisfaction of his claim for the wrong done, or has waived the tort, he cannot succeed in. an action on the tort. 10 2 Post, p. 4(j4, "Husband and Wife." 103 Pol. Torts, *40. 104 8 Harv. Law Rev. 189. 105 Pol. Torts, »46. Post, p. 871, "Negligence." o2 GENERAL NATUUE OF TORTS. [.^^- 1 Wrong. Again, the plaintiff cannot recover unless he himself be innocent. "In an action on a tort, a bad man stands on the same footing as a good one, but neither can have judicial assistance in breaking the law, or compensation for having broken it, or reimbursement for what may have been expended in its breach." "" In Mery weather V. Nixan,^" plaintiff and defendant damaged a mill, for which plain- tiff was forced to pay the whole. It was held that he could not recover contribution from defendant; for ex turpi causa non oritur actio. Plaintiff's wrong may consist in conscious wrong, or in mere inadvertence or negligence.^"* But, while plaintiff's wrong doing may prevent his recovery, to have this effect it must have been connected as a proximate cause of the tort. If a person rides his horse faster than the law allows, this does not justify a cowboy in using his lasso to throw the horse.^°° THE LAW SUBSTANTIVE AS TO TORT FEASORS. 11. Liability for torts normally extends to every person, natural or artificial, independent of personal status; but modifications of and exceptions to, or exemptions from, liability are recognized. These may be: (a) General or (b) Special. i»6 Bish. Noneont. Law. So, "A man must' come into equity witti clean Lands." However, where corporations enter into an illegal trust, and one of them, on withdrawing, attempted to recover the property put into the com- bination, the court sustained It in so doing, on the theory "that, as a con- tinuing execution of the contract involves a continuing wrong to the public, the judicial courts will aid either party In abandoning it and in extricating Itself from it, and that the doctrine in pari delicto does not apply in such case." Mallory v. Hanauer Oil Works, 86 Tenn. 599, 8 S. W. 396. 107 Merryweather v. Nixan (1799) 8 Term R. 186; Smith, Lead. Cas. (Am. Notes) 1700. 10 8 Plaintiff's own conduct, to prevent his recovery, "cannot in any case be less than (1) a willful and Intentional act of wrongdoing; (2) a voluntary as- sumption of the risk which resulted in injury; (3) negligence." 2 Thomp. Neg. 154. 10 9 Post, p. 189. Ch. 1] LAW SUBSTANTIVE AS TO TOKT FEASORS. 33 The law of torts was a substitute for private war.^^" It was de- signed to suppy a sufQcient reniedy for the illegal harm which men were caused to suffer. Award of pecuniary compensation was the commonest, but by no means the only, form of redress. The pur- pose was not, primarily, to punish the wrongdoer (the criminal courts did that), but to make good the damage the injured party had suffered, and, incidentally perhaps, to deter others from evil.^^^ Accordingly, it was generally immaterial whether the defendant in an action on a tort be natural or ar-tificial, responsible or irrespon- sible, or whether his conduct was intentional or unintentional, so far as the mere right, but not the extent, of the plaintift"s recovery was concerned.^ ^^ The earliest theory of liability for tort was, as will presently be seen, based largely on the common-law action of trespass.^^^ In the simple act of trespass there is involved a minimum of mental element. Accordingly, the early cases stated the doctrine broadly, that individual status — youth, old age, insanity, or incapacity gen- erally — had nothing to do with liability in tort.^^* This language was afterwards strained beyond the original holdings (as was done with Weaver v. Ward, conspicuously) and made to cover classes of cases not contemplated when the doctrine was formulated.^ ^'^ There has been a distinct reaction against the universal application of this general principle, especially to cases in which the mental attitude of the wrongdoer is an essential part.^^* "0 Pol. Torts, *53; Townsh. Sland. & L. 39, 44, note 1. 111 Post, p. 302, "Exemplary Damages." And see Pol. Torts. 1 1 2 "As long as a man keeps himself within the law by doing no act which violates it, we must leave his motive to Him who searches the heart." Black, .T., in Jenkins v. Fowler, 2-t I'n. St. 308-310. "The legal wrong is found in the injury done, and not in the motive. * » * Motive generally becomes important only when the damages for the wrong are to be estimated." Cooley, Torts, §§ 692-694. 113 Amick V. O'Hara, 6 Biackf. 2.38; Haynes v. Thomas, 7 Ind. 38; Indian- apolis R. Co. V. Caldwell, 9 Ind. 397^21; Leach's Ex'r v. Prebster, 35 Ind. 415. 11* Post, p. 109. Weaver v. Ward, Hob. 89; Chase, L. C. 49. lis Bullock V. Babcock, 3 Wend. 391; Welch v. Durand, 36 Conn. 182; Flinn V. State. 24 Ind. 286; Mercer v. Corbin, 117 Ind. 4.-i0, 20 N. E. 132. Post, p. 48, "Theory of Liability." 1 1 As in negligence. Am. & Eng. Enc. Law. LAW OF TOUTS — 3 34 GENEKAL .NATURE OF TOKTS. [Oil. 1 In whatever way the liability may attach, it can attach only as to wrongs of which the person sought to be charged is directly or indi- rectly connected as the legal cause. Merely that his servant may have had something to do with an alleged wrong done is not sufficient. Even if the defendant individually in some remote way was the occasion or condition of the wrong, this would not charge him. He must be connected, directly or indirectly, as the legal cause of the wrong. There are further a ariations in the normal right to sue arising from the defendant's condition, based on exceptions wliich the law, for reasons of public policy, for example, recognizes. These excep- tions or exemptions are of two kinds: (1) General, or those which apply indifferently to all or to most all kinds of wrongs; or (2) spe- cial, which are peculiar to specific torts.^^^ Thus the state cannot, in absence of its consent, be sued for any tort. Privilege of the state is a general exemption. But privileged communication, for example, is a special exception, peculiar as a defense to libel and slander. Accordingly, general exceptions will be considered in the first part, and special exceptions in the second part, of this book. LAW SUBSTANTIVE AS TO THE WRONGFUL CONDUCT. IS. Wrongful conduct has reference to — (a) The mental attitude of the ■wrong doer, or mens rea; (b) The act or omission complained of, \5rhich may be — (1) Complete or (2) Continuing. Menial Element. Each act or omission may be involuntary, intentional, or negli- gent."* Accordingly, in dealing with a tort, it is of increasing im- portance to consider hofl far the state of the mind of a tort feasor 11' Pol. Torts, c. 4 C'General and Particular l!).Kcei)tlons"). 1 1 8 "The Englisli law, which in its earliest stages began with but aa im- perfect line of demarcation between torts and breaches of contracts, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law. the 'animus viclno nocendi,' may enter into Ch. 1] LAW SUBSTANTIVE A3 TO THE WUONGKUL CONDUCT. 35 at the time of the commission of the wrong influences the ques- tion."' Act or Omission. Mere intention to do wrong is not actionable. To constitute a tort, a wrong must have been committed, but it need not be done by positive act only. A tort may also arise out of omission. "There is great distinction between an omission and an act done." ^^" It is sometimes said that to avoid commission of a tort, "one needs only to forbear." ^^^ But this is not strictly true, in the ordinai-y sense of "forbearance." "Diligence — the convers-e of negligence — may imi)ly a forbearance to act as well as to act; ^-^ and on the other hand, failure to act is often the gist of liability. Thus, there may be negligence in omission as well as negligence in commission.^ ^' The same distinction was recognized in the civil law, under the lerms "culpa in faciendo" and "culpa in non faciendo." "* or effect the conception of a personal wrong." Bowen, L. J., in Mogul v. Mc- Gregor, 23 Q. B. Div. 51 JIass. oiiO-;>l::i, 2s X. E. 279. isii The earlier authorities will be found collected in Dempsey v. Chambers, supra. An early case from the Year Book 7 Hen. IV. fol. 34. p). 1, is -iven in the note to Wilson v. Tumman, 6 M.-in. & G. 2.1ii. And see .luds ui v. Coolc, 11 Barb. (N. Y.) 642, and cases cited; KinK. Torts, 50; Ileidenheimer v. Loring, 26 S. W. 99; Cooler. Torts. S 127; Pig. Torts. 71. 151 State of Wisconsin v. Torinus, 26 .Minn. 1, 3, 49 N. W. 2.%0. collecting 44 GENERAL NATURE OF TOKTS. [Ch. 1 (b) Such person, must have adopted the conduct with full knowledge of its tortious nature, and with actual or imputed intention to rat- ify. Tlie conduct ratified must have been in interest of ratifler. The rule as to the extent to which an act may be ratified is thus stated by Lord Colie: "He that receiveth a trespasser and agreeth to a trespass after it be done, is no trespasser unless the trespass was done to his use or for his benefit; and that his agreement subse- quent amounteth to a commandment; for in that case omnis rati- habitio retroti'ahitur et mandate requiparatur." ^^^ In Wilson v. Tumman/^^ the principle was laid down that "when A. does an act as agent for B., without communication with C, C. cannot after- wards, by adopting the act, make A. his agent, and incur liability or take benefit under the act of A." This was applied to a per- son's inability to make a sheriff his agent by adopting the torts of the sheriff in seizing goods under a proper writ. Where, however, the judgment creditor has intermeddled, either by accompanying the sheriff's officers, or by giving a bond, the creditor himself may become a trespasser, — certainly as to trespasses subsequently com- mitted. In this case, however, his liability would not seem 'to de- pend upon ratification.^"* While ordinarily the conduct of a principal or master will be con- strued favorably to ratification,^"" as to torts the fairer rule is that to hold one responsible for an act not committed bv himself, nor by his order, his adoption or an assent to the same must be clear and explicit, and made with full knowledge of the tort, and that the injured party claims that there has been a tort committed.^"® Thus, where the husband makes false representations in order to sell land 162 4 Inst. 317; Sheai-w. Torts, 56, 57. 163 Wilson V. Tumman, 6 Man. & G. 236; Fitler v. Fossard, 7 Pa, St. 540; Morehouse v. Northrop, 33 Conn. 380; Griswold v. Haven, 25 N. Y. 595; Na- tional Life Ins. Co. v. Minch, 53 N. Y. 144; Lane v. Black, 21 W. Va. 617. 164 Knight V. Nelson, 117 Mass. 458; Lovejoy v. Muixay, 3 Wall. 1; Meuham v. Edmonson, 1 Bos. & P. 369. 166 Johnson v. Can-ere, 45 La. Ann. 847, 13 South. 195; Mechem, Ag. § 177. 156 Tucker v. Jerris, 75 Me. 184; West v. Shockley, 4 Har. 287; Kreger v. Oslwm, 7 Blackf. (Ind.) 74; Abbott r. Kimball, 19 Vt. 551; Lewis v. Read, 13 ^h. 1] LIABILITY BY ]iATlFICATIOX. 45 standing in his name, but bought with his wife's money, her ac- ceptance of the purchase money without Imowledge of the fraud is not a ratification of it."^ Where the ratification is expressed, even the government may become liable for the illegal act of its ofQcer ; for example, in destroying powder.^ ^' The rule stated above is carried so far that it has been insisted i=° that the ratification must be expressed, and cannot be implied. While this would seem to be extreme, and perhaps untenable ground, it is clear that, in addi- tion to the knowledge of the facts to be ratified, there must also be an intention to ratify. The intention to ratify cannot be inferred from mere expressions of regret conveyed to the person injured, and promises to investigate the circumstances, nor other acts which may be treated as matters of friendship or favor merely.^ '"' Re- tention of an employe? who has committed an unauthorized wrong is not ordinarily evidence of ratification of his wrong."^ Taken in connection with other circumstances, — ^for example, promotion after a brakeman had maltreated and assaulted a passenger, — it may be necessary for the jury to determine whether or not there was a ratiflcation.^^^ Retention of benefit attaches liability. The principal is held rather to be estopped from denying the liability Mees. & W. 834; Buttrick v. I^owell, 1 Allen (Mass.) 172; Eastei'n Counti,-s Ry. v. Broom, 6 Exch. 314. 157 Brown v. Wright, 22 Ark. 20, 22 S. W. 1022. An action by an employer against an employe for funds embezzled, and recovery of judgment,— the amount sued for being based on the representations of, and books kept by, the employe, — is not a ratification of his concealed frauds. Grouch v. Hazlehurst Lumber Co. (Miss.) 16 SouUi. 496. 158 Wiggins V. U. S., 3 Ct. CI. 412. 109 Pig. Torts, 73. 160 Roe V. Birkenhead, etc., Ry., 7 Exch. 36; Edwards v. London, etc., Ry., 5 C. P. 445—149; Buttrick v. Lo>yol!, 1 Allen (Mass.) 172. 161 Gulf, C. & S. F. Ry. Co. v. Kirkbride, 79 Tex. 457, 15 S. W. 495; Gulf, C. 6 S. F. Ry. Co. V. Reed, 80 Tex. 362, 15 S. W. 1105; Deacon v. Greenfield, 141 Pa. St 467, 21 Atl. i').')0. But retention and promotion of wantonly negligent servant may be evidence of such i-atification of his conduct as will make flie master liable even for exemplary damages. Bass v. Railway Co., 42 Wis. 654; Goddard v. Railway Co., 57 Me. 202; Perkins v. Railway Co., 55 Mo. 201. But see Edelmanu v. Transfer Co., 3 Mo. App. 503. 162 Bass V. Chicago & N. W. Ry. Co., 42 Wis. 654. And see Haluptzok v. Great Northern Ry. Co., 55 Jlinn. 446, 57 N. W. 144. 46 GENERAL NATURE OF TOUTS. [Ch . 1 than to have ratified the conduct of the wrongdoer in its entirety.^"' It would appear, however, that generally, in the United States, while appropriating a benefit may not be conclusive evidence of ratification,"* the court will not allow any one enjoying the benefit of a wrong to deny the responsibility for it. Thus, if a father knowingly appropriates property converted by the independent tort of his child, he makes himself liable for the child's wrong."^ 16. Batiflcation properly is the equivalent of antecedent authority. It proceeds on the theory of election, not of estoppel, and establishes the relation of the master and servant or principal and agent from the beginning. In consequence — (a) The person ratifying is liable for all torts commit- ted by his adopted deputy, servant, or agent, in the course of employment, and not merely those ■wrhich he specifically adopts. Ratification is to- tal, not partial. (b) Ratification does not ordinarily discharge the lia- bility of tort feasors to third persons, but it does as to the person ratifying. Ratification establishes the relation of master and servant or principal and agent ab initio. In Massachusetts, following Hil- 163 Post, p. 268, "Fraud"; Pig. Torts, 71. 16* Hyde r. Cooper, 26 Vt. 552; Lewis v. Read, 13 Mees. & W. 834. 16 5 Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37. So if a partner willfully or through mistake commits a trespass on timber land, and takes timber there- from, his copartner is liable for the act, of which he may have known nothing, if the firm retain the timber after the notification of the wrong done. tJ. S. V. Baxter, 46 Fed. 3-50. Compare liability of employer of independent con- tractor. Benton v. Beattie, 63 Vt. 186, 22 Atl. 422. Where an auditor of a railroad company represented the shortage of a station agent to be $600, and certain persons contributed that sum to make good the deficit, and it was afterwards discovered that the shortage was larger, and thereupon the agent was arrested. It was held that the railroad company had ratified the false, though honest statements of the auditor by retaining the money paid. Burke V. Milwaukee, L. S. & ^\'. Ky. Co., 83 Wis. 410, .53 N.W. 692. And see Dunn V. Hartford, etc., Co., 43 Conn. 434. ■^"^ 1] J.IAKILITY BY KATIFICATION. 47 lard T. Richardson,^ «« It was held in Coomes v. Houghton ^^'' that the contractor for a job, by accepting and pacing for the work done thereon by a mechanic without his prior order or authority, does not render himself liable for injury caused to a third person by a negligent act committed by the mechanic while doing the work, but not a part or a result of the work itself. It is, however, recognized generally that, if an agent exceed his authority, ratification of his ■conduct proceeds, not on the principle of estoppel, but of election.'"^* If a wrong is done by a complete stranger, ratification of what lie undertook to do generally, but not of the trespass directly, consti- tutes him a servant, and creates liability. Thus, if a stranger de- livers coal for a person, and in doing so does damage, that person, by adopting the general employment, becomes liable for the spe- cific wrong. "Ratification goes to the relation, and establishes it ab initio." ^^° The adoption or ratification by a principal ^^f the wrongful act of his agent may be implied from the conduct of the principal. He cannot ratify the conduct in part, and repudiate in part If he ratifies part, he ratifies all.^^° Ratification does not release tort feasors. The liability of the master or jiiincipal which follows ratification is, additional, and the wrongdoer also remains liable. So far as the liability of the latter to third persons is concerned, the injured person is not a party to the ratification, and cannot be comi^elled to lose his right of action against the servant by any act of the master. Authoiity to do wrong is never a defense.^'^ It is accordingly immaterial whether the authority to do wrong preceded or_ followed the wrongful act. The liability of the principal is an additional, and not a substituted, 166 3 Gray (Mass.) 349. 167 102 Mass. 211. 168 Smith V. Cologan, 2 Term R. 188n; AVeillngton v. Jackison, 121 Mass. 157- 159; Metcalf v. Williams, 144 Mass. 4.")2, 11 N. E. 700; Bullard v. Moor, loS Mass. 418-424, 33 N. B. 928. 169 Dempsey v. Cbambers, 154 Mass. 380, 2S X. E. 279; Nims v. Mt. Ilcrmori Boys' School (1893) 160 Mass. 177, nr, N. E. 776. 170 Byne v. Hatcher, 7'> Ga. 289; Mechem, Ag. 130, collecting cjs-s; Fairness' Loan, etc., Co. v. Walworth, 1 X. Y. 4:!8. 171 Post, p. 286, "Liability of Agent to Third Persons." Wright v. Eaton, 7 Wis. ."9.->. 48 GENKRAL NATURE OF TORTS. [Ch. I. one."* But the proposition is not an universal one. Where a person assuming to act for a city, changed the grade of a street, to the injury of an abutting landowner, and the city ratified his act, though after suit brought, it was held that the act was justi- fied."' A city is not generally liable for damages consequent ou change of grade."* As between the person ratifying the Avroug, and the wrongdoer, however, it would seem clear that by ratifica- tion the principal and master assumes the responsibility of the transaction, with all its advantages and all of its burdens. He has consented to the wrong, and volenti non fit injuria. Ordinarily he cannot recover from the wrongdoer.^^^ THEORY ON WHICH LIABILITY FOR TORT ATTACHES. 17. One theory of liability for tort is that of absolute re- sponsibility, — that a man acts at his peril. Another is that liability is confined to moral shortcomings, and is based on culpability. Neither, as a matter of fact, is ex- clusively true. The' law has pursued no consistent course,"' but there are three main categories of acts to which responsibility is afl&xed with reference to specific harm: (a) Acts done at peril with reference to that harm; (b) Acts done willfully with reference to that harm; (c) Acts done negligently with reference to that harm.'^ There is a definite theory of liability for a contract. Eesponsi- bilify is based on consent, actual or implied.^'* There is a definite th(H)ry of liability for crimes. Responsibility is based on intent, 1 -i 2 Mechem, Ag. § 182. 1T3 Wolfe V. Pearson, 114 N. C. 621, 19 S. E. 204. 174 Post, p. 140, "Damage Incident to Authorized Act." 170 Hoffman v. Livingston, 46 N. Y. Super. Ct. 552; Pickett v. Pearsons, 17 Vt. 470; Woodward v. Suydam, 11 Ohio, 301; Bray v. Guun, 53 Ga. 144; Foster V. Rockwell, 104 Mass. 107. 178 O. W. Holmes. Jr., 7 Am. Law Rev. 652; Holmes, Com. Law, 79; Wa- bash, St. L. & P. Ry. Co. V. Locke, 112 Ind. 404, 14 N. B. 391. - 177 John H. Wigmore, in 7 Harv. Law Rev. 455, 456. 17 8 Clark, Cont 3, 4, 752. Ch. 1] THEORY O^S WIIUH LIABILITY FOR TORT ATTACHES. 49 actual or construetive.^'" But there is no consistent theory as to liability for tort. As slated in the blaclc-lettor text, there ave three theories advanced: (1) The historical, based on absolute lia- bility; (1^) the philosophical, based on culpability; and (3) the prac- tical, based on the actual state of the law. These will be considered in order. Jibsolute Liahility. Perhaps the commonest conception of liability in tort is expressed by the classical phrase, that a man acts at his peril. He insures the world against wrong on his part. The duty to avoid harm to others is regarded as absolute. Breach of that duty, and conse- quent damage, is sufficient to create responsibility witliout reference to his mental attitude, — that is, his consciousness or intention. Whether legal wrong has been done for which the law affords reparation in damages depends upon the nature of the conduct, and cannot consistently be made to depend upon the motive of the person doing it.^*" This view of the law had its origin in the early Ger- manic conceptions of liability. These conceptions inclined to the position that whenever harm was done some one must be held re- sponsible. There was no definite logic in the seled ion of the vic- tim. "The primitive notion instinctiA'ely visited liability on the visible oifending cause, whatever it might be, of a visible evil re- sult.'' "^ The master was liable, both civilly and criminally, for the wrongs of his servants.^^- The primitive conception of the law of toits is well expressed in Lambert v. Bessey: "" "In all civil acts the law dotli not so much regard the intent of the actor as the loss and damage of the party suffering. * * * For, though a man doth a lawful thing, yet, if any damage due thereby befall another, he shall aus\\er for it if he could have avoided it." "The old writs in trespass did not allege, nor was it necessary to show anything, savoring of culpa- bility. It was enough that a certain event had happened: and it 179 Clark, Cr. Law, 43, -14. i«o Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57. And see Jeukiu.s v. Fowler, 2-1 Pa. St. 308. 1817 Harv. Law Kcv. 319. 182 Mr. Wigmoro in 7 Harv. Law lie v. 317. 1S3 X. Raym. 421. I.AW OP TOUTS — 4 50 GENERAL NATURE OF TORTS. [Ch. 1 was not even necessary that the act should have been done inten- tionally, though innocently." ^^* T'lius, in Leame v. Bray/*'' Gross, J., held that, if the injury be done by the act of the pai'ty himself at the time, or he be the immediate cause of it, though it happen ac- cidentally, or by misfortune, yet he is answerable in trespass. In Underwood v. He^\■son,l*'^ the defendant was uncocking his gun. It accidentally weut off, and wounded a bystander. The defendant was charged, and holden liable in trespass. Interference with the person by a blow,^^' or restraining freedom of locomotion,^** or interference with real property by going upon it,^*° or by convert- ing personal property to one's own use, as by taking it away, keeping, usiuu. or destroying it,^"*" is generally regarded as conduct which is* 7 Am. Law Rey. 052. 185 3 East, o'.r,;. Here a person on a dark night had got on the wrong side of the road, and injured another, and it was held that trespass lay. In Grant V. Moseley (ISnu) 29 Ala. 302, it was distinctly held that damages resulting from an accident could be recovered. 180 Strange, 50C. This decision has never been questioned. Cole v. Fisher, 11 JIass. 130. And see Weaver v. ^A'ard, Hob. 2S9, where a soldier was held liable for accidentally shooting a comrade with whom he was practicing at arms. In America it has been distinctly held that when an injury to an- other is caused by an act that would have amounted to trespass vi et armis under tlie old system of action, as where one by the negligent handling of a gun kills another, it is no defense that the act occurred through inadvertem e and without the wrongdoer's intending it; that it must appear that the injury was inevitable, and utterly without fault on the part of the alleged wrong- doer. Jloruan v. Cox, 22 Mo. 373. A hunter Avho kills a dog by mistake for a wolf will be liable to the owner though he .ict in good faith, and the dog may look like a wolf. Rauson v. Kitner, 31 111. Ayp. 241. And see Taylor V. Rainbow. 2 Hen. & M. (Va.) 423; Hodges v. Weltberger, (i T. B. lion. 337; Sullivan v. ilurphy, 2 Miles (Pa.) 298; Welch v. Durand, 36 Conn. 182; Chataigne v. Bergeron, 10 La. Ann. 699. 1S7 Post, p. 434, •'.\ss;iult and Battery." And see Chapman v. State, 78 Ala. 463. 188 See post, p. 417, "Falsp Imprisonment." 189 Brown v. Collins, 53 N. H. 442; Castle v. Duryee, 2 Keyes (N. Y.) 109. Post, p. 660, "Trespass." Guille v. Swan, 19 Johns. (N. Y.) 381: Striegel v. Moore, o'^ Iowa. 88, 7 N. W..413. 191 Post, p. 700, "Conversion." Boyce v. Brockway, 31 X. Y. 490; HoUins V. Fowler, L. R. 7 H. L. 7.")7; Eten v. Luyster, 00 N. Y. 2.")2, per Allen, J. Generally, as to trespass to chattels, see M(jrgan v. Cox, ante, note 186; Tally V. Ayers, 3 Sneed (Tenn.) 077; Jeuuiugs v. Fuudeburg, 4 McCord (S. C.) 161. Ch. 1] THEORY ON WTUCH LIABILITY FOU TOUT ATT U:HI23. 51 violates absolute duties, and which creates corresponding absolute rights to redress. So, if an act complained of is a nuisance, the person creating and maintaining it is said to be absolutely liable, no matter how proper his motives and how useful his purpose.^"^ Legal remedies being substituted for personal war, it was nat- ural that liabilitv for torts should be regarded from the point of view of the man who suffered, and not from the point of view of the intention or mental attitude of the cause of that harm. Moreover, the distinction between rights that were absolute and the rights that were merely natural as distinguished from rights acquired, was not constantly present before the minds of the judges. And, his- torically, the injuries most frequent of occurrence were injuries di- rectly to the person or property. Prior to the statute of Westm. II. there were none of the modern actions on the case. These are, in- deed, the bulk of the present law of torts. The category of things done at peril has been materially increased by an impoi'tant class of cases more or less generally recognized. These cases involve a duty to insure safety^'^ as distinguished from the general class now under consideration, namely, the duty to in- sure against wrong generally, on the one hand, and from the duty merely to exercise proper care in view of all circumstances, on the other. Thus, in Rylands v. Fletcher,^"' it was held that if a person gathers water in dangerous quantities on his own land, and it es- capes and damages another's, the latter can recover, although the former exercised due care. A person is bound, under such cir- cumstances, to insure the safety of third persons against harm from the dangerous agency he had collected on his premises. Theory of Culpnbilitij. Great jurisprudents liavc iuclinod to trace responsibility for torts to the mental element, as is done in the cases of crimes and con- tracts. Liability they would confine to moral shortcomings. Ac- cording to Austin, whose theory is that of a criminalist, the char- iDi This doas not rpally involve reasoning in a circle as much as might at first appear. Consideration of cases where nuisance and breach of duty to insure safety seem to be identical will satisfy on this point. 102 Pol. Torts, c. 12. 103 L. R. 1 Exch. 2(5. Compare Losee v. Buchanan, 51 X. Y. 470. 52 GEXEEAL NATUKE OF TORTS. [Gil. 1 actei-istic feature of law is a sanction threatened or imposed by the sovereign for disobedience to the sovereign's command, and the greater part of the law maizes a man civilly answerable for break- ing it. He is compelled to regard the liability to an action as that sanction, or, in other words, as a penalty for disobedience, and accordingly liability ought only to be based on personal fault."* Liability is so based in the wrongs of fraud, deceit, slander, libel, and malicious prosecution. And, exen in cases of damage by direct act of force, it is insisted that the rule is that the "plaintiff must come prepared with evidence to show either that the intention was un- lawful or that the defendant was in fault; for, if the injury was unavoidable and the conduct of the defendant free from blame, he will not be liable." ^"^ Critical modern inve.stigation is not only ques- 13* Holmes, Com. Law, 77-129. "I assiimed * * * that intention, negli- gence, heedlessness, or rashness Is a necessaiy ingredient in injury or wrong. * * * Now, there can obviously be no breach of duty — no rupture of the vinculum juris — unless the duty has some binding force; that is to say, unless the sanction were capable of operating as a motive to the fulfillment of the duty. But sanctions operate upon the obliged in a twofold manner; that is to say, they counteract the motives or desires which prompt to a breach of duty, and they tend to excite the attention which the fulfillment of duty requires. And unle.'w the party knew that he was violating his duty, or unless he might have known he was violating his duty, the sanction could not operate at tlie moment of the Avrong, to the end of impelling him to the act which the law enjoins, or of deterring him from the act which the law forbids. Consequently, iujui-y or wrong supposes unlawful intention or unlawful inadvertence. And it appears from the foregoing analysis that every mode of unlawful inadver- tence must be one of those which are styled negligence, heedlessness, or rash- ness. The only instance wherein intention or inadvertence is not an ingredient in breach of duty is furnished by the law of England. * * * Uidawful inten- tion or unlawful inadvertence is therefore of the essence of injury, and for this reason: that the sanction could not have operated upon the party as a motive to the fulfillment of the duty, unless at the moment immediately preceding the Avrong he had been conscious that he was violating his duty, or unless he would have been conscious that he was violating his duty if he had adverted or at- tended as he ouglit." t Aust. ,Tur. 329. 105 Shaw, C. J., in Brown v. Kendall, G Cush. 2'.>2, "It is impossible to con- eeivo the idea of a tort as separate and apart from an intentional wrong and injury, or such negligence or other misconduct as necessarily to imply such wrong or injury. A scienter is the veiy gist of a tort. To say that one may recover in tort wiUiout proving a scienter is to say that he may omit from his Ch. 1] THEORY ON WHICH I.IAlilLlTY FOR TORT ATTACHES. 53 tioning, but denyingj^"" and courts are recognizing"' many excep- tions to, the clearest cases of absolute liability. The idea of absolute duty may remain, but not the idea of absolute right as an inevitable consequence of a violation of a material right.^"^ The change has been wrought largely through recognition of the doctrine that a person cannot be held liable for a wrong of which he was not rationally a cause. This theory accords with the common-sense view of the laws. — that no man should be. held responsible in damages unless he is at fault. True Theory. The true view, as ]Mr. Holmes has pointed out, is that the law has not adopted any logically consistent theory of liability/"' At the one extreme there are cases in Avhich culpability is not an element, in which the defendant is held liable although he may not be to blame; as trespass to person or property, and breach of duty to in- sure safety. At the other extreme moral wrong is material to wrongs of malice and fraud.-"" Negligence is a common battle ground. It is vigorously insisted that negligence is and that it is not a. state of the mindj ^"^ and it is clear that the very authorities who deny that negligence is a state of the mind recognize that as proof the cliief element of his case." :\IcC'r;iry, J,, In Shippen v. Bowen, 48 Fed. 659. 190 Post. p. Sl.j. "XegliRence'' ; Brown v. Kendall, 6 Gush. 292. Harvey v. Dunlop, Hill & D. 193; Nitro-Glycerine Case, 15 Wall. 524; Lansing v. Stone, 3T Barb. l.~i; Center v. Finney. 17 Barb. 94; Morris v. Flatt, 32 Conn. T.l; Paxton V. Boyor. 07 111. 132; Dygert v. Bradley, 8 Wend. 470; 1 Hill, Torts, c. 5, § 9; 2 Greenl. Ev. 85. 19 7 See, for instance, cases of trespass where the act Is involuntary, and cases of damage by cutting timber, intentionally or unintentionally. Post, p. 660, "Trespass." And see post, p. 734,"Convereion," "Ministerial Duties." As- sault and battei-y, see Holmes v. ilather, L. R. 10 Exch. 261; Stanley v. Pow- ell, 1 Q. B. 86 C91); Ames, Torts, and cases cited in note at page 64. Nuisame, —high boai'd fence cases. Post, p. 749. Generally, see Am. & Eng. Enc. Law, tit. "Negligence." In tlic absence of negligence, a man who accidentally shoots another is not liable in tort. Stanley v. Powell, 1 Q. B. SG (Olj. 198 Townsh. Sland. & L. 199 Holmes, Com. Law, 79-81; 7 Am. Law Reg. 48, 6.52. joo Post, p. 560, "Deceit." ^01 Post, p. S20. "Xegligence." 54 GENERAL NATURE OF TORTS. [Ch. 1 soon as a defendant acts not inadvertently, but willfully, his wrong is no longer negligence.^"^ It would seem that the theory of personal culpability as the basis of liability in tort is gaining ground. This will appear in subsequent discussion in different degrees and with yarying certainty, inter alia, in (a) cases as to liability of persons of peculiar status (as of infants in negligence); ^"^ (b) cases of trespass to persons^"* and of con- version (as in performances of ministerial duties); ^"'^ (c) cases of libel and slander; ^"^ (d) cases of negligence and breach of duty to insure safety;^" (e) malicious use of property; =°* (f) generally cases of conduct actionable because of wrong motive (as in more re- cent developments of malicious conspiracy); ^"^ and (g) in the devel- opment of the doctrine of connection as cause.-^" THE LAW SUBSTANTIVE AS TO MENTAL ATTITUDE OP THE TOKT FEASOR. 18. The la^wr of torts regards primarily, and in some cases exclusively, the conduct and not the mental attitude of the wrongdoer. Intentional wrongdoing may aggravate dam- ages which the sufferer may be entitled to recover. It is true that, in many instances, liability for torts is based on the ^^-I'ong done, and not on the reason why.-^^ The law of torts treats every person as intending Ms conduct, and holds him responsible for 202 1(5 Am. & Eng. Enc. Ijaw, tit. "Negligence," p. 389. 2 03 Post, p. 871. 204 Holmes v. Mather, L. R. 10 Exch. 261; Stanley v. Powell, 1 Q. B. S6 (91). 20= Post, p. 734, "Couvei-sion." 20 6 Post, p. 525, "Libel and Slander." 207 Cork v. Blossom, 1G2 Mass. 330, 38 N. E. 495, 8 Harr. Law Rev. 225. Berger Gas Light Co., 62 N. W. 336 and see exceptions enumerated,— Post, p. 832, "Negligence." The fact that responsibility for harm consequent upon commercial use of electricity has been subjected to the rules of negligence, and not governed by the doctrine of duty to insure safety,— post, 863, "Neg- ligence," is significant. 20 8 Post, p. 557. 209 Post, p. 637. 210 Post, p. 61. 211 "Intention has found no place on the English law of torts." Lord Wen- sleydale, Chasemore v. Richards, 7 H. L. Cas. 297. Ch. 1] LAW sij'B'-ta-N'tive as to mentai. attitude of tort feasor. 55 its natural and probable consequence. Statements of this character, however, are likely to be too sweeping, as will appear in the analysis of mental attitude which follows. The law of torts is designed, primarily, to compensate for injury done.^^^ The effect of intention to do wrong is to increase the amount of damages recoverable by the person injured. This is a survival from the original criminal character of the law of torts. Thus, while good faith will not excuse a trespass, bad faith may aggravate it.-^' 19. Mere intention to do -wrong, or mere malice, not re- sulting in conduct -which violates a right or duty, is not actionable. Mere intention to do wrong, not carried into effect, docs not con- stitute a tort. "Ton cannot sue a man for the state of his mind. A man may conspire to commit murder, but until something is done amounting to assault and battery there is no civil liability." An act contemplated but not yet accomplished, though it may some- times be ground for preventive remedies, cannot support an action for a tort.^^° Thus, a mere agreement between two or more per- sons to convert property of another, without an actual intermed- dling with it, does not give the owner a cause of action against the parties to the agreement.^^* The original view of the law was that an act done in pursuance of an unlawful intent is no ground for an action unless damage recognized by the law has resulted.^^^ Mere 212 Post, p. 360, "Compensatory Damages." 213 Cubit V. O'Dett. 51 ilich. 347, 16 N. W. 679. Post, p. 392, "Bxemplaiy Damages." 21 s Sbeple V. Page, 12 Vt. 519; Kimball v. Harman, .'U Md. 407; Heron v. Hughes, 25 Cal. 555; Jones v. Baker, 7 Cow. 4-15; Page v. Parker, 43 X. H. 3C3; Taylor v. Bidwell, 65 Cal. 489, 4 Pac. 491. Just as at criminal law, there must not only be wrongful intent, but act. Bish. Cr. Law. § 206; Clark, Cr. Law, 45. 21 c Heron v. Hughes, 25 Cal. 555. 217 Morgan v. Bliss. 2 Mass. Ill; State v. ArJams, 108 Mo. 20S, 18 S. W. 1000; Benjamin v. -Wheeler' 8 Gray, 409; Panton v. Holland, 17 Johns. 92; Haycrnft v. Creasy, 2 East, 92; 2 Thomp. Neg. 739; Estey v. Smith, 45 5Iich. 402, 8 N. W. 83; Covanhovan v. Hart, 21 Pa. St. 495; Clinton v. Myers, 40 N, y. 511; Frazier v. Brown, 12 Ohio, 294; Thomasson v. Agnew, 24 Miss. 93; Brothers v. Morris, 49 Vt. 400; Kiff v. Youmans, 80 N. Y. 324. 56 GENERAL NATUitE OB' TORTS. [Ch. I malice is not per se actionable.=^' Had motive for conduct by itself is no tort. fWrongful intention caunot make lawful conduct un- ' lawful, ^^" or a proper intention make unlawful conduct lawful.--" Malicious motives make a bad case worse, but that cannot make that wrong which in its own essence is lawful." --^ "The best intention cannot prevent an act from being a nuisance when it otherwise is such; and the worst intention cannot make an act a nuisance when it otherwise is not." "^ , To constitute a tort, there must also be a violation of a legal dutyj (Thus, malice does not make the diversion of subterranean waters actionable if such diversion would not be actionable if the motive were a proper one.^^^ It cannot be said that this reasoning has been entirely abandoned. But in many cases it lias not been fol- lowed, and there is a distinct tendencj' to determine liability by referenc. to the state of the defendant's mind. Like most a priori generalizations, this has been the basis of much dispute, and, per- haps, of much error.^=* f As the law of torts tends to be regulated 218 Norcross v. Otis Bros., l.")2 Pa. 481, 2."i Atl. 57.:); Boy son v. Thorn. OS Cal. 578, 33 Pac. 402. And see post, p. 8G, "Damnum Absque Injuria." 210 Hunt V. .Simonds, 19 Mo. 583; South R. Bank v. SufColk Bank, 27 Vt. 505; Auburn & Cato P. R. Co. v. Douglass, 9 N. Y. 444; White t. Carroll, 42 X. Y. 161; Sterns v. Sampson, 59 Me. 5f;S-572; Cunningham v. Brown, 18 Vt. 123; Dunlap v. Glidden, 31 Me. 435; Payne v. Raihvay Co., 13 Lea, 507; Humphrey v. Douglass, 11 Vt. 22; Prickett v. Greatrex, 7 Law T. l-'iO. 2 20 Amick v. O'Hara, (J Blackf. 2.18; Porter v. Thomas, 2;J Ga. 407; Moran V. Smell, 5 W. Va. 20; Ex parte Milligan, 4 AVall. 2. 221 Hey wood v. Tillson, 75 Me. 225; Phelps v. Nowlen, 72 N. Y. ;'!0. 222 Black, J., in .Jenkins v. Fowler. 24 Pa. St. 308-310. And see Fowler v. Jenkins, 28 Pa. St. 170; Bonnell v. Smith, n:! Inw-i, 281. 223 i^vazier v. Brown, 12 Ohio, 204; Chatlleld v. Wilson, 28 Vt. 49. So in Mahan v. Brown, 13 Wend. 2G0, m.aliciously erecting a high fence on de- fendant's own premises was held not to be actionable. "The plaintiff In this cafe has only been refused the use of that which does not belong to her; and, whether the motive of defendant is good or bad, she had no legal cause of complaint." And see Smith v. .Tohnson, 70 Pa. St. 191; Thornton v. Thorn- ton, 03 N. C. 211;.Jenks v. WiUiams, 115 Mass. 217; BCarwood v. Tlump- kins, 24 N. J. Law, 425; Panton v. Holland, 17 Johns. 92. Of. Gallagher v. Dodge, 48 Conn. 387 (as to statutory prohibition of malicious erection). 224 The confusion which has arisen as to when a wrongful intention is es- sential to a cause of action is well illustrated in the cases, subsequently con- sidered, as to liability of election officers for their torts. Post, c. 2. "Execu- ^Cb. 1] LAW SUBSTANTIVE A3 TO MENTAL ATTITUDE OF TORT J'iCASOK. 57 hy admitted general principles, it inclines to refer, for a basis of liability, to some mental element analogous to consent in contract and intent in crimes. There is recognized an increasingly large and important class of cases to which the principle referred to does not apply. Thus, there are uses of property resulting in damnum absque injuria if the motive of defendant be proper, but which may be the basis of recovery if defendant be guilty of malice." =^ And esgeciallj' in the legal aspect of modern combinations of employers or of employes, and of vendors and of vendees, the question of mo- tive is becoming of the utn^ost importance."^' / -^ 20. The -wrrongdoer may be held liable in tort for his conduct, although he may not have been conscious of ■wrongdoing. Thus, there may be Intention to do the act which produces injury without intention of violating the rights of another, and despite the exercise of due care in the entire transaction. If a person buys and takes away property in violation of the rights of the owner, he is liable for the value thereof in an action for conversion.^"' If one by bona fide mistake, notwithstanding every precaution to keep within his own lines, goes upon the lands of another, he is liable in trespass.--^ Again, there may be intention to do a lawful act, and liability may attacli for injuries because of unintended conse- tive OflBcers." And see arrangement of riglits and Avrongs as interpreted by Mr. Anstin (2 Jur. table 8), at page 31:;. Mr. Brice (1 Am. Com., 3d. Ed.) says: "He [Jlr. .Tn.stice Blaekstone], as was natural in a lawyer and a man of let- ters, described rather its theory than its practice, and by its theory v/as many years behind its practice." 225 Thus, it was said in Che.sley v. King, 74 Me. 1G4: "It cannot be re- garded as a maxim of universal application that malicious motives cannot make that a wrong which in its own essence is la^vf nl." And see Stevens v. Kelley. 78 ile. 4-15, C Atl. 808.) To induce one to brenk a contract, if there is neither malice nor fraud, Is not actionable. McCann v. Wolff, 28 Mo. App. 447. But malicious interfei'euce with contract is a generally recog- nized tort. Lumley v. Gye, 2 El. & Bl. 210; post, p. ("ai. aau Post, p. 64o, "Conspiracj'.'' 227 Hilbery v. Hatton, 2 Hurl. & C. 822. 22S Blaeu Avon Coal Co. v. McCulloh, 59 Md. 4(i;'.; Hazelton v. Week, 49 Wis. GCl. 6 N. W. 300; Cato v. Cate, 44 N. H. 211. 58 GENHRAL NATURE OF TORTS. [Ch. 1 quences, without reference to tlie exercise of care. Thus, in an assault there may be unintentional injury from an intentional act. If, in sport, one throws something at another, and injury to a third person ensues, this is actionable."" As to this general line of thought, however, there is not a unanimity of opinion. Again, there may be no intention of doing harm, but, for want of due care to guard against injury to others, conduct innocent in itself may become tortious. This want of advertence to natural and probable consequences attaches liability by what is called "negligence." Thus, if a person's servant drive so carelessly in a public street as to come into collision with a carriage, and thereby cause the horse attached to the same to take fright and run away, and injure another's person and property, the master is liable in tort.^^^ If a druggist negligently delivers a harmful drug when a harmless one is asked for, the absence of intention is no excuse.^^^ Wliat is "due care" when the duty of exercising it exists will be subsequently discussed under "Negligence." A distinction is sometimes drawn between negligence and rash- ness or heedlessness. Kashness or heedlessness is said to be such a disregard of the rights of others as is shown in the probability that harm will result being foreseen more or less clearly.^^* Thus, if an owner leaves a horse and cart in the streets without hitching the horse, or leaving some one to watch it, and the horse, being struck by a stranger, runs away, and does damage, the owner is liable, though the horse was a quiet one. "If a man chooses to leave a cart standing in the street, he must take the risk of any mis- 220 Peterson v. Haffner, 50 Ind. 130; Perkins v. Stein, 94 Ky. 433, 22 S. W. 049. And see Corning v. Coming, 6 N. Y. 97; Wright v. Clark, 50 Vt 130; Cogdell V. Yett, 1 Coldw. 230; Knott v. Wagner, 16 Lea (Tenn.) 481; Ander- son V. Arnold, 79 Ky. 370; James v. Campbell, 5 Car. & P. 372; Ball v. Axten, 4 Fost. & P. 1019. 2 31 McDonald v. Snelling, 14 Allen (Mass.) 290. 232 Brown v. Marshall, 47 Mich. 576, 11 N. W. 392; Davis v. Guai-nieri, 45 Ohio St. 470, 15 N. E. 350. 23 3Aust. Jur. lect. 3; Innes, Torts, p. 35, § 30; Whart. Neg. § 12. Neg- ligence and rashness both suppose unconsciousness. In negligence the party does not think of a given act; in rashness the partj- does not think of a given consequence. Aust. Jur. lect. 3. Ch. 1] LAW SUBSTAXTIVE AS TO MENTAL ATTITUDU OF TORT FEASOR. 59 chief that may be done."-" The distinction is a fine one at best. No useful purpose would seem subserved by its use. It has cer- tainly not become embodied in current language of decision. When, however, the disregard for the rights of others amounts to wanton- ness, or a person ceases to be inadvertent, and intentionally injures another, then the wrong, according to what is perhaps the better opinion, ceases to be negligence, and becomes willful. The truth of the matter would seem to be that negligence, so far as the mental attitude of the person charged with that kind of wrongdoing is concerned, is used in a double sense. It sometimes refers to a breach of duty unqualified in its nature, as the negligent keeping of fire,"" negligent storage of water,-^" or the negligent keeping of dangerous animals.^"' In these cases, the conduct of the wrongdoer may have been perfectly reasonable and careful throughout, and yet he may be liable. But negligent driving, or the negligent handling of a gun, indicates a very different source of liability, arising, not from the nature of the thing done, but from want of forethought in the doing of it.^^* 21. There may also be an intention, not only to do an act, but also to violate a right in so doing; in other w^ords, actionable conduct may be accompanied by consciousness of ■wrongdoing. ^^ Malice, in legal phraseology, signifies the contemplation of the doing of a wrongful act towards another person. In its legal sense, it ranges from malevolence, as in an injury committed in. revenge, to the mere conscious violation of a right without just cause or 234 Illidge V. Goodwin, 5 Car. & P. 190. And see L.ake Shore & M. S. R. Co. V. Bndemer. 139 III. 590, 211 N. E. 692; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412. 11 Suiitli. 262. -35 Jones v. FestinioK R. Co., L. R. 3 Q. B. 7:J3. 2 30 Rylands V. Fletcher. L. R. 1 Exch. 2G5; L. R. 3 H. L. 330. 2 37 May V. Burdett, 9 Q. B. 101. Blasting, Injuring plaintiff's horse. Ban- ner V. Atlantic Dredging Co., 58 Hun, 350, 12 N. Y. Supp. ISl. 235 Clerk & L. Torts, 11; Pol. Torts, "Duties to Insure Safety." 239 Reeves V. State, 95 Ala. 31, 11 South. 15S-1G3: U. S. v. Harper, 33 Fed. -171; r. S. V. Taintor, 11 Blatchf. 371, Fed. Cas. x\o. 16,428. ■60 GENERAL NATURE OF TORTS. [Ch. 1 excuse, as in the case of a mere trespass.^*" Malice is said to have been present whenever the injurer contemplated harm to the person injured, though he may also have entertained a desire to benefit himself, and though the harm contemplated may be merely inci- dental to the fruition of that desire. It is present, therefore, though in different degrees, in the highwayman who murders a man for his purse, and the trespasser who gets over a fence to take an iipple.-" Of course, the malice need not always be for the benefit of the wrongdoer.^*^ Whenever there is a sinister or improper motive actually present in the mind of the wrongdoer, the malice is said to be maJice in fact, express malice, or actual malice."*' This is proved by evidence as to the state of the mind of the wrongdoer. Malice in law, or implied malice, does not refer to the consciousness of the wrongdoer; nor to motive, but to knowledge of wrongdoing. It is the inference of law from facts in evidence. It is proved by showing actual occurrences.-** Malice in law or in fact is an essential ingredient of certain forms of specific wrongs or torts, such as malicious abuse of process, malicious prosecution, libel and slander, fraud and deceit."*' In fraud, it is sometimes contended that action lies only for false representations, but there is autliority for sustaining such an ac- tion upon negligent rei)reseutations.""' 2*0 Innes, Torts, 41. 2*1 Id. 242 Chesley v. King. 74 Me. 1G4. 2-43 Smith T. Rodecap, 5 Ind. App. 78, 31 N, B. 479; Kanisey v. Cheek, lOH K. C. 270, 13 S. E. 775. Whetlier or not tlie fact that defendant's conduct <^omplained of was intended as a joke may avail as a defense depends upon a reasonable exjjectation of a practical joke from antecedent conduct. Wart- man V. Swindell, 04 N. J. Law, 589, 25 Atl, :;."i(l. 244 Townsh. Sland. & L.; post, p. 555, "Malicious Wrongs." Malice may be found either in a T^rongful motive, or, in many cases, in a wrongful act, whatever the motive. Bigelo-i^-. Torts, 5, note 1. Malice in law may arise from an act done wrongfully and willfully, without reasonable excuse or probable cause, not necessarily only from an act done from ill feeling, spite, or desire to ln.iure another. Tucker v. Cannon, 32 Neb. 444, 49 N. W. 43.j. 24 5 Post, pp. 032, (;02, 512. 558. -46 Post, p. 5G0. "Deceit." Gh. 1] CONNECTIOX AS CAUSE. 61 CONNECTION AS CAUSE. 22. Liability for conduct does not attach unless the con- duct was the legal cause of the injury complained of. As in nature every change is the result of some cause, so it is in the legal relations between man and man. The determination of legal cause has three principal objects: (a) that where there has been a wrong committed, for which liability should attach, the per- son who is to be held answerable in an action in a court of common law should be selected; (b) that if the person injured be himself a ^\rongdoer, in any respect, it can be determined whether or not his wrongdoing should disentitle him from recovering; and (c) that the extent of the injurious consequences for which the person thus ascertained to be responsible to such injured person, not dis- entitled, be fixed. A man is responsible for his own conduct only. In determining- liability for a given harm suffered, the fundamental question is, did the party charged cause the harm? In ascertaining this the courts naturally select the proximate as distinguished from a re- mote, cause. As Lord Bacon said, "It were infinite for the laM' to judge of cases and other impulsions one of another, and therefore contenteth itself with the immediate cause, and judgeth of acts by them, without looking to any further degree." ^*^ "In jure, non re- mota causa sed proxima spectatur." ^** So far as mere definitioi concerned, that of Jenkins, J., in Goodlander Mill Cp. v. Oil Co.,^*° is as adequate as any: "The proximate caus injury is that i\'hich, in natural and continuous sequeucdflPfflWricen by any efficient intervening cause, produces the injury, and without which the result would not have occurred. * » * The remote cause is that cause Avhich some independent force merely took ad- vantage of to accomplish something not the probable or natural effect thereof." But what is a proximate cause is a matter requir- ing great nicety to determine. 24i-Bac. Max. Kog-. 1. 2-is Broom, Leg. JIax. 216-228, 853; Hoag v. Railroad Co., s,^ Pa. St. 291^. -"11 C. C. A. 2,-13. G3 Fed, 400^07. 62 GENERAL NATURE OF T»RTS. [Ch. 1 23. If tlie damage complained of would have ensued not- withstanding the conduct complained of, then such con- duct is not a cause. A cause is a necessary antecedent. It must be a causa sine qua non of the damage complained of. If, however, the damage would have occurred whether defendant had done his duty or not, then the defendant, even though a wrongdoer, is not the cause of the wrong. Therefore, where horses became frightened, and ran into a hole in the ice, near a highway, negligently left unguarded, and were drowned, it was held that their owner, though free from negligence, could not recover from the person whose duty it was to place a guard around the hole, if their speed was so great that a guard would not have prevented the casualty.^^" Conversely, plaintiff's own wrong does not bar his recovery, if the injury complained of would have happened just the same, notwithstanding his improper^ conduct.'' °^ 24. The defendant's w^rongful conduct may have been so connected w^ith the damage complained of that the damage would not have been done, except for the conduct, and still the conduct may not be the cause. Defendant's conduct may be a necessary antecedent of the harm complained of, and may be wrongful, and still not be the juridical •use of the harm.^^^ The rule of law is that negligence, to render tendant liable, must be the causa causans or proximate cause, 2 50 Sowles v. Moore, 65 Vt. 322, 26 Atl. 629. Tlie law is not different where defendant's duty to guard was statutory. Stacy v. Knickerbocker Iop Co., 84 Wis. 614. 54 N. W. 1091. Contrast Union St. Ry. Co, v. Stone, 54 Kan. 83, 3T Pac. 1012. 2 SI Post, p. 959, "Contributory Negligence." 202 Thus, an iron post used as a barber's sign stood on the sidewalk six inches from the curb. It was not fastened to the sidewalk, except by three Ijrongs projecting from the base into holes drilled in the sidewalk. The post had stood there for 18 months, when defendant's servant negligently backed his wagon against the curb, so that the projecting end of the wagon knocked the post over upon plaintiff. It was held that the act of defendant's servant, and not the act of placing the post there, was the jjroximate cause of the acci- dent. Wolff Mfinuf's Co. v. Wilson, 152 111. 9, 38 N, E. 694. Oh. 1] CONNKCTION AS CAUSE. of the injury, and not merely a causa sine qua non."= But the line as to this matter is often a fine one. Thus, where a person carelessly left another's bars down, in consequence of which the latter's sheep were destroyed by bears, the court denied the right to recover. The court, however, was much divided in reasoning.-" The conclusion would not be accepted as law in many jurisdic- tions.^" Essentially the same idea is often put in other words by saying that a defendant is not liable when his alleged wrongful conduct was a condition, and not a cause.-'"'' Condition not Cause. The courts are entirely agreed that when defendaut's wrongful conduct is the condition of the harm complained of, and not the proximate cause, then defendant is not liable in tort.^"^ But they are by no means agreed as to what is the difference between a cau.se and a condition. Thus, delay in performance of a contract,^'^ or wrong in the performance of a contract, resulting in delay, whereby damage ensues,°°° whirh but for such delay would not have occurred, 2 3 Per I^Uy, C. B., in Loi-ds Bailiffs v. Corporation of Trinity House, L. R. 5 Exch. 204, affirmed L. R. 7 lixcli. 247. Here, however, plaintiff wa.s held to be the proximate cause. 2 54 Oilman v.^oyes, 57 N. H. 627. , 2 56 Damages are generally regarded ok proximate if tliey are\ natural and probable consequences, whether they -Could or could not be foreseen. The t-ourt in the case argued that such consequences should have been anticipated. See opinion of I^dd, J., Oilman v. Xoyes, '>~ X. H. (iit. 250 "A condition is a mechanical antecedent without causal power, cause is the responsible voluntary a§:eut changing the ordinary course of nature." Cicorn de Officii, lib. 1, cited in Whart. Neg. 824. 2 7 Whart. Xeg. §§ 85, 80. 2 5 8 Thus, fai'.ure to gin cotton was held the condition of its subsequent burning. James v. James, ."iS Ark. 1.j7, 2:; S. W. 1099; Chic.Tgu, St. L. i: 1>. R. Co. V. Williams, 131 Ind. 30, 30 X. E. 096; Martin v. St. Louis, I. M. & S. Ry. Co., 5.'') Ark. 510, 19 S. W. 314; Deinin? v. Merchants' Cotton-Press & ■Storage Co., 00 Tenn. 306, 17 S. W. 89; Missouri Fac. Ry. Co. v. Cullers, 81 Tex. 382. 17 S. W. 19; Chicago, St. L. A; P. R. Co. v. Buin-s, 2 Ind. App. 213, 28 N. E. ;!28; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Ct-., 139 U. S. 223, 11 Sup. Ct. 0.54. 259 In failing to transport in time. Reid v. Evansville & T. II. R. Co., (Ind. App.) 35 N. E. 703,— cited by counsel for the receivers of Railroad Co. v. Reeves, 10 Wall. 170; Morrison v. Davis, 20 Pa. St. 171; Denny v. Rail- ¥ 64 GK.NERAL NATUllE OF TOUTS. [Ch. 1 is a conditiou, not a cause. But there is much disagreement on the point. Perhaps the best illustration of what is commonlv regarded as a condition, as distinguished from a cause, is to be found in the cases subsequently discussed, where the damage com- plained of could not have occurred, except for plaintiff's wrong- doing, and yet where plaintiff was allowed to recover because such wrong was not the legal cause of the damage complained of.-"" The distinction between cause and condition would be valuable, if there were any definite standard for determining what is a cause and what is a condition. The only standard by which this can be determined is the same as that which determines a proximate from a remote cause; for example, the test of natural and probable con- sequences. Accordingly, "condition" or ''occasion," while affording a convenient verbal distinction, is, in use, likely to mislead think- ers into a conviction that tliey have something which they have not. Inevitable Accident. The English doctrine has been said, on high authority, to be that an accident not avoidable by any such jaeeaution as a reasonable man could be expected to take is a good defense to an action fori damages.-"^ A more generally accepted view, however, is that: road Co., 13 (4ray, 481; St. Jjonis, I. Jt. & S. Ry. Co. v. CMnmeix-ial Union Ins. Co., 1.^9 U. S. 223, 11 Sup. Ct. •")."i4; Xew York Lighterage & Transp. Co. \. Pennsylvania R. Co., 43 Fed. 172; Iloadley v. Transportation Co., 11."> Mass. 304. 260 ciiapter 2, post; and see Newcomb v. Boston rvotectivo Department, 14G Mass. 596, 16 N. E. 55.5; post, "Contributory Negligence." 201 Fraser, Torts, 17; Pol. Torts, c. 4, subds. S, 9. And see Innes, Torts, IS, 19, to the effect that an inevitable accident has never been defined, and' seems properly to mean that which is produced by unpreventable physical influence, which cannot be traced to the instrumentality of any joerson; cit- ing Sharp V. Powell, L. R. 7 C. P. 253. In other words. When the harm complained of is the result of circumstances, the bringing of which cannot be traced to the conduct of any person, it is not an injury. Innes, Torts, 18. "No one is liable for a mischief resulting from accident or chance casus; that is to say, from some event, other than act of his own, whicli he was unable to foresee, or foreseeing, was unable to prevent. This, I think. Is the mean- ing of the casus or accident, in the Itoraan law, and of chance, or accident, in our o-\vn law. 'By the common law,' says Lord Mansfield, 'a carrier is an insurer. It is laid down that he is liable for every accident, except by the act of God, or the king's enemies.' Here, the term accident .'^ii- 1] CONKIiCTION AS CAUSE. 65 "An accident is an event or occurrence which happens unexpectedly from the uncontrollable operation of nature alone, and without human agency, as when a house is stricken and burned by lightning, or blown down by tempest, or an event resulting undesignedly and unexpectedly from human agency alone, or from the joint opera- tion of both; and a classification which will embrace all the cases of any authority may easily be made. In the first class are all those which are inevitable, or absolutely unavoidable, because effected or inliuenced by the uncontrollable operation of nature.^"^ includes the acts of men, namely, of the king's enemies. And in the Digest it is expressly said, 'Fortuitis casibus solet etiam adnumerari aggressura latronum.' In the language of the English la\Y, an event -which happens without the intervention of man is styled 'the act of God.' The language of the Roman law is nearly the same. Mischiefs arising from such events are styled damna fatalia, or detrimenta fatalia. They are ascribed to vis divina, or to a certain personage styled Fatum. Or the casus or acci- dent takes a specific name, and is called fatnlitias. The language of either system is absurd. For the act of man is as much the act of God as any event which arises without the intervention of man. And, if we choose to sui)pose a certain fate or destiny, we must suppose that she n- it determines the acts of men, as well as the events which are not acts of men." 1 Aust. , Jur. lect. 2.5, p. 330. But the legal acceptation of "accident" as meaning an event happening unexpectedly and without fault, or where the rea.l cause cannot be traced (see Wabash, St. L. & P. liy. Co. v. Locke, 112 Ind. 401, 14 N. E. 301), is coming into general use. Accident is also used in the colloquial sense of mere occurrence of unexpected damage, as by machineiy. Kichards v. Hough, 53 Mich. 212, 18 N. W. 78.5. 262 An act of God is such an Inevitable accident as occurs without any inter- vention of man. 1 Am. & Eng. Enc. Law, 174; McGrew v. Stone, 53 Pa. St. 436. "The law furnishes every person a remedy by civil action to recover damages for injuries resulting to him from the negligence of another, even though such injury was accidental. To constitute a valid defense in such cases, the injury must be shown to have resulted from one controlling superior agency, and without defendant's fault." Knott v. Wagner, 16 Lea (Tenn.) 481; Chidester v. Consolidated Ditch Co., 59 Oal. 197; McGrew v. Stone, .53 Pa, St. 436; McCauley v. Logan, 152 Pa. St. 202, 25 Atl. 499; Express Co. v. Smith, 33 Ohio St. 511; Turner v. Haar, 114 Mo. 335, 21 S. W. 737; Siordet V. Hall, 4 Bing. 607; Crosby v. Fitch, 12 Conn. 410; Converse v. Braiuerd, 27 Conn. 607; Sherman v. Wells, 28 Barb. 403; Michaels v. New York 0. R. Co., 30 N. Y. 564; Memphis & C. R. Co. v. Reeves, 10 Wall. 176, 19 U. S. (Lawy. Ed.) 909; Cook v. Gourdin, 2 Nott & McC. 19; Firth v. Bowling Iron Co., 3 C. P. Div. 254; Woodward v. Aborn, 35 Me. 271; Salisbury v. Herchen- LAW OF TORTS — 5 (M GENIiKAL NA'HUKE OK TORTS. [Oh. 1 In the second class are those which result from human agency aloue, but were una\ oidable, under the circumstances.^"^ And in the third class are those which were avoidable, because the act was not called for by any duty or necessity, and the injury resulted from the want of that extraordinary care which the law reasonably re- quires of one doing such a lawful act, or because the accident was the result of actual negligence or folly, and might, with reasonable care adapted to the exigency, have been avoided.^" Thus, to illus- trate, if A. burn his own house, and thereby the house of B is burned, he is liable to B. for the injury; but if the house of A. is burned by lightning, and thereby the liouse of B. is burned, A. is not liable; the accident belongs to the first class, and was strictly inevitable, or absolutely una\oidable.^°' If A. should kindle a fire rocler, supra; Bostwiek v. Baltimore & O. R. Co., 45 N. Y. 712; Hollada.y v. Keimurd, 12 Wall. 2.-14, 20 U. S. (Lawy. Ed.) 390; Sheldon v. Sherman, 42 N. V. 4S4; Read v. Spauldin;.', 30 N. Y. 630; Chicago R. Co. v. Shea, 66 111. 471. Obstruction of running stream, occasioned by wasliiug down bank, i.s not a nuisance, unless the obstruction is attributable to acts or agency of man. Moln- y. Gault, 78 Am. Dec. 687. And see City of Allegheny v. Zimmerman. 40 Am. Rep. 649. Where refuse was deposited by a coal-mining company in ;i stream where every flood, as well as the ordinary current, would carry it .uradually down stream, it was held that the fact that an extraordinary flow quickened its descent, and gave the final impulse that lodged it on another's land, did not take away the company's liability. Elder v. Lykens Val. Ci.al Co., 157 I'a. St. 490, 27 Atl. 545; .Tackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N. AY, 430 (as to lightning). Post, p. 1061, "Common Carriers," "Excep- tions from Liability." "The classical signification of 'vis major' is wider, for soniH purposes." Pol. Torts, 400, citing Nugent v. Smith, 1 C. P. Div: 423-429, per C'ockburn, J. 203 The contrary doctrine, laid down, or supposed to be laid down, in Weaver V. Ward, would seem to be at variance with the prevailing modern thought. In Holmes v. Mather, L. R. 10 Exch. 261, 44 L. .1. E.xch. 176, a horse, which was ordinarily quiet, was frightened by lightning, and ran away, injuring plaintiff. It was held that the lightning was the proximate cause of the dam- age, and that plaintiff could not recover of the driver. See Nitro-Glyceriue Case, 15 Wall. 524; Brown v. Kendall, 6 Cush. 292; Gibbons v. Pepper, 1 Ld. Haym. 38; Hall v. Fearnley, 3 Q. B. 919; Wakeman v. Robinson, 1 Bing. 213; Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404, 14 N. E. 391; Boyn- ton V. Rces, 9 Pick. .j2S. 264 This is the basis of the law of negligence. Post, c. 12. 255 But see Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N. W. 430, Ch. 1] CONNECTION AS CAUSK. 67 in a long-unused flue in his own house, which has become cracked without his linowledge, and the fire should communicate through the crack, and burn his house, and thereby the house of B., the accident would be unavoidable, under the circumstances, and be- long to the sP(-oud class. But if A., when he kindled the fire, had reason to suspect that the flue was cracked, and did not examine it, and so was guilty of negligence, or knew that it was cracked and might endanger his house and that of B., and so was guilty of folly, he would be liable, although the act of kindling the fire was a law- ful one. and he did not expect or intend that the fire should com- municate." -"" There would seem to be another class of cases, which arise where the injury is the result of so many fortuitous circumstances, no one of which can. be fairly said to have been its proximate cause, ■ that the damage may accordingly be referred to accident, and can- not be the basis of a judicial action. ^"^ 25. It is no defense, in an action for an injury resulting: from negligence, that the negligence or ^willful ■wrong of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury, if the negligence of the defendant was an efficie.it cause, without which the injury would not have occurred.^ "XeKliscnce," iios.t. i). 84(1. iiotp ]2;i: "Certainly a stroke of lightning is an 'act of CJod': but that Is not the question here presented, but rather another element— i. e. the neglisence of man— is adtlert to the (Hiestion, which materially alters its scope. If I, owning a high mast or bnilcling, which I know is so situated -.v.: to be very likely to be struck by lightning, construct an attractive path for the lightning to my neighbor's roof, so. that his houst' is destroyed by a bolt which strikes my mast or building, shall I escape liability for my neKligcnr or wrongful act by pleading that the lightning was the act of God? Certainly not. I invited the stroke of one of the most destructive powers of nature, .uid negligently turned its course to my neighbor's property. The principle is tlic same as that involved in the case of Borchardt v. Boom Co., .54 Wis. 107, 11 X. W. 440. The lightning stroke is in no greater degree the act of God than the usual freshets occiuring in a river." 2 00 Morris v. I'latt, ;'.•-' Cnnn. 7.5. 207 Chicago. St. I'., M. I'C: O. Uy. Co. v. Elliott, 5 C. C. A. .■!47, .55 Fed. 949. . iosoity of .Joliet v. Shufeldt, 144 111. 403, 32 N. E. 9t;9; Salisbury v. 68 Ui;j«EUAI. NATUKE OF TORTS. [Gh. 1 Sole Cfiuse. A juridical cause need not be a sole cause,.""" nor the nearest in time or space.-'" A wrongdoer who contributes to a damage cannot escape liability, for example, for a nuisance, because his proportion- al conti-ibution to the result cannot "be accurately measured."^ A town or city may be liable for damages caused by a defect in a highway, although the innocent act of a third person is a concur- Uerchenroder, lOG Mass. 458; Pastene v. Adams, 49 Cal. 8T. Post, pp. 0."i9, <)71, "Contributory Negligence," •'Concurrent Cause." As applied to negligence, the rule is, where several causes combine to jn'oduce the injury complained of, defendant is not released from liability because he is not responsible for all of such causes, provided plaintiff is not guilty of contributory negligence. (Jhicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. L'Ol, m Fed. 394; Board of Com'rs V. Mutchler, 137 Ind. Sup. 140, 36 N. E. 534; Stanley v. Union Depot It. Co., 114 Mo. 606, 21 S. W. 832; Herre v. City of Lebanon, 140 Pa. St. 222, 24 Atl. 207; Livingston v. Cox, 6 Pa. St. 360; Worms :orf v. Detr it City Ry. Co., 75 Mich. 472, 42 N. W. 1000; A\ebster v. Hudson River R. Co..^ 38 N. Y. L'60; Eaton v. Railway Co., 11 Allen (Mass.) COO. 260 "^fegligence may be the proximate cause of an injury of which it is not the sole or immediate cause." (Here defendant's obstruction on the higli- >yay concm-red with its movement of train to produce death.) Lake Shore, & M. S. Ry. Co. V. Mcintosh (Ind. Supp.) 38 N. E. 470. Where two fires, for one of which defendant was responsible, mingled, defendant was liable for damage thereafter ensuing. McClellan v. St. Paul, M. & M. Ry. Co. (Minn.) 59 N. W. 978; Louisville, N. A. & C. R. Co. v. Davis, 7 Ind. App. 222, 33 N. E. 451; post, p. 1050, "Concurring Negligence." And see note 262. It has, however, been held that in actions of tort, where the damage claimed may hp.ve resulted from two or more causes, tor the consequences of one only of which defendant is liable, there can be no recovery unless the evidence shows that the cause for the conseauences of which the defendant must answer most largely contributed to the dam.ige claimed. Pierce v. Michel, l Mo. App. 74. 27 Sanborn, J., in Missouri Pac. Ry. Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921-925; Pullman Palace Car Co. v. Laack, 143 111. 242-262, 32 N. K. 285; Union Pac. Ry. Co. v. Callaghan, 6 C. C. A. 205, 56 Fed. 988; Bish. Noncont Law, 518, 519-684; Thomp. Neg. 981, § 10; Booth v. Boston & A. R. Co., 73 N. Y. 38; Cayzer v. Taylor, 10 Gray (Mass.) 274; Village of Car- terville v. Cook, 129 111. 152, 22 N. E. 14; Mathews v. London, etc.. Co., 60 Law T. (N. S.) 47. 271 Learned v. Castle, 78 Cal. 454, 18 Pac. 872, and 21 Pac. 11 (the nuisance consisted of overflowing water). Ch. 1] _ CONNECTION AS CAUSE. 69 riBg cause of the harm.^''^ » But there is no unanimity of con- clusions or reasoning in this class of cases.-'* In an action to re- cover for injuries to which the fault of another person contributed, -the defendant's liability is not affected by the fact that the fault of such person was not negligence, but voluntary wrong, which they should have apprehended and guarded against.^'* And, in 272 Hayes v. Hyde Tark (1891) 153 Mass. 514, 27 N. E. 522; Houfe v. Town, 29 Wis. 296; Sehillinger r. Town of Verona, 85 Wis. 589, 55 N. W. 1040. So if a liorse shy and run into a train obstructing a crossing, Cbieago & N. W. Ry. Co. y. Prescott, 8 C. C. A. 109, 59 Fed. 237; and it is immaterial if the bit of the bridle broke, Cairncross v. Village of Pewaukee, 86 Wis. 181, 56 N. W. 648. ((Where an injury is the combined result of a horse shying from a pile of rock beside the road and the failure of the county to provide a guard rail along the approach to a bridge, the county is liable therefor. Rohrbough v. Barbour County Court, 39 W. Va. 565, 20 S. E. 565. Lynch v. Railroad Co.. 84 Wis. 348, 54 N. W. 610. And see Morgan v. Freemont Co. (Iowa) 61 N. W. 231. Defect in bridge caused damage to plaintiff in res- cuing a horse; plaintiff recovered. La Duke v. Township of Exeter, 97 Mich. 450, 56 N. W. 851. And see Lewis v. Railway Co., 54 Mich. 55, 19 N. W. 744; Page v. Bueksport, 64 Me. 51; Stickney v. Town, 30 Vt. 738; Hembling V. City of Grand Rapids, 99 Mich. 292, 58 N. W. 310 (where plaintiff, walking on a defective sidewalk, stepped in a hole made by the jerkipg away of a board by a horse, it was held that the proximate cause of the damage plain- tiff suffered was not the defect in the sidewalk, but the horse. Therefore, a town may be liable for a defect in a highway, although the innocent act of third person is a concurring cause of the damage complained of). And see Wilder v. Stanley, 65 Vt 145. 26 Atl. 189. 273 Bowes V. City, 155 Mass. 344, 29 N. E. 633; Stanton v. Louisville, etc., R. Co., 91 Ala. 382. 8 South. 7!i8; Sehaeffer v. Township, 150 Pa. St. 145, 24 Atl. 029; Worrilow v. Upper (niichester Tp., 149 Pa. St. 40, 24 Atl. 85; Kieffer v. Borough, 151 Pa. St. 304, 24 Atl. 1060; 31 Wkly. Notes Cas. 15; Brown v. Laurens Co., 38 S. C. 282, 17 S. E. 21; Mason v. Spartanburg Co., 40 S. C. 390, 19 S. E. 15; Bleil v. Street Railway Co., 98 Mich. 22S, 57 N. W. 117. Defendant maintained a bridge, with side rails, across a railrratl track. Plaintiff was driving across the bridge, when the horse fell against the rail, which broke, and precipitated horse, sleigh, and plaintiff to the track below. The horse was dead— either from heart disease or from choking by the harness— when lie fell. Held that, even if there was a defect in the bridge, it was not the proximate cause of plaintiff's Injury, and defendant is not'liable therefor. McClain v. Incorporated Town of Garden Grove, 48 K. W. 1031. 27 4 Lane v. Atlantic Works, 111 Mass. 136. 70 GENKKAL NATUKE OF TORTS. [Oh. 1 general, when the damage complained of is the result of simul- taneous wrong both of the defendant and of a third person, and could not have been produced in ilic absence of either, the defend- ant's wrong is the proximate cause of the injury."^ The fact that a natural cause contributed to produce the damages complained of, which would not have happened without defendant's wrong, does not enable defendant to make out the defense of the act of Cod.-'" If a defendant charged with negligent damage has been guilty of such negligence as would have produced the damage complained of, he cannot excuse himself on the ground of inevitable accident by showing that the damage would have occurred through an un- avoidable cause although he had done his duty. But, if he can show that a substantial and fairly ascertainable portion of the dam- age which actually happened is to be attributed solely to that un- avoidable cause, the liability for damage will be apportioned.^'^ Intervening Cause. If a person's wrong is a proximate cause of injury, he may be liable although there may have been an intervening efficient cause. 27 5 McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Grigga v. Fleckenstein, 14 Minn. 81 (Gil. 62); .Tohnson v. Northwestern Tel. Exch. Co., 51 Minn. 225, 51 N. W. 22.5. 276 2 Thomp. Neg. 1067; Whart. Neg. § 86; Komney Marsli v. Trinity House Corp., L. R. 5 Excli. 204; EUet v. St. Louis, etc., Co., 70 Mo. 518; Piedmont & C. Ry. Co. V. McKenzie. 75 Md. 458, 24 Atl. 157; Poloek v. Picche. 35 Cal. 416, and cases cited; Chidester v. Consolidi'ted Ditch Co., 59 Cal. 197; Rodgers v. Central Pac. R. Co., 67 Cal. C07, 8 Pac. 377; Southwestern Tel. Co. v. Robinson, 50 Fed. 810; Dic]jln.son v. Boyle, 17 Pick. (Mass.) 78; Salis- bury V. Herehenroder, 106 Mass. 45S; George v. Fisk, 32 'N. H. 32; Mc- Arthur v. Sears, 21 Wend. IS!); Pittsburgh v. Grier, 22 Pa. St. 54: Scott v. Hunter, 46 Pa. St. 192; Livezey v. Philadelphia, 64 Pa. St. 106; Baltimore & O. R. Co. V. Sulphur Springs Dist., 96 Pa. St. 6."); Couts v. Neer, 70 Tex. 468, !» S. W. 40; Gleeson v. Virginia Midland K. Co., 140 U. S. 4:!.j, 11 Sup. Ct. S.'i!); 1 Am. be way Co., 52 Minn. 3G, 53 N. W. 1019; Louisville & N. R. Co. v. NorthingLoii, 91 Tenn. 56, 17 S.,W. 880. Wliere a person, at the time of leceiving a per- sonal injury, has microbes in his system, which aggravate tli.' injury, that fact does not relieve from responsibility the person whtse uegllgence caused the injury, where it does not appear that the microbes would have done harm by themselves. Crane Elevator Co. v. Lippert, 11 C. C. A. .521, 63 Fed. 942. The wrongful act of the plaintiff in error subjected the injured party to other and dependent causes, which were set in motion by the original hurt. For this it Is answerable. Ginna v. Railroad Co., 67 N. Y. 596; Drake v. Kiely, 93 Pa. St. 492; Brown v. Railway Co., 54 Wis. 342, 11 N. W. 35G, 911; Terre Haute & r. Ry. Co. V. Buck, 96 Ind. 346; Bishop v. Railway Co., 48 Minn. 26, 50 N. W. 927; Jackson v. Railroad Co., 2.5 Am. & Eng. R. Cas. 327. Louisville & N. R. Co. V. Northington, 91 Tenn. 56, 17 S. W. 880, distinguished. 28S If a person set a back fire to protect his property against a prairie Are which another negligently set and negligently permitted to escape, he can re- cover for such property thereby destroyed as would have been destroyed by the original fire had he remained idle. JIcKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103; Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. E. 795. And see Thoeulln v. Campbell, 45 Mass. 769. So, if a carrier's negligent driving of a coach cause a passenger to jump out to escape reasonably apprehended dan- ger. Jones V. Boyce, 1 Starkie, 493; post, 966, "Contributory Negligence." 2 80 Woolley v. Scovell, 3 Man. t^ R. 105; Binford v. Johnston, 82 Ind. 426; Northwest Transp. Co. v. Boston Marine Ins. Co., 41 Fed. 793. 2S7 In an action against a gas company for injuries caused plaintiff's house by an explosion of gas in his cellar, resulting from a defective main, the fact that when defendant's servant went on plaintifC's premises to look for a leak a third person not defendant's agent accompanied him into the cellar, and struck the match that caused the explosion, does not relieve defendant from liability, as the presence of the gas through defendant's negligence contributed to cause the explosion. Koelsch v. Philadelphia, etc., Co., 152 Pa. St. 3.55, 25 Atl. 522. Cf. Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253, 63 Fed. 400. 2 88 A physician who makes a mistake in a prescription may be liable for damages consequent, although the druggist who filled it was also negligent Murdoek v. Walker, 43 111. App. 590. And see Brown v. Marshall, 47 Mich. 576, 11 N. W. 392; post, p. 975, "Contributory Negligence." 74 GENERAL NATURE OF TORTS. [Ch. 1 merely negligent, or ibay act willfully, and maliciously. Thus, if the owner leaves a horse and cart standing in the street, and a third person strike the animal, causing him to run away or otherwise do damage, the owner is liable. "If," said Lord Denman, in Lynch v. Nurdin,-'^ "I am guilty of negligente in leaving anything so danger- ous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion, to the injury of a third party, and that injury should- be so brought about, the sufferer ma\ have redress by action against both or either of the two, but iiii<|uestionably against the first." 26. Conduct is a legal cause when, in the usual course of nature under the circumstances of the case, the damage complained of results as a natural and probable conse- quence. A number of theories of causation have been favorably regarded hy jurists. The one which has met with most general acceptance is that of natural and probable consequences.-"" A legal wrong, constituting an invasion of another's rights, will produce damages as the natural, necessary, and proximate result. But where an act or omission is not such a distinct legal wrong, and can only become a wrong to individuals through injurious consequences resulting 2sf 1 Q. B. Div. 36. And see Illege v. Goodwin, 5 Oar. & P. 190; Burrows V. March Gas & Coke Co., L. R. r-, Rxch. 67, L. R. 7 Exch. 96; Clark v. Cham- bers. 3 Q. B. Div. 327, 47 I^aw .T. Q. B. 427; -Collins v. Middle Level Com'rs, L. H. 4 C. P. 279; Wilder v. Stanley, 26 Atl. 189; Lane v. Atlantic Works, 111 Mass. 130. In an action against a township for injuries caused by a skittish horse plunging over an embankment left miproteoted by a guard rail, where plaintiff knew of the danger, and there was another road which he might have traveled, the negligence of the township in leaving the embankment un- guarded, and of plaintiff in not traveling the other road, are questions for the jury. Mechosney v. T:nity Tp. (Pa. Sup.) 30 Atl. 263. 2«o An examination of any digest on proximate and remote damages wilt convince as to this point. "Natural and necessary consequences." Ryan v. New York Cent. Ry. Co., 35 N. Y. 210, reviewing Scott v. Shepherd, 2 W. Bl. 893; Vandenburgh v. Truax, 4 Denio (N. Y.) 4*14; GuiUe v. Swan. 19 .Johns. (N. Y.) 381. Ch. 1] CONNECTIOiN AS CAU.-1E. 7-J thereffom, such consequences must not only be shown, but both pleadings and evidence must show that the acts or omissions were the proximate and sufficient cause of the consequences.^"^ This is an application of the familiar principle that a man is presumed to intend the natural and probable consequences of his own acts, and is held responsible therefor. Several standards have been suggest- ed for determining what are natural and probable consequences. This matter will be considered subsequently under the subject of proximate and remote damages. The results of that consideration may be antici]tated, so far as to point out that the courts have pur- sued no absolutely consistent line between two extreme views of the proper way for determining natural and probable consequences. At the one extreme they are said to be such as would ordinarily occur in the course and constitution of nature, whether it could or should have been foreseen by the wrongdoer at the time of the wrong or not. .\t the other extreme the test of what the wrongdoer can reasonably be held to have anticipated is regarded as the test. The tendency is to enlarge, rather than to limit, the range of natural and probable cdnsrciuences.^"^ Tn following the natural and probable effects of a ^^•rongful action, the courts recognize that at some stage a cause becomes "remote," and the wrongful conduct ceases to be actionable. The force is exhausted.-"^ But, as will be seen in the subsequ.ent discussion of damages proximate or re- mote, th(,'re is great uncertainty as to where this point is reached. It is to be noted that the ordinary rules as to natural and probable consequences do not apply to cases wlien the defendant intended to prodrice the result complained of, when his conduct was illegal, and when (hi; wrong complained of arises from fraud or malice.* 281 Cooley, Torts, ^:,i). 29 2 Pol. Torts, 31. 2 03 whart. Neg.; Bish. Noij<'riif. T.,aw, ?§ 44, 4.'>. A vondor of gunpowJer to an incxnt'rienced boy may be held linble for damage caused by an exiiloslon burning tlie boy. Ciiiter v. Towne, lis Mass. 507. But if, after tlie sale was made, the boy carried it liome, and gave it to tlie custody of his parents, and part of it had been lired off, with their permission, before the explosion oc- curred by which he was injured, then the wrongful act of defendant in sell- ing the gunpowder would not be the direct, proximute, or effi.-ient cmse cf the injury. Carter v. Towne, 103 Mass. 507. * Post, o. .5. 76 GENERAL NATURE OF TORTS. [Ch. 1 Last Human Wrongdoer. Another theory suggested is that: "Whatever determines an al- ternative, which alternative so determined issues in the injury, is a cause, and, as no inanimate thing can so determine an alternative, it follows that the cause of the injury must be an animate conscious being."-"* This, so far as it distinguishes human conduct from ac- cident, is sound sense and sound law. But until it goes one step further it does not determine the question at issue. The further step is taken when it is urged that the legal cause is the last human wrongdoer to whose conduct the injury complained of can be tra- ced.-"" But this proposition, unless largely modified, is not true.-"" To determine Avho is the last personal tort feasor, the reasoning must be in a circle (i. e. he is the legal cause), or the personal actor last in time or space must be a proper defendant (which is not true), or the test must be so modified and explained as almost to lose its identity. Conspicuous Antecedent. The ideas of John Stuart Mill as to the relation of cause and effect, and his terminology of antecedent and subsequent, have been judicially recognized. "The cause of an event is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable se- quence of events subsists between one antecedent and one conse- quent. Ordinarily, that condition is usually termed the cause whose share in the matter is the most conspicuous and is the most imme- diately preceding and proximate in the event." ''"^ Indeed, it has 294 Innes, Torts, c. 4, on tracing tortious effects back to the conduct of the person responsible. 295 As in Alexander v. Town of New Castle, 115 Ind. 51, 17 N. E. 200. And see Vicars v. Wilcocks, 8 East, 1. 290 One modifleation of the test would be in cases where the conduct of fha last human wrongdoer is the natural result of the original wrong, as in Scott v. Shepherd, supra; Vandenburgh v. Truax, supra. But the test fur- nishes no definite criterion for determining when the wrongdoer becomes a remote cause. Nor is it elastic enough to cover cases where the liability is totally disproportionate to the test, as in case of the Chicago fire. 29'? Appleton, C. J., in Moulton v. Sanford, Ql Me. 127, 1.31. "Btticlent pre- dommating." Dole v. Insurance Co., 2 Cliff. 431, Fed. Cas. No. 3,900; Balti- more & P. R. Co. Y. Reaney, 42 Jld. 117. "Proximate or efficient." North- G^^- 1] CONNKCTION AS CAUSE. 77 beon the basis of an important line of decisions.^"^ The difficulty with this case is not so much that such refinements are too minute for rules of social conduct,^"" nor that the philosophy involved is materialistic.^"" It lies rather in determining what is the conspicu- ous preceding antecedent. It would appear probable, however, that in a great many cases — perhaps in the majority of cases — the jury to whom the questions of connection as cause are finally referred will determine such questio;is by the use of this standard. Cause II Question of Fact. In determining the juridical cause, courts incline to decide each case on its own facts, so far as possible. In Insurance Co. v. Tweed,^"^ it was said: "We have had cited to us a general review of the doctrine of proximate and remote causes as it has arisen and has been decided in the courts in a great variety of cases. It would be unirofitable labor to enter into an examination of these cases. If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discriminations." However, there are distinct groups of cases with respect to which courts are governed by the principle stare decisis.^"^ And finally it is generally admitted that what is a proximate cause of an injury is a question of fact, ordinarily to be decided by the jury.^"^ But western Ti'ansp. Co. v. Boston Marine Ins. Co., 41 Fed. 802. For similar criticism on "proximate cause," post, 975, "Contributory Negligence." 2 38 Sutton v. W.iuwatosa, 29 Wis. 21. But see JefEersonville R. Co. v. Kiley, 39 Ind. 568; Gates v. Railroad Co., 39 Iowa, 4,j. 2 Strong, J., in Milwaukee & C. R. Co. v. Kellogg, Burdick, Lead. Cas. 33. "The lawyer cannot afford 'to adventure himself with the philological and metaphysical controversies that besot the idea of cause." Pol. Torts, 33. 300 Whart. Neg. 301 7 Wall. 49. 302 Bosch V. Railroad Co., Burdick, Lead. Cas. 38. 303 Pennsylvania R. Co. v. Hope, 80 Pa. St. 373; Pike v. Grand-Trunk Ry. Co., 39 Fed. 258; Milwaukee & St. P. Ry. Co. v. Kellogg, 91 U. S. 4U'.). In determining the cause of an accident at a railroad crossing the jurj' may use their general knowledge as to the habits of horses and their liability to be- come frightened by moving trains. State v. Maine Cent. R. Co., 86 Me. 309, 29 Atl. 108G; Meehesney v. Unity Tp. Co., 30 Atl. 2G3; Feut v. Railway Co., 59 111. 349; Newcomb v. Boston Protective Department, 146 Mass. 004. 16 N. V.. 78 GKNEKAI. .N.VTUUIC OF TOUTS. [Cll. 1 the courts will sometimes determine the matter as a question of law,'"'* especially where there is no proof of connection as cause, and all the jury is given to act upon is mere conjecture. ■'"^ DAMAGE AND DUTY. 27. Every violation of legal duty gives rise (a) To a cause of action in tort, ordinarily only upon, but sometimes ■without, proof of actual dam.age: (b) To an appropriate legal remedy. 555, collecting cases; Selleek v. Lake Shore & SI. S. Hy. Co., 93 Mich. 37."), 53 N.' W. 550; Vaughan v. Taffvale R. Co., ;'. HnuJ. & N. 743; Smith v. London, etc., Co., L. R. 5 0. P. 98; Collins v. .^Udclle Level Com'rs, L. R. 4 C. P. 279; Romney Marsh y. Trinity House Corp., L. R. 5 Exch. 204. affirm- ing L. R. 7 Exch. 247; Sneesby v. Lancashire, etc., Co., L. R. 9 Q. B. 263; Byrne v. Wilson, 15 Ir. C. L. 332; The George & Richard, L. R. 3 Adm. &, Bcc. 466; Jones v. Boyce, 1 Starkie, 493; Butler v. Wildman, 3 Barn. & Aid. 398; Pent V. Toledo, etc., Co., 59 111. 349; Marcy v. Merchants' Mut. Ins. Co., 19 La. Aim. 388; Perley v. Eastern R. Co., 98 Mass. 414; Lmid v. Tyngsboro, 11 Cush. (Mass.) 563; Lane v. Atlantic Works, 111 Mass. 139; Gonzales v. (Jity of Galveston, 84 Tex. S. 19 S. W. 284; .Tones v. George, til Tex. 340; St. Louis, A. & T. Ry. Co. V. McKinsey, 78 Tex. 298, 14 S. W. 045; Higgins v. Dewey, supra; Annapolis & E. R. Co. v. Gantt. 39 Jld. 115; Brady v. Northvcestem Ins. Co., 11 Mich. 425; Hoyt v. .Tetters, 30 Mich. 181; Weick v. Lander. 75 111. 93; Bartou v. Home Ins. Co., 42 Mo. 156; Kuhn v. .lewett, 32 N. J. Eq. 647; St. John V. American Mut. Fire Ins. Co., 11 N. Y. 51G; Louisiansi Mut. Ins. Co. V. Tweed, 7 Wall. 44; 19 U. S. (Lawy. Ed.) 65; Milwaukee & St. P. Ry. Co. Y. Kellow. 94 U. S. 469; Union Pac. Ry. v. Novak, 01 Fed. 573; Aetna Ins. Co. V. Boon, 95 V. S. 117, 24 U. S. (Lawy. Ed.) ;;i:i-'i: Kellogg v, Chicago /"c N. A\'. R. Co.. 20 A^'is. 22,!; Atkinson y. Goodrich Transp. Co., 60 Wis. 14], 18 X. W. 764; Kreuziger y. Chicago & N. W. R. Co., 7;! Wis. LIS, 40 N. W. (■>:,"; Baltzer v. Chicago, etc., R. Cu., 83 Wis. 4.j9, 53 N. W. 8S.-). 304 Carter v. Towne, 103 Mass. 507; Brlggs y. Minneapolis St. Ry. (3o., 52 Minn. 36, 53 N. W. 1019; Prue Y. New York, etc., R. Co. (R. I.) 27 Atl, 4.51): Jeffs V. Railway Co., 9 TTtah, 374, 35 Pac. m:<: Union Pac. R. Co. v. C:il- laghan, 6 C. C. A. 205, 56 B'ed. 998; McG;ihan v. Indianapolis Natural Gas Co. (Ind. Sup.) 37 N. E. 601. 305 Littlehale v. Osgood, 161 Mass. 340, 37 N. E. 375 (diphtheria resulting from misrepresentation as. to sanitary conditiops of house). oil. 1] DAMAGE AND DUTY. 79 Injuria Sine Damno. The pluuse of the civil law, "injuria sine damno," was at an early date applied to the common law. lu Ashby v. White ^°® it was held that a man who has the right to \ote at an election for a raem- her of parliament may maintain an action against the returning officer for refusing to lecord his vote, though the candidate for whom he offered to vote was elected. Said Lord Holt: "'Surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary, for the damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right." An "injuria" — that is, a prejudicial violation of or interference with a right — imports a "damnum," for damnum is said to be the prejudice, the loss, dam- age, or hai-m. Accurately speaking, there is said to be no injuria sine damno because wherever there is injuria there is damnum, wherever there is violation of legal right there is (Limage done."°^ The language of Story, J., in \A'ebb v. Portland Manuf'g Co.'"* is constantly cited with ;ipproval: ""' "I can very well understand that no action lies in case where there is damnum absque injuria; that is, wiiere there is damage djiie without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can (-orrectly be said (in a legal sense) that an action will not lie even in a case of a wrong or violation of a right, unless it is fol- 30(1 2 Ld. Kaym. 938; 1 Salk. VJ: :; S;ilk. 17: Holt. ."24; (! Mcid. -!.->; 1 Smith, Lead. Cas. 2C.S; PeriiiiK v. Hairis, 2 Moocl.r & R. 0; JMasoii v. I'aynter, 1 g. B. 9T4. An aeticni will lie agaiiiat a clergyman for refusing to peit( rm a marriage ceremony. Davis v. Blacli, 1 Q. B. 'JOO. And against a custom- liouse officer for refusing to sign a bill of entry without payment of excessive duty. Ban-y v. Aruaud, 10 Add. & E.- 646. It is questionable whether Ashby y. White would now be law. Clerk cV: L. Toiis, p. 4. To maintain such an ac- tion, it would certainly be necessary to show malice. Post, c. 4, "Executive Acts." .SOT iun(;s. Tui'ts. 308 :^ Sumn. 189, Fed. Cas. Xo. 17,:!22. 309 By Bayley, J., Embrey v.. Owen, 6 E.vch. 353-368. Generally, as to in- juria .«nd damnum, see Dixon v. Clow, 24 Wend. (N. Y.) 1S8: Blodgett v. Stone 60 N H. 167; Hall v. Mayor of Bristol, L. R. 2 C. P. 322; Smith v. Thaekerah, L. R. 1 C. P. 5t>4; Macomber v. Nichols, 34 Mich. 212; Thurston V. Hancock, 12 Mass. 220, Chase, Lead. Cas. 23. 80 GKNERAI. NATUUE OF TORTS. [Ch^ 1 lowed by some perceptible damage which can be established as a matter of fact; in otiier words, that injuria sine damno is not actionable. On the contrary, from my earliest reading I have con- sidered it laid up among the very elements of the common law that wlierever there is a wrong there is a remedy to redress it, and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitlpd to a verdict for nominal damages. A fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character not merely of a violation of a right, tending to diminish its value, but it goes to the absolute destruction and extinguishment of it. Under such circumstances, unless the party injured can pro- tect his right from such a violation by an action, it is plain that it may be lost or destroyed without any possible remedial redress. In my judgment, the common law countenances no such inconsist- ency, not to call it by a stronger name. Actual perceptible dam- age is not indispensable as the foundation of an action. The law tolerates no further inquiry than whether there has been the viola- tion of a right. If so, the party injured is entitled to maintain his ' action for nominal damages in vindication of his right, if no other damages are fit and proper to remunerate him." It is perhaps not unfair to say tliat efforts at a proper construction of injuria and damnum have neither clai'ifled the subject nor advanced thought. The simple truth is that sometimes plaintiff can recover when he has not shown damage, and sometimes he cannot. On the one hand, mere damage may not constitute a cause of action, in the ab- sence of violation of duty. On the other hand, mere violation of duty may not constitute a cause of action, in the absence of damage. There m.ay be no such thing as a legal "wrong without damage," '^'* but sometimes there cannot be a legal wrong unless there has been damage. In some cases the law presumes damage, and in some cases damage must be proved. In other words, there are two kinds of rights, — one a simple right, the infringement of which is, in the absence of exceptional circumstances, necessarily actionable; 310 Add. Torts. § 1, subd. 8. Ch. 1] DAMAGE AXP DUTY. 81 the other is a right not to be harmed, the violation of which is ac- tionable only when harm is suffered. ''^^ Damages Presumed. While there was much coufusion in the use of trespass and case, in a general way, trespass lay for direct invasions of another's rights. In such cases, damage followed necessarily. The act was wrongful, and the law would not have defendant say that plaintiff suffered no harm in consequence. "If a man gives another a cuff on the ear, though it costs him nothing, — no, not so much as a little diachylon, — yet he shall have his action, for it is a personal injury. So a man shall have action against another for driving over his ground, though it do him no damage, for it is an invasion of his property, and the other has no right to come there." ^^- Act- ual damages are not in general necessary to complete cause of action on part of public authorities.^^^ And, in America at least, when public officers are guilty of a breach of duty to individuals, dam- age is generally presumed.^ ^* There is an essential reason for this rule in the case of property. "Whenever any act injures another's right, and would be evidence in future in favor of the wrongdoer, an action may be maintained for an invasion of the right * * * "11 Pig. Torts. 126. And see introductorj' chapter. Tlif use of the term "presumption of daniaKe" lias been severely criticised. Townsli. Sland. & L. 55. "Presumption is rather assumption." Burrell, Presump. Ev. lOio. (Ju the other hand, the distinction between a simple right and a n'slit not to bo harmed is pronounced "as unsatisfactory a distinction as could well be de- vised." And it is insisted that "the true answer is to bo found in the prin- ciples of presumption of damage." Pig. Torts, 126. It is. .however, neither ttefirable nor feasible to .i.bandon all terms which are subject to reasonable criticism. The fact would .=eem to be, in these cases, that the presumption of damages is a device adopted when the law desires to recognize a cause of action, although no actual harm has been suffered. 312 Lord Holt in Ashby v. White, supra. S13 Atty. Gen. v. Bridge Co., 21 Ch. Div. 7,12 (1SS2); 3 Pom. Eq. Jur. 17J2; Newark Aqueduct Board v. Passaic, 45 N. J. Eq. 393, 18 Atl. 106; People v. Mining Co., 66 Cal. 138, 4 Pac. 1152; Burlington v. Schwarzman, 52 Conn. 181. ■■!>-i Moore v. Floyd, 4 Or. 101; Patterson v. Westerrelt, 17 Wend. 543; Hamilton v. Ward. 4 Tex. 356; Palmer v. Gallup, 16 Conn. 55."; Loflin v. AVillard, IG Pick. (Mass.) 64; Crawford v. Andrews, 6 Ga. 244; Daggett v. Adams, 1 Me. 198; llich v. Bell, IG JIa.ss. 294; cf. Stimson v. Faruham, 7 Q. JJ. 175. But see post, note 321. LAW OF TOKTS — 6 82 GENERAL NATURE OF TORTS. [Oh. 1 ^^-ithout proof of any speeiflr injury." "' If no cause of action arose from a trespass to real estate, wliich inflicted no appreciable dam- age, a repetition of such trespass would not be easily prevented, and defendant, hy his wrong, might acquire an adverse right,^^" and the owner be deprived of the charge for coming on the ground, which he would otherwise be entitled to make."" With respect to the extraordinary and unreasonable use of water rights, the general opinion is invasion of riglits usufruct in running streams corre- sponds to trespass to land. It is not necessary, in actions upon such alleged wrong, to allege and prove actual damages."' " The dam- ages recoverable under such circumstances which are presumed are called "legal," as distinguished from "actual," that is, they are intangible, as distinguished from tangible; nominal, as distin- guished from substantial. «i5 Note Kf Mr. Williams to ilellor v. Spateman, 1 AVms. Saund. 346b. 310 Thus, it a person fish in another's iishery. and catch nothing, still a ver- dict against him will not be set aside, because his violation of the other's right might othenvise afterwards be exercised of right bj^ him. .Tuubridgo Well's Dipper Case, 2 Wils. 414; Blofield y. Payne, 4 Barn. & Adol. 410; Bower v. Hill, 1 Bing. K. C. 549. An action on the case may be maintained against an intruder by one having a right of way, without proof of damage. "Williams v. Esling, 4 Pa. St. 480; Appleton v. Fullerton, 1 Gray (Mass.) 180. -"Per .Tessel, M. R., Cooper v. Crabtree, 20 Ch. Div. 589, .■•>!J2. "IS In English cases: Wells v. Watling, 2 AV. Bl. 1233; Hobson v. Todd (17!)0) 4 Term R. 71; Pindar v. Wadswoith (1802) 2 East, 154; Marzetti v. Williams (1830) 1 Bam. & Adol. 415, per Taunton, J.; Harrop v. Herst, supra. And. generally, see Bower v. Hill, 2 S. C. 53.j. The burden of American au- thorities coincidej: Gould, Easem. § 214; Crooker v. Bragg, 10 Wend. (N. Y.) 20U: Parker v. Giiswold, 17 Conn. 288, Davis v. Fuller, 12 Vt. 178; Munroc V. Stickney, 48 lie. 402; Limd v. New Bedford, 121 Mass. 286; Seeley v. Brush, 35 Conn. 424; Hulme v. Slireve, 4 N. .T. Eq. 110; Gladfelter v. Walker, 40 Md. 1; Graver v. Shell, 42 Pa. St. 58; Dumont v. Kellogg, 29 Mich. 420: Plumleigh v. Dawson, 1 (lihnan (111.) 544; Stein v. Burden, 29 Ala. 127; Wat- siin V. Van Meter, 43 Iowa, 70; Cory v. Silcox, C Ind. 39; Little v. Stanback. 03 N. C. 285; Chapman v. Copeland, 55 Miss. 470; Green v. Weaver, o:'. (Ja. .■',02; Creighton v. iilvans, 53 Cal. 55; Smiths v. McConatliy, 11 Mo. 517; Amos- keag Co. V. Goodale, 46 N. H. .53; Haas v. Choussard, 17 Tex. 588. Mr. Bigelow, however, denies that such right is capable of such exact definition as the rule involves (Lead. Cas. Torts, 518). And in 1 Eng. Ruling Cas. at p. 555, Mr. Irving Brown x^oints out inconsistencies in Mr. Blgelow's reasoning. Ch. 1] DAMAGE AND DUTY. 83 Actual Dmnage. But the damage may also be actual. If mere infliction of a wrong, without actual loss, constitutes a tort, a fortiori, when that wrong is also accompanied by considerable pecuniary damage, the person in- jured is entitled to compensation. The line between legal and actual damages is often a fine one, Substantial damages may be recovered al- though no actual damage be .shown. Thus, if a bank throw out a draft of a customer, who had sufficient funds in bank, the wrongful act is injurious to tlie credit of the customer, and entitles him to a ma- terial verdict, though no actual damage be proved.* Damage Proied. On the other hand, case "^^ lay, not for direct, but indirect or conse- quential, wrongs. It applies in general to conduct not actionable of itself, but becau-;e of cnnsL'qiiences. If no actionable consequ 'uces, ac cordingly, are shown, then ijlaintitt' cannot recover. While, on the one hand, an assault is always actionable (in absence of peculiar cir- cumstances), on the other liand, negligence is actionable only when damages recognized by the law are s^liown."-" An action does not lie against a sheriff for official misconduct unless actual damages have been caused plaintiff."^^ This is also true of malicious prosecution (case), as distinguished from false imprisonment "^^ (trespass). Espe- cially in cases where the duty, the breach of which is complained of, is also a public duty, is it necessary for plaintiff to show special dam- agi' in hiiiisclf."-* This is conspicuous in cases when a private ac- tion is brought for a public nuisance. The mere jniblic wrong ^A'ill * Marzotti v. Williams, ] l!ani. iV- Aflol. -115. 310 Rolin V. Siewai'tl, 1-t C. B. -j'.i.j; ;\Iar7.etti v. AVilliam.s, 1 Bam. & Adol. 415. And see Scliaffnei- v. Elinnan, l.".'.» 111. 917, 2s N. E. 017; Patterson v. jrai-ine Nat. Bank, 1:'.0 Fa. St. -llit. 482. 18 Atl. G:;2. See Norcross v. Otis Bros. Co., 152 Pa. St. 4S1, 2."> Atl. 57."i; Bank v. Gous, .58 X. W. 84. 320 Post, p. 810, "Negligence." 321 Blackburn, J., in Stimsou v. Fainliam, L. R. 7 Q. B. 175. And see Wylie r. Birch, 4 Q. B. 5(1H: Williams v. M< slyii, 4 Mecs. & ^y. 145; Bales t. Wing- field 2 Nev. & ilcN. s:'.!; Planck v. Anderson. 5 Term K. .'tT; Hirst v. Loudon, etc.. K. Co., 4 Kxch. 188; Clifton v. Hooper, 6 Q. B. 4G8. But see ante, note :;i 4. .12:1 Trespass not case lay for false imprisonment. McKeh ey. Com. Law PI. cd : post, p. li.'io. -2+ Slicarw. 'I'drls, 21. 84 GENERAL NATURE OF TORTS. [Ch. 1 not entitle the plaintiff to recover. He must show some specific harm, as distinguished from that which the rest of the community suffered.==^ Perhaps the clearest cases in which actual perceptible damage is indispensable to the maintenance of an action are cases of slander. Here in three cases the law will presume damage from utterance of certain kinds of words; but in all other cases special damage must be proved. And such special damages exclude many lands of harm which would naturally, perhaps, be thought action- able.^^° The consideration of what kinds of harm are recognized by the law as constituting damage to complete plaintiif's cause of ac- tion will be subsequently considered when the whole subject of dam- ages is taken up. Special damages are always the gist of slander of title.^^' Even in trespass to land the difference may be found. A life tenant may sue for the slightest intrusion; but a reversioner can recover only when he shows actual damage to his inheritance.^^* So with respect to trespass to the person. The rule was laid down in "Marys' Case" ^" that, "if my servant is beat, the master shall not have an action * * « unless he lose the service; the servant shall for every small battery; the master has no damage but by a per quod; so that the original action is not the cause of the action, but the consequent upon it." Indeed, the truth would seem to be that, in general, proof of damage is essential to a cause of action in tort, and that cases in which an action will lie although no harm has been suffered are exceptional. '*''' 325 Ante, p. 9, note 20, "Distinction of Tort from Crime"; post, p. 7S2, "Nuisance." See Fay v. Prentice, 1 C. B. 82S (projecting cornice dropping water on plaintiff's land). "26 Post, p. 366, "Nominal Damages," and post, p. 488, "Libel and Slander.'" 3 27 Post, p. 553; Sliearw. Torts, 21. 328 Post, p. 553, "Trespass"; Baxter v. Taylor, 4 Barn. & Adol. 72; Young V. Spencer, 10 Barn. & C. 145; .Tesser v. GifEord, 4 Buitows, 2141. The an- tiquity of the distinction appears in the doctrine of "surcharge by common- ers." See notes to MeUor v. Spateman, 1 Wms. Saund. 340b. 329 9 Coke, Ilia, 113a. 330 Clerk & L. Torts, c. 6, p. 89; Pig. Torts, "Damage & Damages." In general, 3 Bl. Comm. 123; JOaflin v. Willard, 16 Pick. (Mass.) 64; Car- ter V. Wallace, 2 Tex. 200; Parker v. Griswold, 17 Conn. 288; Appleton v. Fullerton, 1 Gray (Mass.) 186 (abuse of right of way); Alston v. Scales, 2 Moore & S. 5 (taking away soil, although a benefit result); Woodman v. Tufts, Ch. 1] ' DAMAGE AND DUTY. 85 Remedy. Wherever there is a legal wrong, the law provides a remedy. The common law applied the maxim of the civil law, "ubi jus ibi reme- dium." ^^^ When it recognized new rights, it invented new remedies or adapted old ones. T\Tien the cause of action was entirely new, "never the like of which was heard before,* the case was said to be ''primte impressionis." The newness of a tort is no insuperable ob- jection to an action on it, if it come within any principle upon which the courts act; but the courts will grant no relief if it embrace some entirely new principle.^^- Thus, one who suborns witnesses to swear falsely to defamatory statements concerning another in a suit to which neither of them is a party is liable to an action by the person defamed; and the novelty of the action is no defense thereto.^'** New actions on tort may be brought as often as new injuries and wrongs are repeated; not as often as new damages ^ccrue.^^* There- 9 N. H. 88 (backing np water). And ef. Williams v. Morland, 2 B. & C. 010 (calm flow of water); Embrey v. Owen, 6 Excli. 353; Sampson v. Hoddinott, 1 C. B. (N. S.) 590. 331 Tontiac v. Coitos, 32 ilicla. Kii-lOO; De May v. Roberts, 40 Mich. 100- lOG, 9 N. W. 140. AVlierever the law gives a riglit, it gives the means neces- sary to its enjoyment. McDaniels v. Walker, 44 Mich. 83, 6 N. W. 112. "It is monstrous to talli of existing rights without applying corresponding reme- dies." Fowler v. Lindsay, 3 Dall. 413. And see Bank v. Owens, 2 Pet. 527, 539. 33'2 Ashurst, J., ill Pasley v. Freeman (1789) 3 Term R. 51, 01; Pollock, J., in Western Manure Co. v. Lawes Chemical Co., L. R. 9 Exch. 218; Stockdale V. Hansard, 9 Add. & E. 1, 5. "It is said this action was never brought be- fore. I wish never to hear tliis objection again. This action is for tort. Torts are infinitely variovis, not limited or confined. For there is nothing in natm'e but may be an instrument of mischief." Piatt, C. .!., Chapman v. PicKersgill, 2 AVils. 14.j; AVindsmore v. (ireoubaulv, AVilles, 577; Pasley v. Treeman, 2 Smith, Lead. Cas. cith Ed.) 13(10. And see Yates v. Joyce, 11 Johns. (X. Y.) 130; Sheldon v. Sholdun, 13 Johns. 325; Wardell v. Fosdick & Davis, 13 Johns. (X. y.) 325; Mouell v. Golden, 13 Johns. (X. Y.) 395; Adams v. Paige, 7 Pick. (Mass.) 542; Chislm v. Gadsden, 1 Strob. (S. C.) 220. 333 Rice V. Coolidge, 121 Mass. 303. And see Hartfield v. Roper, 21 AVend. (N. Y.) 615 (a case of first impression); Beasley, J., in Newman v. Phillips- burg Horse-Oar R. Co., 52 N. J. Law, 446, 19 Atl. 1102; Vaughan v. Menlove, 3 Bing. X. C. 408, 474 (as to whether there was a case of first impression or not the judges disagree). 334 Deumau, C. J., in IIoilsull v. Stallebr.iss, 11 Adol. & E. 301, 300; Ham- •^6 GENEKAL NATQRK OK TORTS. [Ch. 1 fore, a deelaration averring that the plaintiff is a resident of a certain school district, having children that he is desirous to have taught in said school, and that the defendants, directors of the school district, contriving to deprive him of the benefit of having his children there- in educated, unlawfully admitted colored children into the school, thereby the plaintiff was deprived of the benefit and advantage of having his children taught in said school, is bad on demurrer. There was a new kind of damage, but no new kind of wrong.'^^ Though it is not a conclusive objection that a case be of first imprc-^sion, "it is a persuasive argument against its maintenance that iu the multiform complexity of human concerns no similar action has been main- tained. If a case in law have no cousin or brother, it is a sure sign that it is illegitimate." ^^* 28. Conduct; though improper and causing a loss to an- other, does not constitute a tort unless — (a) The damage conforms to the legal standard, ex- cept -where it is presumed; and (b) Thereby a legal as distinguished from a moral right is violated; and (c) Such conduct be traced to a responsible human agent. Damnum Absque Injuria. The law does not undertake vain or impossible things. It has al- ways recognized that in actual life many losses must go without com- pensation, much harm be suffered without redress. Not every dam- age in fact is damage in law.^" There are in particular three classes bleton v. Veere, 2 Wm. Sannd. 169, 171b, note 1; Jliuter v. Swain, 52 Miss. 174; Herron v. Hughes, 25 Cal. 555. 33 s Stewart v. Southard, 17 Ohio, 402; citing Harman v. Tappenden, 1 Bast, 555. And see Anthony v. Slaid, 11 Mete (Mass.) 2fJU. So as to enticement of wife. Winsmore v. Greenbank, Willes, 577. And an action by a husband against a druggist for selling laudanum to his wife. Hoard v. Peck, 56 Barb. (N. Y.) 202. And see Harrison v. Berkeley, 1 Strob. (S. C.) 525. 330 Bacon (Sliedding's Ed.) (307; Lamb v. Stone, 11 Pick. uMass.) 527; An- thony V. Slaid, 11 Mete. (Mass.) 200. 337 1 Hil. Torts, c. 3. CHl. 1] DAMAUE AND DUTY. 87 of cases, sometimes distinct, but constantly shading into each other, in which this admitted inadequacy arises. In the first place, the law has its own definition of what harm con- stitutes damage which will have the sanction of courts of justice. There are many species of loss which would, according to popular no- tions, be substantial and important, which courts, for good reasons, decline to compensate. Thus, it will presently be seen that "senti- mental damages" have not been deemed entitled to legal recognition, although in the popular mind this rule may work great practical in- justice.^^^ On the other hand, both the lay notions and legal stand- ards agree in excluding in many cases petty and insignifiiant or merely nominal harm from judicial trial. In the second place, a legal right must be invaded in order that an action of tort may be maintained. The mere fact that a complainant may have suffei'ed a damage of the kind which the law recognizes is not enough. There must also be a violation of a duty recognized by law. In the language of the civil law, mere damnum is not enough; there must also be injuria; that is, "Ex damno absque injuria non oritur actio." ^^' "You must have in our law injury as well as dam- age." '*" In Asliby v. White, above referred to,^*^ where a person 33 s Post, p. 3S4. 330 This maxim is not an explanation. It is only an abridsement or me- moria technica of tlie things to be explained. Pol. Toits, c. 4, subd. 9. ""We cannot pass the quotation of a so-called law maxim without entering our pro- ti'st against the reception of laAV maxims as legal axioms. We believe not a single law maxim can be pointed out which is not obnoxious to objection." Towush. Sland. & L. 71, note 1. "In English jurisprudence the chief purport of a principle seems to be to afford a nucleus for an enoi'mous undergrowth of exceptions." London Times. March IG, 1881), quoted in Townsh. Sland. & L. p. ;!-'. 34o.Tassell, M. R., in Day t. Browiisrigg, 10 Ch. Div. 204 (301); Backhouse v. Bonomi, 9 H. L. 00.">; Salvin v. Coal Co., 9 CIi. App. TO."). It is an essential to an action in tort that thu act complained of should, under the circumstances, be legally wrongful as regards the party complaining; that is, it must preju- dicially affect him in some legal right. :\Ierely that it will, however, do a man harm in his interests is not enough. Kogers v. Eajeudro Dntt, 13 iloore, 1'. C. 209. At the foundation of every tort there must be some violation of a legal duty, and therefore some unlawful act or omission. Whatever, how numerous 3 41 Ante, p. 79. 8S GENERAL NATURE OF TORTS. [Cll. 1 entitled to vote at an election was allowed to recover against the re- turning oflScer for refusing to record his vote, if the plaintiff had not had the right to vote, he could not have recovered, although the only duty of the officer was to satisfy himself as to the identity of persons claiming the right to vote.^" There is no right of privacy in the enjoyment of premises, the invasion of which by opening of windows can constitute a cause of action.^^^ "The violation of a moral right or duty, unless it also amounts to a legal right or duty, does not con- stitute a tort." "* It may be wrong to lie and cheat, and prejudice may result, but a legal action of deceit will not succeed unless plain- tiff has suffered actual harm."^ On the same principle, a creditor cannot maintain an action for fraud against one who has fraudulent- ly purchased from a debtor property of the latter subject to attach- ment, and aided him to abscond, thereby preventing the creditor from arresting the debtor, or attaching his property, or otherwise obtain- ing satisfaction of the debt,^*" where he has no lien or claim upon or formidable, be the allegations of eonspii-acy, of malice, of oppression, or of vindictive purpose, they are of no avail. They merely pile up epithets, unless the purpose intended, or the means by which it was accomplished, are shown to be unlaAvful. Finch, J., in Rich v. New York Cent. & H. R. R. Co., 87 N. i', 3S2. s4 2Piyee V. Belcher, 3 C. B. 58, 4 C. B. 866. And see Lee v. W. U. Tel. Co., 51 Mo. App. 375. 3 43 Tapling V. Jones, 11 H. L. 290. Where P. and D. owned adjoining houses, between which there was no party wall, and water flowed from D.'s house to P.'s through a defective pipe, which supplied D. with water from water- works, D. was held not liable for damage caused to P. in the absence of negli- gence on the part of D. Sutton & Ash v. Card, Wkly. Notes (1SS6) 120. 344 Chase, Lead. Cas. S; 1 Aust. Jur. lect. 5, "Conflict of Law and Morality," at page 99; Rex v. Smith, 2 Car. & P. 449. 3-i= Feller v. Hodgdon, 25 Me. 243; Ide v. Gray, 11 Vt. 015; Alden v. Wright, 47 Minn. 225, 49 N. W. 767; Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Randall V. Hazelton, 12 Allen fMass.) 412. 340 Lamb v. Stone, 11 Pick. fMass.) 527; Bradley v. Fuller. 118 Mass. 239; Dawe V. Morris, 149 Mass. 188, 21 N. E. 313; Wellington v. Small, 3 Cush. (Mass.) 145. However, it has been held recently that a judgment creditor may maintain an action at law against the judgment debtor and another to recover damages for couspii'ing to prevent the collection of the judgment by removing and disposing of such debtor's property, anil placing it beyond the reach of execution. Braem v. Bank, 127 X. Y. .508. 28 N. E. .597, distinguish- ed, lluiwitz v.IIurwitz i.CJfy Ct. X. Y.) 30 X. Y, Supp. 208. Cll. i] DAMAGE AND DUTY. S'.» or int(-ifst in the property so purchased. When legal relief is denied to one who suffers damage conforming to the legal standard, the rea- son is to be found in the proposition that the law does not infer that merely because one man has suffered harm he must have compensa- tion, and some other must pay. The monstrous task of insuring against all loss has not been undertaken. On the contrary, not only have large and important classes of losses been denied judicial recog- nition, but the Tery nature of many admitted rights necessitates that much hann should go uncompensated. Wrong can never be predicat- ed on an act which the law permits.''*^ Where a legislature author- izes certain conduct, damages directly resulting, or naturally and properly incident thereto, can never be recovered without reducing legal authority to a nullity.^"'^ In the management of property, most substantial harm may be caused to a neighboring owner. When the extent to which one may use his own is defined, it necessarily follows that damage incident to such authorized use is "absque injuria," ^*^ s-iTAs in cases of fraud: Tnckor v. Diakc, 11 Allen (Mass.) 145; O'Don- nell V. Segar, 2.'3 Mich. 367; North v. Sliearn, 15 Tex. 174; Cippeiiy v. Khodes, 53 111. 340: Randall v. Buffiiistou, 10 Oal. 491. .■!4 8 In the exercise of the power of a mtinieipality to grade streets, change grade, rebuild them, and the like, an individual property owner suffers in- convenience and expense that does not entitle him to recover damage-:. Smith V. Washington, 20 How. 135; City of Pontiac v. Carter, 32 Mich. 1(54; Northern Transp. Co. v. Chicago, 99 U. S. (i35; Callender v. Mai'sh, 1 Pick. (Mass.) 418 et seq.; Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 195. Statutory au- thority to a. railroad company to close streets renders damages suffered by the owner of property, less accessible from the direction of the gate built under such authority, damnum absque injuria. Buhl v. Fort Street Union Depot Co., 98 Mich. 50C, 57 N. "\V. SL'i). Post, p 140, "Damages Incident to Authorized Act." sio Cumberland Telephone & Telegraph Co. r. United Electric R. Co., 42 Fed. 279. A lawful act may be the foundation of a tort. Post, p. 779, "Nui- sance." It has been held in this country that no tort is created by obsti-uc- tion to light and air, because no one has projicrty in light and air. Guest V. Reynolds, (J8 111. 478; Panton v. Holland, 17 Johns. (N. Y.) 92. But it is otherwise In England. There the easement of light and air is recognized, and interference with it is actionable. Yates v. .lack (ISGGi L. R. 1 Oh. App. Cas. 295; Scott v. Pope, 53 Law T. 598. Cf. Harris v. De Pinna, 80 Law T. 427. If by sinking and using a well on one's own premises the supply of wa- ter in a neighbor's well is substantially decreased, no action will lie, because such diversion of percolating and subterranean waters is a right necessarily 90 GKNKRAL NATURK OF TORTS. [Ch. 1 Ho, if one build up a profitable business without competition, and a rival destroy it by legitimate means, there is no remedy, for the law encourages competition.""" In the third plaee, there may be damage conforming to the legal standard, and a right violated, and still no recovery by the sufferer, because the cause of the harm is either (1) ine\1table accident; ^" (2) an agent who is irresponsible because of natural status (as in the case of infants, lunatics, etc.), or peculiar circumstances (as in the case of agencies of the state, judges, legislators, etc.); or (3) is so remote that it would be immaterial and unreasonable to trace consequences so far back. THE RIGHT OR DUTY VIOLATED. 29. Conduct to give rise to an action on the tort may- consist of a violation of a duty prescribed by (a) The common lavsr; (b) Contract; (c) A statute or ordinance. SAME— COMMON-LAW DUTIES. 30. The common la^v is composed of recognized customs, of -which reported cases are exemplifications. The develop- ment of the common la-w is largely due to judicial legisla- ineident to the ownership of soil. Acton v. Blundell, 12 Mees. & W. 341-345; Humphreys v. Cousins, 46 L. J. C. P. 438; Chasemore v. Richards. 7 H. L. Gas. 349; Ocean G. C. M. A. v. Commissioners, 40 N. J. Eq. 447, 8 Atl. 1G8; Ballard v. Tomlinson, 29 Oh. Div. 115; Corning v. Troy Factory, 40 N. Y. 191; Stowell v. Lincoln, 11 Gray (Mass.) 434. As to rights and duties in con- structing buildings, see Clemens v. Speed, 03 Ky. 284, 19 S. W. 660. As to lateral support, see Thurston v. Hancock, 12 JIass. 220. 3 so In the celebrated Gloucester Gramm.T,r School Case (1410-1411, Hilary Ti/riu) 11 Hen. IV. p. 47, pi. 21, it was held that two masters of thnt schotil could not sue a third person, who started a similar school in the same place, wlicreby they lost in the subtraction of scholars. No one has a right to a monopoly. Accordingly no action lies for damages resulting from competi- tion in business. Post, p. 145, "Common Rights." 3''i Ante, p. 61, "Connection as Cause." Tlius there may be no liability for a trespass where the act is unintentional or involuntary. L'il. 1] COMMON-LAW DUTIES. 91 tion. The three main heads of common-la-w duty w^ith ■wrhich the la-wr of torts is concerned are: (a) To abstain from -willful injury; (b) To respect the property of others, and (c) To use due diligence to avoid causing harm to others. ^^ Eiu/lish Common Law. The common law of England was composed of tlie customs of the realm, or a system of adjudicated rules, of which reported cases are only exemplifications.^^^ A simple illustration of the growth of a custom into common law is in the law of the road.^^* Again, with regard to a declaration against a carrier, "originally the practice was to set out a custom of the realm. That was discontinued be- 0. 92 GK.NERAL NATURE OF TORTS. [Ch. 1 American Common Law. The greatest part of the present American law of torts is derived from the common law of England. The early common-law reports are still the fountain head of learning on this subject. There is no na- tional common law in the United States, distinct from that adopted by the several states, each for itself, except so far as the history of the English common law may be involved in the interpretation of the federal constitution. The judicial decisions, the usages and customs of the respective states, determine to what extent the com- mon law lias been introduced. What is common law in one state may not be so considered iu another.''^^ No state courts in this country derive their existence from the common law. They are all established either by the provisions of the organic law or by legis- lative enactment. Their jurisdiction is not uniform. Some of them have only a special jurisdiction, limited as to amounts or subjects in controversy. ^''^ Judicial Legislation. As clearer and enlarged conceptions of legal rights and duties came with increasing complexity of society, the law adjective was adapted and extended to meet recognized changes in the law sub- stantive. As new rights were admitted, new remedies were pro- vided. Part of this development is the result of statutory enact- ment, but in large measure it has been eifected by the courts. The doctrine of fellow servant may be cited as an illustration. "There is no branch of the subject of torts which gives rise to so many de- cisions which are difficult to reconcile. It forms perhaps the purest example of judge-made law, and all such law is pervaded with some uncertainty." ^^^ The part which the courts have taken in this de- velopment, and judge-made law, has been severely criticised.^'''' = = ■ AVheaton v. Peters, 8 Pet, .j91 (658); Smith v. Alab.Tma, 124 U. S. 405, 8 Sup. Ct. r,C,i. 3 53 In re Dean. S3 Me. 4S9, 22 Atl. 385. 359 Pig. Torts," 229. 360 Amos, .Tur. 50; Jervis, C. J., in York, etc., R. Co. v. Queen, 1 El. & Bl. 858-864; Gibson, C. J., in Ammant v. Turnpilve Road, l.S Serg. & R. 210, 212, 213; Essay on Judicial Legislation, Wm. Rand, Jr., 8 Harv. Law Rev. 328; Cooley, Torts, "Judicial Developments of tlie Law," ijp. 19-21. Mr. Austin (2 Jur. 103-116, incl.) considers, in Lecture 38, "Groundless Objections t-« Jii- Ch. 1] COMMON-LAW DUTIES. 93 Common-Law Classification of Rights. Unlike the civil law, the common law made no attempt at scien- tific classifications of duties and remedies. It knew no logical ap- plication of abstract principles of justice. Indeed, it did not dis- tinguish clearly between the wrong done and the remedy provided therefor. The real question was not whether there was a tort, but whether legal means for redress could be found to fit the case. Ac- cordingly the law adjective practically determined rights. It would not seem that there has been any scientific division of rights Avhich is entirely satisfactory.-'' °^ The language and classifi- cation of Blackstone has passed into general thought and language. That familiar division was this: that the rights of persons are (1) absolute, viz. the enjoyment of (a) xiersonal security, (b) personal liberty, (c) private property; and (2) relative, viz. (a) public, (b) pri- vate.^°^ Mr. Austin recognizes absolute and relative duties. A duty is relative, he says, or answers to a right, where the sovereign commands that the act shall be done or forborne towards a de- terminate party, other than the obliged. All other duties are abso- lute.^*"^ However, in his "Analysis of Pervading Notions," ^"^ he denies that there are corresponding rights. " 'Absolute rights' and 'relative rights.' These expressions, as thus apj)lied, are flatly ab- surd; for rights of both classes are relative, or, in other words, rights of both classes correlate with duties or obligations. The only difi'erence is that the former correlate with duties which are incum- bent upon the world at large; the latter correlate with obligations which are limited to determinated indi\iduals.' This general con- clusion, as applied to the right of reputation, Mr. Townshend insists liieial Legislation,'' and in Lecture 39 the "Disadvantages of Judicial Legis- lation." 301 Perhaps as satisf.actory a classification as any is that contained in note o, ante, p. 3. 382 1 Bl. Comm. cc. 1-18, inel.; '2 Kent, Comm. 1-34; 1 BuiTill. Prac. 30. S63 1 Aust. Jur. lect. 17, p. 278, sub. 579. "The notion of a legal duty in- volves something more than a tax on a certain course of conduct." O. W. Holmes, Jr., 6 Am. Law Kev. 723, 724. 36* Aust. Jur. lect. 14, p. 2G4, sub. 539. "Rights are not absolute, but rela- tive. Rights grow out of duty, and are limited by duty." Jenkins, J., in Faraiers' Loan & Trust Co. v. Northern Pac. R. Co., CO Fed. 803 (812). 94 GENERAL NATURE OF TORTS. [Ch. 1 is noccssaiv.^'" There is a corresponding dispute with reference to property rights, as in the case of the right to lateral support.^"* Although it is impossible to lay down any general principles to which all common-law actions of tort may be referred, ^^^ if will be fomul tliat they are in the main directed to afford the simple remedy of pecuniary satisfaction for direct and obvious invasions of three elementary rights: (1) The right of personal liberty and security; (2) the right of reputation; and (3) the right of property.^'^ Domes- tic duties have been treated as rights of property.^"" Breach of political rights has been made the subject of an action on a tort.^'" The law has gone to great extremes to fully recognize all private I i.ylits. It recognizes the right of privacy as distinct from rights of property and reputation,"^ and provides damages for its viola- tion.^^^ Thei'efore, where a physician took an unmarried, unpro- fessional friend with him to attend a woman in confinement, and without real necessity for his assistance, both the physician and his friend were held liable in damages, although it was not until a long time afterwards that the patient or her husband discovered that the intruder was not a professional man.^^^ sGoTownsli. Sland. & L. c. 3. aoii Post, 752, "Nuisance," note 38. . Of. GilflUan, C. J., in M'Cullough v. Rail- way Co.. 52 JXinn. 12-15, 53 N. W. 802, with Wood, Nuis. c. 5. "07 The classilication of the modern jurisprudence has for convenience been anticipated. Ante, note 3, p. 2. 368 Clerk & L. Torts, p. 3. 369 Id. And see .laynes v. .Taynes, :','.) Hun, 40; Warren v. Warren, 89 Mich. 12:;, 50 N. W. 842. ■■■■ 7 " Ashby V. White, 1 Salli. 19, 2 Ld. Raym. 938, 1 Smith. Lead. Cas. 464. PoKt. II. 135. 371 Post, c. 5, "In.iunction." 3-24 Haiv. Law Rev. 193. 373 De May v. Roberts, 4(i Mich. 160, 9 N. W. 140; Schuyler v. Curtis, 27 Abb. N. C. 387, 15 N. Y. Supp. 787; Corliss v. E. W. Walker Co., 57 Fed. 4.'i4. For an article on the extension and development of the law of indi- vidual rights as particularly applicable to the rights of privacy, see Madras L. J., republished in (I (Ireeu Bag, 498. Post, 350, "Injunction." That there is no invasion by opening windows, see Tapling v. Joniis, 11 H. L. 290. Oh. 1] STATUTE.^ A.ND OEDIXAXCES. 95 SAME— CONTRACT DUTY. 31. If a common-law duty result from the facts in a par- ticular case, a party to a contract may be sued in tort for any negligence or misfeasance in the execution of the con- tract.^* While an action of tort will not lie for mere breach of contract, a contract, in connection with other circumstances, especially where certain conventional relationships are entered into, may create a duty, for the breach of which an action on the tort will lie.^" Thus, as between master and ser\ant, common carrier and passenger or shipper, a telegraph company and the sender of a message, the vio- lation of the contract may give rise to a cause of action ex contractu or ex delicto." ^^ And, indeed, a violation of a simple contract be- tween two parties, not involving any such relationship, may give rise to a cause of action in tort.^" SAME— STATUTES AND ORDINANCES. 33. Where a statute, or a municipal ordinance author- ized by statute, imposes on a person a duty designed for the protection of others, he is liable to those persons for ■whose protection it -was imposed for any damages result- ing proximately frcim neglect to perform such duty, and of the character w^hich the statute or ordinance "was designed to prevent. SUitate. (Jrilicised as the courts have been for rendering legislative deci- sions, they have not been able to meet the necessities of the years without the assistance of legislation. Legislatures are constantly called upon to abrogate or modify the ruling of courts of law. This 374 Post. "Neglisonee," p. 897. 37 5 Id. S7 Ante, 20, "Quasi Contract." Post, p. 897, "isegligenee,'" "Contract Duty." S77 Kich v. Xew York Cent. & H. K. K. Co., S7 X. Y. 3S2. 96 GENERAL NATURE OP' TOUTS. [Ch. 1 appeals in the earlier history of the common law."' When that sj'stem of jurisprudence was applied to a new and undeveloped countrr, like the United States, many doctrines underwent a change without much legislation. Thus, cutting down trees in England is held to damage the freehold, while in America it is not waste, but in many cases may be a valuable and expensive improvement.^'" With respect to the restraint of animals by fences, the changed con- ditions, especially on the great plains, were met by needed and varied legislative action. As, whereas under the common law the owner of do- mestic cattle was bound to restrain them, at his peril, so far as their trespasses were concerned, in America a great number and variety of statutes have been passed in recognition of the absence of fences on the plains, and governing the herding of cattle.^ ^" The scattered population, and the physical necessities of what was at one time de- scribed as the "Great American Desert," have led to radical changes in the law of waters and water courses, as to the respective duties and rights of the owners of the upper and lower tenement.^ *^ As civilization has advanced, statutory enactments have multi- plied for the protection of life and property against its necessary dangers.^'^ The modern inverted street, the high building, calls for the exercise of the police powers of the state in the requirement of fire escapes, the regulation of elevators, and the like, for the pro- tection of its inmates and the public. The introduction of steam and electricity, and the extension of the use of explosives, have also led to many statutory requirements as to the observance of specified precautions and prohibitions. Incidental to modern commerce are countless things of offense or annoyance to the community, in the 378 As the statute of Anne as to fire, and St. AVestm. II. as to pleading. 370 Post, p. 701, "Waste." 380 Post, p. 922, "Neglisence," "Statutory Duty," "Fences." In both Eng- land and America there are many statutes regulating fences about railroads. For illustration of statute as to highways, see Carpenter v. Cook (Yt.) 30 Afl. 908. At common law, owners of cattle allowed animals to run at large at their peril. This iTjle is changed, for example, in Indiana. Welch t. Bowen, 103 Ind. 252, 2 N. E. 722. SSI Post, 753, "Nuisance," "Water Rights." 3 82 A curious instance is the right of a wife to recover damages against a saloon keeper for the intoxication of her husband. Black, Intox. Liq. §§ 283, 306-311. t^ll- 1] STATUTES AND ORDINANCES. 97 enjoyment of comfort and property, with respect to whicli the com- mon law of nuisance is exceeding vague, and with respect to which legislatures have defined rights and duties. Valuable kinds of prop- erty or privileges, like patents,^'^ trade-marks,^** and copyrights,'^^ with their corresponding rights and duties, are almost purely mat- ters of statutory regulations. These various statutes, in the great majority of cases, create both rights in rem and rights in personam, and give rise to correlative duties. The statute of Westm. II. (1 Stat. 13; Edw. I. c. 50) expressly gave a remedy, by an action on the case, to all who are aggrieved by the neglect of any duty created by any statute.^*^ What these duties are, depends upon an interpretation of the statutes, governed by principles of statutory construction.^*' TThe -federal courts will ^fWays follow jtlie_coJistru<;tiwa-gi^en^fe)y^t;be-starte -supre mo court s ^ t he alaLul L' b uf Lhcir rc ie pe ctive s?ktea5^'* The mere fact, however, 383 At common law, and independent of the act of congress, authors and inventors acquire no exclusive right to the benefit of their writings and discov- eries. The character of the remedy to which a person who is injured by a breach of the statutory duty in these respects is entitled is dclennined by a construction of the statute. Dudley v. Mayhew, 3 N. Y. 9. 3S4 Grai. Trade Marks. 3 8 5 Walk. Pat. 386 2 Inst. 486. Com. Dig. "Action upon Statute," F, p. 452. And sec Heeney v. Spnigue, 11 II. I. 463. And see 12 Am. Law Rev. 189-191. 3 87 An action against a county for damages under a statute must be brought while the statute is in- force, as the repeal thereof takes away the right of ac- tion. Cope V. Hampton Co. (S. C.) 19 S. E. 1018. The construction of an order of a town council requiring a raUi'oad company to keep a flagman at a crossing is for the court alone. An order by a town council requiring a railroad com- pany to keep a flagman at a crossing, without specifying any time for so doing, requires a flagman by night as well as by day, if trains are then liable to pass. Wilson V. New York, N. H. & H. R. Co. (R. I.) 29 Atl. 300. Further as to con- struction and application of statutory duty, see Birmingham Mineral R. Co. v. Parsons (Ala.) 13 South. 602 (cattle guard); Kinard v. Columbia, X. & L. R. Co., 39 S. C. 514, 18 S. E. 119 (crossing collision); Louisville, B. & St. L. Consol. R. Co. V. Lee, 47 111. App. 384 (crossing signals); Whilton v. Richmond & D. R. Co., ^>~ Fed. 551. As to construction in state or United States courts, see Western & A. R. Co. v. Roberson, 9 C. C. A. 64G. 61 Fed. 592, 604. 388 Bm-gess v. Soligman, 107 I). S. 20, 2 Sup. Ct. 10; Bucher v. Cheshire R. Co., 125 U. S. 555, 8 Sup. Ct. 974. The consti'uction of a state statute by the state supreme court is the rale of intei-pretation within the state for the federal LAW OF TORTS— 7 98 GENERAL NATUUE OF TOKTS. [Ctl. 1 that tlie breach of a mere statutory duty has caused damage, does not vest a right of action in the person sutfering damages, against the person guilty."" The statutory remedy, in the first place, may exclude or limit the right of private action. The penalty provided by the statute under consideration must be carefully regarded. Where the statute pro- vides no penalty, and merely "enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law."^"" "Where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of the party grieved, and the offense is not against an individual, it belongs to the crown, and the crown alone can maintain suit for it.""^^ That the statute may.also provide a penalty for disobedience to its requirements does not pre- vent one injured by such disobedience from recovering against the wrongdoer.""^ If, however, the statute provides a penalty to the party aggrieved, either alone, or coupled with a penalty to the state or to the informer or relator, the penalty to the party ag- grieved is always in lieu of his action.^*^ courts, although the statute was adopted from another state, where it had been differently construed. Oliicago, R. I. & P. Ry. Co. v. Stahley, 11 C. C. A. SS, 62 Fed. 3C3. 389 Philadelphia, W. & B. R. Co. v. Philadelphia, etc., Towboat Co.. 2.3 How. 209; Maine, Dana. p. 4; Atkinson v. Newcastle, L. R. 6 Exch. 404, 2 Exoh. Div. 441; Gray v. PuUen, 5 Best & S. 970. Post. p. 234. "Independent Contractors." This subject will be discussed at length under "Negligence." 300 1 Com. Dig. tit. "Action upon Statute," F, p. 4.52; Anon., 6 Mod. 27; Braithwaite v. Skinner, 5 Mees. lV- W. 313; Mitchell v. Knott, 1 Sim. 497. As to rights in rem, the English market cases are good illustrations, — Bridgland V. Shapler, 5 Mees. & W. 3T."5; Homer v. Whitechapel District Board of Works, .")1 Law T. (N. S.) 414. And see Hurrell v. Ellis, 15 Law J. C. P. 18; Rodgers T. MrNaniara, 23 Law .T. C. P. 1. Rights in personam may be illustrated by the fencing cases which will be hereafter considered under "Negligence." 391 Earl Selborne, C, in Bradlaugh v. Clarke, L. R. 8 App. Gas. 354 (358). 392 Kidder v. Dunstable, 11 Gray (Mass.) 342; Hyde Park v. Gay, 120 Mass. 589; Hartnall v. Ryde Com'rs, 4 Best & S. 301; Rowning v. Goodchild, 2 Wm. Bl. 906. And see Turnpike Co. v. Brown, 2 Pen. & W. (Pa.) 462; Almy V. Harris, 5 Johns. (N. Y.) 175; Young v. Davis, 7 Hurl. & N. 760; 2 Hurl. & C. 197. 59 3 Pig. Torts, 190, citing Doe v. Bridges, 1 Barn. & Adol. 847, in which the <^'ll- 1] STATUTES AND OEDI.NANCES. 99 In tlie second place, where a statute creates a duty with the ob- ject of preventing a mischief of a particular kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss.'"* And finally the duty created may be for the public, or for some other class of persons than that to \N'hich the plaintiff belongs. Un- der such circumstances, he cannot maintain his action.* Ordinances. It has been insisted that a municipal ordinance does not create a civil duty where none existed at common law, enforceable in a com- mon-law action. "The national or state legislature may do this, for it is the supreme power, and, as such, can make that immoral which was before indifferent, and that neglect which was before prudence; but the city * -' * has no such power." -"^ This doctrine has been applied as between private individual s,'"" and especially to mu- nicipal corporations.'"' Where, however, a statute has authorized the municipal corporation to provide protection against injury toper- sons and property, it confers plenary power upon such corporations to require the performance of duties by ordinance. Thus, if a stat- ute authorizes a city to require railroad companies to provide pro- tection against injury, the corporation may require the company to erect a fence between the railroad and a park, and failure on the following rule is laid down: "Where an act creates an obligation, and enforce.? tlie performance in a specified manner, we take it to be a geneial rule that performance cannot be enforced in any otlier manner." 39* Thus, where a statute was designed to prevent the spread of contagious disease among animals carried from a foreign port to England, it was held that a shipper could not recover for sheep washed overboard by reason of a failure to compl.v with statute. Gorris v. Scott, L. R. 9 Exch. 125. * Post, p. 920. 3»= ilr. Justice Gordau, in Pennsylvania R. Co. v. EiTin, 89 Pa. St. 71. And see Fuchs v. Schmidt, 8 Daly {N. Y.) 317; Ivirby v. Boylstou JIarket, 14 Gray, 2-19. 380 Pennsylvania R. Co. v. Er\in, 89 Pa. St. 71; Pennsylvania R. Co. v. Boyer, 97 Pa. St. 91; Adm'r of Chambers v. Trust Co., 1 Disn. (Ohio) 327. In this class of cases, where the ordinance requires the performance of a common- law duty, it is properly admissible in evidence. McXerney v. Reading City, 150 Pa. St. 611, 2.-. Atl. 57. :i97Flynn v. Canton Co., 40 Md. 312; Van Dyke v. Cincinnati, 1 Disn. (Ohio) 532. Post, p. 175, '•JIuuicipal Corporations," "Negligence." 100 GEXIJIAL NATURE OF TORTS. fCh. 1 part of the company to comply with such a requirement may be actionable negligence.'"'* A municipal charter is a sufficient stat- utory authority.^"" LAWrUL AND UNLAWFUL CONDXTCT. 33. Lawful conduct may become tlie foundation of a tort, and the doing of an unlawful act, or of a lawful act in an unlawful manner, is not necessarily or invariably a tort.*"** Personal Conduct Actionable because of Injurious Cuii.iequences. There is an important and recognized distinction between conduct which is in itself directly and necessarily a violation of a legal rights or conduct which necessarily produces actionable consequences, and conduct which may be innocent in itself, and actionable only when it results in damage as a natural and probable consequence. Thus un- provoked assault, seduction, or trespass on land are immediate in- vasions of rights. On the other hand, a nuisance is often only a con- sequence or a result of what is not directly injurious, but sometimes, like trespass, a nuisance is a direct wrong.^"^ Before any step is taken under a conspiracy it may be indictable; *"" but it is in gen- 898 Hayes V. Michigan Cent R. Co., Ill U. S. 228, 4 Sup. Ct. cWO. It Is diffi- cult to suggest any difference in principle between an obligation imposed by statute and one imposed by ordinance in pursuance of statutory authority. Ruger, C. J., in City of Rochester v. Campbell, 123 N. Y. 405^16, 25 N. E. 937. This leading case is subsequently considered under "Negligence." Post, p. <,)19, "Municipal Corporations." Municipal ordinances often determine the i-ate of speed of trains and vehicles and determine duties as to flagmen, lights, gates, etc. 309 Bott Y. Pratt, 33 Minn. 323, 23 N. W. 237; Texas & P. Ry. Co. v. Xelson, 1 C. C. A. CSS, 50 Fed. 814. Generally, as to breach of Vnunleipal ordinance, see Osborne v. McMasters, 12 Am. St. Rep. 698, and note. If the ordinance is void because unreasonable (Burg v. Chicago, R. I. & P. Ry. Co. [Iowa] 57 N. W. G80), or enacted without authoritj' (Burrow v. President, 3 Lacq. Jur. 189), no statutory duty is created. 400 Clerk & L. Torts, 328; Cumberland Telephone & Telegraph Co. v. Elec- tric Co., 42 Fed. 273. 4 01 Ang. Water Courses, 55G. But see Lawton v. Steele, 119 N. Y. 226, 2;> N. E. 878; Delaware & R. Canal Co. v. Lee, 22 N. J. Law. 243. 402 Post, p. 635, "Conspiracy"; 2 Bi.sh. Cr. La^y, § 171; Clark, Or. Law. 117. Ch. 1] LAWFUL AXD UNLAWFUL CONDUCT. 101 eral actionable only when the complaining party has sustained in- jury because of it.*"^ A rightful act negligently done is a tort.*"* Slander in foreign and unintelligible words not understood is not actionable.*°° Liability in Use and Management of Property. Every person is bound in the management of his own property to a^ oid doing damage to others. He is bound so to use his own prop- erty as not to injure the rights of another. This is the real meaning of the maxim of thecivil law/'Sicutere tuo ut alienumnonltedas," *°" — "the paraphrase of the golden rule of the Christian."*" The value of the maxim has been seriously questioned. Its futility is yery strongly put by Earl, J., in Bonomi t. Backhouse.^ "^ " 'Sic utere tuo' is mere verbiage. A party may damage the property of another when the law permits, and he may not when the law prohibits; so that the maxim can never be applied until the law is ascertained." Unlawful Oonduct. The distinction between things mala in se and mala prohibita is no longer generally recognized.* "" Not all crimes or public wrongs are ^os Savill V. Roberts, 1 Ld. Raym. 3r4. However, no special damage neces- sary to make out a cause of action in an indictable conspiracy. Arcli. N. P. 450. And see Skinner v. Gunton, 1 Saund. 228; Hood v. Palm, S Pa. 237. 404 .Sisk v. Crump, 112 Ind. 504, 14 N. E. asi; Wambausli, Study of Cases, 239; Howe v. Young, 1(5 Ind. 312; Baltiinore & C. Ry. Co. v. Roaney, 42 Md. 117; Pig. Torts, 209, 210. 40 Broderick V. James, 3 Daly, 4S1-1S4; post. p. 482, "Libel and Slander." 400 Jeffries v. Williams, 5 Excb. 7iJl. Mr. Broom has formulated the fol- lowing propositions as to this maxim: (1) It is, prima facie, competent to any man to enjoy and deal with his own property as he chooses. (2) Ho mu.st, however, so enjoy and use it as not to aft'ect injuriously the rights of his fellow subjects. {?,) AMiere rights are such as, it exercised, to conflict with each other, we must consider whether tho exercise of the right claimed by either party be not i-estrained by the existence of some duty imposed on him towards the other. "\A'hctUer such duty be or be not imposed must be dotcvmined by reference to abstract rules and principles of law. (4) A man cannot by his tortious act impose a duty on another. (5) But, lastly, a wrong- doer is not necessarily, by reason of his being such, disentitled to redress by action, as against the party who causes him damage; for sometimes the maxim holds that, "Injuria non exousat injuriam." Broom, Leg. Max. § 39-t. 407 Eakin, J., in Little Rock & F. S. Ry. Co. v. Chapman, 39 Ark. 4G3, 480. 408 3G E. C. L. 653. 400 Pol. Torts, p. 23. But in Masisachusetts the distinction suiTives. See 102 GKNKKAI, NATURE OF TORTS. [Ch. I convertible into torts.*" One doing a lawful act in a manner forbid- den by law is not absolutely liable for an injury caused to a third party by the act, nor is the violation of law in doing it conclusive evi- dence of actionable civil wrongs.*" Therefore the averment in a declaration that defendant's sliding with boisterous demeanor in a street, contrary to the city ordinance, and to the damage and com- mon nuisance of the public, whei-eby plaintiff's horses became frightened and ran away and were injured, sets out no cause of ac- tion."^' 34. The -wrongfulness of the conduct complained of as a cause of action in tort is determined — (a) By the lex loci, and not by the lex fori, and ordi- narily (b) By the state of facts existing at the commence- ment of the action. Lex, Loci not Lex Fori. The English rule as to the act itself is that, where torts are com- mitted abroad, recovery can be had in English courts only when the act is a tort by the law of the country where it was committed,*^' and also by the English law.*^* In other words, the act must be Knowlton, J., in Newcomb v. Boston Protective Department (1888) 146 Mass. 596, 16 N. E. 555. *io Ante, p. 11. 411 Bill-bank v. Ross, 72 Me. 494. 412 Jackson v. Castle, 20 Atl. 237. 413 Phillips V. Eyre, L. R. 6 Q. B. 1; The M. Moxham, 1 Prob. Div. 107; The Halley, L. R. 2 P. C. 193. And see Scott v. Seymour, 1 Hurl. & C. 219; Phillips v. Eyre, 10 Best & S. 1004, L. R. 4 Q. B. 225, 6 Q. B. 1; 40 Law J. Q. B. 28. 414 As between English and French actions, see Peruvian G. Co. v. Bock- woldt (1882) 23 Ch. Div. 225. As between England and Holland in proceed- ings, see The Christiansborg (1885) 10 Prob. Div. 141. As between English and American courts, see Hyman v. Helm (18S3) 24 Ch. Div. 531; Mutrie T. Binney (1887) 35 Ch. Div. 614. Where the British owner of a British ship is proceeded against in an American court by both British and American cargo owners in respect to a loss of cargo occurring in British waters, the extent of his liability is determined by the statutes of the United States, and not those Oh. 1] LAWrUL AND UNLAWFUL CONDUCT. 103 wrongful by both laws.''^^ In the United States it is generally rec- ognized that damages recoverable in tort are controlled by the law of the place M'here the injury occurred, and, in case of contract, where the agreement was made.*^° Accordingly, if a servant be in- jured by the negligence of the master in Iowa, he can sue in Minne- sota, and his rights of action are determined by the Iowa laws, includ- ing the statutory law as to damages in case of death by wrongful act.*^' The action may be maintained in another state without proof of Great Britain. The State of Virginia, 60 Fed. 1018; In re State Steamship Co., Id. *i5Pol. Torts, § 176; Whittiker v. Forbes, 1 C. P. Div. .51. In Mostyn v. Fabrigas, Cowp. 161, the governor of Minorca was sued in England for false- ly imprisoning a native in Minorca. It was held that the injury was trau- .sitory, not local, ir its nature, and that therefore the action lay. It is im- portant, however, to distinguish tort itself from the evidence of the tort. rig. Torts, IS. ■116 Northern Pac. R. Co. v. Babcock, 154 TJ. S. 190, 14 Sup. Ct. 978. For a short article on the right of plaintiff in England, who has suffered a wrong abroad, to the same right and remed.y as he would have in the place whore he was injured, see 98 Law T. 104. Watson v. Railroad Co., 91 Ga. 222, 18 S. E. 306; Helton V. Railway Co., 97 Ala. 275,12 South. 270; Alabama G. S. R. Co. V. Carroll, 97 Ala. 126, 11 South. 803 ; Torrance v. Tliird Nat. Bank, 70 Hun, 44, 23 N. Y. Supp. 1073. But in an American court an action against a British ship is determined by the statutes of the United States and not by those of Great Britain. The State of Virginia, 60 Fed. 1018. Courts in New York have been held to have no jurisdiction over an action of trespass on land situated In other states. American, etc., Co. v. iliddleton, SO N. Y. 408; Craigin v. Lovell, 88 N. Y. 258: Dodge v, Colby, 108 N. Y. 4J5, 15 N. E. 703; Barrett v. Palmer, 13.' N. Y. 336, 31 N. E. 1017. But its supreme court is not prohibited from entertaining an action for injury to real property in other states, and may, unless objection Is made, hear and determine such cases. Sentenis v. 'Ladew, 140 N. Y. 466, 35 N. E. 050. Where, in an action prosecut- ed in Ohio by a sen-ant against his master to recover for personal injuiT resulting to him from tlie negligence of a fellow servant, it appears that the accident causing the injury occurred in Pennsylvania; that the contract of employment was made in that state; and that all the stipulated services were to be performed therein,— no recovery can be had if by the laws of Pennsylvania no right of action arose from the transaction, though the laws of Ohio would give full relief had the transaction occurred within that state. Alexander v. Pennsylvania Co., 4S Ohio, 023. 30 N. E. 69. 417 Herriek v. Minneapolis & St. L. R. Co.. 31 Minn. U, 10 N. W. 413; Northern Pac. R. Co. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978. And s(>e 104 GENERAL NATURE OF TOUTS. [Ch. 1 of lex loci; the action on tort is a transitory action.*" But one state is not bound by the rules of practice of another state in which the in- jury in issue arose, where such rules pertain merely to the weight of evidence, and not to the cause of action itself, if they are contrary to the rules of practice or public policy of the state in which the action is tried."'^" A cause of action founded upon a statute of one state con- ferring the right to recover damages for an injury resulting in death may be enforced in a court of the United States sitting in another state if it is not inconsistent with statutes or public policy of the state in which the right of action is sought to be enforced.^^" Cause of Action as to Time. "Every man shall recover according to the right which he hath at the time of bringing the action." It was accordingly held in a case of trover by five, one of whom died before verdict, and the others of whom obtained a verdict for the plaintiff, that granting judgment for the rest was error.*^^ So far as regards the effect of death of parties, stone V. Groton B. & M. Co., 77 Hun, 99, 28 N. Y. Supp. 4-16. The law is determined, not by the place where death occurred, but by the pltice where the injury was received. De Ilarn v. Mexican Nat. Ry. Co., 80 Tex. 68, 23 ' S. W. 381. And, generally, see Chandler v. New York, N. H. & H. R. Co., 1.59 Mass. 589, 35 N. E. 89; Augusta Ey. Co. v. Glover (Ga.) 18 S. B. 406. 418 For a short review of the interstate relations, so far as they aifect the litigation of statutory damage acts, see 9 Nat. CoiTp. Rep. 181. And see 35 Gent. Law J. 1S5, 40 Cent. Law J. 206. But St. 111. March 27, 1874, providing that a carrier cannot limit his common-law liability to safely deliver property received for transportation by any stipulation in the receipt gi-\'eu therefor, does not affect a contract made in Tennessee for the shipment of cotton to Massachusetts, though the charter of the carrier was granted in Illinois. Thomas v. Wabash, St. L. & P. Ry. Co., 63 Fed. 200. And Pub. St. Mass., making railroad companies liable for death by their wrongful act, and pro- viding that in case deceased leaves no widOAV or child the damages shall go to his next of kin, is a penal statute, and hence an action thereunder cannot be brought'' in another state. Adams v. Fitchburg R. Co. (Vt.) 30 Atl. 687, 2 Am. Law Reg. & Rev. (N. S.) 78. See note to this case in Burdict v. Missouri Pac. lly. Co., 123 Mo. 221, 27 S. W. 453. And see Walsh v. New York & N. E. R. Co., 160 Mass. 571, 36 N. E. 581 (inspection of foreign cars). Alabama G. S. R. Co. V. Fulgham, 87 Ga. 263, 13 S. E. 649. 419 Johnson v. Chicago & N. W. Ry. Co. (Iowa) 59 N. W. 66. 42 Texas & P. R. Co. v. Cos, 145 TJ. S. 593, 12 Sup. Ct. 905. 421 Wedgewood v. Bail}-, T. Raym. 463. "As to the cases where trespass is brought against many and one dies, they differ much from this case, because Ch. I] LAWFUL AND UNLAWFUL CONDUCT. 105 however, upon an. action in tort, the matter is now largely statu- tory.*-- The more important question arises in connection with the definition of the right; that is to say, what is plaintiff's cause of ac- tion. If the injury is a direct im-asion of a right, then the cause of action is complete upon defendant's wrongful conduct. Damages fol- low thereupon immediately as a necessary consequence.*^^ Where, however, the law will not presume damage, and plaintiff's cause of action is complete only when damages conforming to legal require- ments have been actually siiffered, then the cause of action is com- plete upon the happening of such damage.*^* There is no inconsist- ency between this proposition and the further one that in the same proceeding a plaintiff can recover for both damages which arose prior to the commencement of his action and subsequent thereto.*" New damage may create new causes of action,*^^ but damages for one cause of action are indivisible.*" there the trespass is joint or several at tlie pleasure of plaintiff." Id. Gen- •erally, as to effect of release by death of one of several entitled to entire damages. 422 "Death by Wrongful Act," post, p. 330. *23 Mitchell V. Colliery Co., 10 Q. B. Div. 457, 52 Law J. Q. B. 394. But see €ity of Dallas v. Young (Tex. Civ. App.) 28 S. W. 103G. Post, p. 335, "Statute ■of Limitations." 424 Bonomi v. Backhouse, 36 E. C. L. 653. ilr. Justice Brewer has stated the principle with great clearness. "Where the original act itself is no inva- sion of the plaintiff's rights, then there is no cause of action unless such act has caused damages; and the right of action dates from that time. On the •other hand, * * * where the original act is unlawful, and an invasion of the plaintiff's right, the cause of action dates from that act, and a new cause does not arise from new damages resulting therefrom." Ivansas Pae. Ry. ■Co. V. Mihlman, 17 Kan. 224. 42o It is not so easy to reconcile the general proposition with the right of plaintiff in conversion to recover as damages the value of the thing convert- ed into a more valuable form. Post, p. 737, "Conversion," "Remedies," "Com- pensatory Damages." This rule, however, goes rather to the e.xtent to which plaintiff may recover, than to his right to recover. 428 "Damages," post, p. 405. 427 "Damages," post, p. 404. 106 gi-:neral nature of torts. [t!h. L GENERAL SUMMARY. Tm-t Defined. Mr. Pollock has summarized much of the substance of the forego- ing discussion in the following remarkable (and elaborate) defini- tion of a tort : "A tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) \\ hich is related to harm sufEered by a determinate person in the following ways: "(a) It may be an act which, without lawful justification or ex- cuse, is intended by the agent to cause harm, and does cause the harm complained of. "(b) It may be an act in itself contrary to law, or an omission of specific legal duty which causes harm not intended by the person so acting or omitting. "(c) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should,, with due diligence, have foreseen and prevented. "(d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound, -absolutely or with limits, to avoid or prevent. "A special duty of this kind may be (1) absolute; (2) limited to- answering for harm which is assigiiable to negligence."*^* Elemenis Essential to Recovery in Tort. Recovery can be had in tort, it would seem, only when the fol- lowing elements of a cause of action are shown: (a) Parties. (1) Plaintiff not disentitled by his own wrong or consent, (2) Defendant not personally irresponsible when per- sonal responsibility is essential, and not within admitted exceptions or exemptions. (b) A legal duty recognized by trial court as owed by defendant to plaintiff. (c) A violation of that duty in fact by defendant. 4 28 Pol. Torts, p. 10. Ch. 1] GENERAL SUMMARY. 107 (d) Damage to plaintiff conforming to the standard of the law as the proximate result, except when, on proof of mere violation of duty, the law infers damages. Classification of Torts. Since the law of torts has reached a stage of development in which the general principles have been separated from specific torts, a number of bases of classification have been suggested.*^" The clas- sification which will be substantially— not literally — followed in this book is that of Mr. Pollock, viz.: ^^^ 42 9 This arrangement of Mr. Pollock conforms to his analj'sis of duties owed. Ante, p. 91, note 352. It has the great practical advantage of conforming also to current deeply-imbedded conceptions of rights and wrongs, and of using the terms which are familiar to the profession, constantly written by judges, and almost invariably employed by digesters and text writers. The objections to Mr. Bishop's original division of "noncontract law" is that it does not con- form to this standard, and fails to cover quasi torts. And there Is enough new and old law to master, without requiring the feat of acquiring an eccentric order. This criticism applies equally to the arrangement of Mr. Piggott. Mr. Innes' re- markable outline is subject to the same comment in perhaps even a, greater degree, but it contains most material contributions to the advancement of the subject. All these systems pay tribute in greater or less degree to the fertile suggestions of Dr. O. W. Holmes, Jr. His arrangement in 7 Har. L. R. 48- 663 (amplified in the "Common Law"), was specifically the basis of Mr. Bige- low's book on Leading Cases (see preface), and therefore of Ball's Leading Gases on Tort. <3o The principal departures from tliis order are: (1) The omission of sub- division 2, in group B,— i. e. interference with patents, copyrights, et sim; (2) in the discussion of wrongs in group B, under (a) trespass and (b) con- version; (3) in the consideration of disturbance of easements under group C, as part of nuisance; and (4) in treating subdivisions 2 and 3 of group C— that is, negligence and breach of duty to insure safety— as one topic. The first change is necessitated by prescribed limits of this book. The second and third changes, whatever their theoretical defects may be, have been found by actual experience to ecnduce to clearness in the understanding of the average class. The change as to wrongs to easements avoids the "tendency of a book on torts to become a treatise on easements." Moreover, such wrongs par- take of the nature of both trespass and nuisance, and can consequently be fully understood only when considered in connection with both of these sub- jects. The third change is made because of the degree to which American courts have denied the doctrine of Kylauds v. Fletcher, L. R. 1 Exch. 26-5, and legislatures have modified it. 108 GENERAL NATURE OF TOKIS. [Ch. 1 GROUP A, Personal Wrongs. 1. Wrongs affecting safety and freedom of the person: Assault, battery, false imprisonment. 2. Wrongs affecting personal relations in the family: Seduction, enticing away of servants. 2. Wrongs affecting reputation: Slander and libel. 4. Wrongs affecting estate generally: Deceit, slander of title. Malicious prosecution, conspiracy. GROUP B. ^^0719^8 to Property. 1. Trespass: (a) to land, (b) to goods. Conversion and unnamed wrongs ejusdem generis. Disturbance of easements, &c. GROUP C. Wrongs to Persons, Estate, and Property Generally, 1. Nuisance. 2. Negligence. 3. Breach of absolute duties specially attached to the occupation of fixed property, to the ownership and custody of dangerous things, and to the exercise of certain public callings. This kind of liability results, as will be seen hereafter, partly from ancient rules of the common law of which the origin is still doubtful, partly from the modern development of the law of negligence. Ch. 2J VARIATIONS BASED ON PRIVILEGE OF ACTOE. IDS' CHAPTER n. VARIATIONS IN THE NORMAL RIGHT TO SUE. 35. Variations Based on Privilege of Actor, or General Exemption. 36. Public Acts— Acts of State. 37-38. Conduct of Legislators. 39-41. Conduct of .Tudicial Officers. 42-i3. Conduct of Executive Officers. 44-45. Liability for Wrongs of Subordinates. 46. Private Acts. 47. Exercise of Statutory Rights. 48. Exercise of Ordinary Rights. 49. Exercise of Disciplinary Powers. 50. Rights of Necessity. 51. Right of Private Defense. 52. Variations Based on Status. 53. Insane Persons. 54-55. Infants. 56. Drunkards. 57. Convicts — Alien Enemies. 58. Private Corporations. 59-60. Municipal and Quasi Municipal Corporations. 61. Corporations, not Municipal, Engaged in Public Works. 62. Variations Based on Conduct of Plaintiff. 63-C4. Wrongdoing by Plaintiff. 65. Consent. VARIATIONS BASED ON PRIVILEGE OF ACTOR, OR GEN- ERAL EXEMPTION. 35. Under this head will be considered: (a) Public acts, including (1) Acts of state; (2) Conduct of legislators; (3) Conduct of judicial and quasi judicial ofBcers;^ (4) Conduct of executive oflacers. (b) Private acts, authorized (1) By statute; (2) By common law. 110 VAKIATIO-NS IN TllJi iNOKMAL RIGHT TO SUE. [Oh. 2 PUBLIC ACTS— ACTS OF STATE. 36. The state, except by its own clearly-manifested con- sent, is not liable to individuals for injuries it may cause. This exemption applies alike to (a) The United States government, (b) The governments of the various states, and (c) To foreign sovereignties. Exemption in General. The exemption of the state from liability for all torts is based upon its soTereign character. The duties the state performs are all public, and it cannot be held liable for any imperfections in their performance. Its exemption does not rest on the ground that there are no means provided for remedy against the state, but that there is no obligation on the part of the state for which an action lies.^ "The king can do no wrong." " "The government," said Mr. Justice Story, "does not undertake to guaranty to any person the fidelity of the oflQcers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments, difficulties, and loss- es, which would be subversive of the public interest." " Where the sovereign assumes the character of a trader, it has been held that the privilege of sovereignty is waived, and that legal liability fol- lows.* The distinction, however, does not seem to be sustained by the better legal opinion. The government is not ordinarily bound in law, however it may be in morals, by an estoppel.^ The exemp- 1 Murdock Parlor-Grate Co. v. Com., 152 Mass. 28-31, 24 N. E. 854. 2 Bl. Comm. 246, 4 Bl. Comin. 33. But see Buvou v. Donman, 2 Ex. 167. Elaborate discussion and dissenting opinion in U. S. v. Lee, 106 TT. S. 190, 1 Sup. Ct. 24(1 ; Ijaugford v. U. S., 101 U. S. 341. 3 Beers v. State, 20 How. 527; Gibbons v. U. S., 8 Wall. 269; Galbes v. Girard, 46 Fed. 500; Dox v. Postmaster General, 1 Pet. 318; TJ. S. v. Kirk- patrick, 9 Wheat. 720; Whiteside v. TJ. S., 93 U. S. 247-251; Hart v. U. s., 95 U. S. 316-318; Moffat v. U. S., 112 U. S. 24-31, 5 Snp. Ct. 10. * The Charkieh, L. R. 4 Adm. & Ecc. 59, (Here the khedive sent a vessel to trade. He was held to have waived the privilege which attached to it as the property of a sovereign. And see The Heinrich Bjorn, L. R. 10 C. P. 40.) Thomas v. Queen, L. R. 10 Q. B. 31; Chisholm v. Georgia, 2 Dall. 419-437. U. S. v. Clarke, S Pet. 436; Lake Superior Ship- Canal, Railway & Iron 'Ch. 2] PUBLIC ACTS. Ill tion, however, applies only to suits against the state. So far as ">, 09; A\'eaver v. Devendorf, 3 Denio, 114, 120; Keid v. Hood, 2 Nott & JIcC. (S. O.) 1G8; Stone v. Graves, 8 Mo. 148. The classifica- tion of officers into judicial, legislative, and executive is not strictly accu- rate, however convenient for present purposes. However distinct the de- partments of government are maintained (Langenherg v. Decker, 131 Ind. 478), an officer is apparently a representative of more than one department, and of no one department distinctly or exclusively (Cooley, Torts, c. 13, "Classifi- cation"). Mr. Brice (1 Brice, Am. Com., 3d Ed., c. 21, p. 215) says that this separation of the legislative, executive, and judicial departments is "the fundamental characteristic of the American national government. * * * In Europe, as well as in America, men are accustomed to talk of legislation and administration as distinct. But a consideration of their nature will show tliat it is not cnsy to separate these two departments in theory by analysis, and still Ic.'^s easy to keep them apart in practice." 118 VARIATIONS IN THE NOBMAL RIGHT TO SUE. [Ch. 2 and the judge was held to be exempt. Even if, in the exercise of such judicial functions, the judge acts, not only wrongfully, but with a corrupt motive, he is not civilly liable.'" Thus, it has been held that an action will not lie against a justice of the peace for issuing a writ in favor of a third person upon a false claim against the plaintiff, and secreting and destroying the writ after service thereof, and refusing to enter it, or to allow the defendant therein his costs.^" Quasi judicial public officers, as township trustees, arbitrators, etc.,'^ are not liable in damages for erroneous interpretation or application of the law.^^ If they act fraudulently or maliciously, the exemp- tion has been held to end. Thus, members of a school board may be held liable for maliciously dismissing a teacher, but not for such acts as the expulsion of children in good faith. "'^ But municipal ' offlcers, acting in a quasi judicial capacity in determining the lowest legal bidder, are not responsil)le to an injured bidder, however wrong their decision, or malicious the motive which produced it.''^ An attorney for a party to an action referred by the court is liable to the adverse party for conspiracy' with one of the arbitrators to ob- 21) Irion v. Lewis, 56 Ala. 190; Kress t. State, G."l Ind. 100. But see Knell v. Briscoe, 49 Md. 414; Hitch v. Lambriglit, GG Ga. 228; Garfield v. Douglass, 22 111. 100. 30 Raymond v. Belles, 11 Gush. 315, citing Elder v. Bcmis, 2 Mete. 599; Pratt v. Gardner, 2 Gush. 63; Ghickering v. Robinson, 3 Gush. 543. And see Weaver v. Devendorf, 3 Denio, 117; Stone v. Graves, 8 Mo. 148; Morrison V. McDonald, 21 Me. 550; State v. Copp, 15 N. H. 212; Taylor v. Doremus, 16 N. J. Law, 473; Morton v. Grane, 39 Mich. 520; Lenox v. Grant, 8 Mo. 254; Way v. Townsend, 4 Allen, 114; Bailey v. ATiggins, 5 Har. (Del.) 4G2; Gordon v. Farrar, 2 Doug, (ilich.) 411; Strickfaden y. Zipprick, 49 111. 280; Gregory v. Brooks, 37 Conn. 30.">. 32 Stevenson v. Watson, 4 C. T. Div. 148; Pappa v. Rose. L. R. 7 C. P. .525; .Tones v. Brown, 54 Iowa, 74, X. W. 140. And see Gould v. Hammond, 1 McAU. (U. S. Cir. Ct.) 235; Muscatine, etc., Ry. v. Horton, 38 Iowa, 33; McDaniel v. Tebbetts, 60 X. H. 555; Wall v. Trumbull, 16 Mich. 228. 33 State V. Hastings, 37 Neb. 96, 55 N. W. 774. 3 4 Burton v. Fulton, 49 Pa. St. 151; Dona hoe v. Richards, .38 Me. 379; Stewart v. Southard, 17 Ohio, 402; Billiug-6 v. Lafferty, 31 111. 318; Reed V. Conway, 20 Mo. 22. 3 5 East River Gaslight Co. v. Donnelly, 93 N. Y. 557, distinguished; People V. Gleason, 121 N. T. 631, 25 N. E. 4, approved; Brving v. City of New York, 131 N. Y. 133, 29 N. E. 1101. Of. AYard v. Freeman, 2 Ir. Com. Law, 400. Ch. 2] PUBLIC ACTS. 119 fain an unjust aw-ard in favor of his client, although the arbitrator is not liable.^" Judicial Officers de Jure or de Facto. To entitle a person to claim exemption as a judicial officer, it is not necessary that he should be such officer de jure. It is suffi- cient if he be de facto. The power to appoint such an officer, how- ever, may not be delegated by the legislature; for example, to attor- neys of record by means of stipulation.'^ Even a judge properly appointed, as to matter in which he is personally interested, may be disqualified so that he can have no jurisdiction, and his acts will be void. Thus, the acts of a judge of probate in the settlement of an estate in \^hich he is interested as an executor are void.^* The exemption applies, when the act is within the jurisdiction, alike to the highest judges in the land,'" and to the most veritable Dog- berry.''" Members of the naval and military court-martials are not liable for their conduct while acting in such capacity.*^ It appears that coroners ^^ and mayors of cities*'' are judges, in this sense. ^6 Hoosac Tunnel Co. v. O'Brien, 137 Mass. 424. Xor a coroner: Thomas V. Cliurton, 2 Best & S. 475. s'' Van Slyke v. Trempealeau, etc., Co., :10 Wis. .'l'.):i. :;'J2; Attorney Gen- eral V. McDonald, 3 Wis. 703, 705; Gougli v. Dorsey, 27 Wis. 119; Cohen V. Hoff, 3 Brev. (S. C.) .500; In re Bnrke, 76 Wis. 3.'57, 45 N. ^^■. 24; Balier V. State, 80 Wis. 416, ."iO N. W. 518. 3 8 Bedell v. Bailey, 58 X. H. 63; Hall v. Thayer, K).". Mass. 210; Stock- well V. Township, 22 Mich. 341. But see In re Van A^'aaonen's Will, 09 Hun, lie.."-!, 23 N. y. Supp. 630. 3 Bradley v. I'isher, 13 Wall. 335; Dicas v. Lord Brougham, Car. & P. 249; Fray v. Blackburn, 3 Best & S. 576; Lange v. Benedict, 7;! X. Y. 12; Londegan v. Hammer, 30 Iowa, 508; Booth v. Kurrus, ."5 N. ,T. Law, 370, 2(j Atl. 1013; Banister v. Wakeman, 64 Vt. 203, 23 Atl. 585 (collecting eases). 40 White v. Morse. 130 Mass. 162, 29 N. E. 539; In re Cooper, 32 Vt. 253; Weaver v. Devendorf, 3 Denio, 117 (collecting cases); Marks v. Sullivan, 9 Utah, 12, 33 Pac. 224. Judge municipal court: Rudd v. Darling, 04 Vt. 456, 25 Atl. 479. City recorder: Brunner v. Downs, 63 Hun, 620, 17 N. Y. Supp. 033. 41 Daw-kins v. Lord Rokeby, L. R. 7 Ind. App. 744; Dawkins v. Prince Ed- ward of Saxe-Weimar, L. R. 1 Q. B. Div. 499. 42 Garnett v. Ferrand, 6 Barn. & C. 619. 43Boutte V. Emmer, 43 La. Ann. 980, 9 South. 021; State v. Wolever, 127 Ind. 306, 318, 26 N. E. 762. 120 VARIATIONS IN THE NORMAL EIGHT TO SUE. [Ch. 2 The exemption extends to grand 'and petit jnrors in discharge of their duties,** and generally to all ofQcers exercising judicial func- tions.*" Reason.. The reason for exemption has been very clearly stated by Mr. Justice Brewer:*" "Nothing is more important, in any country, than an independent judiciary; and nowhere is it more important, so absolutely essential, as under a popular government. No man can be a good judge who does not feel perfectly free to follow the dictates of his own judgment, wheresoever it may lead him, and, in a country where popular clamor is apt to sway the multitude, noth- ing is more important than that the judges should be kept as inde- pendent as possible; and it is the universal experience, and the single voice of the law books, that one thing essential to their inde- *i Hunter v. MatWs, 40 Ind. 356; Turpen v. Booth, 56 Cal. 65. 45 Weaver v. Devendorf, 3 Denio, 117; State Auditor v. Atchison, T. & S. P. K. Co., G Kan. 500; Van Steenbergh v. Bigelow, 3 Wend. 42; Jones V. Brown, 54 Iowa, 74, G X. W. 340; Hunter v. Mathis, 40 Ind. 356; Gould Y. Hammond, 1 McAll. 23.j, Fed. Gas. No. 5,638; Hoggatt v. Bigley, 6 Humph. (Tenn.) 236; Tui-pen v. Booth, 56 Cal. 65; Harrington v. Commissioners, 2 McCord (S. C.) 400; Freeman v. Cornwall, 10 Johns. 470; Lilienthal v. Camp- bell, 22 La. Ann. 600; McDaniel v. Tebbetts, 60 N. H. 497; Gregory v. Brooks, 37 Conn. 365; Edwards v. Ferguson, 73 Mo. 686; Billings v. Laf- ferty, 31 111. 318; Donahoe v. Richards, 38 Me. 379; Shoemaker v. Nesbit, 2 Rawle (Pa.) 201; A'^'all v. Trumbull, 16 Mich. 228; Wasson v. MitcheU, IS Iowa, 153; Pike v. Megoun, 44 Mo. 491; Walker v. Hallock, 32 Ind. 239; Downing v. McFadden, IS Pa. St. 334; State v. Hastings, 37 Neb. 96, 55 N. W. 774; Johnston v. District of Columbia, 118 TJ. S. 19, 6 Sup. Ct. 923. 41! Cooke V. Bangs, 31 Fed. 640, 641. The reason assigned by Mr. Justice Field in Bradley v. Fisher, 90 U. S. 335-347, is constantly quoted in this connection. For it is a general principle, of the highest importance to the proper administration of justice, that a judicial officer, in exercising the authority invested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to an- swer to any one who might feel himself aggrieved by the act of the judge would be inconsistent with the possession of his freedom, and would de- stroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility. Taaffe v. Downs, note to 3 Moore, P. C. 41. Judge Cooley discusses the basis of the immunity at considerable length. Cooley, Torts, pp. 403-410. Ch. 2] PUBLIC ACTS. 121 pendence is that they should not be exposed to a private action for damages for anything they may do as judges." 40. No judge of the courts of record, having supreme or general jurisdiction, can be held liable, even for corrupt and malicious conduct, -nrith respect to matters vp-hich are in excess of, but not in the complete absence of, jurisdiction. Under such cir- cumstances, however, a judge of an inferior court, not of record, has been held personally liable. A leading case illustrative of this principle is Bradley v. Fisher,^^ which grew out of circumstances connected with the trial of John A. Surratt for the murder of Abraham Lincoln. In that trial, dur- ing a recess, Bradley, one of the attorneys, insulted Fisher, the pre- siding judge, and threatened him with chastisement. Thereupon, the judge entered an order striking Bradley's name from the roll of attorneys practicing in the court. In the subsequent proceeding brought to test the validity of this act of the judge, the court held that while, before a lawyer should be disbarred, he was entitled to notice, still judges of courts of record, of supreme or general juris- diction, are not liable to civil action for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done fraudulently and corruptly. The judge was ac- ". Iowa, 378. 7 X. AV. 623; Gifford v. Wiggins, 50 Minn. 401, 52 ?s\ W. 904; Brooks v. ilangan, 86 Jlich. 576, 49 N. W. 0.33. 124 VAKIATIONS IN THE NORMAL KIGHT TO bUK. [Cll. 2 to commit a person to prison for nonpayment of a fine for contempt, where the judgment for imposing the fine does not provide for im- prisonment, he is liable, in an action of tort, to the person illea:ally committed."" As to process, however, the tendency is to exonerate the judge." The language of the black-letter text is taken from the opinion in Bradley v. Fisher."^ It does not appear that it is essential whether the judge knew, or did not know, of the want of jurisdiction,"^ though honesty of purpose may mitigate damages."* Exemption as to Ministerial Acts. The exemption from liability of judges applies only to acts which are judicial, hence discretionary in their nature. Where, however, the act is ministerial, and, in its performance, does not involve the exercise of judgment, judges ai-e liable for their wrongful, malicious, or corrupt acts, as are individuals. Mere neglect of persons having judicial functions to perform also ministerial acts, where required, attaches liability."" An act is ministerial when it is performed in a prescribed manner, in obedience to the law, without regard to, or the exercise of, the judgment of the individual as to the propriety of the acts done."" Thus, if a justice, in making up his docket, fraudulently and mali- ciously fails to mention an appeal, his failure is not a mistake of judgment, and he is personally liable."^ The same principle has 8 Lanpher v. Dewell, 56 Iowa, ir,,'!, 9 N. W. 101; Martin v. Marshall, Hob. 63; Entrick v. Carrington, 2 Willes, 275; Gnimon v. Raymond, 1 Conn. 40. 81 Maguire v. Hughes, 13 La. Ann. 281, and supra, note 29; Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477. 8 2 13 Wall. 335, 3.57. 63 Trusdell v. Combs, 33 Ohio St. 186. 6* De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95. 6 5 Ferguson v. Earl of Kinnoull, 9 Clark & F. 215; Noxon v. Hill, 2 Allen (Mass.) 205; Jones v. Warden, 12 Cush. (Mass.) 133; Way v. Townsend, 4 Allen (Mass.) 114; Heriot's Hospital v. Ross, 12 Clark & F. 506, 518. 6 Pennington v. Streight, 54 Ind. 376. The black-letter text is from Grider v. Talley, 77 Ala. 422. Et vide State v. Johnson, 4 Wall. 475-^98; Sullivan v. Shanklin, 63 Cal. 247-251; Morton v. Comptroller, 4 S. C. 430-474; Commissioners v. Smith, 5 Tex. 471. 67 Home V. Pudil, 88 Iowa, 533, 55 N. W. 485; Brooks v. St. John, 25 Hun, 540; Peters v. Land, 5 Blackf. (Ind.) 12; Tompkins v. Sands, 8 Wend. (N. y.) 462; Place v. Taylor, 22 Ohio St. 317; Rochester White-Lead Co. v. City of Rochestei-, 3 N. Y. 463. Oh. 2] PUBMC ACTS. 125 been said to apply to the refusal of a judge to issue a writ of habeas corpus whenever a prima facie case of confinement is made out.'* In Yates v. Lancing,"" however, it was held that though a judge in vacation, who refuses to allow a writ of habeas corpus, is liable to an action under the statute making the judge liable in damages if he fails to obey the law, inasmuch as the allowance by him in vaca- tion is not a judicial act, yet the judges of the supreme court, sitting as a court in term time, may, in their discretion, refuse a habeas corpus. Similarly, an action will lie to recover damages for mak- ing a false return to a writ of certiorari issued by the supreme court to the persons who had been appointed referees by a county judge upon ah appeal from the order of a highway commissioner altering a highway.'''' In Ferguson v. Earl of Kinnoull,''^ it was held that the taking of his trial as presentee to a church in Scotland was a ministerial act, which the presentee was bound to perform, and that, for a neglect or refusal to perform that duty, every member of the presbytery was liable, collectively and individually, in damages, to the party injured. SAME— CONDUCT OF EXECUTIVE OFFICEilS. 42. Private individuals cannot recover damages resulting: from conduct violating a duty owed solely to the public and imposed by the state on its executive oflacers, instrumentalities, or agents. Such damages are the results of a purely public wrong, and there- fore are not subject to private action. 43. Damages may, however, be recovered against execu- tive public offi.cers — (a) For conduct in the course of performance of public duties, provided (1) Such conduct violates a duty to an individual, in the performance of which he has a partic- 6 8 Cooley, Torts, p. 378. «9 5 Johns. (N. Y.) 282. 7 Kector v. Clark, 78 N. Y. 21. 710 Clark & F. 215. 126 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 ular interest, even though that duty be also o'wred to the public; and (2) The complainant suffers some special individual wrong, as distinguished from the wrong done the community generally. (b) For unauthorized conduct in the course of perform- ance of oflB.cial duty. Violation of Purely Public Duties. In so far as a public officer or institution executes the authority or performs the functions of the goTernment, the exemption of the state for wrong applies to him. Under municipal corporations, it will be seen that, when a city exercises governmental functions, it is not liable for torts; when it exercises private functions, it is. Many governmental agencies share even a more absolute exemption. Thus, an action will not lie against a state house of refuge for an assault on an inmate by one of its oflScers." A purely charitable corpora- tion established by the state is not liable for the negligent or mali- cious acts of its servants.'^ Similarly, persons directed by law to establish a penitentiary are not liable to one injured while working thereon.^* And, generally, boards of trustees, and their individual members, exercising governmental functions, are agents of the state, and exempt from liability in their performance of public duties.' ° 7 2 Perry v. House of Refuge, 63 Md. 20. "3 ■Williamson v. Louisville Industrial School of Reform, 95 Ky. 2.jl, 2-t S. W. 10G.5. A religious coi-poration organized under Laws 1S76, c. 17C, providing that it shall not be lawful to divert the property to any pui-pose except the support ot an object connected with the denomination to which such corporation shall belong, is not liable for the negligence of an employe, where due care was used in his selection. Haas v. Jlis.sionary Soc. of the Most Holy Redeemer (Com. PI. N. Y.) 20 N. Y. Supp. 868. And see Farnham V. Pierce, 141 Mass. 203, X. E. 8:_)f). A collection of cases will be found in Boyd v. Insurance Patrol, 113 Pa. St. 2C0-27G, C Atl. 530. Priestly char- acter no defense for assault in removing person from a room, who was lawfully there. Cooper v. ilcKeuna. 124 Mass. 284. Ti Alamango v. Supervisors, 25 Hun, 551. But see Breen v. Field (Mass.) 31 N. E. 1075. 7 5 Hall V. Smith, 2 Bing. ].5<;; Chamberlain v. Clayton, 56 Iowa, 331, 9 N. W. 237; Walsh v. Trustees, !)G N. Y. 427; .Tordon v. Hayne, 36 Iowa, 9. 15; Nugent V. Levee Com'rs, .58 Miss. 197. And see Young v. Commissioners, 2 Ci»- 2] PUBLIC ACTS. 127 Thus, the trustees of the Brooklyn Bridge are not liable for error in judgnaent, in not providing a sufficient pjolice force on the bridge." The same exemption applies to school boards '• and school direct- ors.'* And naval oflScers destroying property with the consent of their goveinment are not personally liable to injured owners. '''•' Savie — The Exemption Applies Geiwrallij to Persons Engriged in Judicud Proceedings. The exemption from liability for torts extends to all persons con- nected as essential parts of judicial proceedings, as well as to judges. The purpose of the law, to promote justice by removing the restraint on the freedom of human action ^\hich would be imposed by fear of civil responsibility for conduct connected with judicial proceed- ings, would not be fulfilled if the exemption from such liability were confined to judges only. On the contrary, it extends to the officers of the court, the parties to the proceeding, and the witnesses who testify therein, and even to the persons who published a fair report thereof,*" The exemption has been carried so far as to hold that a witness is not civilly responsible for damages caused by his perjury. Thus, no action lies by a creditor against a debtor committed on ex- Nott & McC. (S. C.) 537; Lyons v. Adams, 2 lud. l-t:J; Bartlett v. Crozier, 17 Johns. (N. Y.) 439; Dunlap v. KuapiJ, 14 Ohio, 04. Tlie members of the board of public works (Code Md. art. 72 1 are not personally liable for in- juries to workman on vessel of state fishery force, caused by negligence of commander appointed by them. Riiriiin v. Bi-own, ."'.i Fed. lOO.j. TB Walsh V. Trustees, 96 N. Y. 427. And see Walsh v. Mayor, 107 N. Y. 220, 13 N. E. Oil. ^' Post, p. 178, "Municipal Corporations"; Donovan v. McAlpin, So N. Y. 8.j. 78 Boardman v. Hague, 29 Iowa, '.'>.','.); Smith v. District Township of Knox, 42 Iowa, 022. ; ■7 9 Buron v. Deuman, 2 Exch. 1G7. A log inspector is not liable for mis- takes in judgment. Gates v. Young, 82 AVis. 272, 54 N. W. 178. •'•« Jerome iv Knight's Cases, 1 Leon. lo7; Dawling v. Wenman, 2 Show. 44(1; Damport v. Sympson, Cro. Eliz. r)2(), Owen, 1 ."■>S : Ej'res v. Sedgewicke, Cro. Jac. 601, 2 Kolle, 197; AVimberly v. Thompson, Noy, 6; Harding v. Bodman, Hut. 11; Taylor v. Bidwell, G.') Cal. 4S'.), 4 Pac. 491; Bostwick v. Lewis, 2 Day (Conn.) 447; Grove v. Bradenburg, 7 Blackf. (Ind.) 239; Dun- lap V. Glidden, 31 Me. 43."'>; Severance v. Judkins, 73 Me. 376-379; Gariug v. Eraser, 76 Me. 37; Phelps v. Stearns, 4 Gray (Mass.) 105; Curtiss v. Fair- banks, 16 N. H. 542; Smith v. Lewis, 3 Johns. (N. Y.) 157: Jones v. Mc- Caddln, 34 Hun (X. Y.j 632; Cunningham v. Brown, 18 A't. 123; Bell v. Senneff, 83 111. 122; post, p. 532, "Libel and Slander." 128 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 ecution, for perjury at the examination on his application to be ad- mitted to tal^e the poor debtor's oath, whereby he obtained his dis- charge from imprisonment.*^ Violation of Private Duties. In order that a person may recover damages, he must show, not only negligence in the performance of a public duty, but he must also show a breach of particular duty owing to him. Therefore, where the duty is entirely to the public at large, and not to any specific individ- ual, he cannot recover." The duty may, however, be both to the public and to the individual. In such cases he can recover alike for the nonfeasance, misfeasance, or malfeasance of the public oflQcer.*' The better opinion is that the courts will not apply "that plausi- ble, but in reality sterile, verbal syllogization," the distraction drawn in the Six Carpenters' Case,'* as to misfeasance and nonfeasance, to ministerial oflScers. The disobedient officer is privileged, whether he does, or refrains from doing.*^ While it is said that there can be no difficulty in determining what is a ministerial duty and what is a public duty,*" this would not appear to be always the case. Thus, in Sage v. Laurain,*^ it was held that no action would lie against 81 Pbelps V. Stearns, 4 Gray (Mass.) 105. But see Rice v. Coolridge, supra. S2 Whart. Neg. § 284; Shear. & R. Neg. §§ 167-177; Kahl v. Love, 37 N. J. Law, 5; Hall v. Smith, 2 Bing. 156. 83 Rowning v. Goodchild, 2 W. Bl. 906; Amy v. Supervisors, 11 Wall. 136; Lane v. Cotton, 1 Salk. 17; Kendall v. TJ. S., 12 Pet. 524; Reed v. Conway, 20 Mo. 22; Keith v. Howard, 24 Pick. (Mass.) 292; ilech. Pub. Off. (collecting cases). 8-18 Coke, 146. 8 6 Boston & M. R. Co. v. Small, 85 Me. 462, 27 Atl. 349-351, per Emery, J. Cf. Carter v. Allen, 59 Me. 296; Brock v. Stimson, 108 Mass. 521. And see note to Barrett v. White, 3 N. H. 210; post, p. 679, "Trespass ab Initio"; ante, p. 287, "Liability of Agent to Third Person." Cf. Orway v. Ferin, 3 N. II. C9. 8 McCord V. High, 24 Iowa, 336. ■" 19 Mich. 137; Moss v. Cummings, 44 Mich. 359, 6 N. W. 843. And see Smith V. Gould, 61 Wis. 31, 20 N. W. 369. But damages may be allowed against courts by statute. State v. Supervisors, 66 Wis. 199, 28 N. W. 140; Young V. Commissioners, 2 Nott & McC. (S. C.) 537; Dunn v. Mellon, 147 Pa. St. 11, 23 Atl. 210; Bartlett v. Crozier, 17 Johns. (N. Y.) 439, distinguishing Hover V. Barkhoof, 44 N. Y. 113; Lynn v. Adams, 2 Ind. 143; Dunlap v. Knapp, 14 Ohio, 64; Garlinghouse v. Jacobs, 29 X. Y. 207 (commissioners not liable). But ^i"-- 2] FLTBIJC ACTS. 129 highway commissioners for laying out a highway, where they were acting within their jurisdiction, and A'iolated no law. On the other hand, in New York a commissioner of a highway was held liable for omitting to erect barriers in dangerous places at the side of a high- way, and for leaving the bed of the highway defective. ^^ But it is a defense to an action for damages against a commissioner of high- ways, for injuries sustained in consequence of a defective highway, to show that he was without necessary funds to make repairs, and without power to raise them.*" While Judge Cooley correctly states the doctrine that (e. g.) a sheriff can only be liable to the person to whom a particular duty was owing,"" in Raynsford v. Phelps "^ he holds a collector of taxes liable for an injury resulting to one who had purchased the equity of redemption to certain mortgaged lands after a tax had been as- sessed thereon, because of the return of nulla bona by the tax col- lector, whereby the tax became a lien on the land, from which the owner of the mortgage had to redeem after foreclosure."- This case is said to be in conflict with the rule as generally stated. But there is other good authority for holding that a collector of taxes is a see Robinson v. Chamberlain, 34 N. Y. 389; Hover v. Barkh-if, ii N. Y. lis' Held liable in Glasier v. Town of Hebron, 131 N. Y. 447, .".i N. E. 239. And see Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. r,57; Bennett v. Whitney, 94 N. Y. 302. 88 Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. B. 43; Piercy v. Averill, 37 Hnn, 360, 336; Allen v. Sisson, 60 Hun, 143; Robinson v. Chamberlain, 34 N. Y. 389 (overi'uling Fish v. Dodge, 38 Barb. 163; Minard v. Mead, 38 Barb. 174); Turnpike Road v. Ohampney, 2 N. H. 109. And see Tearney v. Smith, 86 111. 391; Harris v. Carson, 40 111. App. 147; Bills V. Belknap, 36 Iowa, 583. The superintendent of streets of a city is liable for any damages resulting from his negligence in repairing a sewer, uot^ withstanding his official capacity. Butler v. Ashworth, 102 Cal. 663, 36 Pac, 922. 8 Garlinghouse v. Jacobs, 29 N. Y. 207; Weed v. Ballston, 76 N. Y. 329; Hines v. Loekport, 50 N. Y. 236, 238; Boots v. ■\A'ashburn. 79 N. Y. 207; Monk V. Town of New Utrecht, 104 N. Y. 552, 11 N. B. 268. And an action does not lie against a village when it would not lie agfiinst a commissioner of a highway. Clapper v. Town of Waterford, 131 N. Y. :;!82, 30 N. E. 240, and cases collected on page 389, 131 N. Y., and page 240, 00 N. E. •90 Cooley, Torts, p. 394, note 1. 3143 Mich. 342. »2 State V. Harris, 89 Ind. 363. I, AW or TORTS — 9 130 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Gh. 2 ministerial officer, the abuse of whose legal authority may be cor- rected by an action.'"' Special Injury. Mere community of injury is not sufficient. The party complain- ing must shoAV special injury peculiar to himself. I "consider the point beyond all dispute," said Spencer, C. J., "that, for a misbe- havior of an officer in his office, * ^^ * no one can maintain an action against him, unless he can show a special and particular damage to himself." " He therefore held that no action lay against the managers of a public lottery, at the suit of a dealer in lottery tickets who had puicliased a large number of tickets to be sold at a profit, on the ground that, by the negligence and improper conduct of the defendants, public confidence was destroyed, and the plaintiff was unable to sell his tickets."^ Liability of Sheriffs, Constnhles, etc. Sheriffs, constables,"" and similar officers are exempt from lia- bility for damages caused by execution of process whenever it ap- pears that the writ is regular on its face, that it was issued by a sa Blanchard v. Dow, 32 Me. 557 (omission to render account in writing of sale and cliarges); Carter v. Allen, 59 Me. 296 (deduction of illegal fees from proceeds of sale); Seekins v. Goodale, 61 Me. 400 (sellingi of more goods than is necessary); Robbins v. Swift, 86 Me. 197, 29 Atl. 981 (demand of excessive fees). '■"t Butler V. Kent, 19 Johns. (N. Y.) 223. 95 Wright v. Defrees, 8 Ind. 298; Eslava v. Jones, S3 Ala. 139; Harring- ton V. Ward, 9 Mass. 251; Strong v. Campbell, 11 Barb. 135. As by statute, where the sheriff is civilly responsible for the safe-keeping of prisoners committed to his care (Code Tenn. §§ 6238-6242), and any party aggrieved may sue on his official bond in the name of the state (Id. 3492-34.94), the United States may, in such an action, recover for allowing the escape of a prisoner under indictment by a federal girand jury, the expenses of the arrest and keeping of the prisoner, and money expended in recapturing him. State V. Hill, 9 C. C. A. 326, 60 Fed. 1005. 96 A constable will be protected in levying execution under a void judg- ment, unless the levy was made with intent to oppress the execution defend- ant. Thompson v. Jackson (Iowa) 61 N. W. 1004. Cf. Taylor v. Moore, 03 Vt. 60, 21 Atl. 910. And if he, while acting as such, wrongfully kills a person, he is liable therefor on his official bond. State v. Walford (Ind. App.) 39 N. E. 1C2. Cf. Berwald v. Ray, 165 Pa. Sup. 192, 30 Atl. 727. f '• -] PUBLIC ACTS. 131 court of competent jurisdiction as lespects the subject-matter, al- though it does not disclose the want of jurisdiction in respect to the person, nor show whether the court ever acquired any jurisdiction over the person."' But for conduct under a defective writ, or for an unauthorized act, such public officers become liable to individ- uals."^ Thus, they may become liable for making arrest under a defective warrant,"" or for unlawfully breaking into a house to make ii levy,"" or for failure to sell propeity levied on,^°^ to execute ^"- or return, ^"^ or for making a false return ^"^ of, process and execu- tion,^"'' or for negligence in making sale,"" or for selling exempt property."' The sheriff is liable where he intentionally takes prop- erty not covered by his writ. In such cases he is a trespasser ab initio, and is liable for all consequences of an unlawful entry and OT Orr V. Box, 22 Minn. 4S.j: Savacool v. BoTi^liton, 5 Wend. (N. Y.) 170. i>s A collection of authorities as to suits on official bonds for trespas. Post, p. 42G. "False Imprisonment." 100 Welsli V. Wilson, 34 Minn. 92, 24 N. W. 327; Thompson v. State, 3 Ind. App. 371, 28 N. B. 990. 101 Valentino v. Kwilecki. 89 Ga. 98, 14 S. E. 878. 102 Hawkeye Lumber Co. v. Diddy, 84 Iowa, ():«, .51 N. W. 2; Bachelder V. Chaves {X. M.) 2.1 Pac. 78:;; Steele v. Ciabtree, 40 Neb. 420, 58 N. W. 1C22; Mathis v. Caipentei-, 9.j Ala. inc. 10 South. 341; Denson v. Ham (Tex. App.) IG S. W. 182; Crosson v. Olson, 47 Minn. 27, 49 N. W. 406; Zelinsky v. Price, 8 Wash. 250, 30 T'ac. 28; De Yampert v. Johnson, 54 Ark. 165, 15 S. W. 363; Bittman v. Jlize, 45 Kan. 450, 25 Pac. 875; Rogers v. Marlboro Co., 32 S. 0. 555, 11 S. E. 383; Pierce v. Jackson, 05 N. H. 121, 18 Atl. 319. 103 Hawkins v. Taylor, 50 Ark. 45. 19 S. W. 105; Atkinson v. Heer, 44 Ark. 174, followed in Wilson v. Younjr. 58 Ark. 593, 25 S. W. 870. 104 Blair v. Flack, 02 Hun (X. Y.) 509, 17 N. Y. Supp. 04. 105 Turner v. Pase, 111 X. C. 291, 16 S. E. 174; Boyd v. Teasue, 111 X. C. 246, 16 S. E. 338; Hood v. Blair, 95 Ala. 029, 10 South. 071. But see Union Stove & Mach. Works v. Caswell, 50 Kan. 787, .•'.2 Pac. :!(i2; Cleveland v. Tittle, 3 Tex. Civ. App. 191, 22 S. W. 8. 106 Cramer v. Opponstein, 10 Colo. 504, 27 Pac. 710; Russell v. Grimes. ■51 iNeb. 784. 48 N. W. 905. 107 Kriesel v. Eddy, 37 Neb. 03, 55 N. W. 224. As to action against bond: Kennedy v. Smith, 99 Ala. 83, 11 South. 005. So where the sherife sells property as belonging to another where the owner acquired title after lew and before sale. Kitchen v. McCloskey, 150 Pa. St. 370, 24 Atl. c.ss. 132 VARIATIONS IN THE NORMAL HIQHT XO SUK. [Ch. 2 io» I seizure.^"* The sheriff is, in general, liable for wrongful seizure and may be jointly liable with his deputy,^^" or with plaintiff in the action."^ For reasons of public policy, the sheriff is absolutely lia- ble for the forthcoming of all property levied on by him, unless de- prived of it by the act of (rod, sudden accident, or the public enemy. He is therefore liable if it is stolen.^^^ He may, however, not be liable for goods destroyed by flre.^^^ He is liable for the escape of a prisoner lawfully arrested. He is also liable if the escape be due to the negligence of his deputy.^^* The officer may be liable to the plaintiff in the process, as where he refuses to obey the proper di- 108 Grunberg v. Grant, 3 Misc. Rep. 230, 22 N. Y. Supp. 74T. Et vide Williams v. Mercer, 139 Mass. 141, 29 N. B. 540. 109 Francisco v. Aguirre, 94 Cal. 180, 29 Pac. 495; McAlIaster v. Bailey, 127 N. Y. 583, 28 N. E. 591; Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161; Walker v. Wonderlick, 33 Neb. 504, 50 N. W. 445; Rogers v. McDowell (Pa. Sup.) 21 Atl. 166; Harris v. Tenney, 85 Tex. 254, 20 S. W. 82; Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906; Brown v. Mosher, 83 Mo. Ill; Taylor v. Moore, 03 Vt 60, 21 Atl. 919; Palmer v. McMaster, 10 Mont. 390, 25 Pac. 1056; Wbitney v. Preston, 29 Neb. 243, 45 N. W. 619. Measure of damagies; Collins V. Hutchinson (Ind. App.) 30 N. E. 12; Mitchell v. Corbin, 91 Ala. 599, 8 South. 810. Attachment: Brown v. Howard, 86 Me. 342, 29 Atl. 1094; Noyes- V. Belding (S. D.) 59 N. W. 1009. The measure of damages, in an action to recover from a sheriff for his wrongful seizure of pi'opeity on execution, and its sale thereunder, is the amount for which it was sold, with interest thereon from the date of sale. Kirkley v. Lacey (Del. Super.) 30 Atl. 994, 7 Houst. 213. 110 Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379; Luck v. Zapp, 1 Tex. Civ. App. 528, 21 S. W. 418; State v.Dalton, 69 Miss. 611, 10 South. 578. 111 Jones V. Lamon, 92 Ga. 529, 18 S. B. 423, followed in Waldrup v. Almand (Ga.) 19 S. E. 994. 112 Hartlieb v. McLane's Adm'r, 44 Pa. St. 510; Bond v. Ward, 7 Mass, 123. As to reimbursement by attaching creditor, see Russell v. Walker, 150 Mass. 531, 23 N. B. 383. As between officer levying and execution cred- itors, , see Bowman v. First Nat. Bank, 36 Neb. 117, 54 N. W. 124. 113 State V. Dalton, 69 Miss. 611, 10 South. 578. 114 Winborne v. Mitchell, 111 N. C. 13, 15 S. E. 882. So as jailer. Saunders V. Perkins, 140 Pa. St. 102, 21 Atl. 257. Generally as to liability of sheriff, see Burnett v. Gentiy, 32 S. C. 597, 11 S. B. 96; Hanchett v. Ives, 133 111. 332, 24 N. B. 396; Pierce v. Jackson, 65 N. H. 121, 18 Atl. 319; Btter v. O'Neil, 83 Iowa, 655, 49 N. W. 1013; Monahan v. TYiumph Artificial Limb Co., & Ohio Cir. Ct. R. 150. As to amercement of sheriff, see Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134; Sharp v. Ross, 7 Ohio Cir. Ct. R. 55. As to Gh. 2] PUBLIC ACTS. 133 rection of such plaintiff, e. g. as to the time oP manner of its execu- tion, or as to the property to be subjected to it.^^^ So, also, if the plaintiff informs the oflficer of the danger of delay, in directing im- mediate serrice.^^" The officer may also be liable to the defendant in the process, as by refusing bail,^^'' or subjecting him to oppression or undue hardship,^^^ or for abusing process.^^' He, as well as his bondsmen, may be liable to third persons, for example, if he takes the goods of one person upon a writ against another.^^" Ldability of Other Officials. Registers of deeds, or abstract clerks, whose duty it is to make certificates as to titles, are liable to employers, but not to strangers or third persons, between whom and them there is no privity, for errors in making the examination and certificate; ^^^ as where there is negligent omission to note recorded mortgages, assessments,^^^ or releases. ^^'^ Where, however, it is no part of statutory duty to make search of the records of his oflQce and certify to the result of his search, a clerk is not liable for want of skill or honest errors of judgment.^^* He is liable for making an improper record of an measure of damages: Collins v. Hutchinson (Ind. App.) 30 N. E. 12; Mitchell V. Corbin, 91 Ala. 599, 8 South. 810. iisRanlett v. Blodgett, 17 N. H. 298; Rett v. Wagner, 30 N. Y. 9. It is otherwise, however, if plaintiff's instructions are unreasonable. McDonald V. Neilson. 2 Cow. (iV. Y.) 189. lie Tucker v. Bradley, 15 Conn. 40; Smith v. Judkins, GO N. H. 127. 117 Berrer v. Moorhead, 22 Neb. 687, 3G N. W. 118. 118 Wood V. Graves, 144 Mass. 3C.j, 11 N. E. ."107; Baldwin v. Weed, 17 Wend. (N. Y.) 224; Page v. Gushing, 38 Me. .52:J. no HoUey V. Mix, 3 Wend. (N. Y.) 350; post, p. 424, "False Imprisonment." i20AVellman v. English, 38 Cal. 583; AVise v. Jefferis (C. C. A.) 51 Fed. €41; Symonds v. Hall, 37 Me. 354; Griswold v. Boley, 1 Mont. 546; Id., 20 Wall. 486; Overbye v. McGee, 15 Ark. 459; Sweeney v. Lomme, 22 Wall. 213; Fonda v. Van Home, 15 Wend. (N. Y.) 631. 121 Dundee Mortgage & Tru^t Inv. Co. v. Hughes, 20 Fed. 39; Houseman V. Association, 81 Pa. St. 256, 262; Savings Bank v. Ward, 100 U. S. 195. 122 Smith V. Holmes, 54 Mich. 104, 19 N. W. 767; McCaraher v. Com., 5 Watts & S. (Pa.) 21; Morange v. Mix, 44 N. Y. 315; Chase v. Heaney, 70 111. 268. 123 Waeek v. Friuk, '>1 Minn. 282, 53 N. W. 633. 12 4 Mallory v. Ferguson, 50 Kan. 685, 32 Pac. 410. 134 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Cll. 2 instrument filed with him/^° or for not making an index as re- quired."" Delay in indexing is prima facie evidence of nej^li- gence.^^' Clerks of court are liable for negligence or willfulness in the performance of their duties. These are largely ministerial. Thus, ^^■here a clerk has failed to issue an execution when ordered by the plaintiff's attorney an averment by the defendant that the papers are lost, and therefore the costs should not be taxed or exe- cution issued, is not a sufficient defense.^^' Similarly, the clerk is liable for carelessly giving a false certificate,"" or for negligently filing papers.^^" Notaries public are liable for negligence in pre- senting or protesting negotiable paper.^^^ Such officer is liable for knowingly making a false acknowledgment,^^^ for negligence in mistaking identity of parties,^-'' certainly where there is a clear and intentional dereliction of duty.^"* He may be liable for a de- fective certificate, perhaps, when the defect is the result of negli- gence, but certainly where it is due to malice.^''' He has been held liable in favor of legatees for negligence in drawing a will.^^° If 12 5 Sinclair v. Slawson, 44 Mich. 12;!, 6 N. W. 207 120 Lyman v. Edgerton, 29 Vt. 305; Chatham v. Brailfoi'd, 50 Ga. 327. 12 7 First Nat. Bank v. Clements, 87 Iowa, 542, 54 N. W. 107. As to action on bond: .Toyner v. Roberts, 112 N. C. Ill, 16 S. E. 917. 128 Thouron v. Railway Co., 90 Tenn. 609, 18 S. W. 256; Benjamin v. Shea (Iowa) 49 N. W. 989; Toncray v. Dodge Co., 33 Xeb. 802, 51 N. W. 235; People V. Bartels (III. Sup.) 27 N. E. 1091. 12 9 Maxwell v. Pike, 2 Me. 8. 130 Rosenthal v. Davenport, 38 Minn. 543, 38 N. W. 018. isi Commercial Bank v. Varnum, 49 N. Y. 269; First Nat. liank v. Fourth Nat. Bank, 77 N. Y. 320; Allen v. Merchants' Bank, 22 Wend. (X, Y.) 215. 13 2 llatton V. Holmes, 97 Cal. 208, 81 Pac. 1131; People v. Butler, 74 Mich. 643, 42 X. W. 273; Curtiss v. Colby, 39 Mich. 456. Compare with Com. v. Haines, 97 Pa. St. 228. 133 state V. Bleyer, 2 Mo. App. 413. 134 Com. V. Haines, 97 Pa. St. 228; Henderson v. Smith, 26 W. Va. 829; Scotten V. Fegan, 62 Iowa, 236, 17 N. W. 491; Brigham y. Bussey, 26 La. Ann. 676; Fox v. Thibault, 33 La. Ann. 33; Schmitt v. Drouet, 42 La. Ann. 1064, 8 South. 396. 135 Fogarty v. Finley, 10 Cal. 239. Compare Henderson v. Smith, 26 W. Va. 829. i3 0Weintz v. Kramer, 44 La. Ann. 35, 10 South. 416. Compare Schmitt V. Drouet, 42 La. Ann. 1064, 8 South. 896. Ch. 2] PUBLIC ACTS. 135 election offlcers perform ministerial duties, they do not come within the ordinary exemption from liability for tort which they enjoy while performing judicial duties within jurisdiction and in good faith.^" If they do perform judicial functions, they would seem to come under the rule of quasi judicial officers, and not to be liable unless the conduct complained of is beyond their jurisdiction, and malicious."^ A city ordinance providing for a building inspector, and requiring him to inspect buildings in the course of erection, and to "see" that the buildings are erected as provided by the ordinance, imposes on him the duty of requiiiiig the buildings to be properly 13' People V. Bell, 110 N. Y. 175, 2?, N. E. o.y.',, approving Goetcheus y, Matthewson, CI N. Y, 420; Wilsou v. Mavor, etc., 1 Denio, .")!i.l, ."j99; Roches- ter White Lead Co. v. City of Rochester, 3 N. Y. 4G3; Gillespie v. Palmer, 20 AVis. 572; People v. Pease, 30 Barb. 588; Goetcheus v. jNIatthewson, 61 N. Y. 420; Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444; Spiagins v. Hough- ton, 3 111. 377; Bernier v. Russell, 89 111. 60; Hyde v. Brush. 34 Conn. 4.',1. Cf. State V. Gordon, 5 Cal. 23.".. 138 As to acts in good faith within jurisdietiou, see Carter v. Harrison, 5 Blackf. (lud.) 138; Friend v. Hamill, 34 Md. 208; State v. Daniels, 44 N. H. 3S3; Weckerly v. Geyer, 11 Serg. & R. (Pa.) 34; Temple v. Mead, 4 Vt. .1:3.0; Fausler v. Parsons, 6 W. Va. 486. As to acts beyond jurisdiction and with malice of the essence of liability, see Tozer v. Child, 7 El. & Bl. 377; .Ten- kins V. Waldrom, 11 Johns. (N. Y.) 114; Nash v. Whitney, 30 Me. 341; Humphrey v. King, 5 Mete. (Mass.) 162; Stai-ling v. Turner, 2 Lev. 50; Ashby V. White, 2 Ld. Raym. 038 (the question of malici' not prominent; but see Harmon v. Tappenden, 1 East, 555, 5G3); Caulfield v. Bullock, IS B. Mon. (Ky.) 494; Rail v. Potts, 8 Humph. (Tenn.) 225; Carter v. Harrison, 5 Blackf. (Ind.) 138; Bevard v. Hoffman, 18 Md. 470. And see People v. Bell, 119 N. Y. 175, 23 N. E. .')o3; People v. State Board of Canvassers, 129 N. Y. 360, 29 N. E. 345; State v. Gordon, 5 Cal. 235; Long v. Long, 57 Iowa, 497, 10 N, W. 875; Goetcheus v. Matthewson, 61 N. Y. 420; Chrisman v. Bruce, 1 Duv. (Ky.) 63; Ator^'an v. Dudley, 18 B. Mon. iW,; Pike v. Megoun, 44 Mo. 491; That malice is m.t essential: Fausler v. Parsons, 6 W. Va. 486. Kilham v. Ward, 2 Mas."*. 2:J(;; Gardner v. Ward, 2 Mass. 244; Lincoln v. Hapgood, 11 Mass. 350; Capen v. Foster, 12 Pick. (Mass.) 48.".; Oakes v. Hill, 10 Pick. (Mass.) 333; Keith v. Howard, 24 Pick. (.Alass.) 202; Gates v. Xeal, 23 Pick. (Mass.) 308; Harris v. Whitcomb, 4 Gray (Mass.) 4:\Z: Anderson v. Millikiu, 9 Ohio St. 568; .lefCries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, Id. 376; Monroe v. Collins, 17 Ohio, 665. And see Gillespie v. Palmer, 20 Wis. 544; Tozer v. Cliild (1S.17I 7 EI. & Bl. 377, 2(i L. J. Q. B. 151. But see Sanders V. Getchell, 76 Mc. 158; I'ierce v. Same, Id. 216; Osgood v. Bradlejs 7 Me. 411. 13G VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 constructed, and renders him liable to persons damaged by his non- performance of the duty.^^° Unauthorized Acts. Whenever a person sued sets up as a defense that he was an officer of the government acting under color of law, he must show that the law authorized the act to be done, and that he acted in good faith.^*° Where his authority fails, his protection is gone. Thus, an agent of the United States in the service of the coast survey, do- ing injury to land, ^yill be liable in an action of tort unless such entry and injury were i^easonably necessary for the coast survey.'*^ So wliere a board of state commissioners, disregarding the require- ments of the city charter that all work for the city should be let by contract, undertook to repair a bridge themselves, they were held liable for an injury caused to a person by the negligence of employes engaged in doing the work, although the city was not.^*^ That the wrongdoing of an officer is also punishable as a penal offense is no bar to the maintenance of an action by the individual injured.^*^ Even where the authority of the officer fails because the law under which he acted, even in good faith, has been declared unconstitu- tional,^** he is liable. So, also, where the court whose direction he obeyed had no jurisdiction.'^*^ A defective writ is no defense to an officer serving it, or an arrest under it.'*' For example, in "0 Jlen-itt V. JlcXally, 14 Mont. 228, 36 Pac. 44. 140 Tweed's Case, IG AVall. 504. 141 On- V. Quimby, ~A N. H. 590. 142 Eobinson v. Rohr, 73 Wis. 436, 40 N. W. 668; Bailey v. Mayor, 3 Hill, 531; Martin v. Mayor, 1 Hill, 545; Donovan v. McAlpin, 85 N. Y. 185; Fitz- patriek t. Slocum, 89 N. Y. 358. 143 Hayes v. Porter, 22 Me. 371; Raynsford v. Phelps, 43 Mich. 342, 5 N. W. 403. 144 Mech. Pub. Off. p. 445, § 662, collecting cases. Under such circum- stances good faith may mitigate damages. Booth v. Lloyd, 33 Fed. 593. But see Henke v. McCord, 55 Iowa, 378, 7 N. W. 623; Dunn v. MeUon, 147 Pa. St. 11, 23 Atl. 210, collecting cases (page 16, 147 Pa. St., and page 210, 23 Atl.). 145 Clark Y. Woods, 2 Exch. 395. And see Mayor of London v. Cox, L. R. 2 H. L. 239. no Post, p. 426, "False Imprisonment." But a constable may serve a writ regular on its face, but issued on a void judgment. Cornell v. Barnes, 7 Hill (N. Y.) 35; Burd, Lead. Cas. 86. Cf. O'Shaugnessy v. Baxter, 121 Mass. 515; Burd, Lead. Cas. 88. It has been held that the officer, to justify seizure of Ch. 2] PUBLIC ACTS. 137 replevin against an officer to recoA^er attached property, the officer, to justify, must show his authority by a regularly issued writ of attachment.^*' In all cases where the liability is claimed because of negligence, motive and good faith are immaterial. ^*^ 44. A public ofl&cer not ministerial is not responsible for the tortious conduct of an oflB.cial subordinate, un- less in some "wray personal fault is attributed to him, as "where he has — (a) Been guilty of negligence; or (b) Directed or participated in the -wrrong. 45. Ministeri9,l ofl&cers are, in general, liable for -wrongs caused by deputies, as distinguished from private servants. jMiiilsterial Officers. The exemption of a public nonministerial officer from liability for the acts of his subordinates is an extension and application of the prin- ciples governing the exemption of the officers themselves. Where the subordinates perform a governmental function, they are not the rep- resentatives of their superior officer, but of the state. The exemption thus rests on the same consideration of public policy which exempts the superior officers themselves.^ *° The postmaster general^ his dep- uties, local postmasters, and their assistants perform public func- tions, and, while their wrongdoing in an official capacity may inflict damage on innocent persons, the exemption from liability of the state extends to them all alike.^^" So, a collector of customs is not property by writ, must not only show that the writ is regular on its face, but that all preliminary proceedings were regular and sufficient. Palmer v. V. McMaster, 10 Mont. 390, 25 Pac. 1056. This does not, however, apply to the process and officers of the United States court. Mathews v. Densmore, 109 U. S. 210, 3 Sup. Ct. 126. 147 Spaulding v. Overmlre (Neb.) 58 N. W. 730. 148 Hoover v. Barkhoof, 44 N. Y. 113; Amy y. Supervisors, 11 Wall. 130. Good faith as an excuse. Squiers v. Neenah, 24 Wis. .588; Hamilton v. Fond du Lac, 40 Wis. 47; Smith v. Gould, 61 AVis. 31, 20 N. W. 360. no City of Richmond v. Long, 17 Gral. (Va.) 375. 100 Keeneu v. Southworth, 110 Mass. 474; Lane v. Cotton, 1 Ld. Raym. 040; Whitfield V. Lord Le Despencer, Cowp. 754; Dunlop v. Mimroe, 7 Crancb, 138 VARIATIONS IN THK NORMA I, RIGHT TO SUE. [Ch. 2 personally liable for a tort committed by his subordinates in negli- jjently keeping tlie trunk of an ariivini;- passenger on the pier where it was destroyed by fire, instead of sending it to the public store,, where there is no evidence to connect the collector personally with the wrong, or that the subordinates were not competent, or were not properly selected for their respective positions.^^^ The same exemption from liability for the negligence of subordinates applies to public trustees and commissioners.^^^ Where, however, the offi- cer has been in some way guilty of negligence, as in the employment or retention of unfit or improper servants,"' or failure in his duty to require of them due qualifications for office, as to take the oath prescribed by law,"* or to execute a proper bond,^'^^ or where he carelessly conducts the business of his office,"" he may be held lia- ble as for his own wrong.^" He is also liable where he has in 242; Sehroyer r. Lynch, 8 Watts (Pa.) 253; Bishop v. Williamson, 11 Me. 495; Bolan v. Williamson, 1 Brev. (S. C.) 181; AViggins v. Hathaway, 6 Barb. (N. Y.) C32. A postmaster may be liable for not acting judiciously in char- sing letter postage on a newspaper. Teall v. Felton, 1 N. Y. 537. Contractors for carrying mail are not liable for acts of subordinates. Sawyer v. Corse, 17 Grat. (Va.) 230; Foster v. Metz, 55 Miss. 77. But see, contra, Conwell v. Voorhees, 13 Ohio, 523; Hutchins v. BracUett, 22 N. H. 252. See comments in Thomp. Blec. 161 Robertson v. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286; Rubens v. Robertson, 38 Fed. 86. Et vide Brissac v. Lawrence, 2 Blatchf. 121, Fed. Cas. No. 1,888. So, a confederate district commissioner in Virginia is not resiMnsible for the torts of his subagents unless he co-operated in or authorized the wrong. Tracy y. Cloyd, 10 W. Va. 19. So, also, in the case of a captain of a ship of war. Nicholson v. Mounsey, 15 East, 384. 152 Holliday v. St. Leonard, 11 C. B. (N. S.) 192; Duncan v. Findlater, 6 Clark & F. 894; Humphreys v. Mears, 1 Man. & R. 187 (but see ante, p. 12l>, "Liability of Highway Commissionere") ; Hall v. Smith, 2 Bing. 156; Harris V. Baker, 4 Maule & S. 27; Sutton v. Clark, 6 Taunt. 29, 34; Donovan v. McAlpin, 85 N. Y. 185; Walsh v. Trustees, 96 N. Y. 427; County Com'rs v. Duvall, 54 Md. 350. 153 Wiggins V. Hathaway, 6 Barb. 632. 154 Bishop V. Williams, 11 Me. 495; Bolan v. Williamson, 1 Brev. (S. C.> 181; Sawyer v. Corse, 17 Grat. (Va.) 230. 155 Wasson v. Mitchell, 18 Iowa, 153, Burd, Lead. Cas. 93. As to liability for insufficient bond, Hubbard v. Switzer, 47 Iowa, 681. 151 Dunlop V. Munroe, 7 Cranch, 242; Ford v. Parker, 4 Ohio St. 576. 167 Ely V. Parsons, 55 Conn. 83, 10 Atl. 499. ^h. 2] PRIVATE ACTS. 139 any wise participated in the wrong. Where a public officer is sued for the tort of his personal employ^, he may be held liable as any other master.^''* Ministerial Deputies. While the employe of a minis'terial officer may not be a private servant, there is no more reason for exempting such ofQcer for the conduct of his servant than for his own conduct. Accordingly, wherever recovery could be had against the executive for his own act, it can be had against him for the act of his subordinate.^^" Thus, a superintendent of repairs on the canals of the state, though an agent of the state, is personally liable for damages sustained by an individual through the negligence of workmen engaged in making such repairs.^"" A constable is civilly liable for the trespass of his deputy colore officii.^'^ So, a deputy sheriff is acting within the scope of Ms employment in engaging a keeper to aid to keep safely property which he had levied on under warrants of attachment, and the sheriff is liable for his acts.^^^ PRIVATE ACTS. 46. Where there is no excess or abuse of authority, no action lies to recover damages incident to an act authorized — (a) By statute, or municipal ordinance; (b) By common law. These may be classified as: (1) Ordinary rights; (S) Disciplinary powers; (3) Rights of necessity J , (4) Right of private defense. 158 Wilson v. Peverly, 1 Am. Lead. Cas. 785; Ely v. Parsons, .55 Conn. 83, 10 Atl. 490. looMech. Pub. Off. §§ 797-801; Bassett v. Fish, 75 N. Y. 303; Cooli v. Palmer, 6 Bam. & C. 739; Hazzard v. Israel, 1 Bin. (Pa,) 240; Knowlton v, Bartlett, 1 Pick. (Mass.) 270. 160 Shepbard v. Lincoln, 17 Wend. (N. Y.) 249. 161 Frizzell v. Duffer, .58 Ark. 612, 25 S. W. 1111. 162 Foster v. Ehinebart (City Ct. Brook.) 11 N. Y. Svipp. 629. 140 VARIATIONS IN THE NORMA F, RIGHT TO SUE. [Ch. 2 SAME— EXERCISE OP STATUTORY RIGHTS. 47. No action lies for damages incident to acts authorized by statute. No action lies for damage to property where such damage is ex- pressly authorized by statute, or is, physically speaking, the neces- sary consequence of what is authorized. In other words, for dam- ages resulting from the proper execution of statutory authority, no action lies.^^^ Thus, the legislature may grant the right to main- tain a local nuisance. Damages which would result from the main- tenance of such nuisances are incident to the authorized ^ct, and give no cause of action.^*^ The annoyance from noise, smoke, and disturbances necessarily attending the operation of a railroad,^"^ and its interference with property, "° is damnum absque injuria, in 163 Managers v. Hill, L. R. 6 App. Cas. 193; Gaslight & Coke Co. v. Vestry of St Mary Abbott's, 15 Q. B. Div. 1, 5; J. S. Keator Lumber Co. v. St. Croix Boom Corp., 72 Wis. 62, 38 N. AV. 529; Hamilton v. Kailroad Co., 119 V. S. 280, 7 Sup. Ct. 206; Sedalia Gaslight Co. v. Mercer, 48 Mo. App. 644; Base- man V. Pennsylvania R. Co., 50 N. J. Law, 235, 20 Atl. 169; Durand v. Borough of Ansonia, 57 Conn. 70, 17 Atl. 283; Iron Mountain R. Co. v. Bingham, 87 Tenn. 522, 11 S. W. 705; Bell v. Norfolk S. R. Co., 101 N. C. 21, 7 S. E. 467; Jones v. St. Louis R. Co., 84 Mo. 151; Slatten v. Des Moines Valley R. Co., 29 Iowa, 148, 154; Richardson v. Vermont Cent. R. Co., 25 Vt. 465; Ellis v. Iowa City, 29 Iowa, 229; Hatch v. Vermont Cent. R. Co., 25 Vt. 49; Dodge v. Essex Co., 3 Mete. (Mass.) 380. Perhaps the best illustration of the absence of liability for damages incident to authorized act is to be found in the contrast of Rylands v. Fletcher, L. R. 3 H. L. 330, with the Zemindar Case, L. R. 1 Indian App. 364. Post, p. 835, "Negligence." When the legis- lature has sanctioned and authorized the use of a paricular thing, and it is used for the purpose for which it was authorized, and every reasouable cau- tion is used to prevent the injury, the sanction of the legislature carries with it these circumstances or consequences, and if damage result from the use of the thing the party using it is not responsible. 3 Walsh, Students' Q. B. (Stu- dents' Ed.) 279. 164 A Charter to operate a fertilizing company is a sufficient license until revoked. Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659; Wood, Nuis. p. 781, c. 23; 4 Wait, Act. & Def. 728; post, p. 788, "Legalized Nuisance," note 455. 18= Post, p. 790, "Legalized Nuisance"; Atchison & N. R. Co. v. Garside, 10 Kan. 552-567. 166 Thus, where a legislature has authorized a railway company to lay down f^h. 2] PRIVATE ACTS. 141 the absence of statutory compensation,"^ whereas if there be no statutory authority there is ordinary liability.^"* And on the other hand, where the legislative authority binds those acting under it to make good specified damage, they are bound to make it good under all circumstances, and without any exceptions, even as to inevitable a railway alongside of a public liishway, it must be presumed to have con- templated tbe possibility that damages would result to persons using the highway. Such persons must submit to the inconvenience resulting from the working of the railway. King v. Pease, 4 Barn. & Adol. 30. And see Vaugihan v. Taff Vale Ry. Co., 5 Hurl. & N. 679; London, B. & S. C. Ry. Co. V. Truman, 11 App. Cas. 45. But see Powell v. Fall, 5 Q. B. Div. 597, and Sadler v. South StafCordshire & B. D. G. T. Co., 23 Q. B. Div. 17. So, if an engine, carefully handled, frightens horses, the charter of a corporation af- fords legal justification. King v. Pease, 4 Barn. & Adol. 30; Beseman v. Pennsylvania R. Co., 50 N. .T. Law, 235, 13 Atl. 1G4; Thompson v. Railroad Co., 51 N. J. Law, 42, 15 Atl. 833. Cf. Costigan v. Pennsylvania R. Co., 54 N. J. Law, 233, 23 Atl. 810; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 328, 2 Sup. Ct. 710, per Field, J.; RadclifC's Bx'rs v. Mayor, etc., 4 N. Y. 195; Crosby v. Railroad Co., 10 Bush (Ky.) 288; Pennsylvania R. Co. V. Lippincott, IIG Pa. St. 472, 9 Atl. 871. 167 The leading case on this subject as to the right of abutting owners to recover compensation is Sperb v. Metropolitan El. Ry. Co., 32 N. E. 1050. It was here held, per Gray, J., that an elevated railway company. In acquir- ing the right to maintain its structure in a street to the injury of the ease- ments of light, air, and access of the abutting owner, is liable for the inci- dental injuries caused by the future discharge of smoke, cinders, and noxious gases occasioned by the running of trains. 16 N. Y. Siipp. 392, reversed; Suarez v. Railway Co., 15 N. Y. Supp. 222, approved. Hammersmith & City Ry. Co. V. Brand, L. R. 4 H. L. 171; Picket v. Metropolitan Ry. Co., L. R. 2 H. L. 175, per Lord Cranworth. A statute may require insurance against harm, notwithstanding even inevitable accident on the part of the corpora- tion to which it has granted privilegiss. But courts will, if possible, read into the statute the common-law exceptions of inevitable accident (River Weir Com'rs V. Adamson [1877] 2 App. Cas. 743), however, on the general principle that a statute is not to be construed as extinguishing any private right unless it appears by expressed words or by plain implication that it was intended to do so (BaiTOwington's Case, 8 Coke, 136b, 138a; Western Counties Ry. Co. T. Windsor & A. R. Co., 7 App. Cas. 178). Generally, as to compensation, see Gainesville, H. & W. Ry. Co., v. Hall, 78 Tex. 169, 14 S. W. 259; Moss V. Manhattan Ry. Co., 58 Hun, 611, 13 N. Y. Supp. 40; Omaha & N. P. R. Co. V. Janecek, 30 Neb. 276, 46 N. W. 478; Fox v. Baltimore & O. R. Co., 34 W> Va. 466, 12 S. E. 757. 188 Jones V. Railway Co., L. R. 3 Q. B. 733. 142 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 accident, just as if they had entered into an express contract of insurance with the person suffering the damage.^"" Municipal cor- porations are not liable to landowners for consequential damages arising out of work done in pursuance of legislative authority, unless civil responsibility is created by the statute itself."" They are not or- dinarily held responsible for damages resulting from establishing and changing the grade of streets, if reasonable care is exercised in per- forming the work.^" Municipal license may be a defense for dam- age in conduct otherwise actionable. Abutting owners using streets or roads in accordance with municipal regulations are not, in the absence of negligence, liable for injury resulting from such use."^ The necessary physical consequences of public authority may justify a trespass. Therefore, where a telephone company was required to 169 Rothes y. Waterworks Com'rs (1882) 7 App. Cas. 694, 1 Eng. Rulius: Cas. 351. Cf. Dodge v. Commissioners, 3 Mete. (Mass.) 380; Brown v. Rail- road Co., 5 Gray (Mass.) 35; Sabin v. Railroad Co., 25 Vt. 363; Whitehouse V. RaUroad Co., 52 Me. 208. And see post, 236, "Independent Contractors." 170 Northern Transp. Co. v. City of Chicago, 11 Chi. Leg. News, 255; 2 Thomp. Neg. 692. Et vide Id. p. 743, § 9, discussing liability of municipal corporation for public improvement. Under Const. 1890, art. 3, § 17, declaring that private property shall not be taken "or damaged" for public use, ex- cept on due compensation, a city is liable for damages to abutting property for materially lowering the street gii-ade, especially after valuable improve- ments had been put on the lot according to the prior established grade. City of Vicksburg v. Herman (Miss.) 16 South. 434. I'l RadclifC's Es'rs v. Brooklyn, 4 N. Y. 195; Cumberland v. Willison, 50 Md.. 138; Henry v. Pittsburgh & A. B. Co., 8 Watts & S. 85; Governor of British Cast-Plate Manufacturers v. Meredith, 4 Tei-m R. 794; Sutton v. Clarke, 6 Taunt. 29. Et vide Dill. Mun. Corp. § 990; 2 Thomp. Neg. p. 747, § 10. Cf. Akron v. Chamberlain Co., 34 Ohio St. 328. See ante, p. S!), "Damnum Absque Injuria," note 348. If defendant, assuming to act for a city, change the grade of a street, to the injury of plaintiff, and the city rat- ifies what he had done, even after suit was brought, the act of defendant was justified. AVolfe v. Pearson, 114 N. C. 021, 19 S. E. 267. But such ex- emption does not seem to apply to a railrcad company authorized to change the grade of a highway. Pennsylvania B. Co. v. Stanley, 10 Ind. App. 421, 87 N. E. 288, and 38 N. E. 421. 172 Denby v. Wilier, 59 Wis. 240, 18 N. W. 169. The license may be implied. Korte v. St. Paul Trust Co., 54 Minn. 530, 56 N. W. 246. So where the damage Is consequent upon the doings of cattle allowed to run at large by ordinance. Fritz v. Railroad Co., 22 Minn. 404. And see Alger v. Railroad Co., 10 Iowa, 268; Galpin v. Railroad Co., 19 Wis. 637. *^h- 2] PRIVATE ACTS. 143 move its poles, and in doing so trimmed trees, no liability attach- ed."= Abuse or Excess of Authority. "The rightful and bona fide exercise of a laA\ful po\\ er or authority cannot afford a basis for an action. If the power or right is exer- cised carelessly, negligently, improperly, and maybe maliciously, the party so exercising it may be liable to respond in damages for any injury, direct or consequential, resulting to another from exercising the right or power; but such liability can only arise upon and for the manner of doing the act, and not for the act itself." ^'* Where, however, the injury complained of is not properly the necessary result of the authorized act, the exemption does not apply. "'^ Thus, ordi- narily a railroad company cannot monopolize a street, in derogation of the public and private use to which it should be applied.^'" Un- "3 Southern Bell Tel. & Tel. Co. v. Oonstantine, 9 C. C. A. 359, 61 Fed. CI. But see Memphis Bell Tel. Co. v. Hunt, 16 Lea (Tenn.) 456; Tissot V. Great Southern Tel. & Tel. Co., 39 La. Ann. 996, 3 South. 261. On the name principle, no action lies for damages incident to the use of property iiuthorized by the consent of owners, Updegrove v. Railroad Co., 132 Pa. St. 540, 19 Atl. 283; nor for the proper exercise of a franchise, even though actual harm result, Keiser v. Gas Co., 143 Pa. St. 27(j, 22 Atl. 759; Penn- sylvania R. Co. V. Lippincott, 116 Pa. St. 472, 9 Atl. 871; Jutte v. Keystone Bridge Co., 146 Pa. St. 400, 23 Atl. 235; Cleveland & P. R. Co. v. Speer, 50 Pa, St. 325. iTiSlatten v. Des Moines R. Co., 29 Iowa, 148; Vaughan v. TafE Vale R. Co., 5 Hurl. & N. 679. City grading not liable for consequential damages, Radcliffe's Ex'rs v. Mayor, etc., 4 N. Y. 195. But a railroad's charter does not fonfer power to so excavate its own land as to cause an adjoining land- owner's soil to slide into the excavation, Richardson v. Railway Co., 25 Vt. 465; Baltimore & P. Ry. Co. v. Reaney, 42 Md. 117; nor blasting, Georgetown, B. & L. Ry. Co. V. Doyle, 9 Colo. 549, 13 Pac. 699. And see Carman v. Rail- road Co., 4 Ohio, 399; Stone v. Cheshire Co., 19 N. H. 427; Sabin v. Railway Co., 25 Vt. 363. But see Dodge v. Commissioners, 3 Mete. (Mass.) 380; Brown V. Railroad Co., 5 Gray (Mass.) 35; Whitehouse v. Railroad Co., 52 Me. 208. In building a bridge, cf. Rhea v. Railroad Co., 50 Fed. 16, with Memphis & ■0. R. Co. V. Hicks, 5 Sneed, 427. 175 Canal Co. v. Lee, 22 N. J. Law, 24:!. Cf. Pumpelly v. Green Bay Co., 13 Wall. 166, 177, 178; Northern Transp. Co. r. Chicago, 99 U. S. 635-642; Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317-331, 2 Sup. Ct. 719. 176 Janesville v. Milwaukee & M. R. Co., 7 Wis. 410; Pennsylvania R. Co. 144 VARIATIONS IN THE NOKMAL RIGHT TO SUK. [Ch. 2 der an act of parliament, a railway company purchased a piece of land adjoining one of its stations, and used it for a cattle dock. It was held, however, that the act gave the company no authority to create a nuisance to the occupiers of houses near the cattle dock by herding cattle therein.^^' Statutory authority to do what would otherwise be an actionable wrong does not exempt from the require- ment of the exercise of care, judgment, and caution."^ When a railroad company can construct its work without injury to private rights, it is, in general, bound to do so.^" And, generally, negli- gence and excess in the exercise of statutory authority attach lia- bility.^^" Excavations made by authority must be properly guarded, and every means adopted for the protection of the public. Failure V. Angiel, 41 N. J. Eq. 316, 7 Atl. 432; Pennsylvania R. Co. v. Thompson, 45 N. J. Eq. 870, 19 Atl. 622; Baltimore & P. R. Co. v. First Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719; Burd, Lead. Cas. 97; post, p.. 788, "Legalized Nuisance." 177 Truman v. London, B. & S. C. R. Co., 29 Ch. Div. 89. Et vide Rapier V. London Tramways Co. (1893) 2 Ch. Div. 588. Contractor's authority to repave a street may not stop tlie running of cars while the work is being done. Milwaukee St Ry. Co. v. Adlam, 85 Wis. 142, 55 N. W. 181. 178 London & N. W. R. Co. v. Bradley, 3 Macn. & G. 341. 170 Biscoe V. Great Eastern R. Co., L. R. 16 Eq. 636. That liability for burning property adjacent to right of way depends on negligence, see Mis- sissippi Home Ins. Co. v. Louisville, N. O. & T. R. Co., 70 Miss. 119, 12 South. 156, and post, p. 840, "Negligence." 180 Thus, the city of Boston, authorized by statute to improve Stony brook, by its delay in providing a sufficient outlet into the sea to carry off the water, which, by its work upon the upper part of the stream, had been in- creased in volume beyond its natural flow, to plaintiff's damage, was held responsible because of the unskillful and negligent manner in which the work was done. Boston Belting Co. v. Boston, 149 Mass. 44, 20 N. E. 320. City of Bloomington v. Chicago & A. R. Co., 134 111. 451, 26 N. E. 366; Rockwood V. Wilson, 11 Gush. 221; Burcky v. Town of Lake, 30 111. App. 23; George- town, B. & L. Ry. Co. V. Doyle, 9 Colo. 549, 13 Pac. 699; Brewer v. Boston, etc., R. Co., 113 Mass. 52; Gudgisr v. Western N. C. R. Co., 87 N. C. 325; Hazen v. Boston & M. R. Co., 2 Gray, 574; Memphis & O. R. Co. v. Hicks, 5 Sneed (Tenn.) 427; Lake Shore & M. S. R. Co. v. Hutchins, 37 Ohio, 282; Cairo & St. L. R. Co. v. Woolsey, 85 111. 370; Shaw v. New York & N. E. R. Co., 150 Mass. 182, 22 N. E. 884; Thompson v. Pennsylvania R. Co., 51 N. J. Law, 42, 15 Atl. 833; Krug v. St. Mary's Borough, 152 Pa. St. 30, 25 Atl. 161; Martin v. Chicago, S. F. & C. Ry. Co., 47 Mo. App. 452; Leavenworth, N. 6 S. Ry. Co. V. Curtan, 51 Kan. 432, 33 Pac. 297; McNulta v. Ralston, 5 Ohio Ch. 2] riUVATE ACTS. 14') so to do attaches liability for consequent damages. Tlius, if one has been authorized to excavate in a street, he must provide, as far as human foresight can, against consequent perils.^^^ And although a teleplione company may be authorized to erect its poles in a street, if it erects them so as to dangerously obstruct the street, the license is no defense.^^^ A statute giving a fire department "right of waj- Avhile going to a fire" does not relieve it from liability for negli- gence.^ ^^ SAME— EXERCISE OE ORDINARY RIGHTS. 48. The exercise of ordinary rights for a la-wrful purpose and in a la-wful manner is not actionable, even if it causes damages.'^ CIr. Ct. R. 330; Griffin v. Slireveport & A. R. Co., 41 La. Ann. 808, 6 Sontli. 024; Pennsylvania S. V. R. Co. v. Walsh, 124 Pa. St. 544, 17 Atl. 186; City of Durango v. Luttrell, 18 Colo. ]li:j, 81 Pac. 858. isi Drew v. New River Co., G Car. & P. 754; Irvine v. Wood, 5] N. X. 22-1; IrA'in V. Fowler, 5 Rob. (N. Y.) 482; Chicago v. Eobbins, 2 Black (CI. S.) 41S; Jones V. Bird, 5 Bam. & Aid. 887; Whitcliouse v. Fellowes, I'J C. B. (X. S.) 705; Brownlow v. Metropolitan Beard of Works, 13 C. B. (X. S.) 7G8; Gu.sh- ing V. Adams, 18 Pick. (Jlass.) 110; Homan v. Stanley, 06 Pa. St. 464; Hayes V. Gallagher, 72 Pa. St. 1:.!(;; ilcCamus v. Citizens' Gaslight Co., 40 Barb. (N. Y.) 380. 182 Wolfe V. Erie Tel. & Tel. Co., 38 Fed. 320; Sheffield v. Central Union Tel. Co., 30 Fed. 164 (where ijlaintiff's buggy collided with pole). And gen- erally, as to liability of electric companies, authorized to erect poles and suspend wires, for negligence, see Pennsylvania Tol. Co. v. "\'aii;au (Pa. Sup.> 15 Atl. 624; W. U. Tel. Co. v. Ej'ser, 2 Colo, 141; Thomas v. "^A". U. Tel. Co., 100 Mass. 150; Wilsmi v. Great South. Tel. ct Tel. Co., 41 La. Ann. 104 L, 6- South. 781; Dickey v. Maine Tel. Co., 46 Me. 483. Municipal franchise to build and operate a street railway in the streets of a city does not exempt a company from liability for injury caused by its negligence in the manage- ment of its property, or in the character of its duty proper. Local Rapid Transit Co. v. Xichols (Xeb.) .55 X. ^y. 872. Et vide Mclvillop v. Duluth St. lly. Co., 53 Minn. 532, 55 N. W. 730. It is no defense to an action against a street-railway company for injuries caused by an electric pole in the street that the pole was placed in accordance with the requirements of defendant's charter and the city ordinance. Cleveland v. Bangor St. Ry., 86 Me. 232, 20 Atl. 1005. 183 Newcomb v. Boston Protective Defiartment, 146 Mass. 506, 16 N. E. 555. 181 Pol. Torts, c. 4, subd. 9. l,\\y OF TORTS — 10 146 VARIATIONS IN THE NORMAI. RIGHT TO SUK. [Cll. 2 If a man be injui-ed by tlu' exercise of another's ordinary rights, he lias no action. This iinmnnity in the excntise of common rights is a restatement, in a somewliat different form, of tlie doctrine em- bodied in the "damnum sine injuria." Tlie right to transact lawful business is a universal one. Damages consequent upon comi^etition are not actionable. "To say that a man is to trade freely, but that he is to stop short of any act Avhich is calculated to harm other tradesmen, and which is designed to attract their business to his o^^■u shop. Mould be strange and impossible counsel. To draw a line bet\\('en fair and unfair competition, between what is reasonable and what is unreasonable, passes the power of the courts. Compe- tition exists where two or more persons seek to possess or to enjoy the same thing. It follows that the success of one must be the failure of the other, and no princi])le of law enables us to interfere with or to moderate that success or that failure, so long as it is due to mere competition. There is no restrict ion imposed by law on competition by one trader with another with the sole object of bene- fiting himself.'' "To attempt to limit * *■ * competition * * * would probably be as hopeless an endeavor as the experiment of King Canute." '*" The right to use a jiersonal or local name is a common right. To acquire property in a name sufficient to make interference witli it a tort, — that is to say, to acquire a right to the exclusive use of a name, device, or symbol, as a trademark, — it must appear that it was adopted for the purpose of identifying the origin or owiu'rship of that to which it is attached, or that such trade-nmrk points dis- tinctively to the origin, manufacture, or ownership of the article on which it is stamped. A person cannot acquire a right to the ex- clusive use of a name, device, or symbol, as a trade-mark unless it is made to appear that it was adopted for the purpose of identify- 1S5 Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. Div. ^>'^^. affirming [1892] App. Cas. 2'). And see 22 Hen. VI. p. 14, pi. 23, A. D. l-tt.".; Kogers v. Kajenclro Dutt, 8 Moore, Ind. App. 184; Com. v. Hunt, 4 Mete. (Mass.) Ill; Payne v. Itailroaa Co., lo Lea (Tenu.) .107; South Royalton Bank v. SufColk Bank, 27 \'t. 50.3; Delz v. AVinfree, SO Tex. 402-40j, 10 S. W. 111. Tlie setting np ot a new inn where there is no necessity tor it, as where there are aU'eail.\- a snflicient number, remlevs -the inn so set up liable to indictment as a public nuisance. 1 Russ. Crimes; 3 Bac. Abr. tit. "Inns." Ch. 2] PRIVATE ACTS. 147 ing the origin or ownersliip of the article to which it is attached, or that sucli a tiade-marlc points distinctly to the origin, manufac- ture, or ownership of the article on which it is stamped, and is de- signed to indicate the owner or producer of the commodity, and to distinguish it from like articles manufactured by others. Accord- ingly, a jjersou cannot acquire a right to the exclusive use of the word "Columbia," as a trade-mark,^*" nor the words ''Liver Medi- cine." ^^' On the other hand, however, the memory of a jterson who voluntarily places himself before the public, either as a public offi- cer, or by becoming a candidate for office, or as an artist or literary man, does not necessarily become public property. It is undoubt- edly true that by occupying a ])ublic position, or by making an ap- peal to the public, a person surrenders such part of his personality or privacy as pertains to and affects the position which he fills or seeks to occujjy, but no further. If, therefore, an association an- nounces the project of placing a large statue of a private person, after her death, to be designated as the "Typical Philanthropist," (m public exhibition, the relatives of such person may restrain such in- vasion of privac\ , although they suffer no ])ecuniaiy damages.^** Use of Properly. "By becoming a member of civilized society, I am compelled to give up many of my natural rights, but I receiNc moie than a com- pensation from the surrender of every other man of the same right, and the security, advantage, and protection which the law gives me. So, too, the general rules that I may have the exclusive and undisturb- ed use and jjossession of my real estate, and that I must so use my real estate as not to injure my neighbor, are much modified by the exigencies of the social state." '"'" A blacksmith may operate his ISO Columbia ilill Co. v. Alcmii. I'lO U. S. 4(;o, 14 Sni). Ct. l.jl, collectins United States eases at ra^e Hi'-i, I'M ii. S., ami iinge 151, 14 Sap. Ct., ami commenting on others. 187 C. Y. Simmons Jledieine Co. v. Manslield Drug Co., '..« Tenn. S4. S-', S. AV. lOo. Et vide Fisli Bros. AA'agon Co. v. I.a Belle Wagon "NA'orks, si' A\'is. 540, ."i2 X. AV. .")!_(.".; ilenet'ly v. ileneely, (i2 X. Y. 427; Rogers v. Taiutor, IJT JIuss. 2!tl; Candee v. Deere, •'>4 111. 439. 138 Sclniyler v. Curtis, 04 Hun, r>'.)i, 19 X'. Y. Supp. 204. Ct. De May v. Roberts, 40 Jlich. 100, '.^ X. AA'. 140. And see 10 Law T. 227. Bollard v. Pho- tographic Co., 40 Ch. Div. ;!4.-.; 7 Harv. Law Kev. 492; post, p. .■'.oO. ISO Karl, J., in Losee v. Buchanan, 51 X. Y. 470, 484. 148 VARIATIONS IX THE NORMAL lUGHT TO SUK. [Cb. 2 forge/'" and a merchant his store/"^ although his neighbor thereby suffers annoyance. A man may rid his land of surface water, and a neighbor may protect his land against it, in course of making rea- sonable repairs to or use of his own premises, without liability; but, beyond these limits, dealing with surface water will attach liabil- ity.i"- It is convenient to postpone the consideration of just how far a man may use his own without making him liable in tort. SAME— DISCIPLITfARY POWERS. 49. The law recognizes disciplinary powers in private persons and associations, and damages consequent upon their reasonable exercise cannot be recovered. Persons exercising quasi judicial powers, as the officers of uni- versities, colleges, clubs, committees, beneficial associations, corpora- tions, and the like, are not liable for removing a man from office or membership, or otherwise dealing with him to his disadvantage, pro- viding (1) they act in good faith; (2) give him fair and sufficient notice of his offense; (3) give him an opportunity of defending him- self; (4) observe rules, if any, laid down by the statute, or the par- ticular body to which they belong.^''^ If these conditions are sat- isfied, the court will not interfere, even if it thinks the decision wrong.^"* The statute may give absolute discretionary power."* An action for damages, however, may be sustained for illegal expul- sion. The fact that after expulsion the jjerson was discharged from the service in which he Avas employed will entitle him to dam- ages.^°° 190 Doellner v Tynan, 38 How. Prac. (N. S.) 182; Smith v. IngersoU-Ser- gcant Rock Drill Co., T Misc. Rep. oli, 27 N. Y. Supp. 907, collecting cases. 101 ilcGuire v. Bloomingdale, 8 Misc. Rep. 478, 29 N. Y. Supp. 580. 192 MoiTissey v. Cliicago, B. & Q. R. Co., 38 Xeb. 40G, 50 N. W. 94G; AnLeuser-Buseh Brewinar Ass'n v. Peterson, 41 Neh. 897, (!0 N. yv. 373. i93Fraz. Torts (2d Ed.) 33; Loubat v. Leroy, G5 How. Prac. (X. Y.) 13N: Wachtel v. Xoah AYidows & O. B. Soc, 84 N. Y 28; Com. v. St Patrick's Ben. Soc, 2 Bin. (Pa.) 441. 194 Dawkins v. Antrobus, 17 Oh. Div. 615. 190 Hayman v. Governors of Rugby School, L. R. 18 Eq. 28. 100 reople V. Musical Mutual Protective L'uion, 118 X. Y. lul, 23 X. E. 120; (^h- 2] PRIVATE ACTS. 149 Private persons sometimes possess disciplinary powers, for the reasonable exercise of which they are not liable in tort. Thus, the master of a merchant ship may use summary force to preserve order and discipline.^" Parents, guardians, teachers, and, generally, per- sons in loco parentis, may justify the enforcement of discipline, mod- erate correction, detention, and the like, by plea of authority.^ °^ SAME— RIGHTS OF NECESSITY. 50. There is no lia,bility for acts or omissions as to ■which a person has no option. "The rights of necessity are a part of the la-wr.""^ Necessity may justify the destruction of property for the general good. "For the commonwealth, a man shall suffer damage ; as, for saving a city or town, a house shall be plucked down if the next one be on lire ; and a thing for the commonwealth any man may do with- out being liable to an action."' -""■ A fortiori, peril to human life may LucTowiski v. Polish. Eoman C. St. S. K. Ben. Soc, 29 JIo. App. 337; Inness V. "SVylie, 1 Car. & K. 257. But see Wood v. Wodd, L. R. 9 Exch. 190; Ashby V. White, 2 Ld. Raym. 938. Compare Hardin t. Baptist Churcli, 51 Mich. 137, IC N. W. 311. As to expulsion of memljers of corporations and societies, see 24 Am. Law Rev. .j;!7. As to expulsion from clubs, see Com. V. Union League of Philadelphia, 135 Pa. St. 301, 19 Atl. 1030, distinguishing Evans V. Philadelphia Club, 50 Pa. St. 107. 19T Per Lord Stowell in Tlio Agincourt, 1 Hagg. Adm. 271-274. 198 Where a student of a school is guilty of contumacious comduct, it is within the discretion of the faculty to refuse him his degree, and the fact that the objectionable conduct occurred between the final examination and the day of graduation is immaterial. Notmthstanding the right to refuse a contumacious student liis degree, he is entitled to a certificate of attendance, and that he passed a satisfactory examination. People v. New York Law School (Sup.) U2 X. Y. Supp. 663. 190 Rospublica v. Sparhawk, 1 Dall. 357-362; Mouse's Case, 12 Coke, 03; Burton v. McClellan, 3 111. 434; American Print Works v. Lawrence, 23 X. J. Law, 004. 200 Case of Prerogative, 12 Coke, 13; Maleverer v. Spinke, Dyer, 3Gb; JI<- Donald v. City of Red Wing, 13 Minn. 38 (Gil. 25); Bowditch v. Boston. 101 U. S. 16; Metallic Compression Casting Co. v. Fitchburg R. Co., 109 JIass. 277; tlyde Park v. Gay, 120 JIass. 590; Surocco v. Geary, 3 Cal. 70; American Print Works v. Lawrence, 23 N. J. Law, 590; Beach v. Tradgain, 2 Grat. (Va.) 210; Hale v. Lawrence, 23 N. J. La ay, 590. And see Arundel 150 VARIATIONS IX THE N01iMAI> RIGHT TO SUE. £Ch. 2 constitute such necessity as would excuse what would be otherwise wiougdoing. "If," said Lord Blackburn,^" "a house in which a per- son ill of an infectious order lay bedridden tol)k Are, and it was necessary to choose whetlier the sick person was to be left to perish in the flames, or to be carried out through the crowd, at the lisk, or even at the certainty, of infecting some of them, no one could suppose that those who carried out the sick person could be punish- able; and probably a much less degree of necessity might form an excuse." Similarly, in cases of negligence, one who imperils his personal safety in the discharge of a duty like saving human life is not prevented, because of such conduct as constituting contributory negligence, from recovering damages done to him.-"^ On the same principle, where a highway becomes obstructed and impassable from temporary causes, as a snowdrift, a traveler has a right to go, ex- tra viam, upon adjoining lands, without being guilty of trespass.-"' The authority of the master of a ship to use force for the preserva- tion of discipline has also necessity, for a basis.^°* V. McCnllocli, 10 Mass. 70; Campbell v. Race, 7 Gush. (Mass.) 408; Mouse's (^ase, 12 Coke, 63; Kespublica v. Sparhawk, 1 Dall. 357; Tayloi- v. Plymouth, 8 Mete. (Mass.) 462. As to statutory changes, see Fisher v. Boston, 104 Mass. 87. 201 Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193-205. 202 Eckert V. Long] Island R. Co., 43 N. Y. 502; Pennsylvania Co. v. Roney, 89 Ind. 453; Clark v. Famous Shoe & Clothing Co., 16 Mo. App. 4G3. 203 Donahoe v. Wabash, St. L. & P. Ry. Co., 83 Mo. 560; Bullard v. Harrison, 4 Maule & S. 387-393; Campbell v. Race, 7 Cush. (Mass.) 408; Burd. Lead. Cas. 136. As to ways of necessity, see Bish. Noncont. Law, 872; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734; Camp v. Whitman (N. J. Ch.) 26 Atl. 017; Lankins v. Terwilligev, 22 Or. 97, 29 Pac. 268; post, p. 678, ".lustificatiou of Trespass." 20i Pol. Torts, 108; Bangs v. Little, 1 Ware, 506, Fed. Cas. No. 830; U. S. V. Alden, 1 Spr. 95, Fed. Cas. No. 14,427; Cushman v. Ryan, 1 Story, 91, Fed. Cas. No. 3,515; Turner's Case, 1 Ware, 83, JPed. Cas. No. 14.248: Wilson N. H., and page 022. 23 Atl. 20S Brown v. Brooks (Wis.) '<', N. W. Mti-'i. 21 LaAvy. Itep. Ann. 255. Et vide note on "Fires," Id. Xo liability for setting tire to land of other, if due dili- gence is used in setting out a fire. Hanlon v. Ingram, 3 Iowa, S(l. See cases 152 VARIATION'S IN THE NORMAL EIGHT TO SUE. [Ch. 2 flre.°°* So, where the law provided that no fur-bearing animals slunild be killed within certain periods, and within such period a person killed a mink which was about to destroy his geese, it was held that such law did not interfere with the constitutional right to defend property, and could not prevent the killing of wild animals, where there was imininent danger that they would destroy private property.^^" If there be actual necessity for exercise of right of defense, there is full justification for its exercise to the extremity the circum- stances may demand. Thus, where a dog was killed in the act of taking fish which had been hung up to dry, it was said : "And his property, whether fish or meat, in his cellar, in his kitclien, or in his yard, it was lawful for him to preserve against any man's dog; and, if he could not otherwise protect it, he might kill the dog, when caught on his premises, in the act of destruction. Whether he could not preserve his property and the customary use of it without de- stroying the animal committing the depredation, when found in the act, ought to have been submitted to the jury by the court, as a ques- tion within its province to decide." ="|The mere fact that an animal is committing a trespass does not justify killing or wantonly abusing it.-^- But, to constitute the defense, the belief or apprehension of danger must be founded on sufficient circumstances to authorize the pro and con on page 82. As to absolute liability vmcler statute, see Conn v. Jlay, 36 Iowa, 2JH. 209 McKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103. 210 Aldricli v Wright, 53 N. H. 398; Taylor v. Newman, 4 Doct. & Stud. 89. And see Pan-ott v. Hartsfield, Id. 110; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Boecher v. Lutz, 13 Daly (N. Y.) 38; Dunning v. Bird, 24 111. App. 270; Lipe v. Blackwelder, 25 111. App. 119. 211 King V. Kline, Pa. St. 318. 212 Jolmson V. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 5 Ind. 216; Hobson v. Perry, 1 Hill (S. 0.) 277; Clark v. Kelilier, 107 Mass. 406; Livermore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Sosat V. State, 2 Ind. App. 5SG, 28 N. E. 1017. Where one person kills the dog of another, which has been scared, and runs, upon his premises, but has done no injury, or was attempting to do none, but simply because the party killing , it suspects that the dog had previously interrupted his hens' nests, such an act is a trespass, for which the perpetrator is liable. Brent v. Kimball, GO 111. 211-215. And see Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209; Ten- hopen V. Walker, 96 Jlicli. 236, 55 N. W. 057. til- 2] PRIVATE ACTS. 153 opinion that the peril existed, and may at the time result in harm,"^ and the standard of apprehension is that of men of ordinary firm- ness and reflection.^ ^* ( The justification of damages consequent upon the exercise of the right of self-defense depends upon the consideration whether the right was exercised in a reasonable manner, in view of all the cir- cumstances of the case.^^^ It is impossible to establish an ironclad rule of law that will meet the exigencies of any case that may pos- sibly arise. Self-defense does not include the active assertion of a disputed right against an attempt to obstruct its exercise.-^" Ex- cessive defense of the person may become an assault and battery.^^' J So, in defense of property, as in the case of the defense of domestic animals from the attacks of other animals, the relative value of the animals may be proper for the jury to consider, in arriving at a con- clusion whether the defense \Nas a reasonable one under the circum- stances.^^* ^ And where a dog has been once driven away from a hen- house, and was again running towards it, the plaintiff was not jus- tified in killing the dog.^^" So, negligently starting or keeping a si-i Rippj^ V. State, 2 Head (Tenn.) 217; State v. Brysou, 2 Winst. Law (N. C.) 86. 211 Woolf v. Chalker, 31 Conn. 121; Credit v. Bi-own, V> Johns. (N. Y.) 36S; rntuam v. Payne, 13 Johns. (N. Y.) 311; Maxwell v. Palmerton, 21 Wend. (X. Y.) 407. As to statutoiy alteration of the right, see Spaight v. JIcGovern, 16 R. I. 658, 19 Atl. 246. 215 Where cattle are trespassing upon the premises of a party, he, and also the members of his family, have the undoubted right to use all reasona- ble means and sufficient force to remove them; and there is nothing illegal in. driving such cattle from the jiremises with dogs, if no unnecessary injury is done to the stock. Spray y. Ammerman, 66 111. 309. 216 Pol. Torts, c. 4, subd. 12; Id. (Webb's Ed.), and cases cited in note p. 203. 21 T Post. 442. "Assault and Battery." f 218 Cooley, Torts, ;J4(i; Anderson v. Smith, 7 111. App. 354; Simmonds v. Holmes, CI Conn. 1, 23 Atl. 7(i2; Parrott v. Hartsfield, 4 Dev. & B. (N. C.) 110; Hinckley v. Emersou, 1 Cow. (N. Y.) 351; , Boecher v. Lutz, 13 Daly (X. Y.) 28; Dunning v. Bird, 24 111. App. 270; Lipe v. Blackwelder, 25 111. App. 123. 210 Livermore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Burd, Lead. Cas. 141. Of. Marshall v. Blackshire, 44 Iowa, 475; Hinckley v. Emerson, 4 Cow. 351. One is not justified in killing a valuable dog, without notice to the o\vner, merely because the dog barks around his house at night, or chances 154 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Cll. 2 back fire to defend against a fire already existing will attach liabil- ity.^^" VARIATIONS BASED ON STATUS. 52. Under this head will be considered the liability of— (a) Natural persons, including (1) Insane persons; '-^ (2) Infants; (3) Drunkards; (4) Convicts; (5) Alien enemies. (b) Artificial persons, including (1) Private corporations; (2) Municipal and quasi raunicipal corporations; (3) Corporations not municipal engaged in public ■works. SAME— INSANE PERSONS. 53. Generally, an insane person is liable for his torts, to the extent of compensation for the actual loss sus- tained by the injured party; but w^hen the -nrrong involves personal capacity, and such capacity is impossible, because of mental derangement, there can be no recovery.^^^ on one occasion to leave some tracks on a freshly-painted porcb, or to haVe been detected in the henhouse, but not, however, doing any mischief. Bowers V. Horen, 93 Mich. 420, .53 N. W. 535; Cooley, Torts, § 347, note 4, collecting- the various authorities and statutes as to in.iury by dogs. Bish. Noncont. Law contains a chapter '(53) "Specially of Dogs." In the absence of the stat- ute, killing a trespassing animal has often been held unjustifiable. Johnson \. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 5 Ind. 21G; Hobson v. Perrj', 1 Hill (S. C.) 277. 220 Back lire negligently sot attaches liability for such property as would not have been destroyed by original fire. ilcKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103. 222 As to nature of various kinds of mental derangement, see Hiett v. ShuU, 30 W. A'a. 563, 15 S. B. 146; Snyder v. Snyder, 142 111. 60, 31 N. E. 303; Brower v. Fisher, 4 Johns. Ch. (N. Y.) 441. Ch. 2] VARIATIONS BASED ON STATUS. loo Absolute Lviliilily. The view of the law which held that men acted at their peril, and that liability for tortious conduct was absolute, logically recognized that so long as a duty was violated, and harm ensued, it was imma- terial whether the damage was due to an accident, or to a person incapable of reason. Thus, it was said in AVeaver v. Ward: -" "If a lunatic hurt a man, he shall be answerable in trespass." It was an easy step from this to the general position that an insane person is universally liable for torts. The reasoning is further justified by the suggestion that such a ruling accords with public policy, recog- nized and enforced by the law to promote the general welfare, and to avoid escape from liability by use of specious pretense of mental incompetency,-^* and to apply the rule that, where one of two inno- cent persons must bear a loss, he must bear it whose act caused it. It is manifest that this reasoning ignores any analysis into the basis of liability in tort."" Therefore destruction of property held by a lunatic as bailee, though the bailor knew of his mental condition at the time of de- livery of goods, makes the demented person responsible; as where a lunatic killed an ox.--° An insane person has been held liable in tort for causing death to another by an act which would have been felonious, except for the insanity.--' An action of false imprison- ment has been sustained against a lunatic, who, in his capacity as 223 Hob. 134. Further, as to negligent use ",; Cooley, Torts, pp. iJ.s, 100; Reeve, Dom. Rel. p. 3SG, cited by Earl, J., in Williams v. Hays, 143 X. Y. 442, 38 X. E. 44!). 220 Morse v. Crawford, IT Yt. I'.XI. Et vide Cross v. Andrews, 2 Cro. Eliz. (122, case 13; Jewell v. Colby (X. H.) 24 Atl. 902; In re Heller, 3 Paige (X. Y.) l!l!l; Williams v. Cameron, 20 Barb. (N. Y.) 172; Lancaster Bank v. iloore, 78 Pa. St. 407-412. 227 Jewell V. Colby, supra; Mclntyre v. Sbolty, 121 111. W). 13 X. E, 230; affirmed 24 111. App. (»)•">. Insanity is no defense to assanlt. Taggard v. Innes, 12 U. C. C. P. 77. And see Ward v. Conatser, 1 Baxt. (Tenn.) 04. 156 VARIATIONS IN THE NORMAL IIIGHT TO SUE. [Ch. 2 justice of the peace, caused plaintiflE to be wrongfully arrested.^^' Insanity is no defense to an action for trespass to real estate."" Qualified Liability. It is urged with great force, with the result of at least partial acceptance, that this conception is too radical. The early cases on accidental trespass have not been universally followed. It is insist- ed that they were unsound in reason,^^" and that, so far as their actual enunciation of the law is concerned, they are not authority for the position they are cited to sustain.^" The public policy of the law justifies inquiry into the degree of mental derangement in crimes and contracts; so that this very argument seems to show that the same practice should apply to the law of torts. It may, perhaps, clarify the condition to consider the liability of a lunatic with reference to the various ways in which liability for torts may attach.^^^ With respect to liability for personal commis- sion, it is denied that an insane person can be a legal cause, =2s Krom V. Schoonmaker, 3 Barb. (N. Y.) 047; Groste v. Kent, 32 Md. 581; Ward V. Conatser, supra; Mclntyre v. Sliolty, 121 111. 660, 13 N. E. 239; Jackson v. King, 15 Am. Dec. 368, note; Gates v. Miles, 3 Conn. 64-70; Amick v. O'Hara, 6 Blackf. (Ind.) 258, 259. Contra, Sedg. Dam. § 456. 229 Amick V. O'Hara, supra; Weaver v. Ward, Hob. 134; Haycraft v. Greasy, 2 East, 92. In an action by the guardian of a person non compos mentis to recoyer for an assault upou liis ward, in wliicli defendant an- swered that such person had entered his garden, and was picking his flowers, it was not misleading to charge that, if plaintiff's ward was weak in mind, "he should not," as a matter of law, "be held to the same sti'ict- uess" in doing what he did "as a person mentally sound would be"; the jury having also been charged that he had no right to enter the garden, and that defendant could have used reasonably necessary force in putting him out. Chapell V. Schmidt, 104 Cal. 511, 38 Pac. 802. 2 30 It is insisted that the reason for liability assigned by the court in Weaver v. AVard is very strong ground for the absence of liability. I'ig. Torts. 231 While there are many dicta to the effect' in England (see Bac. Abr. "Trespass," G; Maxims Reg. 7, note; 2 Rolle, Abr. .547; Weaver v. Ward, Hob. 134; Haycraft v. Creasy, 2 East, 92-104), it is said, on good authority, that there is no reported instance of an action for tort ever having been brought in England against a lunatic. Clerk & L. Torts, 33. Query, is not Cross V. Andrews, 2 Cro. Eliz. G22, such a case? 232 Ante, p. 37. t"h- 2] VARIATIONS BASED OX STATUS. 157 and insisted that injuries attributable to sucli a person are reallj^ due to inevitable accident, or the act of God, for which no action lies. Therefore, it would seem that an irresponsible defendant cannot be held liable for negligent personal conduct.^^^ It would certainly seem reasonable to recognize this principle in that class of cases in which the mental attitude of the wrongdoer is an essential ingredient. Thus, where malice is a necessary ele- ment, an idiot can be guilty of the malice of a brute, but not of a sentierft creature. Hence, it has been held that insanity will pre- clude responsibility for slander. The distinction is recognized more clearly by text writers than by decisions.^" Much the same prac- tical result is reached by making insanity a substantial defense by minimizing the amount of damage recoverable.-^" The consideration that a person may be deranged, and still be sufficiently rational to be held responsible for his acts, like any other person, does not seem to have attracted as much attention as it deserves. Proof that an habitual drunkard or a lunatic had judg- ment and memory enough to understand what he was doing should be sufficient to sustain his contract or act.^^* It is insisted with good reason that limitation on responsibility for tort based on in- sanity should apply only to persons so far deranged as to be inca- = 33Whart. Neg. § 88; Sedg. Dam. 455; r 16 Am. & Eng. Enc. Law, tit. "Negligence"; post, p. 871, "Negligence." But in Williams v. Hays (1894) 143 N. Y. 442, 38 N. E. 449, it is distinctly held that for the negligence as well as for the active tort of an insane ijerson, resulting in damage to others, bis insanity constitutes no defense. The insanity of one Avho is the owner pro hac vice of a vessel does not relieve him from liability to the other owners for negligence in her management; at least, unless bis in- sanity is produced wholly by efforts in behalf of the vessel. As to injuries to an insane person, see AA'illotts v. Eailroad Co., 14 Barb. (N. Y.) 385; Texas & P. Ry. Co. V. Bailey, s;! Te.x. 19, IS S. W. 481. ^"i Pol. Torts, § 46; Cooley, Torts, § 103; Bisb. Noncont. Law, -jU-j: Townsh. Sland. & L. § 248; Gates v. Meredith, 7 Ind. 440; Bryant v. Jackson, 6 Humph. 190 (but see TS^ard v. Conatser, 4 Baxt. [Tenn.] G4) ; Yeates v. Reed, 4 Blackf. 463; Horner v. JIaishall. 5 Munf.. 466. 235 Dickinson v. Barber, 9 Mass. 225. 230 Noel V. Karper, 53 Pa. St 97; In re Black's Estate, 132 Pa. St. 1.34^ 19 Atl. 31. ^ 158 VARIATIONS IN THE NORMAL EIGHT TO SHE. [Ch. 2 pable of eoiumitting a voluntary att; that is, the deian«ement must extend so far as to make intent impossible."^^ On the other liand, if liability attaches because of relationship or instrumentalities, no personal fault or (.apacity is inA'olved. There Avould not seem to be any reason why a lunatic should not be held responsible as a sane man. It is generally recognized that a lunatic is liable under circumstances which would attach liability to a per- son compos mentis in the management of property. Thus, liability extends to injury occasioned by defective condition of a building belonging to an insane person, for the caie and management of whose estate a guardian has been appointed.- ^^ Only Actual Damages Recoverable. Tn no ea.-e can more than actual damages be asserted against a person non compos. If greater damages, as vindictive or punitive damages, be sought, on account of the intent or motive of the de- fendant, insanity is a good defense, as an insane person has no will nor motive, and the measure of damages is compensatory.-^' SAME— INFANTS. 54. Infants are generally liable in larw for their torts in no -wise connected -with, contract. They can neither escape liability because commanded by another to do w^rong, nor create liability on their o-wrn part by authorizing or adopting the commission of the tort of another person: 54a. Tenderness of age, in proportion as it aflfects ca,pacity to act intelligently, may be material to their lia- bility, -nrhen intention to do "w^rong, or want of care, is an essential ingredient of the injury. 237 pjo; Xorts, c. 7. As to Krom v. Schoonmaker, 3 Barb. G47, it is to be "presumed that the extent of tlie insauity was not great." Clerk & L. Torts, p. 3Jt, note a. The deteiise in Cross v. Andrews, 2 Cro. Eliz. ()22, was tliat de- fendant was siciv and non cofopos. ' -'■''i Morain v. Devlinjk2 Mass. sT; Belireus v. ilcKenzie, 23 Iowa, 3.j.3-.'>>'.'. 2^9 Avery v. Wilson, »! Fed. S-'jU-S-jS; Krom v. Suhooumaker, 3 Barb. (147; ^^"- 2] VARIATIONS BASED OX STATUS. 159 lafimcy Onliivirili/ no Lici'ni.te. Tlie law with respect to liability of infants has proceeded rathev on the theory of compensating the injured than of consistently main- taining any logical (locdine as to the mental attitude of the wrong- doer, and of basing the responsibility on the wrongful intention or inadvertence. The cases proceed on tlie propriety of holding all persons liable for actual damages committed by them, and of ignor- ing A'olition as a necessary element of a juridical cause. "If an in- fant commit an assault, or utter slander, G-od forbid that he should not be answerable for it in a court of justice." -'" Thus, an infant is liable in trespass to the extent of compensatory damages, as for breaking down and destroying slnubbeiy,-*^ or in assault.^''^ A minor is liable in damages for seduction,-''^ even under promise of mar- riage, or for bastardy; =** also, in trover; -*= also, liable in case, for negligently handling a gun,-*° or exploding flri'crackers, causing a Dickiason v. Barber, 9 ilass. i-'L'-'i; McDoiigald v. Cowan, 9." X. O. oUS: Jewell V. Colby, 24 Atl. !Ki2; AVard v. Couatser, 4 Baxt. (Teuu.) 04; Mclntyre V. Sholty, 121 111. COO, i:'. X. E. 2:;!». -i'> Lord Keiiyou lu .Teiiiiings v. Eundall, 8 Term R. 33D. Blng. Inf. 110; Scott y. Watson, 74 Am. Dee. 407. Cf. Campbell v. Stakes, 2 AVeud. 137. -ii Hucbting y. Engel, 17 AVis. 2:!7. -i- Petei'son y. Haft'ner, .")!» Ind. 1;'.0; Campbell v. Stakes, 2 AA'end. ::;7. .\nd see Paul v. Hummel, 07 Am. Dec. :-!.Sl ; Conway y. Keed, 27 Am. Kep. i>54; Bilker v. Loyett, 4 Am. Dec. S8. 1-13 Fry y. Leslie, S7 A'a. 2(;ii, 12 S. K. 671; Becker v. Alasun, it:; Midi. '!:'.'5, .13 X. AA'. ;'.(il ; Lee v. Ilelley, 21 Ind. US.. Altliuugb be Is not liable for breacli of promise inducing seduction. Leiclitweiss y. Treskow, 21 Hnn, -4S7; Hamilton y. Lomax, 2i; Barb. i<\o. 2" Chandler v. Com., 4 Mete. (Ky.) GO. -■*'' Freeman v. Boland, 14 K. I. .';!i: l;:iy v. Tnlilis, 2S Am. Kei). 511J; Towne y. AA'ile.r, 5(;U.m. Dec. s."i; A'asse v. Sinitli, Crancli, 22i>; Oliver y. JlcClcllan, 21 Ala. (M-l; reigne v. Sntclile, 17 Am. Dec. 7-">r,; Asblock y. Viyell, 2!i HI. App. 3S.S; Lewis y. Littlefield, 1.1 Me. 2;'>3; Homer v. Thwing, 3 Pick. (Mass.i 4'.J2; AValker y. Davis, 1 Gray, .lOO; AMieeler et AA'ilson Jlanuf'g Co. v. .laeolis, 2 Alisc. Kep. 2;!(;. '<.'l X. Y. Supp. lUOO: Careen v. Sperry, 16 A't, 3'.»ii; Ba.xter v. I!ui-b, 2'.) A't. 405; Mills y. Graham, 1 Bos. & P. X. K. 140; Bristow v. lO.-fstman. 1 Esp. 172; AA'est v. Moore, 14 A't. til; Campbell y. Perkins, s N. Y. 430. 2-10 Conway v. Reed, 66 Mo. 340. 160 VAUIATIOXS IN THE NORJIAI, EIGHT TO SUE. [Cll. 2 horse'y death, ^*' or for negligence in connection with Ms property in his agent's hands,"" The authority of parent is no excuse for the commission of a tres- pass by a child."" Liability of a parent for the tort of a child is governed by the ordinaiT principles of liability of a principal for the acts of his agent, or a master for his servant. It does not arise out of a mere relation of parent and child.- '^" Infants cannot empower an agent or attorney to act for them, nor affirm what another may have assumed to do on their account."" They cannot be held liable for "torts by prior or subsequent assent, but only for their own act." ""- Tenderness of Age as a Defense. In certain classes of cases, however, the inability of very young infants to be intelligent actors, and therefore their inability to ju- dicially cause a wrong, has been recognized. In such cases the wrong is considered due to unavoidable accident.^ ^^ And Where malice is a necessary element an infant may or may not be liable, according as his age and capacity may justify imputing malice to 247 Conklin v. Thompson, 29 Barb. 218. And, generally, see, Reeves, Dom. Rel. 258; 2 Kent, Comm. 241; Mangau v. Alleiton, L. R. 1 Exch. 239; Hughes V. Macfle, 2 Hurl. & C. 244; Schmidt v. Kansas City Distilling Co., 90 ilo. 284, 1 S. W. 865, and 2 S. W. 417. 2ts Harding v. Larned, 4 Allen, 426; Harding v. AVeld, 128 Mass. 587. 2-*!' Humphrey v. Douglass, 10 Vt. 71; Scott v. Watson, 46 Me. 362; Huchting V. Engisl, 17 Wis. 237; School Dist. v. Bragdon, 23 N. H. 507; Wilson v. Garrard, 59 111. 51. 2 = Tifft V. Tiftt, 4 Denio (N. Y.) 175; Smith v. Davenport, 45 Kan. 423, 25 rac. 851; Chandler v. Deaton, 37 Tex. 406; Wilson v. Garrard, supra; Baker V. Morris, 33 Kan. 580, 7 Pac. 2(i7. Of. Schlossberg v. Lahr, 60 How. Prac. (X. Y.) 450, with Schaefer v. Osterbrink, 67 Wis. 495, 30 N. W. 922. And see Strohl V. Levan, 39 Pa. St. 177. 2 = 1 Whitney v. Dutch, 14 Mass. 457; Knox v. Flack, 22 Pa. St. 337; Rob- bins "v. Mount, 4 Rob. (N. Y.) 553; Armitage v. Widoe, 36 Mich. 124. But see Sikes v. .Johnson, 16 Mass. 389. 2 52 Co. Litt. 180b, note; Burnham v. Seaverns, 101 Mass. 360; Robbins V. Mount, 33 How. Prac. (N. Y.) 24; Cunningham v. Railway Co., 77 lU. 178. Sed vide Sikes v. .Tohnson, 16 JXass. 389; Smith v. Kron, G N. O. 892-398. 253 Bullock V. Babcock, 3 Wend. (N. Y.) 391; Ames & S. Torts, 30; Whart. Nog. § 88. ■*'.' ^'^- ^] VARIATIONS BASED ON STATUS. 161 him, or may preclude the idea of his indulging it.^" However, in- fants have been held liable for frauds,"' deceit,^" and for slan- der.^" Extreme youth may excuse a child from the exercise of ordinary care, when it is the plaintiff. Thus, a child 3^ years old was run over on the highway by a cart; it could recover, although a grown person, under the circumstances, might not have succeeded in such an action. Liability is graduated to capacity.^"' The line is often a fine one.^"" To summarize: "Each of three different rules has found judicial sanction. One rule requires of children the same standard of care, judgment, and discretion in anticipating and avoiding injury as adults are bound to exercise. Another wholly exempts small chil- dren from the doctrine of contributory negligence. Between these extremes, a third and more reasonable rule has grown into favor, and is now supported by the great weight of authority, which is that a child is held to no greater care than is usually exercised by children of the same age." ''®" 55. Infants, not being liable for their contracts, cannot be elected into responsibility by being sued ex delicto on a cause of action really ex contractu, where the law allo-wrs choice of form of action. The test of ■whether an action lies against an infant, under such circumstances, is w^hether the infant has done 2 54Cooley, Torts; Johnson v. Pie, 1 Sid. 258. ir-ii Barlaam v. Turbeville, 57 Am. Dec. 782; Wallace v. Morss, 5 Hill (N. Y.> 391; Badger v. Phinney, 15 Mass. 359; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420; Catts v. Phalen, 2 How. (U. S.) 376-382. As to an infant partner, see Kemp V. Cook, 79 Am. Dec. 681. 2 66 Fitts V. HaU, 9 N. H. 441; Word v. Vance, 1 Nott & McC. (S. C.) 197. 2 6' Defries v. Davis, 1 Bing. N. C. 692; Hodsman v. Grissel, Noy, 129. 268 Gardner v. Grace, 1 Fost. & F. 359; Chicago & A. Ry. Co. v. Gregoi-y, 58 111. 226; Railroad Co. v. Gladmon, 15 Wall. 401; Chicago City Ry. Co. y. Wilcox, 138 111. 370, 27 N. E. 899; Neall v. Gillett, 23 Conn. 437. 209 Lay V. Midland Ry. Co., 34 Law T. (N. S.) 30; Lynch v. Nurdin, 1 Q. B. 29, 36. 26 Williams, J., in Cleveland Rolling Mill Co. v. Corrigan, 4t; Ohio St. 283, 20 N. B. 466. And see Stone v. Dry-Dock, E. B. & B. R. Co., 115 N. Y. 104, 21 N. E. 712; post, p. 871, "Negligence"; "Capacity of Parties." LAW OF TORTS— 11 lt)2 VARIATIONS IN THE NORMAL KIGHT TO SUK. [Ch. 2 anything in excess of mere violation of a contract, and in breach of duty -which the law has created or superinduced upon the contract. They may, how- ever, in some cases, be sued ex contractu for cause of action ex delicto. Election of lu'medies — Tort or Contract. The technicalities of common-law forms of action, as has already been shown, in many cases gave an election to the plaintiff to sue ex contractu or ex delicto. Where the wrong is both a tort and a breach of contract, this right of choice arises. When a cause of action against an infant is really founded upon contract, the plain- liff cannot avoid the defense of infancy by framing liis action in tort. Great difficulty arises in ascertaining and agreeing upon some definite test of when the substantial cause of action is tort, and not contract, without reasoning in a circle. The language of the text is the distinction as formulated by Mr. Bishop.^"^ Mr. Piggott sug- gests the rule, "Where the substantial ground of action rests on promises, the plaintiff cannot, by changing his form of action, render a person liable who would not have been liable on his promise." ^"^ In the application of this not very definite standard, even since the courts have escaped mere distinction of pleading, and have regarded more the substantial rights of parties, there does not seem to be any satisfactory consistency. The actual cases usually arise with re- spect to the contract of bailment, or in matters involving fraud. Same — Bailment. If infant bailee does any willful or positive act, amounting to an election on his part to disaffirm the contract, or to convert the prop- erty to his own use, or if he wantonly and intentionally commits a trespass, his infancy is no protection. Thus, infancy is a bar to an action by an owner against his supercargo for breach of instruc- tions, but not to an action of trover for goods delivered to the infant under contract, even if not actually converted to his own use. A 261 Bish. Noncont. Law, §§ o6G, 567. 262 Pig. Torts, 43. This does not differ materially from the test proposed by Mr. Wallace in note to Vasse v. Smith, 1 Am. Lead. Cas. 230, or by Mr. Bwell in his note to Gilson v. Spear, Bwell, Lead. Cas. 201, or by Mr. Bigelow on Fraud, 216-218. ^''- ^] VARIATIONS BASED ON STATUS. 163 fortiori, an infant is liable if he convert property to his own use.^°^ There is much difference of opinion as to the circumstances under which, and in what form of action, an infant is liable for the abuse of, or use contrary to terms of the contract of hiring, a horse. Using the horse for a purpose not contemplated by contract, or abusing the animal, has been regarded as a trespass so far independent of contract as to give a cause of action ex delicto, to which infancy is no defense. Thus, where a boy hired a horse unfit, and agreed not to be used, for leaping, and allowed his friend to jump the animal to its death, an action ex delicto was sustained.^'* This would seem to be the proper view. In Pennsylvania, on the other hand, it has been insisted that, even if the horse were killed, the infant would not be liable.^'^ In a leading New Hampshire case it was held that an infant could not be held liable for failure to drive skill- fully, but that he can be held if he kills the horse by positive tortious act.""" Sam.e — Fraud. As to liability of infants for fraud, if an infant, at the time of obtaining goods, fraudulently concealed his minority, the vendor may rescind the contract, and recover the goods sold.^" But if, before the discovery of the fraud, the infant sold the goods, the \-endor is without remedy. He cannot recover the goods, for they are sc-: Vasse V. Smith, 6 Crancb, 226; Wheeler Sc Wilson Manuf'g Co. v. Jacobs (Com. PI. N. y.) 21 N. Y. Supp. 1006; Peigne v. Sutcliffe, 4 McCord (S. C.) 387; Jloore V. Eastman, 1 Hun, 578; Root v. Stevenson, 24 Ind. 115. 264 Bm-nai-d v. Haggis, 14 C. B. (N. S.) 45; Hall v. Corcoran, 107 Mass. 251; Ray V. Tubbs, 28 Am. Rep. 519; Green v. Sperry, 16 Vt. 390; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420; Freeman v. Boland, 14 R. I. 39; Campbell v. Stakes, 2 Wend. 'rederick Cooke). ;Vhere earnings of a railroad while in the hands of a receiver, more than lufficlent to pay claims for damages from negligence in the operation of the ■oad by him, are diverted into betterments, of which the railroad company has he benefit on the return of the property "to it, an action on such a claim aay be maintained against the company, and a personal judgment may be endered against ,it thereon. Texas Pac. Ry. Co. v. Johnson, 76 Tex. 421, 13 !. "W. 163, followed. Texas & P. Ry. Co. v. Bloom, 9 C. C. A. 300, 60 Fed. '79. 307 Jiims V. Mt. Hermon Boys' School, 160 Mass. 177, 35, N. E. 776. 172 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 poration, who is also its agent for transfer of stock, and authorized to countersign and issue stock, when signed by the president, forges the name of the latter, and fraudulently issues a certificate of stock, the corporation is liable to a bank which has accepted such certifi- cate, in good faith, as collateral security for a loan.^"* At the other extreme, the agents of a corporation are personally liable when they do wrong, even with respect to something connected with the corporation, in their purely individual capacities. Thus, if they, by misrepresentation, induce a stockholder to exchange his stock for certificates in a trust formed to control a given corporation, they, and not the corporation, are liable.""' Between these extremes, the test is by no means certain; but the tendency is to hold a corporation liable for all wrongs committed by agents, whether authorized or not, whether within the scope of em- ployment or not, so long as they are committed in course of employ- ment.'^" There would seem to be no difference between the prin- ciple which governs the liability of a corporation as a principal or master from those which control the liability of a natural person as principal and master." ^^ It has, however, been claimed that an agent or servant cannot bind a corporation by committing an ultra vires tort, where its authority is not direct, but implied only."^^ Corporators, by their acts, may make the corporation liable, on essentially the same principles as would any ordinary agent. Un- like cases of agency, the liability is not cumulative, but is alterna- 308 Fifth Ave. Bank v. Forty-Second St. & G. St. F. R. Co., 137 N. T. 231, 33 N. E. 378; Nevada Bank v. Portland Nat. Bank, 59 Fed. 338. 809 Manhattan Life Ins. Co. v. Forty-Second St & G. St. F. E. Co., 64 Hun, 635, 19 N. Y. Supp. 90; Tyler v. Savage, 143 U. S. 79-99, 12 Sup. Ct. 340; Aetna Life Ins. Co. v. Paul, 37 111. App. 439. 810 Post, p. 257, "Liability of Master to Third Pei-sons for Wrong of Serv- ant." 311 Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 13 Sup. Ot. 261; Ang. & A. Corp. § 311; Central Ry. Co. v. Brewer, 78 Md. 394, 28 Atl. 615; Salt Lake City v. HolUster, 118 XJ. S. 256-261, 6 Sup. Ct. 1055; Denver & R. G. Ry. Co. V. Harris, 122 U. S. 597-608, 7 Sup. Ct. 1286; Hamilton v. Rail- way Co., 53 N. Y. 25; JefCersonville Ry. Co. v. Rogers, 38 Ind. 116; Allen V. Railway Co., L. R. 6 Q B. 65; Goddard v. Railway, 57 Me. 202; Sherley v. Billings, 8 Bush, 147; Bryant v. Rich, 106 Mass. 180. 312 Green's Brice, Ultra Vires, 364. h- 2] VARIATIONS BASEIJ. ON STATUS. 173 ive. Either the corporation is liable, or the corporators, — not oth."^ SAME— MUNICIPAL AND QUASI MUNICIPAL CORPOEA- TIONS. 9. Mtmicipal corporations are sometimes, but not ordi- narily, liable for their torts. Their liability de- pends largely upon construction of the legislation creating them. In general, they are not liable for — (a) Conduct in performance of governmental, as distin- guished from merely corporate, functions; (b) Unauthorized conduct of ofl&cers and agents; (c) Authorized acts. 0. Involuntary quasi municipal corporations are subject to even a less extended liability for civil wrongs. cts in Performance of Govei-nmental Functions. A municipal corporation owes a two-fold duty, — one political, wringing from its sovereignty ; the other private, arising from its ex- tence as a legal person. For conduct of its officers or agents in its )rmer capacity, it is not liable; for their conduct in the latter, it J^* As to what are public and governmental duties, and what are rivate or corporate duties, the courts are not in harmony, and leir decisions do not furnish any definite line of cleavage. It is- aportant, in every case, to determine the liability by a true inter- 313 Harman v. Tappenden, 1 East, 555; Mill v. Hawker, L..R. 9 Exch. 309; lie King v. Watson, 2 Term R. 199; Houldsworth v. City of Glasgow Bank, App. Cas. 317. As to liability of promoters to stockholders, Yale Gas :ove Co. v. ^A'llcox, 64 Conn. 101, 29 Atl. 303. A short article on the duties id liabilities of the "promoters" of corporations will be found in 1 Brief, 228. s to personal liability of ofllcers for torts, see Nunnelly v. Southern Iron )., 94 Tenn. 397, 29 S. W. 361. As to stockholders (under statute), Flenniken Marshall- (S. C.) 20 S. B. 788. An extensive note on the duties and lia- lity of promoter to the corporation and its members. Yale Gas-Stove Co. Wilcox, 25 L. R. A. 90 (Conn.) 29 Atl. 303. 314 29 Am. Law Rev. 209-218; City of Galveston v. Posnainsky, 62 Tex. 118;. 1 Am. & Bng. Enc. Law, 1141, note 3, collecting cases; 2 Dill. Mun. Corp. f)66; O'Rourke v. City of Sioux Falls (S. D.) 54 N. W. 1044. 174 VARIATIONS IN THE NORMAL KIGHT tO SUE. [Oil. 2 pretation of the statutes under which the corporation is created.*" Indeed, it may occur that the liability of a municipality depends exclusively on the statute."' At one extreme, the exemption of municipal corporations from liability for torts is clear. Thus, they are not liable for damages consequent upon conduct of flre,"^ police,"^ health,*^' or public 315 Snider v. City of St. Paul, 51 Minn. 466, 53 N. W. 763; Mersey Doclis v. Gibbs, 3 Hurl. & X. 164; City of Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815. The courts of New England, New Jersey, Michigan, and Texas accepted the idea of nonliability at common law of municipal corporations to civU action. 2 Thomp. Neg. p. 735, note 11. This doctrine has been largely changed by the ^■a^ious statutes. Burt v. Boston, 122 Mass. 223. 316 2 Dill. Mun. Corp. § 948; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547; KoUock v. City of Madison, 84 "Wis. 458, 54 N. W. 725; Stilling v. Town of Thorp, 54 Wis. 528, 11 N. W. 906; McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. 689; Workman v. Mayor, etc., of City of New York, 63 Fed. 298; Roberts v. City of Detroit (Mich.) 60 N. W. 450. Right to sue for tort is subject to limitation contained in municipal charter as to notice of injury and time within which action may be brought. Nichols v. City of Minneapolis, 30 Minn. 545, 16 N. W. 410; Morgan v. City of Des Moines, 54 Fed. 456; Berry v. Town of Wauwatosa, 87 Wis. 401, 58 N. W. 751. Cf. Barrett v. Village of Hammond, 87 Wis. 654, 58 N. W. 1053; and, generally, see Bacon v. City of Boston, 154 Mass. 100, 28 N. E. 9. 317 Lawson v. City of Seattle, 6 Wash. 184, 33 Pac. 347; Wild v. Mayor, etc., of City of Paterson, 47 N. J. Law, 406, 1 Atl. 490; Alexander v. City of Vicks- burg, 68 Miss. 564, 10 South. 62; Gillespie v. City of Lincoln, 35 Neb. 34, 52 N. W. 811; Dodge v. Granger, 17 R. I. 664, 24 Atl. 100; Thomas v. City of Findlej, 6 Ohio Cir. Ct. R. 241; Grube v. City of St. Paul, 34 Minn. 402, 26 N. W. 228. The use by the fire department of a town of a person's hose, which had gotten mixed with the hose of the town, under the belief that it belonged to the town, does not render the (town liable to the owner for its use. DoUofE V. Inhabitants of Ayer (Mass.) 39 N. E. 191. But see Workman v. Mayor, etc., of City of New York, 63 Fed. 298; Burrill v. City of Augusta, 78 Me. 118, 3 Atl. 177. 318 Elliott V. Philadelphia, 75 Pa. St. 347; Atwater v. Baltimore, 31 Md. 462; Caldwell v. Boone, 51 Iowa, 687, 2 N. W. 014, 20 Alb. Law J. 376; Odell v. Schroeder, 58 111. 357; Bowditch v. Mayor, etc., of Boston, 101 U. S. 16; Givens V. City of Paris, 5 Tex. Civ. App. 705, 24 S. W. 974; Jolly's Adm'x v. City of Hawesville, 89 Ky. 279, 12 S. W. 313. A neglect of the city police to suppress a nuisance consisting of coasting on the public streets does not render the city liable for damages to a person passing along said sti-eets by one coasting. City 8i» Forbes t. Board of Health, 28 Fla. 26, 9 South. 8G2; I. 2] VAKIATIOSS BASED ON STATUS. 175 rk departments, or for the exercise or nonexercise of a discretion- Y, legislative, of judicial power, as distinguished from a ministerial At the other extreme, municipalities are generally held liable for gligence,^^^ in construction, maintenance, or use of their streets,'^^ "Wilmington v. Vaudegirift (Del. EiT. & App.) 29 Atl. 1047. A city is not lia- i for the act of a police officer in killing a dog running at large contrary to finance. Julienne v. Mayor, etc., of City of Jaclison, 10 Soutli. 43; Moss v. ty Council of Augusta, 93 Ga. 797, 20 S. B. 653; Van Hoosear v. Town of ilton, 62 Conn. 106, 25 Atl. 457, 'distinguishing Town of Wilton v. Town of estou, 48 Conn. 325. There is no liability on the part of a municipality for mages done by mobs. Western College v. Cleveland, 12 Ohio St. 375; 2 II. Mun. Coi-p. § 760. Cf. Wing Chong v. Los Angeles, 47 Cal. 531; Darling- 1 V. Mayor, 31 N. Y. 164; Lowell v. Wyman, 12 Cush. (Mass.) 273; In re ill, 5 Pa. St. 204. And, generally, see City of Xcw Orleans v. Abbagnato, C. 0. A. 361, 62 Fed. 240. 120 The city of Boston is not liable for injurj- oec:isioncd to a person by ison of his horse becoming frightened, when being driven along an adjoin- ; street, by the firing of a cannon on the common under a license granted pursuance of a city ordinance. "The ordinance * * * is not the ex- cise of an owner's authority over his property, but is a police regulation the use of a public place by the public, made by the city under its wer to make needful and salutary by-laws, without regard to accidental mership of the fee." Lincoln v. City of Boston, 148 Mass. 578, 580, 20 B. 329. A municipality is not liable for suspending an ordinance forbid- ig fireworks during the time plaintiff's house was destroyed by fireworks gligently used by boys. Hill v. Charlotte, 72 N. C. 55. And, generally, B City of Pontiac v. Carter, 32 Mich. 164; Griflin v. Mayor, 9 N. Y. 456; )wey V. Detroit, 15 Mich. :!(i7: Grant v. Erie, 69 Pa. St. 42u. lai I^uthie V. Town of ^A'ashburn, 87 Wis. 231, 58 N. W. 380. Generally, e Jones, Neg. Mun. Corp.; post, p. 798, "Nuisance," note 279. Et vide oley. Torts, § 625; Powers v. City of Chicago, 20 111. App. 178-181. 22 A dangerous depression, however, has been held not to be an action- le defect. Wltham v. Portland, 72 Jle. 539. But a city is liable for in- •ies caused by a ditch dug in the street, and left without any protection light. City of Americus v. Chapman (Ga.) 20 S. E. 3. Leaving a loose ,nk may be actionable negligence. Ledgerwood v. City of Webster (Iowa) N. W. 1089. And see White v. City of San Antonio (Tex. Civ. App.) 25 W. 1131; Dempsey v. City of Rome (Ga.) 20 S. E. 335. In the absence statutory provisions, however, city streets have been held to be public rhways, and the duty of keeping them in repair is public, and not pri- te, and cities, towns, and counties alike are not responsible for negli- aee in allowing them to be in a defective condition, resulting in dam- 176 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 sidewalks,'"' sewers,'"* and levees.""" They are answerable in dam- ages for trespass on private property.'"' While a. city is not ordi- narily liable for failure to exercise its corporate power to abate a ages. City of Detroit v. Blackeby, 21 Mich. 84; Detroit v. Osborne, 13& U. S. 492, 10 Sup. Ct. 1012. Et vide Mayor, etc., of City of Rahway v. Carter, 55 N. J. Law, 177, 26 Atl. 96. As to distinction in Michigan that cifies are responsible for defects in cross walks, but not in sidewalks, see O'Neil V. Detroit, 50 Mich. 133, 15 N. W. 48; Detroit v. Putnam, 45 Mich. 263, 7 N. W. 815; Grand Rapids v. Wyman, 46 Mich. 516, 9 N. W. 833. The fact that 3 How. Ann. St § 1446d, makes it the duty of cities to keep their streets in repair, so that they may be reasonably safe, etc., does not give every person lajured by failure to perform such duty a right to main- tain an action for the injury. Roberts v. City of Detroit (Mich.) 60 N. W. 450; Hennessey v. City of New Bedford, 153 Mass. 266, 26 N. B. 999; Prince 323 Harper v. City of Milwaukee, 30 Wis. 365; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547; Nichols v. City of St. Paul, 44 Minn. 494, 47 N. W. 168; City v. Mclnnis, 26 111. App. 338; Weare v. Fitchburg, 110 Mass. 334; Saulsbury v. Village, 94 N. Y. 27; Potter v. Castleton, 53 Vt. 435; Foxworthy V. City of Hastings, 25 Neb. 133, 41 N. W. 132; Orme v. Richmond. 79 Va. 86; Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463; 2 Thomp. Nog. C73. The sidewalk doing damage and creating liability may be of earth instead of usual materials. Graham v. City of Albert Lea, 48 Minn. 201, 50 N. W. 1108 (collecting cases, page 204, 48 Minn., and page 1108, 50 N. W.). Street crossings: Hall v. Incorporated Town of Manson (Iowa) 58 N. W. 881. 321 Stoddard v. Village of Saratoga Springs, 127 N. Y. 261, 27 N. E. 1030; New York Cent & H. R. R. Co. v. City of Rochester, 127 N. Y. 591, 28 N. B. 416; Welter v. City of St Paul. 40 Minn. 460", 42 N. W. 392; Tate v. City of St Paul, 56 Minn. 527, 58 N. W. 158; Bvers v. Long Island City, 78 Hun, 242, 28 N. Y. Supp. 825; Burton v. Syracuse, 36 N. Y. 54; Noonam v. Albany, 79 N. Y. 470. The duty of draining streets, however, has been held to be judicial in its nature. A municipal corporation has been exonerated from liability for the injurious consequences of an Insufficient sewer. The error is in the plan, not in its execution. Post, p. 179, note 332. Where a city has built a sewer partly on private property, it is no excuse for failing to repair the same that it has no right to go on such property to make repairs. Netzer v. City of Crookston (Minn.) 61 N. W. 21. But see StreifC v. City of Milwaukee (Wis.) 61 N. W. 770. Cf. Mayor, etc., of City of Nashville v. Sutherland, 94 Tenn. 356, 29 S. W. 228. 32 5 Barden v. City of Portage, 79 Wis. 126, 48 N. W. 210. 32 6 Ashley v. Port Huron, 35 Mich. 296. Gf. Montgiomery v. Gilmer, 33 Ala. 116, with Wilson v. City of New York, 1 Denio (N. Y.) 595. See Proprietors v. Lowell, 7 Gray (Mass.) 223; Bmery v. Lowell, 104 Mass. 13; Conrad v. Ithaca, 16 N. Y. 158; Van Pelt v. Davenport, 42 Iowa, 308. • 2'J VARIATIONS BASED ON STATUS. 177 lisance of some third party doing dainage,'=" it is responsible for [■ongful exercise of power to abate a nuisance/^^ and for maintain- g a nuisance, of its own.^^' City of Lynn, 149 Mass. 193, 21 N. B. 296. This doctrine has been adopted Texas. City v. Pearce (1877) 4C Tex. 525. "It is painful to see an idea, stitute of any trace of .iustice, which means no more nor less than that e member of a community may be damnified without redress for any 36, convenience, or profit of the rest, adopted by the judiciary of a young ite whose early jurisprudence received a generous leaven from the civil V." 2 Thomp. Neg. p. 735, note 11. Where a city that is under no stat- sry obligation to light its streets does so voluntarily, it is not liable if the hting is insufficient to enable persons to see a hydrant in the street. ty of Columbus v. Sims (Ga.) 20 S. E. 332. It is not necessary that an struction in a highway should endanger any iDarticular modes of public vel in order to be a defect making a municipality liable in damage for ?ligence to one injured thereby. It is enough that such obstruction makes agerous any mode which the public has a right to use. Applied to injury a street-car conductor by collision with barrier guarding a cave in the eet: Fowers v. City of Boston, 154 Mass. 60, 27 N. B. 995. But the or- lary use of a highway does not include racing, McCarthy v. Portland, Me. 167; Sindlinger v. City of Kansas City (Mo. Sup.) 28 S. W. 857; nor play, jdgett V. Boston, 8 Allen, 237; Jackson v. City of Greenville (Miss.) 16 South. !. As to use by bicycle, see Sutphen v. Town of North Hempstead (Sup.) 30 N. Supp. 128, and McCarthy v. Portland, supra. And, generally, see Bieling City of Brooklyn, 120 N. Y. 98, 24 N. E. 389; Goodfellow v. City of New rk, 100 N. Y. 15, 2 N. E. 462; Gerdes v. Foundry Co. (Mo. Sup.) 27 S. W. ■<: Cleveland v. King, 132 TJ. S. 295, 10 Sup. Ct. 90; Weet v. Trustees, 16 Y. 161; 2 Thomp. Neg. 678; Kollock v. City of Madison, 84 Wis. 458, 54 W. 725; Barnes v. District of Columbia, 9 U. S. 540; District of Colum- . V. Woodbury. 136 TJ. S. 450, 10 Sup. Ct 990; Providence v. Clapp, 17 iw. 16] ; City of Abilene v. Cowperthwait, 52 Kan. 324, 34 Pac. 795. Thus ;ity may be liable for injury, done by fireworks exploded at the junction 27 Davis v. Montgomery, 51 Ala. 139. 2 8 Yates V. Milwaukee, 10 Wall. 497; Everett t. Council Bluffs, 46 Iowa, But see City of Orlando v. Pragg, 31 Fla. Ill, 12 South. 368. 29 A pesthouse has been held a nuisance. Haag v. Board of County m'rs, 60 Ind. 511; City of HiUsboro v. Ivey, 1 Tex. Civ. App. 653, 20 S. W, .2; Miles v. City of Worcester, 154 Mass. 513, 28 N. E. 676; Pumpellv v. sen Bay, 13 Wall. 166-181; Harper v. Milwaukee, 30 Wis. 365; Eastman v. iredith, 36 N. H. 284-296; Weet v. Brockport, 16 N. Y. 161-172; St ter V. Denison, 58 N. Y. 416-421; Mayor of Cumberland v. Willison, 50 I. 138; Forsyth v. Mayor, 45 Ga. 152; Barthold v. Philadelphia, 154 Pa. St, I, 26 Atl. 304. Generally, see 2 Thomp. Neg. p. 740. LAW OF TOKTS— 13 178 VARIATIONS IN THK NORMAL EIGHT TO SUE. [Ch. 2 lletween these extremes, the line of distinction is often obscure. Tlius, as to corporate property, the municipality is not liable for damaj^es arising from its use, management, or condition, when the purpose of such property is purely public. A child injured by an unsafe staircase in a public scliool cannot recover against the city.^'" of streets. Spoir v. City of Brooklyn, 139 N. Y. G, 34 N. E. 727. Cf. Lincoln V. City of Boston, supr.i. As to liability of city for blasting in highway, see post, p. 848. note I.'ii!, "Xesligence"; for leaving glass on street, City of li^l Paso y. Dolau (Tex. Civ. App.) 25 S. W. 669; for a projecting water plug, Scranton v. Catterson, 94 Pa. St. 202; a box. City y. Tayloe, 16 South. .^570; for leavint;' a inaiihole defectively covered on surface of street, Barr v. City of Kansa.s (Mo. Sup.) 2.j S. W. 502; Lincoln v. City of Detroit (Mich.) .jl» N. W. 617; for allowing a dangerous ridge of ice to remain, Cumisky v. City of Kenosha, 87 Wis. 286, 58 X. W. 395, distinguishing Ball v. Town of Woodbine, 61 Iowa, 83, 15 N. W. 840; Findley v. City of Salem, 137 Mass. 171; tlill V. Board, 72 N. C. 55; Smith v. City of Pella, 80 Iowa, 230, .53 X. W. 220; Decker v. City of iScrantou, 151 Pa. St. 241, 25 Atl. 36; Dooley v. City of Meriden, 44 Conn. 117; West v. City of Eau Claire, 89 Wis. 31, 61 N. ■\A'. 313; Cook v. City of Milwaukee, 24 Wis. 270; Upham v. City of Salem. 163 Mass. 483, 39 N. E. 178; but mere slipperiness is not sufficient, Grossen- bach v. City of Milwaukee, 05 Wis. 31, 26 N. W. 182; Cook v. City of Mil- waukee, 27 Wis. 191; Chicago v. McGiven, 78 111. 347; Village of Gibson v. Johnson, 4 111. App. 288; Broburg v. City of Des Moines, 63 Iowa, 523, 9 N. W. 340; Smyth v. Bangor, 72 Me. 249; contra, Cloughessey v. City of Waterbury, 51 Conn. 405; Kinney v. City of Troy, 38 Hun, 285. And, gen- erally, see Hughes v. City of Lawrence (Mass.) 36 N. B. 485, 9 Am. Ry. & Corp. R. 219; Village of Oak Harbor v. Kallager (Ohio) 39 N. E. 144; Hutch- inson V. City of Xpsilanti (Mich.) 61 N. W. 279. While a municipal corpora- tion is not ordinarily liable for damages caused by grading or changing the grade of a street, In the absence of gross lack of care and skill in devising the improvement (City of North Vernon v. Voegler, 103 Ind. 314, 2 N. E. 821; "Damage Incident to Authorized Act," ante, p. 142) it is liable for damages consequent upon negligence in doing the work (Keating v. Cincinnati, 38 Ohio, 141; AVerth v. City of Springifield, 78 Mo. 107; Hendershott v. City of Otturawa, 40 Iowa, 0.58; Mayo v. Springfield, 130 Mass. 10; Broadwell v. City of Kansas, 75 Mo. 213; Elgin v. Kimball, 90 111. 3.30). As to effect of grade on street on surface water, see post, p. 763, "Nuisance." The diminu- tion in market value of property injured by a change of grade of a street is the correct measure of the damage. Chase v. City of Portland, 86 Me. 368, 29 Atl. 1104. 3 30 Hill V. Boston, 122 Mass. 344; Howard v. City of Worcester, 153 Mass. 426, 27 N. E. 11; Snider v. City of St. Paul (Minn.) 53 N. W. 763. But com- pare Barron v. City of Detroit, 94 Mich. 601, 54 N. W. 273; Greenwood v. 'll. 2] VAKIATIONS BASED ON STATUS. 179 ^here, however, corporate property is not used for public, but for orporate, benefit, the city is liable for injury resulting. Thus, the ity council of Augusta, as owner and keeper of a toll bridge over tie Savannah river, was held liable for negligence in not keeping lie abutments on the vSouth Carolina side in safe condition. The orporation had gone into the state of South Carolina to engage in rivate business, and to enjoy the profits thereof.^^^ The distinction f nonliability of municipal corporations when damages arise from rrors in the plan,""- and of liability in the execution, ^^^ of public 'own of Westport, 53 Fed. 824; Briegel v. City of Philadelphia, 135 Pa. St. .')1, 19 Atl. 1038; Barthold v. Philadelphia, 154 Pa. St. 109, 26 Atl. 304. 331 City Council v. Hudson, 88 Ga. 599, 15 S. B. 678; Doherty v. Inhabitants f Braiutree, 148 Mass. 495, 20 N. E. 106. Similarly, a city is liable where ; operates waterworks as a private corporation might, City of Philadelphia . Gilmartin, 71 Pa. St. 140; Smith v. Philadelphia, 81 Pa. St. 38; or gas i'orks, Scott V. ilanchester, 2 Hen. tV: JI. 204; or runs a poor farm with a lew to profit, among other things, Neff v. Inhabitants of Wellesley, 148 Mass. 87, 20 X. E. 111. As to liability of private corporation owning public 7orks: Parnaby v. Proprietors Lancaster Canal Co., 11 Adol. & E. 223; 1 'homp. Neg. p. 541. A city which, pursuant to Its charter powers, engages 1 the business of towing vessels for profit, is liable for a collision caused y the fault of the tjig. The Giovanni v. City of Philadelphia, 59 Fed. 303. ffirmed. City of Philadelphia v. Gavagnin, 10 C. C. A. 552, 62 Fed. 617. 332 JXills V. Brooklyn, 32 N. Y. 489; Lynch v. City of New York, 76 N. Y. 61; mith V. New York, 66 N. Y. 295; Carr v. Northern Liberties, 35 Pa. St. 324; Ihild v. Boston, 4 Allen (Mass.) 41; Allen v. City of Boston, 159 Mass. 324, 4 N. E. 519. Et vide Darling) v. Bangor, 68 Me. 108. Thus a municipal orporation is not ordinarily liable for defect in plan of sewerage. Tlie fact lat a city engineer plans a defective drain, to be constructed by private arties, which caves in, and causes injury, does not impose any liability on le city. Horton, C. J., dissenting. City of Kansas City v. Brady, 52 Kan. 37, 34 Pac. SS4, affii-med; Id., 53 Kan. 312, 36 Pac. 726; Rozell v. City of nderson, 91 Ind. 591; Johnston v. District of Columbia, 1 Mackey, 427; City f Denver v. Capelli, 4 Colo. 25: City of Evansville v. Decker, 84 Ind. 325: [ardy v. City of Brooklyn, 7 Abb. N. C. 403; Collins v. City of Philadelphia, 5 Pa. St. 272; Mayor, etc., v. Eldridge, 64 Ga. 524; Springfield v. Spence, 39 33 3 Municipality is liable for failure to repair or complete the construction ' its sewers. Savannali v. Spears, 00 Ga. 304; Winn v. Rutland, 52 Vt. 481; ardy v. City of Brooklyn, 90 N. Y. 435: and for negligence in consti'uction, jmple V. Mayor, etc., 62 Miss. 63; Elgin v. Kimball, 90 111. 356; Johnston v. istriot of Columbia, 118 U. S. 19,. 6 Sup. Ct. 923. 180 VARIATIONS IN THE NORMAL RIGHT TO SUE. [€h. 2 works is judicially recognized, but has been pronounced "repugnant to justice, and destitute of any solid foundation in reason." ''* Conduct ultra Vires. Municipal corporations can be held liable for only such tortious conduct as occurs in the exercise of some power conferred on them by law, or the exercise of some duty imposed on them by law. If conduct be unauthorized by charter or statute, it cannot be the basis of a suit for damages against them. Thus, cutting a ditch outside of the city limits is an act ultra vires, for which the city is not liable to the owner of the lot damaged.^^^ A municipality can- not commit libel.^^' A municipal corporation cannot be guilty of a wrong so gross and willful as to entitle to vindictive damages. Only compensatory damages can be recovered.^'*' Ohio St. 665; Aurora v. Love, 93 111. 521. Of. City of North Vernon v. Voegler, 89 Ind. 77. Insufficient culvert, Ford v. Town of Braintioe, 64 Vt. 144, 23 Atl. 633. Where a city, under the superintendence of a competent engineer, builds a culvert sufficient to discharge the ordinary quantity of surface water flowing through a definite channel, it is not liable when, be- cause of a flood caused by an unusually heavy rain, the culvert is unable to discharge the water, and lands are overflowed. Los Angeles Cemetery Ass'n V. City of Los Angeles, 103 C.al. 4«1, 37 Pac. 375. 334 2 Thomp. Neg. p. 736, § 3. Et vide Lansing v. Toolan, 37 Mich. 152r Van Pelt v. Davenport, 42 Iowa, 308; Ely hi v. Village of Watervllle (Minn.) 58 N. W. 817. The action of municipal authorities in determining the charac- ter of public works, like sewers, is not generally subject to revision by courts. .Johnson v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923; Child V. Boston, 4 Allen (Mass.) 41; Mills v. Brooklyn, 32 N. Y. 489. Defect in plan is not negligence as matter of law. City of Pern v. Brown, 10 Ind. App. 597, 38 N. E. 223. 335 Loyd V. City of Columbus, 90 Ga. 20, 15 S. B. 818; City of Orlando v. Pragg, 31 Pla. Ill, 12 South. 368; Mayor of City of Albany v. Cunliff, 2 N. Y. 165, reversing 2 Barb. 190; Browning v. Owen 'Co., 44 Ind. 11-13; Haag V. Board of Com'rs, 60 Ind. 511; Pekin v. Newell, 20 111. 320; Stoddard v. Village of Saratoga Springs, 127 N. Y. 261-267, 27 N. E. 1030; Smith v. City of Ttocliester, 76 N. Y. 500; Morrison v. Lawrence, 98 Mass. 219; Schumacher V. St. Louis, 3 Mo. App. 297. 336 Howland v. Inhabitants of Maynard, 159 Mass. 434, 34 N. E. 515. 33T McGary v. Lafayette, 12 Rob. (La.) 6G8-674, 4 La. Ann. 440; City of Chicago V. KeUy, 69 111. 475; City of Chicago v. Langlass, 52 111. 256, 66 111. 361; Hunt v. City of Boonville, 05 Mo. 620. As to liability of municipal cor- I. 2] VARIATIONS BASED ON STATUS. 181 lauthorized Acts of Agents and Officers. The statement that a municipal corporation acts only through its fents does not mean that it so acts through subordinate agents ih'. It may act through its mayor, its common council, its superin- ndent of streets or waterworks, or its board of public works.^^^ municipal corporation is not liable for the acts of its agents or ficers, not previously authorized or subsequently ratified by it, )r done in good faith in pursuance of their general authority to ;t for the city in the matter to which they relate.^^° Thus a city not liable for the act of a tax collector in bringing a malicious lit against a person, unless it has authorized or ratified such suit.'*" le ability of a municipal corporation to attach liability by ratifica- on has been denied.^*^ The liability of a municipal corporation for e acts of an independent contractor or his servants is governed by sentially the same principles as apply in the case of private indi- duals."^ rations for torts involving motive, see note to Abrath v. Northeastern R. I., 25 Am. Law Reg. 757. 53 8 Stoddard v. Inhabitants of Winchester, 157 Mass. 567, 32 N. K. 948; irpotl. \. Mayor, 96 N. Y. 264; Barnes v. District of Columbia, 91 U. S. 540: irney Dumping-Boat Co. v. Mayor, 40 Fed. 51; Rollins Inv. Co. v. George, Fed. 776. 330 Tims, a town is not liable for the unauthorized acts of its officers, ough done colore officii. In an action against a town f oi- damages caused by e acts of its officers, the complaint must allege that such acts were within e scope of their authority. Kreger v. Township of Bismarck (Minn.) 60 N. . 675. 340 Horton v. Newell (R. I.) 23 Atl. 910; Donnelly v. Tripp, 12 R. I. 97, 98; jw York & B. Sawmill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580; am V. Mayor, etc., 70 N. Y. 459; Goddard v. Harpswell, S4 Me. 499, 24 Atl. 8; Fisher v. Boston, 104 Mass. 87; Alcorn v. Philadelphia, 44 Pa. St. 348; ;illy V. Philadelphia, 60 Pa. St. 467; Sewall v. City of St. Paul, 20 Minn. 511 il. 459); Chicago v. Joney, 60 111. 383; City of Kansas City v. Brady, 52 Kan. 7, 34 Pac. 8S4; City Council of Sheffield v. Harris (Ala.) 14 South. 357. )lice officers of a city are not servants in such a sense as to render it liable r their wrongful acts. WoodhuU v. City of New York, 76 Hun, 39, 28 N. Y. ipp. 120. 341 Mitchell V. Rockland, 52 Me. 118-125. Cf. Ross v. Madison, 1 Ind. 1; Tliayer v. Boston, 19 Pick. (Mass.) 511. Et vide McGary v. Lafayette, Rob. (La.) 068, 4 La. Ann. 440. !42 2 Thomp. Neg. 740; Goetz v. Borough of Butler (Pa. Sup.) 3 Atl. 763; 182 VARIATIONS IN THE NORMAL RIGHT TO SUK. [Ch. 2 Damage Incident to Authorized Act. A municipal corporation, on the same principles which exempt other corporations or private individuals, is not liable for damage incident to authorized act.''*^ Involuntary Quasi Corporations. Involuntary quasi municipal corporations, such as counties,'*^ townships, school districts,'^^ and the New England towns,-''*'' as to liability for torts, are distinguished from voluntary chartered mu- nicipal corporations proper, such a» cities or incorporated villages, Borough of Susquehanna Depot v. Simmons, 112 Pa. St. 381, 5 Atl. 4:^1. A town tliat contracts with an indlviclual for the repair of a highway, includiug the destruction by fire of brush which has theretofore been cut and piled, is not liable for damages to a third person caused by the negligence of said con- tractor AAhen burning the brush. Shute v. Town of Princeton (Minn.) .j9 N. W. 1030. On the other hand, a contractor is not liable for damages caused by the bursting of a sewer, where he had completed the work, and the city had assuraetl control thereof, though it had not formally accepted it. First Presbyterian Congregation of Easton v. Smith (Pa. Sup.) iJO Atl. 279. As to liability for torts of independent contractor by county, see Smith v. Board of County Coni'rs, 46 Fed. 340 343 Ante, p. 170. 344 In the absence of statutory provisions, a county is not liable for dam- ages resulting from the failure of its otticers to maintain its bridges. Punde- man v. St. Charles Co., 110 Mo. 594, 19 S. W. 733. Cf. Field v. Albemarle Co., 20 S. B. 954; Heigel v. Wichita Co., 84 Tex. 394, 19 S. W. 562. Cf. McCormick V. Washington Tp., 112 Pa. St. 185, 4 Atl. 164, followed in Clulow v. McClel- land, 151 Pa. St. 583, 25 Atl. 147; Yordy v. Marshall Co., 80 Iowa, 405, 43 N. W. 1042, followed in Yordy v. Marshall Co., 86 Iowa, 340, 53 N. W. 298; Krug V. Borough of St. Mary's, 152 Pa. St. 30, 25 Atl. 161, 162; Power v. Borough of Ridgway, 149 Pa. St. 317, 24 AtL 307: Allen Co. Com'rs v. Bacon, 96 Ind. 31. 345 Finch V. Board of Education, 30 Ohio St. 37; Com'rs Hamilton Co. v. Jlighels, 7 Ohio St. 109; Eastman v. Meredith, 36 N. H. 284; Kincaid v. Hardin Co., 53 Iowa, 430, 5 N. W. 589; Bank m Brainerd School Dist., 49 Minn. IOC, 51 N. W. 814. As to New Jersey township statute, see Carter v. Mayor, etc., of Rahway, 30 Atl. 863; Shear. & R. Neg. (4th Ed.) 267. 346 A town is not liable to a traveler injured by negligence of persons em- ployed by selectmen in removing a dangerous flagstatt' standing near a high- way. Wakefield v. Newport, 62 N. H. 624, collecting cases; Bryant v. In- habitants of Westbrook, 86 Me. 450, 29 Atl. 1109; Sargent v. Town of Gilford (N. H.) 27 Atl. 306; Brown's Adm'r v. Town of Guyandotte, 34 W. Va. 299. 12 S. E. 707; Riddle v. Proprietors (1810) 7 Mass. 169. 2] VARIATIONS BASED ON STATUS. 1815 being subjected to a much less extended responsibility. They political divisions created for convenience, without the actual, nediate consent of the inhabitants of the territory involved.^*' )n the other hand, municipal corporations, properly speaking, are untary associations, to which there has been an actual, free con- t on the part of the inhabitants. Moreover, the increased power I municipal corporation proper naturally brings, at the same time, reased benefit and increased 'liability. And there is the addi- nal argument from inconvenience, — that any other rule would ikrupt, for example, many sparsely-settled portions of the jst.^** The validity of the distinction has been denied.^" "We 17 1 Thomp. Neg. 616; 2 Dill. Mun. Corp. § 961; 15 Am. & Eng. Bnc. Law, 3, note 1, collecting cases. Even a statutory town organized upon petition vithin llie rule. Altnow v. Town of Sibley, .30 Minn. 186, 11 NT. W. 877, npleton v. Linn Co., 22 Or. 313, 29 Pac. 795; Lorillard v. Town of Monroe, N. y. 392; Askew v. Hale, 54 Ala. 639; Clark v. Adair Co., 79 Mo. 536; mger v. Pulaski Co., 26 Ark. 37; White v. County of Bond, 58 111. 297; Ite V. Commissioners, 90 N. C. 437; Brabham v. Supervisors, .54 iliss. 363; (vning V. Mason Co., 87 Ky. 208, 8 S. W. 264; Barnett v. Contra Costa Co., Cal. 77, 7 Pac. 177; Scales v. Ordinary of Chattahoochee Co., 41 Ga. 225; rion Co. Com'rs v. Riggs, 24 Kan. 255; Watkins v. County Court, 30 W 657, 5 S. E. 6.54; Fry v. County of Albemarle, 86 Ya. 195, 9 S. E. 1004; ods V. Colfax, 10 Neb. 552, 7 N. W. 269; Hamilton Co. Com'rs v. Migihels, ihio St. 109; Smith v. Board, 40 Fed. 340; Barnes v. District of Columbia. U. S. 552; Cooley, Const. Lim. (6th Ed.) 301; Dill. Mun. Corp. §§ 996, 997, ; Elliott, Roads & S. p. 42; Baxter v. Turnpike Co., 22 Vt. 123; Ward v. mty of Hai-tford, 12 Conn. 404; Commissioners of Niles Tp. v. Martin, 4 !h. 557; Adams v. Bank, 1 Me. 361; Board of Chosen Freeholders of Sussex V. Strader, IS N. J. Law, 108; Farnum v. Concord, 2 N. H. 392; Morey v. vn of Newfane, 8 Barb. 645. And, for a full discussion of the question, opinion of Jlr. Justice Gray, in Hill v. Boston, 122 Mass. .■;44. 18 Bailey v. Lawrence Co. (S. D.) 59 N. W. 219. A county is not liable for ligence in constructing a courthouse whereby the workmen employed [■eon were killed. HoUenbeck v. Winnebago Co., 95 111. 148, reviewing ?s. Where there is no statutory liability on a town for negligence in the 3 of sidewalks, one who, while going to the town hall, which has been !> And it may be, and undoubtedly is, ti-ue that too much importance Avas finally attached to the decision in the ease of Russell v. Inhabitants, de- id in 1788 by the court of king's bench of England, and reported in 2 m R. 607. Bailey v. Lawrence Co. (S. D.) 59 N. W. 219. The doctrine s on stare decisis. To change it would be judicial legislation. Id. 184 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 find it not only difBcult, but absolutely impossible, to perceive any good reason why a person who sustains an injury by reason of a defect in a highway just beyond the corporate limits of a town or city has no right of action against the public authority charged with the duty of keeping such a highway in repair, while such a person would have a right of action if the injury he sustained had been received within the corporated limits of such a city or town." '" SAME— CORPORATIONS, NOT MUNICIPAL, ENGAGED IN PUBLIC WORK. 61. Where a corporation, not municipal or quasi munici- pal, is engaged in public -work — fa) Liability is determined by the rules applsdng to pri- vate corporations, -whenever such "wrorks are oper- ated for profit; and (b) Its exemption is limited by rules as to municipal corporations, -wrhen it is a public charity. Public W'orfe Engaged. in for Profit. The authorities are generally agreed that a private corporation owning public works, and operating them for profit, is liable in tort, as any other private corporation, for breach of corporate duty. rented for other than public purposes, is injured by a defect in the walk in front of it, cannot recover. Buchanan v. To^yn of Barre, 66 Vt. 129, 28 Atl. 878. Not liable for failure to repair bridge, Bailey v. I^awrence Co. (S. D.) 59 N. W. 219; People v. Queens Co. Com'rs. 142 N. Y. 271, 36 N. E. 1062; cf. Greenwood v. Town of Westport, 60 Fed. 5G0; or free gravel roads, Cones V. Board, 137 Ind. 40i, 37 N. E. 272. A county is not liable for injuries caused by the negligence of the person in charge of a lunatic asylum main- tained by the county, since in maintaining such asylum the county is engaged in the performance of the duty imposed on each county to support and care for its insane. Hughes v. Monroe Co. (Sup.) 29 N. Y. Supp. 495; Dosdall v. Olmsted Co., 30 Minn. 96, 14 N. W. 458. Cf. Kellogg v. Village of Janesville, 34 Minn. 132, 24 N. W. 359; Estelle v. Village of Lake Crystal, 27 Minn. 243, 6 N. W. 775; Barnett v. Contra Costa Co., 67 Cal. 77, 7 Pac. 177; Weet v. Trustees, 16 N. Y. 161, note; Mower v. Leicester, 9 Mass. 247; Smith v. Board of County Com'rs, 46 Fed. 340. 3 50 Young V. City of Charleston, 20 S. C. 119. Et vide Arkadelphia v. Wind- ham, 49 Ark. 139, 4 S. W. 450; Winbigler v. Los Angeles, 45 Cal. 36; County Com'rs V. Gibson, 36 Md. 229; Detroit v. Blackeby, 21 Mich. 84; Navasota v. I- '-^J VARIATIONS BASED ON STATUS. 185 lus, in Parnaby v. Lancaster Canal Co.,='" Tindall, C. J., held that e duty of taking such care of a canal that all who properly use may narigate without danger to their lives or property is, by law, mposed upon the company, and that they are responsible for the each of it, upon a similar principle to that which makes a shop :eper who invites the public to his shop liable for neglect in leav- g a trapdoor open, without any protection, by which his customers ffer injury." "The general rule," says Mr. Thompson, '^^ "is that aen a corporation is clothed by charter, by the act of legislature, by prescription which presumes a charter, with power to con- I'uct or improve turnpikes,^" plank roads,"^ bridges,'^' ferries,^^" >arce, 46 Tex. 525; Pray v. Jersey City, 32 N. J. Law, 394; Mitchell v. Rock- id, 52 Me. 118; Hyde v. Jamaica, 27 Vt. 443; Detroit v. Putnam, 45 Mich. 3, 7 N. W. 815; French v. City of Boston, 129 Mass. 592; Hill v. City of iston, 122 Mass. 344. The doctrine has been judicially denied. Wilson v. ffierson Co., 13 Iowa, 181; Commissioners v. Baker, 44 Md. 1; House v. >ard, 60 Ind. 580; Kapho Tp. v. Moore, 68 Pa. St. 404; Shadier v. Blair Co., 3 Pa. St. 488, 20 Atl. 539; McCalla v. Multnomah . Co., 3 Or. 424. But 3 Board of Com'rs v. Daily, 132 Ind. 73, 31 N. E. 531; Kincaid v. Hardin Co., Iowa, 430, 5 N. W. 589. And see Raasch v. Dodge Co. (Neb.) 61 N. W. 725. 5111 Adol. & E. 223; 3 Nev. & P. 523; 3 Perry & D. 162; Mersey Docks Gibbs, L. II. 1 E. & I. App. Cas. 93. 6 2 Thomp. Neg. p. 555. Although the duty is not especially enjoined by Ltute, Kreider y. Lancaster, E. & M. Turnpike Co., 162 Pa. 537, 29 Atl. 721. to angle of grading and compensation to abutting owner on change of ide and injunction, see Green v. City & Suburban Ry. Co., 78 Md. 294, 28 1. 626. 53 1 Thomp. Neg. p. 556; Brookvllle & C. Turnpike Co. v. Pumphrey, 59 3. 78; Zuccarello v. Nashville & C. R. Co., 62 Tenn. 365; Southworth v. throp, 5 Day, 237— although the duty is not especially enjoined by statute. 5Ji 1 Thomp. Neg. p. 556; Davis v. Lemoille County Plank-Road Co., 27 Vt. !; Ireland v. Oswego Plank-Road Co., 13 N. Y. 526. 6 5 1 Thomp. Neg, p. 556; Watson v. Lisbon Bridge Co., 14 Me. 201; Tift Jones, 52 Ga. 538; Wayne County Turnpike Co. v. Berry, 5 Ind. 286; lyes V. New York Cent. & H. R. R. Co., 9 Hun, 63; Rex v. Liudsey, 14 st, 317; Rex v. Kent, 13 East, 220; Grigsby v. Chappell, 5 Rich. Law, !; Nlchall v. Allen, 1 Best. & S. 915. 66 1 Thomp. Neg. p. 556; Murray v. Hudson River R. Co., 47 Barb. 196; Izell V. Indianapolis & C. E. Co., 32 Ind. 45; Lowel v. Boston, 23 Pick. 31; kland R. Co. v. Fielding, 48 Pa. St 321. As to persons to whom a corpora- a operating a ferry owes a duty, see Malloy v. Railway Co., 78 Hun, 166, N. Y. Supp. 979. As to liability for assault of servant, Scanlon v. Suter, 186 VARIATIONS IN THE NORMAI. RIGHT TO SUE. [Ch. 2 railways/" telegraph s,='" canals,^°° docks/"'' wharves/" water- works/"- gasworks/"' to improve navigable streams/"* or to do 158 Pa. St. 275, 27 Atl. 963. As to regulation by statute. Koretke v. Irwin (Ala.) 13 South. 943; Printup v. Patton, 18 S. B. 311. 3"7l Tliomp. Xeg. p. 55G; Oakland R. Co. v. Fielding, 43 Pa. St. 321; Cumberland V. R. Co. v. Hughes, 1 Pa. St. 141; Inhabitants of Lowell v. Boston & L. R. Co., 2;j Pick. 24. 3 68 1 Thomp. Neg. p. 0.30; Ward v. Atlantic & P. Tel. Co.. 71 N. Y. 81. 369 1 Thomp. Neg. 356; Parnaby v. Proprietors of Lancaster Canal Co., 11 Adol. & E. 223; Steele v. President Western Inland Ijock Nav. Co., 2 Johns. 283; Schuylkill Nav. Co. v. McDonough, 83 Pa. St. 73; Manley v. St. Helen's Canal Co., 2 Hurl. & N. 840, 27 L. J. Exch. 159. See. also. Pinks v. South Yorkshire R. Co., 3 Best & S. 244, 32 L. .T. Q. B. 26, 11 Wkly. Rep. 66, 7 Law T. (N. S.) :!.jO; Hooker v. New Haven & Northampton Co., 14 Conn. 140; Dela- ware & R. Canal Co. v. Lee, 22 N. J. Law, 243; Weitner v. Delaware & H. Canal Co., 4 Rob. (N. Y.) 234; Pennsylvania R. Co. v. Patterson, 73 Pa. St. 491; Saylor v. Smith, 2 Wkly. Notes Cas. 687; Dunn v. Birmingham Canal Nav. Co., L. R. 8 Q. B. 42, 42 L. .L Q. B. 34, 21 Wkly. Rep. 286; Coekbum v. Erewash C. Co., 11 Wkly. Rep. 34; Reg. v. Delamere, 13 Wkly. Rep. 717; Walker v. Goe, 4 Hurl. & N. 350; Witherley v. Regent's Canal Co., 12 G. B. (N. S.) 2, 6 Law T. (N. S.) 2.j.j; Winch v. Conservator, 31 Law T. (N. S.) 128; Nield V. London & N. W. R. Co., 23 Wkly. Rep. 60; Harrison v. Great Northern R. Co., 3 Hurl. & C. 231, 10 Jur. (N. S.) 992. See, also, Delaware R. Co. V. Com., 60 Pa. St. 367; Pennsylvania R. Co. v. Graham, 63 Pa. St 290; Hen cock v. Sherman, 14 Wend. (N. Y.) 58. 360 1 Thomp. Neg. p. 550; Smith v. London & St. K. Docks Co., L. R. 3 C. P. 326, 37 L. J. C. P. 217; Gibson v. Inglis, 4 Camp. 72; Coggs v. Bernard, 2 Ld. Raym. 909; Mersey Docks & Harbour Board Co. v. Gibbs, L. R. 1 H. L. 93. 3611 Thomp. Neg. p. 557; Wendell v. Baxter, 12 Gray (Mass.) 4:94; Ilad- way V. Briggs, 37 N. Y. 256; Albany v. Cunliffi, 2 N. Y. 105; Pittsburgh v. Grier, 22 Pa. St. 54; Buckbee v. Brown, 21 Wend. (N. Y.) 110; Mersey Docks & H.'srbour Boai-d v. Gibbs, L. R. 1 H. L. 93; Prescott v. Duquesne, 48 Pa. St 118; Jeftersonville v. Feny Co., 27 Ind. 100, 35 Ind. 19; Winpenny V. Philadelphia, 65 Pa. St. 135; Seaman v. New York, 8 Daly (N. Y.) 147; John V. Bacon. L. R. 5 C. P. 437. 3 02 1 Thomp. Xeg. p. 557; MattheAvs v. West London Water Works Co., 3 Camp. 403; Bayley v. Wolverhampton Water Works Co., 6 Hurl. & N. 241, 30 L. J. Exch. 57; Clothier v. Webster, 12 C. B. (N. S.) 790; Drew v. New River Co., 6 Car. & P. 754; Water Co. v. Ware, 16 Wall. 506; Athinson v. New Castle & G. Water Works Co., 2 Exch. Div. 441; Couch v. Steel, 3 El. & Bl. 402, 23 L. J. Q. B. 121. 3 03 1 Thomp. Neg. p. 557; Dillon v. Washington Gas Light Co., 1 Mac- Arthur, 620; EUis V. Sheffield Gas Consumers' Co., 2 El. & Bl. 707; Weld v. Gas Light Co., 1 Starkie, 189; People v. New York Gas Light Co., 64 Barb. 55. As to liability of natural gas companies under changed privilege, see Hague V. Wheeler, 157 Pa. St. 324, 27 Atl. 714; Ohio Gas Fuel Co. v. Andrews, 50 Ohio St. 695, 35 N. E. 1059. 304 1 Thomp. Neg. p. 557; Rex v. Kent, 13 East, 220; Harrison v. G. N. R. Co., 3 Plurl. & C. 231, 10 Jur. (N. S.) 992. *-"''■ -^J VAWIATIO.NH BASED ON STATUS. 187 Other like work of a public nature, and to take toll ^^^ therefor, it is bound to proceed in the construction and maintenance of such works with due regard to the safety of others, and to keep them in repair, and is liable in a civil action to an individual who has sustained damages in consequence of a failure of duty in either of these par- ticulars." Public Charity. Following Holliday v. St. Leonard, '"^ it was held in Massachu- sc4ts^" that a corporation established for the maintenance of a public charity is not liable for injury caused by its servants, if it exercises due care in their selection. In a later decision ^^^ the responsibility of public charity is determined upon a more logical principle, — that where the charity is performing a purely public duty, without proiit, it is "no more liable for the negligence of officers and agents than the city would be." The reason for this better opinion is stated in Fire Ins. Patrol v. Boyd,^''^ by Mr. Justice Paxson, "that, «'hen a public corporation has no property or funds but what have been contributed for a special charitable purpose, it would be against all law and all equity to apply the trust funds thus contributed to compensate injuries inflicted by the negligence of its agents and serv- ants." This is the generally recognized rule.'^" However, in Glavin 365 1 Tliomp. Neg. p. 557; Brown v. South Kennebec Agricultural Soc, 47 Me. 275. 3»« 11 C. B. (N. S.) 19-!. Commissioners of public worlts serving gratuitously were held not liable for negligence in carrying on the work resulting in dam- age unless they failed to exercise proper care in selecting those who actually performed the work. 8 07 McDonald v. Massachusetts General Hospital, 120 Mass. 432 (a defend- ant held not liable for negligence of physician to patient for unauthorized assumption of hospital attendant to act as surgeon). Cf. Haas v. Missionary Soc. (1893) 6 Misc. Rep. 281, 26 N. Y. Supp. S'dS. 3 68 Benton v. Boston City Hospital, 140 Mass. 13, 1 N. E. 836. This case is governed by the principle declared in Hill v. Boston, 122 Mass. 344. And see Tindley v. Salem, 137 Mass. 171; Doherty v. Inhabitants of Braintree, 14& Mass. 497, 20 N. E. 100; Howard v. City of Worcester, iry.\ Mass. 426, 27 N. E. 11. 369 120 Pa. St. 624, 15 Atl. 553; Id., 113 Pa. St. 269, 6 Atl. 536. It \\as accordingly held that a fire insurance patrol to save life and property, making and dividing no profits or dividends, and not discriminating between property insured and not insured, is not liable for the negligence of its employes. 370 Riddle V. Proprietors of Locks, etc., 7 Mass. 187; McDonald v. Massa- chusetts General Hospital, 120 Mass. 432; Sproat v. Directors, 145 Pa. St. 598, 23 Atl. 380; Ford v. School Dist.. 121 Pa. St. 543, 15 Atl. 812; Patter- 188 VARIATIONS IN THE NORMAL EIGHT TO SUE. [Ch. 2 T. Hospital,"" after an elaborate review of the authorities, it was determined that the analogy of ordinary public corporations should be followed; that there should be corresponding liability for non- performance and misperformance of the duties imposed by its char- acter; and that its general trust funds are liable to satisfy a judg- ment in tort recovered against it for the negligence of its ofiBcers or servants. Courts are inclined to exercise strictness in the definition of a charity, within the meaning of this exemption. Thus, although the maintenance of a ferry by an educational corporation is ultra vires, such corporation is liable for injuries to a passenger for hire caused by negligence of employ<5 in charge.'^'' However, that a gift may have been prompted by an ulterior and selfish motive, as that a rail- road company, by the establishment of hospitals, would protect itself from excessive claims for injuries resulting to its servants, does not destroy its character as a charity.^'' son V. Pennsylvania Reform School, 92 Pa. St. 229; Erie v. Schwingle, 22 Pa. St. 384; Van Tassell v. Hospital, 60 Hun, 585,. 15 N. Y. Supp. 620 Haas V. Missionary Soc., 6 Misc. Kep. 281, 26 N. Y. Supp. 868; Laubheim v Steam Ship- Co., 107 M. Y. 228, 13 N. B. 781; Maxmilian v. Mayor, 62 N. Y, 160; Richardson v. Coal Co., 6 Wash. 52, 32 Pac. 1012; Williams v. Indus- trial School, 95 Ky. 251, 24 S. W. 1065. And see 16 Am. & Eng. Enc. Law, 466; Id. 813; 29 Am. Law Reg. 209; 28 Am. Law Reg. 669; Secord v. Rail way Co., 18 Fed. 229; Union Pac. Ry. Co. v. Artist, 9 C. C. A. 14, 60 Fed, 365; Russell v. Men of Devon, 2 Term R. 667; Feoffees of Heriot's Hospital V. Ross, 12 Clark & F. 506: Sherboui-ne v. Yuba Co., 21 Cal. 113; Brown v. Vinalhaven, 65 Me. 402; Mitchell v. Rockland, .52 Me. 118; Richmond v. Long's Adm'r, 17 Grat. 375; Ogg v. Lansing, 35 lown, 495; Murtaugh v. St. Louis, 44 Mo. 479; Hamilton Co. v. Mighels, 7 Ohio, 109. 37112 R. I. 411. 37 2 Nims V. Mt. Hermon Boys' School, 160 Mass. 177, 35 N. E. 776. 373 Sanborn, J., in Union Pac. Ry. Co. v. Artist, supra. And, generally, as to what is a public charity, see Fire Ins. Patrol v. Boyd, supra; Philadelphia V. Masonic Home, 160 Pa. St. 572, 28 Atl. 954; Episcopal Academy v. Phila- delphia, 150 Pa. St. 565, 25 Atl. 55; Northampton Co. v. Lafayette College, 128 Pa. St. 132, 18 Atl. 516; Jackson v. Phillips. 14 Allen (Mass.) 539; Gooch V. Association, 109 Mass. 558. Ch. 2] VARIATIONS BASED ON CONDUCT OF PLAINTIFF. IS'd' VARIATIONS BASED ON CONDUCT OF PLAINTIFF. 62. Plaintiff may deprive himself of the right to relief — la) By his own wrongdoing; (b) By his consent. SAME— WRONGDOING BY PLAINTIFF. 63. The law^ w^ill not interfere to do justice between, nor lend its aid to, those that have violated it. But, in order that plaintiff's wrongdoing shall bar his right to recover damages suffered at the hands of an- other, it must have been the legal cause of such damages. 64. While the mere fact that a person or his property are involved in wrongdoing does not create the duty on the part of another of exercising diligence to avoid doing harm, it does not justify the latter in — (a) Malicious or wanton maltreatment, or in (b) Failing to take proper care to avoid harm after the latter has, or ought to have, know^ledge of impend- ing and avertible danger. It is a general principle of jurisprudence that courts will not aid a wrongdoer. "He who seeks equity must do equity." He must come into equity with clean hands."* "Ex turpi causa,"" ex dolo malo non oritur actio," "® said the civil law. Therefore a Confed- erate officer, who, while taking reports to his superior, was injured by the negligence of the common carrier transporting him, cannot recover for negligence on the part of the carrier, because the injury occurred while both parties were violating public law."' The lim- 374 Cooley, Torts, 157. Injunction to restrain nuisance refused. Topeka Water Supply Co. v. City of Pot win, 43 Kan. 404, 23 Pac. 578. 37 B Quirk V. Thomas, 6 Mich. 76-109. "He who sows must reap." Mc- Daniels v. Walker, 44 Mich. 83-85, 6 N. W. 112. 376 Pennington v. Todd, 47 N. J. Eq. 571, 21 Atl. 297. 377 Turner v. Railroad Co., 63 N. C. 522-526. One who violates a reason- 190 VARIATIONS IN THK NORMAL RIGHT TO SUE. [Ch. 2 its of this sort of doctriue are, upon the authorities, a little shadowy, and in places the decisions are in discord, and the reasoning incon- sistent."' On the one hand, the law will neither apportion dam- ages, nor reimburse those who willfully join in wrongdoing. "I know of no case in which a person who has committed an act de- clared by law to be criminal has been permitted to recover compen- sation against a person who acts jointly with him in the commission of a crime. * * * a person who is declared by the law to be guilty of a crime cannot be allowed to recover damages against an- other who has participated in its commission." ^'^^ But, on the other hand, principals in a prize fight may recover from each other for damages done in their illegal battle.^^" If one cannot make out bis case without showing part taken by him in an unlawful civil transaction, he is denied judicial redress. One wrong- doer can have no right against another.^'^ Thus, a fraudulent transaction, in which both parties have knowingly participated, will not support a judgment for the plaintiff, nor a judgment for af- firmative relief for the defendant.^'^ Is^or can one recover if he able station regulation, the result of which is the damage complained of, eamiot recover. Sullivan v. Railroad Co., 30 Pa. St. 234; Drake v. Pennsyl- vania R. Co., 137 Pa. St. 352, 20 Atl. 904. 3 ' 8 Bish. Noncont. Law, § 59. 37S Lyndhurst, C. B., in Colburn v. Patmore, 1 Cromp. M. & R. 73-83; Fivaz V. Nicholls, 2 C. B. 501; Martin v. AA'allace, 40 Ga. 52. In Riggs v. Palmer (N. Y. App.) 22 N. E. 188, 24 Am. Law Rev. 141, it was decided that a beneficiaiy who mm-ders the testator cannot take under a will. In Owens V. Owens, 100 N. C. 240, 6 S. E. 794, it was held that a wife did not forfeit her right of dowry by assisting another person to murder her husband. 3 80 Post, p. 203, "Consent." 381 No action lies for pirating a libelously immoral book. Stockdale v. Onwhyn, 5 Barn. & O. 173, 2 Oar. & P. 163; Lorrence v. Smith, .Tae. 471; Tur- k\T v. Tucker, 6 Mo. 583; Hardman v. Wilcox, 9 Bing. 382; Stephenson v. Little, 10 Mich. 434; Winship v. Neale, 10 Gray, 382; Ridgely v. Bond, 17 Md. 14; Hurd v. Fleming, 34 Vt. 169; Hume v. Tufts, 6 Blackf. (Ind.) 136; Howe V. Farrar, 44 Ma 233; Muggridge v. Eveleth, 9 Mete, (ilass.) 233; Buckley v. Gross, 3 Best & S. 566; Merry v. Green, 7 Mees. & W. 623; Ransom v. State, 22 Conn. 153; Putnam v. Wyley, 8 Johns. (N. Y.) 337. 3" Buchtella v. Stepanek, 53 Kan. 373, 36 Pac. 749. Et vide Peacock v Terry, 9 Ga. 137. And, generally, see Northwestern Mut. Life Ins. Co. v. Elliott, 5 Fed. 225; Thomas v. Brady, 10 Pa. St. 164; Northnip v. Foot, 14 Lh. 2] VARIATIONS BASED ON CONDUCT OF rLAINTIIT. 191 knowingly participated in an attempt to defiaud.^^^ q^ ^j^^ ^^^^ principle there is authority for the statement that when the con- ductor of a train disoheys the rules of the company for which he is acting, in regard to the collection of fares from a traveler, or in re- spect to some other matters, such, for instance, as permitting him upon a forbidden part of the train, or upon a train not allowed to carry passengers, the traveler has all the rights of a passenger, if he has no notice, express or implied, of the rule, or of the conductor's disobedience. But if a person solicits and secures free transporta- tion, or if he rides upon a part of the train from which passengers are excluded, or takes passage upon a train not allowed to carry passengers, knowing that his acts are against the rules of the car- rier, and that in permitting it the conductor is disobedient, he is guilty of fraud, and not entitled to a passenger's rights.^** Connection as Cause. In order that a person's wrongdoing may bar his recovery, it must have been connected as the legal cause of the wrong. It is not sufficient for the defendant to show merely that at the time the plain- tiff was violating the law. Mere violation of the law (even upon conviction for a crime), or wrongdoing in some particular, does not make the offender an outlaw.^*^ Thus, because one may have been Wend. (N. Y.) 249. So no action lies for fraud in the sale of a lottery ticket. Kitchen v. Greenabaum, 61 Mo. 110. But cf. Catts v. Phelan, 2 How. 376. Et vide Robegon v. French, 12 Mete, (ilass.) 24; Gunderson v. Richardson, 56 Iowa, 56, 8 N. W. 683. A trespasser can obtain no property in bees. Rexroth V. Coon, 15 R. I. 35, 23 Atl. 37. Trover will not lie for a note given in a transaction by which statutes against the liquor traffic are intended to be avoided. Miller v. Lamery, 62 Vt. 166, 20 Atl. 199. And see Rogers v. Miller, 62 N. H. 131. S83 Fisher v. Metropolitan Life Ins. Co., 160 Mass. 386, 35 N. E. 849. 384 McVeety v. St. Paul, M. A: M. R. Co., 45 Minn. 268, 47 N. W. 809; Toledo, W. «& W. Ry. Co. V. Broolis, 81 111. 245 ; Toledo, W. & W. Ry. Co. v. Beggs. 85 111. 80; Robertson v. New York & E. R. Co., 22 Barb. 91; Union fac. Ry. V. Xiehols, 8 Kan. 505; Prince v. I. G. & N. Ry. Co., 64 Tex. 144; Gulf, C. & S. F. Ry. Co. V. Campbell, 76 Tex. 174, 13 S. W. 19. On the other hand, a passenger on a train with a limited ticket which has expired not a trespasser. Arnold v. Pennsylvania R. Co., 115 Pa. St. 135, 8 Atl. 213. 2S5 Norris v. Litchfield, 35 N. H. 271. "He who violates the law must suffer its penalties; but yet, in all other respects he is under its protec- tion and entitled to the benefits of its remedies." Accordingly, the mere fact 192 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2 riding a horse faster than an ordinance allowed, or because a boat- man in a shell, or a student after a football game, may have been so insufficiently clad as to be guilty of indecent exposure, third' persons are not justified in stoning him, as a violator of the law, nor would his wrong prevent his recovery from them.'^° The fact that a per- son was drunk at the time of his injury will not prevent his recovery, unless his condition is connected as the cause of his suffering.'" Contributory negligence on the part of the plaintiff will bar his recovery of damages only when it is the legal cause of the harm.'" Thus, ordinarily, servants who violate the rules of their master, which are in force, cannot, in the absence of error in such rules or orders,'^" recover against their master for consequent injuries, pro- vided their disobedience is the proximate cause of the injury. But that plaintiff was plotting for a wager contrary to law did not prevent his recovery from defendant for willfully running down his sleigh. Welch v. Wesson, 6 Gray, 505, per Merrick, J. Nor would the fact that plaintiff was on the wrong side of the road justify defendant into driving into him. Damon V. Scituate, 119 Mass. 66-68; Spofford v. Harlow, 3 AUen, 176. And see Steele v. Burkhardt, 104 Mass. 59, contrasting! Welch v. Wesson, supra, with Gregg v. Wyman, 4 Gush. 322, and Way v. Foster, 1 Allen, 408. And see McGrath V. Merwin, 112 Mass. 467; Woodman v. Hubbard, 25 N. H. 67; Wentworth v. Jefferson, 60 N. H. 158; Lyons v. Ghild, 61 N. H. 72. And It will presently I>e seen that even a convict can recover damages for a tort committed against birn while he was under sentence. 3 86 Maguire v. Middlesex Ry. Co., 115 Mass. 239. 387 Ward V. Chicago, St. P., M. & O. Ry. Co., 85 Wis. 771, 55 N. "V\t 771; Wil- liams V. Edmunds, 75 Mich. 92, 42 N. W. 534. So one may not willfully run another down, though he be trotting for money contrary to statute. Welch v. Wesson, 6 Gray, 505. And see Gates v. Burlington, C. R. & N. R. Co., 39 Iowa, 45; Ncirris v. Litchfield, 35 N. H. 271. In an action by a woman for damages for personal in,iuries, evidence that she committed adultery after the accident is not admissible for the purpose of disproving her statement as to the extent of her injuries. Joliet St. Ry. Co. v. Call, 143 111. 177, 32 N. B. 389. If plain- tiff has been riding on a platform contrary to rules, but after he has alighted is injured by the backing up of a car, he can recover; he is guilty of no con- tributory wrong. Western Ry. of Alabama v. Mutch, 97 Ala. 194, 11 South. 894, followed. Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439. And, further, see Illinois Cent. R. Co. v. Godfrey, 71 111. 500; BuUard v. Mul- ligan, 69 Iowa, 416, 29 N. W. 404; Carter v. Railway Co., 98 Ind. 552. 3 88 Post, p. 971, "Contributory Negligence." 389 Enright v. Toledo, A. A. & N. M. Ry. Co., 93 Mich. 409, 53 N. W. 536; Greenway v. Conroy, 160 Pa. St. 185, 28 Atl. 692; Chicago, M. & St. P. Ry.' Gh. 2] VARIATIONS BASED ON CONDUCT OF PLAINTIFF. 193 the mere violation of a rule by a servant does not constitute contrib- utory negligence, if the injury w^ould have happened just the same whether the servant was negligent or not.^"" But wherever one has violated the law, and such violation contributes directly or ap- proximately to his alleged injury, he has never been permitted to recover for it.^"^ Such an unlawful act is not merely evidence of • contributory negligence, but is a conclusive bar to recovery. A plaintiff's violation of law, therefore, should not be discussed in con- nection with the exercise of due care, but treated from the point of view of connection as cause.'"^ As to how far what Mr. Bishop felicitously calls "collateral wicked- ness" will prevent one who travels on Sunday, not for "works of ne- cessity or charity," from recovering for wrong done him, is much in dispute. On the one hand, it is held that the law will not lend its Co. V. Koss, 112 U. S. 377, 5 Sup. Ct. l&i; Northern Pac. R. Co. v. Cavanaugb, 2 C. C. A. 3o8, 51 Fed. ,517. •-ooWliitfi V. Railway Co. (Miss.) IG South. 24S; Horan v. Railway Co. (Iowa) 50 N. W. 507; Louisville & N. R. Co. v. Ward, 10 C. C. A. 16fj, Gl Fed. 927; Richmond & D. R. Co. v. Brown, 89 Va. 749, 17 S. E. 132: Louisville & N. R. Co. V. Pearson, 97 Ala. 211, 12 South. 176. 391 "Tt will defeat an action for tort if the injured party, in making his case, must show that he was at the time of the injury violating a positive statute, or committing malum in se, provided such violation of law or crime con- tributed to the injury." Taft, C. J., in Louisville & N. R. Co. v. East Ten- nessee, V. & G. Ry. Co., 9 C. C. A. 314, GO Fed. 993-998. sa-^ Newcomb v. Boston Protective Department, 14G Mass. 596, 16 N. E. 5.j.:>, where plaintitt' rrtovcrca for injuries caused by defendant's careless driving' while plaintiff was sitting in his cab. The evidence tended to show that plaintiff had not placed his Ixjrsc and vehicle parallel with the sidewalk, as required by ordinnncc. .so as to avoid obstructing the street. Cf. NeanoW V. lltteeh. -10 Wis. -'Sl. 1 X. AV. 221: Steele v. Burkhardt, 104 Mass. 59. Et vide post, p. 877, "Negligence," "Law of the Road," "Statutory Negligence." The confusion in the Jiassachusetts cases, it is said, may be reconciled by saying that a concurring violation of the Sunday -laws is in itself a contributory cause, while the violation of any other law is not. ilr. Hallam, in 39 Cent Law J. 279 et seq. An action for loss of goods by negligence against a com- mon carrier may be maintained although the bill of lading involved a rebate, contrary to the provisions of the interstate commerce act. Merchants' Cot- ton Press & Storage Co. v. Insurance Co. of North America, 151 V. S. 368, 14 Sup. Ct. 367. And see Insurance Cos', v. Carriers' Cos., 91 Tenn. -j-iT. 19 S. W. 755. LAW OF TORTS — 13 194 VARIATIONS IN THE NORMAL EIGHT TO S0E. [Ch. 2 assistance to one violating it, that failure to comply with statutory requirements is a species of negligence, and that, therefore, the law will deny redress to any one engaged in such violation.'"' On the other hand, it is urged, with apparent weight of reason and au- thority, that the wrong of a railroad, in not furnishing safe machin- ery, proper servants, and the like, or the wrong of a municipality, in neglecting to repair its streets, being disconnected from the wrong of the person who may elect to travel on Sunday, is the juridical cause of the injury, and that denial of the right to recover would en- courage negligence and multiply accidents; '"* that mere proximity in time is no part of the definition of "proximate cause"; and that the wrong is to the state, without breach of any duty to the injured plaintiff. ""> S9S Bucher v. Fitzbm-g R. Co., 131 Mass. 156. And see Davis v. Somerville, 128 Mass. 594, Bosworth v. Swansy, 10 Mete. (Mass.) 363; Jones v. Andover, 10 Allen, 18; Stanton v. Metropolitan R. Co., 14 AUen, 485; McGrath v. Mei- win, 112 Mass. 467; Connolly v. Boston, 117 Mass. 64; Smitli v. Boston & M. R. Co., 120 Mass. 490; Day v. Highland St. Ry. Co., 135 Mass. 113. The Massachusetts rele was changed by St. 1884, c. 37. This act does not, however, apply to injuries occurring before its passage. Read v. Boston & A. R. Co., 140 Mass. 199, 4 N. E. 227. Cf. reasoning of Massachusetts cases with that found in Olesen v. City of Plattsmouth, 35 Neb. 153, 52 N. W. 848; Cratty V. Bangor, 57 Me. 423; Johnson v. Irasburgh, 47 Vt. 28; Holcomb v. Danby, 51 Vt 428. s»* Sutton V. Town of Wauwatosa, 29 Wis. 21; Bigelow, Cas. Torts, 711; McArthur v. Green Bay & Mississippi Canal Co., 34 Wis. 139. And see Knowl- ton V. Milwaukee City Ry., 59 Wis. 278, 18 N. W. 17; Platz v. Cohoes, 89 N. X. 219; Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575; Piollet v. Simmers, 10(5 Pa. St 95; Schmld v. Humphrey, 48 Iowa, 652 (reviewing cases); Tingle v. Chicago, B. & Q. Ry., 60 Iowa, 333, 14 N. W. 320; Kerwhaker v. Cleveland, 0. & C. R., 3 Ohio St. 172; Philadelphia, W. & B. Ry. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. (U. S.) 209; Baldwin v. Barney, 12 R. I. 392. .".oD Sutton V. Town of Wauwatosa, supra; 1 Shear. & R. Neg. 26. Et vide <"arroll v. Staten Island R. Co.,„58 N. Y. 126; Platz v. Cohoes, 89 N. Y. 219: Johnson v. Mi.ssouri Pac. Ry. Co., 18 Neb. 090. 20 N. W. 347; Louisville, N. A. «& C. Ry. Co. V. Frawley, 110 Ind. 18, 9 N. E. 594; Baldwin v. Barney, 12 R. I. 392. Cf. Mohney v. Cook, 26 Pa. St. 342; Ranch v. Lloyd, 31 Pa. St 358; Piollet v. Simmers, 106 Pa. St 95. On the same principle, it is no defense to an action for negligent shooting that at the time of the injury plaintiff and defendant were unlawfTilly engaged in shooting on the Sabbath. Gross V. Miller (Iowa) 61 N. W. 385. Ch. 2] VAKfATIONS BASED ON CONDUCT OF PLAINTIFF. 195 Wanton Injury. The mere fact that a person has violated the law may not prevent him from recovering for a subsequent wrong done him,**^ but he does not stand on the same footing as an innocent person. Thus, no duty of diligence is owed to a trespasser, intruder, mere volunteer, or bare licensee. Such a person cannot recover under circumstances which would entitle a person lawfully in the same position to main- tain an action for damages suffered.^"' Therefore, if a trespassing person, of full age, a child,^°* or an animal runs into a barrier, exca- vation, or other source of danger, there is no actionable wrong. The owner of the premises is not bound to provide safeguards.'"* Merely that a man is a trespasser does not justify another in reck- 396 Ante, pp. 192-194, "Connection as Cause." And see Fletcher v. Cole, 26 Vt. 170. See Gray v. Ayres, 7 Dana (Ky.) 375; Love v. Moynehan, 16 111. 277; Ogden v. Claycomb, 52 111. 365; Gizler v. Witzel, 82 111. 392; Jones v. Gale, 22 Mo. App. 637; Phillips v. Kelly, 29 Ala. 628. A convict may recover for injuries inflicted on him. See Chattahooche Brick Co. v. Braswell (Ga.) 18 S. B. 1015. Cf. O'Hare v. Jones (Mass.) 37 N. E. 371. s»7 Nave v. Flack, 90 Ind. 205; Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375 (cf. Brown v. Hannibal «& St. J. R. Co., 50 Mo. 461); Rosenhaum v. St. Paul & D. R. Co., 38 Minn. 173, 36 N. W. 447; Tonawanda R. Co. v. Munger, 49 Am. Dec. 239; MeVeety v. St. Paul, M. & M. Ry. Co., 45 Minn. 268, 47 N. W. 809; Kirtley v. Railway Co., 65 Fed. 386; Lary v. Cleveland, C, C. & I. R. Co., 78 Ind. 323. 39S Rodgers v. Lees, 140 Pa. St. 475, 21 Atl. 399; Mitchell v. New York, L. E. & W. R. Co., 146 U. S. 513, 13 Sup. Ct. 251); post, p. 890, "Negligence"; Hedin v. City & Suburban Ry. Co. (Or.) 37 Pac. 540. The rule requiring locomotive engi- neers and street-car drivers to exercise vigilance in looking out for dangers to passengers and persons on the track, and to use reasonable diligence to pre- vent injury to a person after his peril is discovered, has no application to a case where decodent not only assumed the attitude of a trespasser, but il- legally interfered with the movement of the car by jumping on a moving car and whipping mules with driver's whip, and thereby caused his own death. Taylor's Adm'r v. South Covington & C. St. Ry. Co. (Ky.) 20 S. W. 275. 399 Sweeny v. Old Colony & N. R. Co., 10 Allen, 368; Maynard v. Boston & M. R. Co., 115 Mass. 458; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 690; Blatt V. McBarron, 161 Mass. 21, 36 N. E. 408 (where the trespass was com- mitted by mistake); Mergenthaler v. Kirby (Md.) 28 Atl. 1065 (where a boy stealing lead was scalded by escaping steam); Augusta R. Co. v. Andrews, 89 Ga. 653, 16 S. E. 203, where the damage was caused by electricity. So trespassers on cars and engines are not ordinarily entitled to the exercise of 196 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Cll. 2' lessly or wantonly doing damage to him.'""' The rule has been stat- ed (perhaps too broadly), "A trespasser is liable to an action for an injury he does, but he does not forfeit his right of action for an injury sustained." ^"^ Therefore, if a claimant of real estate, out of possession, resorts to force and violence amounting to a breach of peace, to obtain possession from another claimant, in peaceable possession, and personal injury arises thereupon to the latter, the iformer is liable in damages for the injury, without regard to the legal title, or right of possession.*"^ In a similat manner, a tres- passer may recover for damages done him by a spring gun.*"* On the same principle, where one allowed her horses to run at large, in violation of a city ordinance, and they strayed upon a railroad track, she could not recover for injuries done them by a passing train without showing that the railroad company's emploj'^s were not only negligent, but guilty of reckless and wanton misconduct, in diligence to avoid harm. Andrews v. Ft. Worth & D. C. It. Co. (Tex. Civ. App.> l!5 S. W. 3040; Vertrees v. Newport News & JX. V. R. Co. (Ky.) 25 S. W. 1. So as to trespassing animals. Knight v. Albert, G Pa. St. 472. Et vide Bush v.. Brainai-d, 1 Cow. 78; Hess v. Lapton, 7 Ohio, 210. But see Barnes v. Ward, C. B. 392^20, approved by Lynch v. Nurdin, 1 Q. B. 29. Compare How-^ land V. Vincent, 10 Mete. (Mass.) 371, with Birge v. Gardner, It) Conn. 507. 100 pianz V. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 35u; Phillips v.- Wilpers, 2 Lans. (N. Y.) 389. "Since the business of the courts is to enforce- obedience to the law they cannot lawfully assist a suitor in any lefEort to break it. At the same time, a man's being a sinner, whetlier against the divine law or the human, does not authorize another sinner to maltreat him; so that in an action of torts a bad man stands on the same footing as a good one. But neither can have judicial assistance in breaking the law, or com- pensation for having broken it, or a refund of what he has expended in its breach.'" Bish. Noncont. Law, § .54. ■iui Barnes v. Ward, 9 C. B. 392; post, p. 890, "Negligence." 402 Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 128G, ap- proved Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101-107, 13 Sup. Ct. 261; Ogden v. Claycomb, 52 111. 365; Trogden v. Henn, 85 111. 237. 40 3 Bird V. Holbrook, 4 Bing. 628; Hooker v. ililler, 37 Iowa, 613. And see Aldrich v. Wright, 53 N. H. 398; Churchill v. Hulbert, 110 Mass. 42; post, p. 890, "Negligence." Generally, as to the right to protect private grounds against trespass by means of spring guns and land traps, see article in 28 Ir^ Law T. 277. plaintiff, •without reference to defendant's mental process, declares that, "in general; one cannot excuse a tort by sho^wing tliat he committed: it under duress." For this he adduces no authority. Authority for the position, ho^w- over, is to be found. But, as •would be naturally anticipated, it concerns tres- pass, in ■which the propriety of disregarding the mental element in tort is- generally recognized. Thus, in Gilbert v. Stone (Trinity Term,. IT Car. Hot. 3 703) Aleyn, 35 (Hob. 134c), defendant pleaded that "12 homines ignoti modo guerrino armati tantum muabantur ei quod de vitse fuse armissioue dubitat," etc., "that, because of fear and threats, defendant ■was compelled to and did enter the said house." "And upon demurrer, -without argument, it -was adjudged no plea; for no one can justify a trespass upon another for fear." The cases cited by Mr. Cooley, Indeed, are to the effect that torts committed by military authority, or ratified by the government, are not actionable, viz. McKeel'v. Bass, 5 Cold. 151; Waller v. Parker, Id. 47C. Cf. Mitchell v.. Harmony, 15 How. 115. And see Buron v. Denman, 2 Exch. 107. As to duress in connection with conversion, see Po^well v. Ployland, 6 Exch.. 67-71'; Summersett v. Jarvls, 3 Brod. & B. 2. With respect to negligence, the law seems to have recognized that persons^ who act under stress of circumstances— as, for example, peril to human life- are not guilty of a wrong which can be attributed to such persons. Post, p.. 9(i9, "Negligence." Executors and Administrators. May be personally liable, for example, in negligence. An administrator- who makes no active effort to collect money due to the estate is liable there- for. ■ In re Child's Estate (Surr.) I'O N. Y. Supp. 721. And seo In re Johnston's Estate, 74 Hun, 618, 26 N. Y. Pupp. 960; In re Hart, Id.; In re Langan, Id.; In re Strong's Estate, 160 Pa. St. 13, 28 Atl. 480. Cf. In re Barker's Estate,. 159 Pa. St. 518, 28 Atl. 365. In Conversion. Where the admiuistititor of a donor wrongfully converts property of the donee to the use of the estate of the donor, upon the belief that the property was not legally given by the donor to the donee, he is personally liable to the- donee for such conversion. Goulding v. Hoi'bury, 85 Me. 227, 27 Atl.. 127;; Chapman v. Brite, 4 Tex. Civ. App. 506, 23 S. W. 514. 206 VARIATIONS IN THE NORMAL RIGHT TO SUE., [Ch. 2, Note For Fraud. Misrepresentation and concealment by an executor in making a sale of land are his personal acts, for which he is personally liable. Warren v. Banning, 21 N. Y. Supp. 883, affirmed 140 N. Y. 227, 35 N. E. 428. And, generally, as to personal liability, see Meyeringh v. Wendt, 86 Iowa, 465, 53 N. W. 414; Pow- ell V. Hurt, 108 Mo. 507, 17 S. W. 985; Tallon v. Tallon, 156 Mass. 313, 31 N. K. 287. Receivers. Personal Liability. As an officer of the court, a receiver has no personal responsibiUty for conduct occurring in proper performance of his duty. Thus, where a receiver is direct- ed by the court to take possession of property in the possession of a third per- son, and he demands possession thereof as a receiver, and possession is given 10 him as receiver, he is not personally liable for conversion. Tapscott v. I;yon, 37 Pac. 225; Rushworth v. Smith (Colo. App.) 34 Pac. 482; HelEron v. liice, 149 111. 216, 36 N. E. 562; Wagner v. Swift's Iron & Steel Works (Ky.) 26 S. W. 720; Turner v. Cross, 83 Tex. 218, 18 S. W. 578, distinguished in Peoples V. Yoakum (Tex. Civ. App.) 25 S. W. 1001. But he is responsible for personal misconduct in his office. Thus, a receiver of an insolvent is liable to the creditors for the value of property sold, by his collusion with the insolvent, to one who assigned it to the insolvent's wife for his benefit. Moon v. Wineman (Minn.) 59 N. W. 494. And see Connolly v. Davidson, 15 Minn. 519 (Gil. 428). Official Liaiilily — Damage after Appointment. A receiver is Mable in his official capacity on the same principle which governs the liability of any employer. "Where one is injured by a defect in a track of a railroad operated by a receiver, whose duty it was to keep the track in repair, the receiver is liable for the injury, whether the injured per- son was in his employ or not." Dillingham v. Crank (Tex. Civ. App.) 27 S. W. 93; Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599; Eddy v. Lafayette, 1 0. C. A. 441, 49 Fed. 807: Hornby v. Eddy, 5 C. C. A. 560, 56 Fed. 461; Gowen v. Harley, 6 C. C. A. 190, 56 Fed. 973. And liability attached to the person for whom he acts, although his ap- pointment is obtained by collusion. Where the receiver of a railroad is ap- pointed through collusion, the company is liable for injuries caused by his negligence, whether or not the court appointing him had jurisdiction. Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599. Where a person in the employ of a receiver is injured in the line of duty without negligence on th& part of either, the court may order his wages paid for the time he was disabled, in the view that the officers of the court should act towards their employes as persons of ordinary humanity would act under similar circumstances; but such compensation should be confined to faithful and desei-ving employes. (Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., Ch. 2, Note] RECEIVERS. 207 83 Fed. 701; Id., 41 Fed. 319,— limited.) Thomas v. East Tennessee, V. & G. Ry. Co., CO Fed. 7. , * Rev. St. Tex. art. 2899, giving a right of action for the death of any person caused by the negligence of "the proprietor, owner, charterer or hirer" of any railroad, or their servants, creates no right of action against a railroad re- ceiver. (Turner v. Cross, 83 Tex. 218, 18 S. W. 578. followed.) Burke v. Dillingham, 9 C. C. A. 255, 60 Fed. 729. Same — Damage before Appointment. Ordinarily, an action for personal injuries sustained before the appointment of a receiver cannot be maintained against tiim, but must be brought against the corporation. Finance Co. of Pennsylvania v. Charlestown, C. & O. R. Co., 46 Fed. 508; Ex parte Bradford, Id. As to the assets out of which a cause of action which accrued before the appointment of a receiver can be satisfied, there is interesting dispute. Before affairs of a corporation will be put in the hands of a receiver bj a court of equity, in the course of foreclosm'e of railroad bonds or mortgages, there must be good, sufficient, and especial reason. Farmers' Loan & Trust Co. V. Winona & S. W. Ry. Co., 59 Fed. 957; Sage v. Itailway Co., 125 U. S. 361-376, 8 Sup. Ct 887. And just and equitable conditions of receivership will be imposed. Fosdick V. Schall, 99 U. S. 235, per Waite, C. J.; Union Trust Co. v. Souther, 107 U. S. 591, 2 Sup. Ct. 295. One condition commonly enforced is that certain debts be "preferred," and paid out of funds in the hands of the receiver, or be made a charge on the corpus of the property. As to practice, see Central Trust Co. v. St. Louis, A. & T. Ry. Co., 41 Fed. 551; Fosdick v. Schall, supra; Miltenbergei V. Railway Co., 106 U. S. 286-311, 1 Sup. Ct. 140; Union Trust Co. v. Illinois M. Ry. Co., 117 U. S. 434, 457, 463, 6 Sup. Ct. 809. As to what are preferred claims, there is dispute. The rule as laid down by Caldwell, J., in Dow v. Memphis & L. R. Co., 20 Fed. 260, is that, where the default in the payment of a mortgage debt occurred more than a yeai before the filing of the bill, the receiver should be required to pay all the debts and liabilities of tbe railroad company incurred in operating, repairing, and improving the road for the period of six months next before the filing ot the bill, and that the debts which the receiver is required to pay, and ah debts and liabilities Incurred by him in operating the road, should be made a first lien on the mortgaged property, which should not be released until such liabilities are discharged. The order in this case was held by Mr. Justice Brewer (Central Trust Co. V. Texas & St L. Ry. Co., 22 Fed. 135) not to be '"in excess of the proper powers and discretion of a court appointing a receiver." In Farmers' Loan & Trust Co. v. Kansas City, W. & N. W. R. Co., 53 Fed. 182 in an opinion of marked clearness and force, Judge Caldwell further held 208 VARIATIONS IN THE NORMAL RIGHT TO SUE. [Ch. 2, Note that, In railroad foreclosure proceedings, preferential debts, which may be given priority on the appointment of a receiver, are, in general, those which have aided to conserve the property, and have been contracted within a rea sonable time, and there is no fixed rule barring claims contracted more than six months before the appointment, nor is the authority to give priority limited to cases in which there has been a diversion of income, and that the debts which the receiver is required to pay, and all debts and liabilities, incurred by him in operating the road, should be made a first lien on the mortgage property, which should not be released until such liabilities are discharged. However, in Farmers' Loan & Trust Co. v. Green Bay, W. & St. P. R. Co.,. 45 Fed. (jO4^O0G, Judge Jenkins said: "The principle is here sought to be ex- tended to embrace a claim for death occurring in the operation of the road within the limited period. In an able and ingenious argument, the counsel tor the petitioner insisted that, although the liability for the death here rests upon statute law, and is to a stranger to the contract of hiring, and arises from failure of duty enjoined by the law of master and servant, yet that the liability is imposed by the law upon, and constitutes a term of, the con tract of hiring, and so must be regarded as a liability incurred in the opera- tion of the road, having priority of payment over a precedent mortgage. This- proposition finds support in the case of Dow v. Memphis & L. R. Co., 20 Fed. 26(). There, Judge Caldwell, in appointing a receiver of a railroad, provided by his order for the payment of obligations incurred for injuries to persons withih six preceding months. He states that failure by the trustee to take possession works and implies an assent that the earnings of the road should be'applied to compensate those damaged in its operation, and asserts that the rulings of the supreme court furnish ample authority for such order. A care- ful reading of all the decisions of the supreme tribunal upon the subject con- vinces me that Judge Caldwell has either misconceived the underlying prin- ciple of these decisions, or seeks to extend it unduly." Accordingly, it was held that a claim against a railroad company for causing the death of plaintiff's intestate is a demand arising from a failure of duty, and could not, by its cre- ation, benefit, preserve, or increase the corpus of the estate of the company^ and is not entitled to priority upon the foreclosure of a mortgage thereof. There is good authority to sustain this position. Kneeland v. American Loan & Trust Co., 136 U. S. 89, 10 Sup. Ct. 9.50; Id., 1.38 XJ. S. 509, 11 Sup. Ct. 420, Dextei-ville Manuf'g & Boom Co. v. Case, 4 Fed. 873; Hiles v. Case, 14 Fed. 141; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 28 Fed. 871; Daven port v. Receiver of A. & C. R. Co., 2 Wood, 519, Fed. Cas. No. 3,588; Eastoa V. Itailroad Co., 38 Fed. 12; Central Trust Co. v. East Tennessee, V. & G. R. Co., 30 Fed! 895. ^"- -'^i CONCERT IN ACTION. 211 both take off together, they are jointly liable.' Or the liability may arise out of counsel, direction, or command by one to another to commit a tort. The liability here, however, does not arise out of mere relationship. But a person who merely gives leave for a tort to be committed is said not to be a joint tort feasor. "If the tres- passer was authorized and ordered by me to go there, we are joint tort feasors; but if I only permitted him, as he had my leave and license, though I had no right, yet we are not joint tort feasors." ^ ]3ut the person ordered to do the wrong may or may not be liable.' Mere presence at the commission of a wrong, as an assault, does not attach liability as principal ; ® but encouraging, inciting, and even presence without disapproval, in connection with other circum- stances, may have that effect.^" It is in this sense that those con- spirators who do not actually commit a wrong are tort feasors.^^ eral railway companies: Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 160," 25 S. W. 48G; Omaha & R. V. Ry. Co. v. Morgan, 40 Neb. G04, 59 N. W. 81. Telephone company and .railway companies: United El. Ry. Co. V. Shelton, 89 Tenn. 423, 14 S. W. 863; Southwestern Tel. & Tel. Co. v. Crank (Tex. Civ. App.) 27 S. W. 38. Of. Dillingham v. Crank, 87 Tex. 104, 27 S. W. 93. As to members of association, see Johnson v. Miller, 63 Iowa, 529, 17 N. W. 34. As to judge and officer of coiurt, attorney of record, and execution creditor, see Baker v. Secor, 51 Hun, 643, 4 N. Y. Supp. 303; Zeller V. Martin, f>4 Wis. 4, 54 N. W. 330; Thompson v. Whipple, 54 Ark. 203, 15 S. M'. 004; .Tones v. Lamon, 92 Ga. 529, IS S. E. 423. Sheriff and attaching creditor: Harris v. Tenney, 85 Tex. 254, 20 S. W. 82; Blakely v. Smith (Ky.) i;i; S. W. :jS4. Sheriff and deputy: Frankhouser v. Cannon, 50 Kan. 621, 32 Pac. 379. A municipal coi-poration and an improvement company: City of Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706. Joint trespassers: Whitney v. Backus, 149 Pa. St. 29, 24 Atl. 51; AVilbur v. Turner, 39 111. App. 526; Kavanaugh v. Taylor, 2 Ind. App. 502, 28 N. E. 553; Southwestern Tel. & Tel. Co. V. Crank (Tex. Civ. App.) 27 S. W. 38; Printup v. Patton, 91 Ga. 422, 18 S. E. 311. City and company which has contracted, but fails, to keep a. crossing clear: Union St. Ry. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012. Cred- itors who direct an officer to levy property which the debtor has assigned are liable therefor, jointly with tlie officer, at the suit of the assignee. Blakely v. Smith (Ky.) 26 S. W. .-|S4. 6 Harris v. Rosenberg, 43 Conn. 227; Colegrove v. Railroad Co., 6 Duer, :S82. T Robinson v. Vaughton, 8 Car. & P. 252. e Post, p. 286, "Master and Servant." « Hilmes v. Stroebel, 59 Wis. 74, 17 N. W. 539. 10 Willi V. Lucas, 110 Mo. 219, 19 S. W. 720. 31 Post, p. 637, "Conspirators"; Cheney v. Powell, 88 Ga. 629, 15 S. E. 750, 212 J^IAHILITY FOR TORTS COMMITIED BV OR WITH OTHHRS. [Ch. o The liability of joint tort feasors may arise out of ratification of an action done for a party's benefit although without his authority.^'' Nor is mere similarity of design or conduct on the part of inde- pendent actors sufflcient to constitute such alctors joint tort fea- sors.^* There is a marked distinction between a tort and liability arising from a tort. The liability, as between the plaintiff and the defendant, may always be treated as several, but the wrong itself may be jointly done or severally done by the defendants. If it be jointly done, — that is, in concert, — ^the defendants are joint tort feasors; if it be severally done, — that is, independently, though for a similar purpose and at the same time, — without any concert of action, they are several tort feasors.^* Thus, where d^ris is de- posited on lands of a person, by means of different ditches construct- ed and operated by several persons acting separately and apart from each other, while a joint injunction will lie to prevent them from continuing the wrong, a joint judgment in such action is error.^'^ 12 See ante, §§ 14^16. IS Clark & L. Torts, 43, comparing Hume v. Oldacre, 1 Starkie, 351, with Paget V. Birkbeck, 3 Fost. & F. 0S3. 14 Williams v. Sheldon, 10 Wend. 654. IB Miller v. Highland Ditch Co., 87 Cal. 430, 25 Pac. 550; Hai-ley v. Merrill Brick Co., 83 Iowa, 73, 48 N. W. 1000 (nuisance, collecting cases, page 79, 83 Iowa, and page 1002, 48 N. W.); Gallagher v. Kemme.er, 14i Pa. St. 509, 22 Atl. 970; Little Schuylkill Nav. R. & C. Co. v. Richard's Adm'r, 57 Pa. St 142; Chipman v. Palmer, 77 N. Y. 51; Slater v. Mersereau, 64 N. Y. 138. Owner of building, and contractor constructing tank on roof, are jointly liable for negligence as to supports, resulting in damage to plaintiff. Consolidated Ice Mach. Co. v. Keifer, 134 111. 481, 25 N. E. 799. And see Carman, v. Steubenville & I. By. Co., 4 Ohio St. 399. Landlord and tenant: Harris v. James, 45 Law J. Q. B. 545; Pig. Torts, 87, 88. Joint owner of stallion liable for negligence of one resulting in injury to mare: Newman v. Stuckey, 57 Hun, 589, 10 N. Y. Supp. 760. But, to constitute defendants joint tort feasors, there must be community of wrong, — concert of action. Bennett v. Fifield, 13 R. I. 139. Cf. Chipman v. Palmer, 77 N. Y. 51, with Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911. When a trespass is committed by the animals of several persons, those of one person cannot be sold to pay damage done by another's, when there is no common fault in keeping the animals, aiid no concert of action in the trespass. Dooley v. Seventeen Thousand Five Hun- dred Head of Sheep (Cal.) 35 Pac. 1011. And see Printup v. Patten, 91 Ga. 422, 18 S. B. 311. But in Westfield Gas & Milling Co. v. Abernathey, 8 Ina. App. 73, 35 N. E. 399, it was held that where the excavation causing the L^h- 3] CONCERT IN ACTION. 213 For a similar reason, it is said that an action will not lie against two persons jointly for verbal slander. The words of one are not the words of another, and the injury resulted from words only." So, where a libel has been successively repeated by several persons, an action will lie against each of those who circulated it. They are several, not joint, tort feasors.^^ None the less, ordinarily, both parties guilty of concurrent negligence may be sued jointly, though they had no common purpose and though there was no concert in action.^* SAME- LIABILITY OF JOINT TORT FEASORS. 68. Each, any, or all joint tort feasors are responsible in compensatory damages for joint ■wrongs without regard to degree of culpability or extent of partici- pation. Exemplary damages, it is sometimes held, must be assessed according to the conduct of the most innocent. The person injured by joint tort feasors may sue and recover against all, any number, or only one of them.^" The liability is joint and sever- damage was the separate tort of each defendant, and not the joint tort of all, for a single injury, as the result of all torts, plaintiff can recover against all jointly; damages will not be apportioned. And see City of Kansas City v. Slangsti-om, 53 Kan. 431, 36 Pac. 706; Booth v. Rattfi, 21 Can. Sup. Ct 637. 16 Patten v. Gumey, 17 Mass. 182-186. 17 Martin v. Kennedy, 2 Bos. & P. 69; Nicholl v. Glennie, 1 Maule & S. 588-592; post, p. 483. In order that defendants may be held liable, as joint tort feasors, in assault and battery, they must co-operate and act in concert in inflicting the injury. Thopias v. Werremeyer, 34 Mo. App. 665. 18 Flaherty v. Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160. As In a railroad collision: Colgrove v. Railroad Co., 20 N. Y. 492. And see Slater v. Mersereau, 64 N. Y. 138. 19 Merryweather v. Nixan, 8 Tenn R. 186; Mitchell v. Tarbutt, 5 Term R. 649; Brown v. Allen, 4 Esp. 158; Elliott v. Allen, 1 C. B. 18; ChafCee v. U. S., 18 Wall. 516; Albright v. MeTighe, 49 Fed. 817; McFadden v. Schill, 84 Tex. 77, 19 S. W. 368; Wisconsin Cent. R. Co. v. Ross, 142 111. 9, 31 N. E. 412; 'Slater v. Mersereau, 64 N. Y. 138; City of Kansas City v. Slangstroui, 53 Kan. 431, 36 Pac. 709; Bryant v. Carpet Co., 131 Mass. 491; Hilman v. Newington, 57 Cal. 56; North Pennsylvania R. Co. v. Mahoney, 57 Pa. St. 187. As between joint tort feasors in admiralty, see The City of Norwalk, 55 214 LIABILITY FOR TORTS COMMITTED BY OE WITH OTHERS. [Gh. 3 al.^° Indeed, he may bring different forms of action against different participants — trespass against one, trover against another, and so on."^ The law does not recognize degrees of culpability between wrongdo- ers, and will not apportion compensatory damages between them. They are alike guilty and alike responsible. Thus, where several persons were charged with assault and battery, and the whole damage was as- sessed at $700, of which one defendant was charged with |550 and another with $150, the plaintiff entered a nolle pros, as to the latter defendant and took his verdict against the former. This was sus- tained, inasmuch as the defendant was liable to the extent of |700, and he could not be heard to complain because he paid only $550."^ Of the joint tort feasors, however, some may be liable for punitive damages, and some for compensatory damages; as, where the one was arrested by a police ofScer and another person, one acting in good faith, and the other maliciously, the true criterion of damages was the whole injury which plaintiff sustained from the joint tres- pass. He can recover punitive damages against the party who ought to be punished, but if he sue both for punitive damages he Fed. 98; The Virginia Bhrman, 97 U. S. 309-317. Further, as to joint tort feasors, see Cooley, Torts (2d Ed.) 154. 2 Rich v. Pilkington, Garth. 171; Mitchell v. Tarbutt, 5 Term R. 649, cited In McAvoy v. Wright, 137 Mass. 207. Cf. Stone v. Dickinson, 5 Allen, 29 (as in nuisance); Irvine v. Wood, 51 N. Y. 224; Slater v. . Mersereau, 64 N. Y. 138; Klauder v. McGrath, 35 Pa. St 128; 1 Shear. & R. Neg. (4th Ed.) § 122; Dubose V. Marx, 52 Ala. 506; Power v. Baker, 27 Fed. 396; Consolidated Ice Mach. Co. V. Keifer, 134 111. 481, 25 N. E. 799. 21 Lovejoy v. MuiTey, 3 Wall. 1; Creed v. Hartmau, 29 N. Y. 591; Peoria v. Simpson, 110 111. 294; Wright v. Compton, 53 Ind. 337; State v. Babcock, 42 Wis. 138. 22 Warren v. Westrup, 44 Minn. 237, 46 N. W. 347; Chattahoochee Brick Co. V. Braswell, 92 Ga. 631, 18 S. E. 1015; Keegan v. Hayden, 14 R. I. 175; Post V. Stockwell, 34 Hun, 373; Huddleston v. West Bellevue, 111 Pa. St. 110, 2 Atl. 200; Price v. Harris, 10 Bing. 331, 25 E. C. U 159. As to granting a new trial, Albright v. McTiglie, 49 Fed. 817 (analyzing cases). Motion to modify remittitur of judgment, Chils v. Gronlund, 41 Fed. 505. Lord Mansfield held, in Hill V. Goodchild (1771) 5 Burrows, 2790, that, when a verdict found defendant guilty of a trespass jointly charged, the jury could not afterwards assess several damages. And in Massachusetts, in Halsey v. Woodruff (1850) 9 Pick. 555, this was applied on the theory that the sole inquiry opened to a jury "Is what damages the plaintifE has sustained, not who ought to pay for them." Ch. 3] CONCERT IK ACTION. ,215 can recover against them only according to the acts of the most in- nocent defendant.^' But while the sufferer may proceed separately against all tort feasors who injured him, or against them all jointly, he must elect to pursue one course or the other; and, having made his election, he is bound by it. If he sues all jointly and has judgment, he cannot afterwards sue them separately; or if he sues separately and has judgment, he cannot afterwards sue them in a joint action. The prior judgment against one is an election as to that one to pur- sue his several remedy; but it is ordinarily, in America, no bar to the suit for the same wrong against any one or more of the other wrongdoers.^* SAME— CONTRIBUTION BETWEEN JOINT TORT FEASORS. 69. There can be no contribution between joint tort feasors except -when they neither knew nor are presumed, to have known that a legal w^rong was being done."® In cases where the wrongdoers actually intend to do an unlawful act, or where they are presumed to know that they were doing an unlawful act, there is neither indemnity nor contribution between them. Thus, if the owner of premises leave a hatchway on the street open and -unguarded, and is compelled to pay damages to a traveler injured thereby, he can not recover indemnity of another person who may have interfered with the hatchway so as to make it more dangerous.^* Where, however, joint tort feasors in com- mitting the tort do what is apparently lawful, in the belief that they are pursuing a lawful course, and the wrong inflicted upon another arises out of this conduct by construction or inference of the law, and is not the foreseen result of a wrongful act, the law will allow contri- bntion between them. Thus, if two creditors together attack a sale 23 McCarthy v. De Armit, 99 Pa. St. 63; Clark v. Newsam, 1 Exch. 131. But see Warren v. Westrup, supra. 2* The Atlas, 93 U. S. 302, collecting cases at page 315; post, pp. 341-344, "Discharge of Tort by Judgment." 28 Generally, see Keener, Quasi Cont 492-504; Adarason v. Jarvls, 4 Bing. 66; Churchill v. Holt, 131 Mas.s. 67. 2 8 ChurchiU v. Holt, 131 Mass. 67. Cf. Id., 127 Mass. 165. 216 _ LIABILITY FOR TOKTS COMMITTED BY OR WITH OTHERS. [Ch. 3 of goods by their debtor to a third person, honestly believing the sale is fraudulent and void, one of them, after paying a judgment recovered against him by the debtor's vendee for wrongful seizure and sale of the goods, may enforce contribution from the other." In many instances several parties may be liable in law to the person injured, while as between themselves some of them are not wrong- doers at all; and the equity of the guiltless to require the actual wrongdoer to respond for all damages, and the equally innocent to contribute his portion, is complete.^* Indeed, the rule as to no contribution has so many exceptions that it can hardly with pro- priety be called a general rule.^^ RELATIONSHIP— HUSBAND AND WIFE. 70. The common-law limitation as to the status of m.ar- ried -women led to t^wro principal consequences, so far as the law of torts is concerned: (a) Inability of wife to sue or be sued in tort, and to the sole responsibility of her husband for torts committed by her before or after marriage, in an action in w^hich she w^as joined -with him as a party 2' Vandiver v. PoUak, 97 Ala. 467, 12 South. 473 (Head, J., dissenting); Arm- strong Co. V. Carrion Co., 66 Pa. St. 218, Burd. Lead. Cas. p. 166; Old Colony R. Co. v. Slavens, 148 Mass. 363, 19 N. B. 372; Simpson v. Mercer, 144 Mass. 413-415, 11 N. E. 720; Bailey v. Bussing, 28 Conu. 455; Nichols v. Nowling, 82 Ind. 488; Ankeny y. Moffett, 37 Minn. 109, 33 N. W. 320; 5'laherty v. Minne- apolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160; Janvrin v. Curtis, 63 N. H. 312; Goldsborough v. Darst, 9 111. App. 205; Niekerson v. Wheeler, 118 Mass. 295; Moore v. Appleton, 26 Ala. 633; Wooley v. Batte, 2 Car. & P. 417; Pera- son V. Skelton, 1 Mees. & W. 504. It has, however, been held that, a passen- ger on a street car having been injured by a collision with a railroad car, through the concurrent negligence of the two companies, neither can recover against the other. Texas & Pac. Ry. Co. v. Doherty (Tex. App.) 15 S. W. 44. 28 Cai-penter, J., in Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159, citing Pearson v. Sketton, 1 Mees. & W. 504; Wooley v. Batte, 2 Oar. & P. 417; Belts v. Gibbons, 2 Adol. & B. 57; Adamson v. Jarvis, 4 Bing. 06; Avery v. Halsey, 14 Pick. 174; Gray v. Boston Gaslight Co., 114 Mass. 149; Churchill v. Holt, 127 Mass. 165, 131 Mass. 67; Smith v. Foran, 43 Conn. 244. 23 Bailey v. Bussing, 28 Conn. 455; Nashua Iron & Steel Co. v., Worcester & N. R. Co., 62 N. H. 159. ^il- 3] RELATIONSHIP. 217 defendant, ordinarily, but not invariably, and to his sole right to recover for any tort committed against her. (b) The use of coverture as a defense to a cause of ac- tion really based on contract, but attempted to be enforced through the form of an action ex delicto to avoid her exemption from liability for her con- tract. Liability at Common Law far Torts of Wife. At common law the personality of a married woman was merged in that of her husband. Man and wife were one, and the man was that one. Therefore, even after a divorce, she could not sue him for a tort committed against her, e. g. for assault and battery.^" All her property became his, — so did her debts. Her husband was held responsible for her torts whether committed before or after marriage.^ ^ Indeed, he might even have been arrested for his wife's tort.*^ It was impossible for the wife during coverture to be either sole plaintiff or sole defendant in action ex delicto, and by reason of this rule the husband was joined for conformity. It would seem there was doubt whether he was joined because he was liable, or whether this joinder made him liable to pay damages and cost of suit. But in either case it did not make him a tort feasor, either sole or joint, nor give any cause of action against him alone. If the wife died, the action abated; and, if the action was brought after sentence of divorce was pronounced, the husband could not have been joined.^^ If the husband died, the wife could then be sued as 3 Abbott V. Abbott, 67 Me. 304; Phillips v. Barnet, 1 Q. B. Div. 436. SI Generally, as to liability of husband for torts of wife during coverture, see Baker v. Young, 44 111. 42^7; Wright v. Kerr, Add. (Pa.) 13; Vine v. Siuuiders, 5 Scott, 359; Ball v. Bennett, 21 Ind. 427; Hinds v. Jones, 18 ile. 34S; Dailey v. Houston, 58 Mo. 861; Carleton v. Haywood, 49 N. H. 314; Fowler v. Chichester, 26 Ohio St 9; Jackson v. Kirby, 37 Vt. 448; Brazil v. Moran, 8 Minn. 236 (Gil. 205). 3 2 Solomon v. Wass, 2 HUt. (N. Y.) 179. 3" Com. Dig. tit. "B. ^t F."; Bae. Abr. tit. "B. & F."; Macq. Husb. & W. v3d Ed.) 92: Capell v. PoweU, 17 C. B. N. S. 743; Head v. Briscoe, 5 Car. & P. 4S4; Phillips v. Baruot, 1 Q. B. Div. 436; Wright v. Leonard, 11 C. B. N. S. 2."8- 266. But see AVainford v. Heyl, L. R. 20 Bq. 321; McKeown v. .Tohnsou, 218 LIABILITY KOK TORTS COMMITTED BY OE WITH OTHERS. [Ch. 'i feme sole." The husband, however, was liable for property con- verted by her alone, because the converted property necessarily be- came his, and the conversion was deemed to be for his use, and he could have been sued alone. Indeed, it appears that, even if the conversion had been the result of the joint act of both, he could have been sued alone.'" WEen torts were committed by her in the pres- ence of her husband, he was conclusively presumed to have coerced her, and was solely liable for consequent damages.'* Same — Coverture as a Defense to Actions in Form ex Delicto. A married woman was by common law incapable of binding her- self by contract, and therefore, like an infant, could not be made liable for a wrong in an action of deceit or the like when this would have in substance amounted to making her liable on contract. For example, an action could not have been maintained against a hus- band and wife for her false and fraudulent representation that she was a widow at the time she executed a bond and mortgage, in ex- change for which another gave up to her promissory notes to a great amount against third persons.'' 71. Modern statutory provisions, as they have extended the powers and rights of married woman, have in- creased her duties and liabilities. Their tendency is — (a) As to torts committed by her, to attach to her lia- bility jointly with her husband, or to the exclusion of her husband's responsibility by virtue of rela- tionship alone, leaving cases where the husband 1 McCord (S. O.) 578; Cassin v. Delaney, 38 N. Y. 178; Baker v. BrasUn, 18 R. I. 635, 18 Atl. 1039. 34 2 Cord, Mar. Worn. § 1149. 36 2 Cord, Mar. Worn. § 1147. But see Draper v. Fulkes, Yelv. 166; Key- worth V. HIU, 3 Barn. & Aid. 685; Heckle v. Lurvey, 101 Mass. 344; Rowing V. Manly, 49 N. Y. 192, 198, 199. 86 Cooley, Torts, p. 132; Schouler, Husb. & W. § 174. 37 Kean v. Coleman, 39 Pa. St 299; Fairhurst v. Liverpool Ass'n, 9 Bxcli. 422, 23 Law J. 163; Cooper v. Witliam, 1 Lev. 247; Woodward v. Barnes, 46 Vt 332; Trust Co. v. Sedgwick, 97 U. S. 304; Rowing v. Manly, 49 N. Y. 192. Atl. 70; Nauman's Appeal, 116 Pa. St. 505, 9 Atl. 934. Compare Tobey v. Smith, 15 Gray, 535; Chit PI. 74. 222 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHKRS. [Ch. 3 erty she is liable in tort separate from her own husband, even if her husband be liable for her personal tort.°° Where the wife does an act not under her husband's coercion, but both of them act on their own accord, they may be sued jointly; as where they voluntarily join in conversion,'^ libel and slander,'^ assault and battery.^'' Where a husband, as agent of his wife, leased her land, and, with her knowledge, made her his coplaintifE in an attachment suit against the tenant for her rental part of the crops, prosecuting the suit for their joint benefit, it was held that the wife was jointly liable for the wrongful acts of the husband in carrying forward the action.^* The husband may be liable for the acts of his wife as his agent. Thus, on a sale of business, where the wife represented the daily receipts as greatly in excess of what they really were, her husband, as principal, was held personally liable."' The wife may be held liable for the acts of her husband as her agent. Thus, she can be held liable for the fraud of her hus- band dealing as her agent with such property. '° sovanneman v. Powers, 56 N. Y. 39^2; Qullty v. Eattie, 135 N. Y. 201, 32 N. B. 247. Compare Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907. 61 Estill V. Fort, 2 Dana (Ky.) 237; Peak y. Lemon, 1 Lans. 295. And see Blake v. Blackley, 109 N. C. 257, 13 S. E. 786; Wiit v. Dinan, 44 Mo. App. .^S3. 52 McElfresh v. Kirkendall, 36 Iowa, 224; Fowler v. Chichester, 26 Ohio St 9. 5 3 Roadcap v. Slpe, 6 Grat. 213; Guften v. Reynolds, 17 How. 609. And, generally, see Crow v. Manning, 45 La. Ann. 1221, 14 South. 122; A''ine v. Saunders, 5 Scott, 359, 4 Bing. N. C. 96; Marshall v. Oakes, 51 Me. 308; Tabey V. Smith, 15 Gray, 535; HofCman v. Whaleman, 3 Lane. Law Rev. 217; (Pa.) Hart v. Mental, 26 Pa. Law J. 33; Heckle v. Lurvey, 101 Mass. 344, 345; Handy v. Foley, 12 Mass. 2."59; Miller v. Sweltzer, 22 Mich. 391; Carleton v. Haywood, 49 N. H. 314. 54 Byford v. Girton (Iowa) 57 N. W. 588; Fogel v. Schmalz, 92 Cal. 412, 28 Pac. 444. 6 5 Taylor v. Green, 8 Car. & P. 316. 5 Ferguson v. Brooks, 67 Me. 251; Rjwe v. Smith, 45 N. Y. 230; Baum v. MuUen, 47 N. Y. 577. As to liability of husband for negligence of wife's servant, see Ferguson v. Neilson, 17 R. I. 81, 20 Atl. 229. Where a married woman employs her husband to negotiate a sale of her land, and in such negotiation he makes false representations, and she afterwards completes the sale by making a deed, the representations will be held as though made by herself, since she cannot retain the benefits of his negotiations, and re- Ch. 3] EKLATIOiNSHIP. 223 Same — Torts Committed against the Wife. A wife may now generally recorer for her own use damages suf- fered from a personal tort committed against her. The right of the wife to sue for tort to her separate ''or community "* property is generally recognized. This entire subject will be subsequently considered at some length. Torts as between Husband and Wife. The policy of the law does not incline to admit that a husband and ■wife can commit torts against each other. "^ SAME— LANDLOKD ANB TENANT. 72. Normally, the occupant, and not the o\«nier or land- lord, is liable to third persons for injuries caused by the failure to keep the premises in repair. The liability may, however, be extended to the land- lord or owner — (a) When he contracts to repair. (b) "Where he knowingly demises the premises in a ruin- ous condition, or in a state of nuisance. (c) Where he authorizes a wrong.* pudiate the means by which they were obtained. Kiiappen t. Freeman, 47 Minn. 491, 50 N. W. 533. 67 In a suit for the infringement of a copyright, where it is shown that the copyright was talcen in the name of the complaining publisher as "pro- prietor," defendant cannot object that the author was a married woman, and tiiat her husband was entitled to the fruits of her literary labor; for it will be presumed that the legal title of the author was properly vested in com- plainant. Scribner t. Clark, 50 Fed. 473. An action by a married woman for personal injuries received during coverture is not one concerning her separate property, wheh she can bring without the joinder of her husband. Lamb v. Harbaugh, 105 Cal. 680, 39 Pac. 56. 05 An action by a wife for mental suffering caused by defendant's failure to deliver telegrams announcing the shooting of her husband, whereby she was prevented from seeing him before he died, is not an action to recover community property. Western Union Tel. Co. v. Kelly (Tex. Civ. App.) 29 S. W. 408. 50 Post, pp. 463, 464, "Injury to Family Relations" under "Husband and Wife." 6 Adams v. Fletcher, 17 K. I. 137, 20 Atl. 263; Hart v. Colo, 156 Mass. 475, 31 N. E. 644; Caldwell v. Slade, 156 Mass. 84, 30 N. E. 87; McGrath y. 224 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 The general rule as to the liability, as between landlord and ten- ant, for injuries caused by the defective condition of the premises, Is "that the tenant and not the landlord is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition." "^ Thus, a servant, while employed in re- moving from a building articles manufactured by the lessees for his employer, stepped into an uncovered and unguarded hole in the floor of the premises from which the articles were to be removed, and was injured. No cover was ever made for the hole, and no scuttle had been constructed to cover it; but it was usually covered by a piece of plank. It was held that the hole could not be said to be a nui- sance of itself. It was the duty of the occupier of the premises to protect against injury by the hole. The liability, therefore, was his, and not that of the owner of the building.'^ Walker, 64 Hvm, 179, 18 N. Y. Supp. 915; Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; cases collected in Peil v. Reinhart, 12 Lawy. Rep. Ann. 843 (N. T. App.) 27 N. E. 1077; Curtis v. Kiley, 153 Mass. 123, 20 N. E. 421. 61 Thus, in Cheetham v. Hampson, 4 Term R. 318, it was held that an ac- tion on the case, for not repairing fences, to the injury of plaintiff, can only be maintained against occupier, and not against the owner of the fee, who is not in possession. Underh. Torts, *p. 129, rule 22; Ahem v. Steele, 115 'N. Y. 203, 22 N. E. 193 (collecting authorities); Sterger v. Van Sicklen, 132 N. ¥. 499, 30 N. E. 987. Ijessor of railroad is not liable for torts of lessee. MiUer v. Rail- road Co., 125 N. Y. 118, 26 N. E. 35. Landlord not liable for damage caused by want of ordinary repairs to privy vaults. Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010. And see Texas & P. Ry. Co. v. Mangum, 68 Tex. 342, 4 S. W. 617, and Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938. And, generaUy, see City of Chicago v. O'Brennan, 65 111. 160; Gridley v. City of Bloomington, 68 111. 47; City of Peoria v. Simpson, 110 111. 294; City of Lowell v. Spaulding, 4 Cush. (Mass.) 277; Brunswick-Balke CoUender Co. v. Rees, 69 Wis. 442, 34 N. W. 732; Edwards v. Railway Co., 25 Hun, 197; TayL Landl. & Ten. § 539; 1 Atchinson, Torts, 197, 198. 62 Caldwell v. Slade, 156 Mass. 84, 30 N. B. 87. Cf. Dalay v. Savage, 145 Mass. 38, 12 N. E. 841; Adams v. Fletcher, 17 R. I. 137, 20 Atl. 263; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; Franke v. City of SI, Louis, 110 Mo. 516, 19 S. W. 938; McGrath v. Walker, 64 Hun, 179, 18 N. Y. Supp. 915; cases collected 12 Lawy. Rep. Ann* 843. As to responsibility of landlord for tenant's negligence with respect to gas, see Holden v. Liverpool New Gas & Coke Co., 3 Man. G. & S. 1; Bartlett v. Boston Gaslight Co., 122 Mass. 209; Fisher v. ThirkeU, 21 Mich. 1; Bigelow, Lead. Gas. 627 (and see notes). Ch. 3] KELATIO.NSHIP. 225 Contract to Repair. If, however, the landlord lets the premises with a covenant to re- pair, even if the tenant is to pay for them, the landlord is liable. Under such circumstances, workmen negligently left the entrance to the cellar in the public hall uncovered during the night, and the plaintiff fell into it and was injured. The landlord was held lia- ble.'^ On the other hand, if a tenant covenants to keep the prem- ises in repair, the landlord cannot be said to authorize the continu- ance of a nuisance; and not he, but the tenant, will be liable. °* Letting Premises in Ruinous Condition or State of Nuismice — Authorizing Wrongs. Moreover, if the landlord knowingly let the property in a condi- tion of nuisance, he (and the tenant also) may be liable to third per- sons." ° He is said to have authorized the continuance of the wrong •8 Leslie v. Pounds, 4 Taunt. 649; Nelson v. LiverjKiol Brewery Co., 2 C. P. Div. 311. Cf. Pretty v. Bickmore, L. R. 8 C. P. 401, with Gwinnell v. Earner, L. R. 10 C. P. 658. But reservation of right to enter premises to re- pair the same does not attach liability to landlord. Clifford v. Atlantic Mills. 146 Mass. 47, 15 N. E. 84, per Holmes, J., in opinion of great ability, collating cases. But a decayed stairway in the rear of leased premises is not a nui- sance to the occupant of an adjoining house, so as to make the lessor responsi- ble, under his covenant to repair, for an injury sustained by such neighbor while walking on the stairway. Timlin v. Standard Oil Co., 126 N. Y. 514, 2T N. Vi. 786, distinguishing Sterger v. Van Siclen (Sup.) 7 N. Y. Supp. 805; Id.. 132 N. Y. 499, 30 N. E. 987. The landlord is under no implied obligation to. make ordinary repairs. Medary v. Cathers, 161 Pa. St. 87, 28 Atl. 1012; Hol- lingsworth v. Atkins, 46 La. Ann. 515, 15 South. 77. 6* Post, note 67. If the landlord undertakes to transmit power to adjacent buildings, he is liable for injury to an employ 6 of one of the tenants by negli- gence in not keeping pulleys and shafts in safe condition, though the lease re- quired tenant to keep shaft in repair. Poor v. Sears, 154 Mass. 539, 28 N..E. 1046; Pretty v. Bickmore, L. R. 8 C. P. 401. And see Gwinnell v. Eamer, L. R. 10 6. P. 658. Cases as to liability of landlord for the condition of a part of the premises not controlled by the tenant are collected at page 155, 23 Lawy. Rep. Ann. And see Jones v. Millsaps (Miss.) 14 South. 440. 80 Both the owner, who constructs an offensive cesspool, and the tenant, who uses the premises, are liable for injury to adjoining occupant. Joyce v. Mai-tin, 15 R. I- 558. Both may be liable for negligence,— the landlord, for negligence in construction; the tenant, for negligence in use of such prem- LAW OF TOUTS— 15 22U LIABILITY KOR 'KJHTS COMMITTED BY OK WITH OTHKKS. [Ch. 3 only if he had notice of ruinous condition,'" and not then if the tenant is bound to repair."' But where property is demised and at the time of tlie demise is not a nuisance, but becomes so only by the act of the tenant while in his possession, and the injury happens during such possession, the owner is not liable."' But whfei-e the owner of the premises leases premises which are in a condition of nuisance, or must in their nature of things become so by their user, and receives rent, he is liable for the injury resulting from such nui- sance."' Thus, if landlord let premises with a stack of chimneys in a ruinous and fallen state, he is liable for damages; '" but if he builds a chimney which by the act of the tenant becomes a nuisance, although the tenant could have built fires so that no nuisance would have resulted, the tenant is liable, and not the landlord.'^ But where the demise was of a lime kiln and quarry, the landlord was lield liable for the nuisance resulting from smoke from the kiln, as being the necessary consequence of an act he authorized.'^ A for- tiori, if the lessor of premises licenses the lessee to perform acts which amount to a nuisance, the lessor is liable.'^ ises. Eakin v. Brown, 5 N. Y. 36; McDonougb v. Giiman, 3 Allen (Mass.) 264; Todd v. Flight, 9 C. B. (N. S.) 377; Gandy v. Jubber, 5 Best & S. 485, 'J Best & S. 15; Rich v. Basterfield, 4 C. B. 783; RusseU v. Shenton, 3 Q. B. 449; O'Connor v. Andrews, 81 Tex. 28, 16 S. W. 628. «« Welfare v. London & B. Ry. Co., L. R. 4 Q. B. 693; Southcote v. Stanley, 1 Hurl. & N. 247; Slight v. Gutzlafe, 35 Wis. 675. But such knowledge may be constructive. Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 7S(); Dickson v. Chicago, R. I. & P. R. Co., 71 Mo. 575. 7 Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Eamer, L. R. 10 C. P. 658. But see Ingwersen v. Rankin, 47 N. J. Law, 18. «8 O wings V. Jones, 9 Md. 108; Rich v. Basterfield, 4 C. B. 783. Et vide Saxby v. Manchester, S. & L. Ry. Co., L. R 4 C. P. 198. fs Roswell V. Prior, 12 Mod. 635; Godley v. Haggerty, 20 Pa. St. 387; Con- greVe v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52. Cf. Fisher v. Thir- kell, 21 Mich. 1-20. Et vide Albert v. State, 66 Md. 325, 7 Atl. 097. The owner and the tenant may be jointly liable. Joyce v. Martin, 15 R. I. 558 (reviewing cases). 7 Todd V. Flight, 9 C. B. (N. S.) 377. 71 Rich V. Basterfield, 4 C. B. 783. '2 Harris v. James, 4.^i Law J. Q. B. .j4.j. 73 White V. Jameson, L. R. 18 Eq. 303. And see Lufkin v. Zane, 157 Mass. 117, 31 N. E. T5T. Ch. 3] Bui.ATioNSHip. 227 Liability of Landlord to TenantJ^ An implied grant of whatever is necessary or beneficial to the thing granted has been recognized.'^ Therefore a tenant may sue his landlord for granting to a third person permission to construct a chimney obstructing such tenant's window.''" The law does not, however, imply a warranty on the part of the landlord that the premises are fit for occupation or for the tenant's purposes.'" There- fore, in the absence of fraud or misrepresentation, a landlord is not responsible for injuries happening to his tenant by reason of a snow- slide or avalanche.'" If the master agrees to make repairs, damage consequent on failure to perform the covenant may be actionable ex contractu.'" If damage result from negligence in making repairs under the agreement, recovery may be had ex delicto.^" 71 Trover lies by landlord against tenant for value of wood into which trees wrongifuUy severed from the premijses have been converted. Brooks v. Rogers, 101 Ala. Ill, 13 South. 380. Where a tenant's negligence caused the destruc- tion of the premises by fire, the landlord may' sue on the contract, without being compelled to resort to an action on the case for negligence. Stevens v. Pantlind. 95 Mich. 14o, 54 N. W. 716. 7 5 Doyle V. Loi-d, G4 N. Y. 432; Case v. Mlnot, 158 Mass. 577, 33 N. E. 700 (collecting Massachusetts cases); Tayl. Landl. & Ten. § 161; 2 Washb. Real Prop. 318, 319, 328-331. 76 Case V. Minot, 158 Mkss. 577, 33 N. E. 700. 7 7 Buckley v. Ounniugham (Ala.) 15 South. 826; Baker v. HoltpzafCell, 4 Taimt. 45; Dutton v. Gerrish, 9 Gush. (Mass.) 89; Bowe v. Hunking, 135 JIass. 380; Naumberg v. Young, 44 N. J. Law, 341-345. The law has been changed by statute in Ohio and Indiana. 33 Am. Law Reg. 114, 115. 7 8 Doyle V. Railway Go., 147 U. S. 413, 13 Sup. Ct. 333; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85. A landlord is not liable for a failure to disclose the existence of a defective drain, discovered by him during a tenancy at will, during which the tenant contracted typhoid fever and died. Bertie v. Flagg, IGl Mass. 504, 37 N. E. 572. Et vide Kern v. Myll, 94 Mich. 477, 54 N. W. 176. See Id., SO Mich. 525, 45 N. W. 587. As to liability of landlord to tenant for damage done tenant's goods in consequence of repair to leased premises, see Toole v. Beckett, 67 Jle. 544; Glickauf v. Maurer, 75 111. 289; Rosenfleld v. Newman (Minn.) 60 N. W. 1085; Mumby v. Bowden, 25 Fla. 4.'54, 6 South. 453. As to conversion between landlord and tenant, see post, p. 721, "Conversion." 7» Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018. The fact that the land- lord, after the cellar had become flooded with filth and water, gratuitously undertook to remove the same, and did so negligently, does not entitle the tenant to abandon the premises. Blake v. Dick (Mont.) 38 Pac. 1072. so Callahan v. I.oughran, 102 Gal. 476, 36 Pac. 835. As to liability of land- 228 LIABILITY FOB TOBTS COMMITTED BY OR WITH OTHERS. [Ch. 3 SAME— INDEPENDENT CONTRACTOK. 73. An independent contractor is one •who undertakes to produce a given result without being in any "way controlled as to the method by -which he attains that result. He is distinguished from a servant, who, on the other hand, is under the orders and control of his master in respect to the means and methods used to attain the end for -which he is employed. It is of great importance to determine whether in a particular case there exists the relationship of master and servant (in its broadest sense), or of employer and independent contractor. "For purposes of liability, no man can have two masters." And so far as the de- fendant is concerned, the question may involve his entire responsi- bility for damages. If he can show that the harm was done by an independent contractor, in many, perhaps in most, cases he can escape liability." lord to tenant's servant, see Perez v. Raband, 7G Tex. 191, 13 S. W. 177; Trinity & S. Ry. Co. v. Lane, 70 Tex. 643, 15 S. W. 477, and 16 S. W. 18. As to tenant's guests, see Eyre v. Jordan. Ill Mo. 424, 19 S. W. 1095. 81 Singer Manuf'g Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175; "Waters v. Pioneer Fuel Co.. 52 Minn. 474, 55 N. W. 52; Sproul v. Hemmingway, 14 Pick. 1; Powell v. Virginia Const. Co., 88 Tenn. 692, 13 S. AV. 691; Lawrence v. Sliipman, 39 Conn. 586; Crenshaw v. TJUman, 113 Mo. 633, 20 S. W. 1077; Cuff V. Railroad Co., 35 N. J. Law, 17; Long v. Moon, 107 Mo. 334, 17 S. W. 810; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Scarborough v. Railway Co., 94 Ala. 497, 10 South. 316; Hawver v. -VVhalen, 49 Ohio St. 69, 29 N. B. 1049; Charlebois v. Gogebic & M. R. Co., 91 Mich. 59, 51 N. "W. 812; City & Suburban Ry. Co. v. Moores (Md.) 30 Atl. 643; Harris v. McNamara, 97 Ala. 181, 12 South. 103; Savannah & W. R. Co. v. PhiUipg, 90 Ga. 829, 17 S. E. 82; Larson v. Metrouolitan Ry. Co., 110 Mo. 234, 19 S. W. 416; "Welsh v, Parrish, 148 Pa. St. 599, 24 Atl. 86; Haley v. Jump River Lumber Co., 81 Wis. 412, 51 N. "W. 321, 956; New Albany Forge & Rolling Mill v. Cooper, 131 lud. 303, 30 N. E. 294; Piette v. Bavarian Brewing Co., 91 Mich. 605, .52 N. W. 152; Alabama Midland Ry. Co. v. Martin, 100 Ala. 511, 14 South. 401. See dissenting opinion (Dwight, C.) in McCafferty v. Railway Co., 61 N. Y. 178. Sadler v. Henlock, 4 El. & Bl. 570-578; Rourke v. White Moss Colliery Co., 2 C. P. Div. 205. As to relation of a tenant, as an independent contractor, to his landlord, vide Rosowell v. Pryer, 12 Mod. 635; Cheetham ^'ll- 3] RELATIONSHIP. 229 Ordinarily it is regarded that the test of the relationship is "whether the defendant retained the power of controlling the work." «=" For example, a person buys standing timber, and a third person con- tracts to cut it into lumber at an agreed price per thousand feet, assuming entire control of the work and hiring and paying his men. Under such circumstances, the purchaser of the timber is not liable for injuries to adjoining land resulting from the negligence of such third person or his employes in the performance of the contract.^^ IJut this standard of control is not absolute or inflexible. Cer- tain control on the part of the employer may be retained, and the contractor be an independent contractor and not a servant. Thus, the fact that one doing work on a building is to be paid a round sum does not make him a servant of the owner ; but he is an independent contractor if he is in the exercise of a distinct and independent em- ployment, using his own means and methods for accomplishing the work, and is not under the immediate supervision and control of the owner. The mere fact that the architect of the owner directs cer- tain things to be done by the contractor where he does not exercise control over him in his manner of doing the work or his choice of workmen, does not make the contractor a servant of the owner.'* V. Hampsou, 4 Term K. 318; Leslie v. rounds, 4 Taunt. 649; Pretty v. Bick- more, L. R. 8 C. P. 401; Nelson v. Llverpcol Brewery Co., 2 C. P. Div. 311; Mahon v. Bums, 9 Misc. Rep. 223, 29 N. Y. Supp. 682; Gwinnell v. Earner, L. R. 10 C. P. 658; Todd v. Flight, 9 C. B. (N. S.) 377; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421; Laugher v. Pointer, 5 Barn. & C. 547. Cf. Fenton v. Dublin Steam Packet Co., 8 Add. & B. 835; Dalyell v. Tyrer, El., Bl. & El. 899. But see Illinois Cent. R. Co. v. King, 69 Jliss. 852, 13 South. 824; Brow V. Rlairroad Co., 157 Mass. 399, 32 N. E. 362. And see post, p. 241 et seq., "Re- lationship of Master and Servant, When Established." 8 2 Fulton Co. St. R. Co. v. McConuell, 87 Ga. 756, 13 S. E. 828; New Or- leans, M. & C. R. Co. v. Hanning, 15 Wall. 649-657; Painter v. Mayor, etc., 46 I'a. St. 213, and cases collected; Singer Manuf'g Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175; Norwalk Gas Light Co. v. Borough of Norwalk, 63 Conn. 495, 28 Atl. .•J2. 8 3 Knowlton v. Hoit (N. H.) 30 Atl. 346. Cf. Hughbanks v. Boston Inv. Co. (Iowa) 60 N. W. G40. A tug owner is an independent contractor, as to vessels in tow. McLoughlin v. New York Lighterage Transp. Co. (Com. PI.) 27 N. Y. Supp. 248. Cf. Bissell v. Torrey, 65 Barb. 188. So a public car- man. McMullen v. Hoyt, 2 Daly (N. Y.) 271., 8* Morgan v. Smith, 159 Mass. 570, 35 N. E. 101. Cf. Linnelian v. Rollins, 137 Mass. 123. The French law on this point will be found In Bigelow, Lead. 230 LIABILITY I'OK TOUTS COMJUTTED BY OR WITH OTHERS. [til. 3 Again, the right of a railway company to inspect, and in a consider- able measure to regulate, by its engineer or other proper officer, the construction of way, by a contractor who nevertheless is independ- ent, is generally recognized.^' The cases are, however, by no means agreed as to what reservation of control in the contract is consist- ent with the relationship of employer and independent contractor.*' The payment of wages, the power to dismiss, select, or compel obe- dience of the servant, to terminate, control, or to give directions as to the result of the work, afford a test (but not a conclusive or unfailing test) of whether the servant is the servant of the employer or the independent contractor.*^ Payment by the job instead of by the day does not make an employ^ an independent contractor.*' But, on the other hand, if the contract excludes known methods of avoiding harm, the defense of an independent contractor does not avail. *° Cas. 659. But where one was engaged in the constniction of a raUroad for .1 lumber company under contract, and it does not appear how he was paid, or whether it devolved on him exclusively to furnish material for the work, and pay the hands in its accomplishment, or whether the compaxiy exercised control over it, the fact that it supervised the cutting of timber by him on tlie land through which the road was to pass renders him its servant in law. Waters v. Greenleaf-Johnson Lumber Co., 115 N. C. 648, 20 S. B. 718; Hard- ing V. City of Boston (Mass.) 39 N. E. 411. 8 5 The engineer of a railroad company may be allowed to inspect and ap- prove construction of piers for a railroad bridge, the work on which was being done by independent contractors, without attaching liability to the mUroad company. Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672. But see post, note 95; Alabama Midland Ry. Co. v. Maitin (Ala.) 14 South. 401; Eby V. Lebanon Co. (Pa. Sup.) 31 Atl. 332; Hitte v. Republican Valley R. Co., 19 Neb. 620, 28 N. W. 284; Riedel v. Moran, Fitzsimons & Co. (Mich.) 61 N. W. 509. 8 6 31 Am. Law Reg. 352, considering cases; St. John's & H. R. Co. v. Shalley, 33 Fla. 397, 14 South. 890; Pierce, R. R. 289, notes 5, 6, 7, 8. 87 Quarman v. Burnett, 6 Mees. & W. 499; Steel v. Southeastern Ry. Co., 16 C. B. 550; Reedie v. London & N. W. Ry., 4 Exch. 244; Fenton v. Dublhi Steam Packet Co., 8 Adol. & E. 835; Larson v. Metropolitan St. Ry. Co., 110 Mo. 234, 19 S. W. 416; Brackett v. Lubke, 4 Allen (Mass.) 138; Forsyth v. Hooper, 11 ADen (Mass.) 419; Wood, Mast. & S. p. 630, § 317. 88 Geer v. Darrow, 61 Conn. 220, 23 Atl. 1087. 89 Collins V. Cha'rtiers Val. Gas. Co., 139 Pa. St. Ill, 21 Atl. 147 (applied to drilling well, whereby neighboring water was contaminated). C^h. 3] RELATIONSHIP. 231 74. A person employing an independent contractor is not generally responsible for the latter's wrongful acts, or those of a subcontractor or servant of either, except when — (a) He is negligent in the selection of the contractor. (b) He personally interferes with, or undertakes to do, or has accepted, the contractor's work. (c) The thing contracted to be done is tortious. (d) There has been a failure to conform to a standard of duty which is required of the employer abso- lutely. As a general rule, the contractor, and not the employer of the con- tractor, is liable for the tort of the contractor and of the contractor's servants.^" Some doubt, however, has been expressed whether the same principles apply when the tort is the act of the contractor or of the subcontractor himself.®^ Where the contract is compulsory, as where a butcher is compelled to employ a licensed drover, the contractor and not the employer is liable."^ The employer is not liable for the negligence of the contractor's servants in the performance of a contract to do a lawful and proper thing. Thus, the owner of lands who employs a carpenter for a specific price to alter and repair a building thereon, and to furnish all the materials for this purpose, is not liable for damages resulting to a third person from boards deposited in the highway in front of the land by a servant in the employ of the carpenter, and intended to 9 A turnpike company, lawfully permitting an independent contractor to operate an engine over railway tracks which lie on the pike, in performing his contract with the company, is not liable for an injury occurring to a trav- eler on the pike through the negligent operation of such engine. City & Suburban Ry. Co. v. Moores (ild.) 30 Atl. 643. A person who has hired a con- tractor to do certain work, and has no immediate control over the servants of the contractor, is not liable to a person injured through the negligence of one of such servante (De Forrest v. Wright, 2 Mich. 368, followe'd). Riedel v. Moran, Fitzsimons & Co. (Mich.) Gl N. W. 509. 91 Pig. Torts, § 96. 92 Milligan v. Wedge, 12 Adol. & E. 737; Case of The JIaria, 1 W. Rob. Adm. 95. But see Sadler v. Henlock, 4 El. & Bl. 570; Martin v. Temperly, 4 Q. B. 298. 232 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 be used in such alteration and repair.*' This merely pertains to the mode of doing the worli."* Negligence in Selection — Interference with Work. If the employer is negligent in the selection of his independent contractor, or otherwise, this may be actionable fault. '"' Interfer- ence by the employer with the contractor's work attaches liability to him. Thus, where a contractor employed to make a drain left a heap of gravel by the roadside, the employer paid a navvy to cart it away. This was not properly done, and a third person was con- sequently upset as he was driving home. The employer was held S3 HlUard v. Richardson, 3 Gray, 349; Bigelow, Lead. Cas. 636, overruling Bush V. Steinman, 1 Bos. & P. 404. But see Massachusetts case, post, p. 232. (The cases citing, questioning, or overruling Bush v. Steinman will be found col- lected on p. xxvlii. of the first volume of Thompson on Negligence.) Cf. Rob- bins V. Chicago City, 4 Wall. 657, with Water Co. v. Ware, 16 Wall. 566. And see Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755; Id., Chase, Lead. Cas. 240; Reagan v. Casey, 160 Mass. 374, 36 N. E. 58; Felton v. Deall, 22 Vt. 171; Bailey v. Troy & B. Ky. Co., 57 Vt. 252; McLoughlin v. Transportation Co., 7 Misc. Rep. 119, 27 N. Y. Supp. 248; Cunningham v. International B. Co., 51 Tex. 503; Atlantic & F. Ry. Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277; St. Louis, A. & T. Ry. Co. v. Knott, 54 Ark. 424, 16 S. W. 9. 0* Scammon v. Chicago,, 25 111. 424; Steel v. Southeastern Ry. Co., 16 C. B. 550. An employer is not liable for the operation of a portable steam engine by an independent contractor in such a way as to be a nuisance, when, prop- erly executed, no liability would attach. Wabash, St. L. & P. Ry. Co. v. Far- ver. 111 Ind. 195, 12 N. E. 296 (reviewing many cases). Cf. Skelton v. Fenton P^lectric Light & Power Co., 100 Mich. 87, 58 N. W. 609. And see Louisville & N. R. Co. v. Orr, 91 Ky. 109, 15 S. W. s'. OS Berg v. Parsons, 84 Hun, 60, 31 N. Y. Supp. 1091; Norwalk Gas Light Co. V. Borough of Norwalk, 63 Conn. 495, 28 Atl. 32. And see Ardesco Oil Co. v. Gilson, 63 Pa. St. 140; Sturges v. Society, 130 Mass. 414; 14 Am. & Eng. Enc. Law, 836; 1 Lawson, Rights, Rum. & Prac. § 300; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Cuff v. Railroad Co., 35 N. J. Law, 17; Connors v. Hen- nessy, 112 Mass. 90; Ware v. St. Paul Water Co., 2 Abb. (U. S.) 261, Fed. Cas. No. 17,172. Cf. Eugel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052. Berg v. Parsons and Norwalk Gas Light Co. v. Borough of Norwalk supply the case Mr. Thompson was unable to find, "where a proprietor has been held answera- ble for the negligence of an independent contractor, upon this ground alone." 2 Thomp. Neg. 908. And see article by Charles W. Pierson, Esq., 29 Am. Law Rev. 229, and post, p. 991, "Negligence of Master in not Selecting Competent CoemploySs"; post, "Negligence of Master and Servant" ■Ch. 3] RELATIONSHIP. 233 liable.'" But if the independent contractor abandons the work and the employer continues the enterprise, the latter is primarily re- sponsible."'^ The effect is the same if the tort arises after an inde- pendent contractor has finished his work and his employer has ac- cepted it. Thus, where an independent contractor had dug holes •and they had been accepted, the employer was liable for injuries consequent on their being left unguarded."* Liability where Thing Contracted to be Done is Tmiious. When the thing contracted to be done is tortious or unlawful, merely doing it by another person under any form of contract will not exonerate the employer. Thus, where a company without the necessary special powers employed a contractor to open trenches in the streets of a city, and a person was injured by falling over a heap of stones left by the contractor, the company was liable for the contractor's wrongful act."" Where a canal company contracts with «8 Burgess v. Gray, 1 Man., G. & S. 578. Of. Fisher v. Rankin, 78 Hun, 407, 29 N. Y. Supp. 143; Norwalk Gas Light Co. v. Boroua'to of Norwalk, 63 Conn. 495, 28 Atl. 32. And see Woodman v. Metropolitan K. Co., 149 Mass. 335, 21 N. E. 482; Steel v. Southeastern Ry. Co., 16 C. B. 550; Pendlebury v. Green- halgh, 1 Q. B. Diy..36; Gourdier v. Cormack,2 E.D.Smith (N.Y.) 254; King) v. Railroad Co., 66 N. Y. 181; Eaton v. Railway Co., 59 Me. 520-532, 534; Long V. Moon, 107 Mo. 334, 17 S. W. 810; Clark v. Fry, 8 Ohio St. 358; Robinson v. Webb, 11 Bush (Ivy.) 464-177, 480; Houston & G. N. Ry. Co. v. Meador, 50 Tex. 77; Hughes v. Railway Co., 39 Ohio St. 461. Where the owner of a building at the request of the contractor who was at work thereon furnished a man to run the elevator for the use of the contractor, the elevator man is still the servant of the owner, who is therefore liable for injuries to the serv- ant of the contractor caused by the negligence of the elevator man. Higgins v. Western Union Tel. Co. (Super. N. Y.) 31 N. Y. Supp. 841. 97 Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82. 9 8 Donovan v. Oakland & B. Rapid-Transit Co., 102 Cal. 245, 36 Pac. 517. 90 Ellis V. Sheffield, etc., Co., 23 Law J. Q. B. 42; Creed v. Hartman, 29 N. Y. 591. A company which obtains leave to dig up streets and lay its pipes along them is liable for personal injuries caused by the defective filling of a trench, even though the work was being done by and under the exclusive con- trol of another, who had contracted to do the work for the company. Col- grove V. Smith, 102 Cal. 220, 36 Pac. 411. And, generally, see Gcrham v. Gross, 125 Mass. 232; Blessington v. Boston, 153 JIass. 409, 26 N. E. 1113; Sturges v. Society, 130 Mass. 414; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421; Wood- man V. Metropolitan R. Co., 149 Mass. 335, 21 N. B. 482; Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132; Wilson v. White, 71 Ga. 506. Cf. Brown v. Mc- 234 LIABILITY FOR TORTS COMMITTKD BY OR WITH OTHERS. [Ch. S a third person for the repair of its canal, to be made with soil taken from certain land, the contract is in its nature injurious to the land- owner, and the company is liable for the damages caused by its per- formance, under the doctrine of respondeat superior.^"" lAabilily for Breach of Absolute Duty. Where a person is bound to perform an act as a duty, or is held to a certain standard of conduct, he intrusts the performance of that act to another at his peril ; and for failure of such person to perform such act, or to conform to that standard of conduct, whether he stood in the relationship of contractor or servant, the person on whom the duty rests is liable for his negligence, and it is immaterial whether the obligation be imposed by contract or general law.^°^ The line in the cases with respect to things lawful in themselves, but likely to be attended by injurious consequences, is not entirely distinct ^"^ The law recognizes that one who has a duty to perform cannot shift the duty on the shoulders of another, and is liable Leish, 71 Iowa, 381, 32 N. W. 385; Bailey v. Railway Co., 57 Vt 252; Mc- Carthey v. City of Syracuse, 46 N. Y. 194-199; Eaton v. Railway Co., 59 Me. 520; St. Paul Water Co. v. Ware, 16 Wall. 566. 100 Williams v. Fresno Canal & Irr. Co., 96 Cal. 14, 30 Pac. 961; Crenshaw V. Ullman, 113 Mo. 633, 20 S. W. 1077. As to blasting in violation of an ordi- nance, see Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Brennan v. Schreiner (Super. N. Y.) 20 N. Y. Supp. 130. 101 Mattlse v. Consumers' Ice Manuf'g Co., 46 La. Ann. 1535, 16 South. 400; City & Suburban Ry. Co. v. Moores (Md.) 30 Atl. 643; Storrs v. City oE Utica, 17 N. Y. 104; Colgrove v. Smith, 102 Cal. 220, 36 Pac. 411; WilUams V. Fresno Canal & Irr. Co., 96 Cal. 14, 30 Pac. 961; Hole v. SittiBgboume E. Co., 6 Hurl. & N. 488. And -See article by Mr. H. H. Bond, in 3 Alb. Law J. 261. Pye v. Faxon, 156 Mass. 471, 31 N. E. 640. 102 Taking down a wall weakened by age and decay is not so intrinsically dangerous as to attach liability to the owner as weU as to Independent con- tractor. Engel V. Eureka Club, 137 N. Y. 100, 32 N. E. 1052; cf. Wilkinson V. Detroit Steel & Spring Works, 73 Mich. 405, 41 N. W. 490; Gorham v. Gross, 125 Mass. 232; Sturges v. Society, 130 Mass. 414; Sesseiigvit v. Posey, 67 Ind. 408. The work of making a cellar in a building waterproof is not inherently dangerous because it is necessary to use the coal holes in the pavement for the purpose of ventilation, and for the introduction of materials, and the owner is not liable for the negligence of the contractor in using tfie coal holes. Maltbie v. Bolting, 6 Misc. Rep. 339, 26 N. Y. Supp. 903. Negli- gence on the part of independent contractor in laying a pipe in accordance with municipal ordinance attaches liability to the original employer. Col- Ch- 3] RELATIONSHIP. 235 for its nonperformance although the fault be directly attributable to an independent contractor. The duty may be a common-law duty. Thus, the occupier of a house on whom devolved the duty of caring for a lamp overhanging a highway, and who employed an independent contractor to malce the necessary repairs to it, was liable for damages done by its falling on a passer-by.^°' Blasting with dynamite, for example, would seem to be so intrinsically dangerous that in many cases the employer cannot excuse himself by showing a contract with another to do the work.^"* No man has a right so grove V. Smith, 102 Cal. 220, 36 Pac. 115. In an action against a railroad company by a passenger for injuries resulting from an obstruction of the track by work being done thereon. It is no defense that defendant had placed the work in the hands of an independent contractor, and that his negligence caused the obstruction. Carrlco v. West Virginia Cent. & P. Ry. Co. (W. Va.) 19 S. E. 571; Donovan v. Oakland & B. Rapid-Transit Co., 102 Cal. 245, 36 Pac. 517; Houston & G. N. R. Co. v. Meador, 50 Tex. 77; Pickard v. Smith, 4 Law T. (N. S.) 470; Wood, Mast. & S. p. 625, § 316; Pierce, R. R. 200; Lan- caster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377, 9 AU. 852. 103 Tarry v. Ashton, 1 Q. B. Div. 314; Gleeson v. Virginia Midland Ry. Co., 140 U. S. 435, 11 Sup. Ct. 859. It Is immaterial what time the acci- dent happened, whether before, after, or during the work. Pig. Torts, 96. And see Roemer v. Striker (Super. N. Y.) 21 N. Y. Supp. 1090; Khron v. Brock, 144 Mass. 516, 11 N. E. 748; Railway Co. v. Plopkins, 54 Ark. 209, 15 S. W. 010; post, p. 836, "Negligence." As to party-wall cases, et sim., see Bower v. Peate, 1 Q. B. Dlv. 321; Dalton v. Angus, L. R. 6 App. Cas. 740; Hughes v. Pereival, L. R. 8 App. Cas. 443; Gray v. Pullen, 5 Best & S. 970; Engel v. Eureka Club, 59 Hun, 593, 14 N. Y. Supp. 184; Keteham v. Newman, 141 N. Y. 205, 36 N. E. 197; Hawver v. Whalen (Ohio Sup.) 29 N. E. 1049; Fowler v. Saks, 7 Mackey (D. C.) 570. An adjoining owner of a party wall has a right to in- crease its height; and where he contracts" with an independent contractor to have this done in a lawful, proper, and usual way, so that the work does not become, in itself, dangerous or extraordlnaiy, and does not subject the exist- ing wall to overweight, he is not liable for the damage incident to the falling of the wall through some accident. Brooks v. Curtis, 50 N. Y. 039, distin- guished; Engel V. Eureka Club, 59 Hun, 593, 22 N. Y. Supp. 986, reversed; Negus V. Becker, 143 N. Y. 303, 38 N. E. 290. 101 NorwaUi Gas Light Co. v. Borough of Norwalk, 03 Conn. 495, 28 Atl. 32. And see cases collected in note to Hawver v. Whalen, 14 Lawy. Rep. Ann. 828-830 49 Ohio St. 69, 29 N. E. 1049. Thus, the owner of premises within a city who employs an independent contractor to do work thereon which hi- volves blasting, through which a person not connected with the work is In- jured, the owner is liable, if he knew that blasting was necessary, or learned 236 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 to use his property that there will necessarily result a wrong to an- other, — as, for example, a nuisance.^'"' The distinction between owners of real estate and owners of personalty in this respect is no longer recognized.^"' And, generally, the performance of no duty owed to the public or to private individuals can be delegated so as to escape liability."' In Lebanon Light, Heat & Power Co. v. Leak,^"' a gas company, a contractor, to whom was let the contract for boring gas wells, and his subcontractor, were all held liable for injuries caused by the negligent manner in which the gas pipes were laid, although the plant had not been turned over to the company. Statutory obliga- tions cannot be escaped by delegation of duties to a contractor.^" "Where certain powers and privileges have been specifically con- ferred by the public upon an individual or corporation, for private ■emolument, in consideration of which certain duties affecting public health .or safety of public travel have been expressly assumed, the individual in receipt of the emoluments cannot be relieved of re- sponsibility by committing the performance of those acts to another. In such cases liability cannot be evaded by showing that the injury resulted from the fault or negligence of a third person employed to that it was being done, and failed to take reasonably prompt and efficient measures to prevent injury to other persons. Jones v. McMinimy (Ky.) 20 S. W. 435. Et vide Brennan v. Schreiner (Super. N. Y.) 20 N. Y. Supp. 130; French v. Vix (Com. PI.) 21 N. Y. Supp. 1016; Stone v. Cheshire K. Corp., 19 N. H. 42T; City of Tiffin v. McCormack, 34 Ohio St. 638. But see Tibbetts v. Knox, 62 Me. 437; Brannock v. Ehnore, 114 Mo. 55, 21 S. W. 451; McCafferty V. Sputen Ry. Co., 61 N. Y. 178. Compare Oufe v. Newark R. Co., 35 N. J. Law, 17, with Carman v. Steubenf ille & I. Ry. Co., 4 Ohio St. 399. 105 CufC V. Newark R. Co., 35 N. J. Law, 17; Chicago v. Robins, 2 Black, 418; Vogel v. Mayor, 92 N. Y. 10. 106 Reedie v. Railway Co. (1849) 4 Exch. 244. Cf. Bush v. Steinman (1799) 1 Bos. & P. 404, and Quarman v. Burnett (1840) 6 Mees. & W. 499. 107 Carrico v. West Virginia R. Co. (W. Va.) 19 S. E. 571; Spence v. Schultz (Cal.) 37 Pac. 220; Hawver v. Whalen, 49 Ohio St. 69, 29 N. E. 1049. 10 s Lebanon Light, Heat & Power Co. v. I/eap (Ind. Sup.) 39 N. E. 57. 109 Hole V. Sittingbourne R. Co., 6 Hurl. & N. 488; Ketcham v. New- man, 141 N. Y. 205, 36 N. E. 197. Here the defendant was authorized by stat- ute to make an opening over a navigable river. It was held liable, because its contractor made such bridge so that it would not open, and plaintiff's ves- sel was thereby prevented from navigating the river. Ch. 3] HELATIONSHIP. 237 perform those duties.^^" It was held that a turnpike company low- ering the grade of its road, while in receipt of tolls and maintaining the road ready for use, is bound to guard a threatened or dangerous obstruction, and by suitable devices to protect travelers. The per- formance of these duties it cannot escape by contracting with a third person to perform them.^^^ On the same principle, where a 110 Mr. Justice Clark, in Lancaster Ave. Imp. Co. v. Rlioads, 116 Pa. St. 377, 9 Atl. 852. And see cases collected in argument, page 380. Carson v. Leathurs, 57 Miss. 650; Wood, Mast. & S. pp. 621-G24. 111 Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377, 9 Atl. 852. General corporation laws, like special charters, are in the nature of a contract. In return for powers and franchise granted, the corporation is under obligation to perform certain duties to the public, and cannot without consent of the other party to the contract absolve itself from its obligation. A railroad lessor is therefore liable for its lessee's negligence. Abbott v. Railroad Co., 80 N. Y. 27; Langley v. Railroad Co., 10 Gray, 103; New York, etc., Ry. Co. v. Winans, 17 How. 30; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 XJ. S. 23, 9 Sup. Ct. 409; Central Transp. Co. v. Pullman's Palace Car Co., 139 V. S. 62, 11 Sup. Ct. 478; Quested v. Newburyport & A. H. R. Co., 127 Mass. 204. A railroad company may be held liable for the tort of the servant of inde- pendent contractor, in the exercise of some chartered privilege or power of corporation, with its assent, which he could not have exercised independently of the charter. Such liability exists, however, in favor of third parties only. It does not extend to servant of independent contractor. West v. Railway, 63 111. 545; Toledo, St. L. & K. C. R. Co. v. Conroy, 39 111. App. 351; Pennsyl- vania Co. V. EUett, 132 111. 654, 24 N. E. 559. Et vide Vermont Cent. Ry. Co. V. Baxter, 22 Vt. 365; Gardner v. Smith, 7 Mich. 410. Mr. Bailey, in his work on the Law of Master and Servant, at page 472, says "the rule is per- haps more liberal in respect to liability of railroad company," and cites Ed- mundson v. Railroad Co., Ill Pa. St. 316, 2 Atl. 404, and Hughes v. Railroad Co., 39 Ohio St. 461, in support of this proposition, and in support of the fur- ther statement that the difference is denied. Neither case would seem to re- veal any especial liberality to railroad companies. In fact, the cases already cited seem to hold a railroad company to a peculiarly strict responsibility because of the delegation of the power of eminent domain. The cases do, however, recognize the doctrine of independent contractors of way. A rail- road company is not liable for damage done by fires set by contractor in con- struction of road. Callaham v. Railway, 23 Iowa, 502; Eaton v. Railway Co., 59 Me. 520. But see St. Johns & H. R. Co. v. Shalley, 33 Fla. 397, 14 South. 890. Nor by neglectful operation of construction train. Miller v. Railway, 76 Iowa, 655, 39 N. W. 188. See Pierce, R. R. 241-290. The duty of a city to keep its streets in reasonably safe condition cannot be delegated, and where it lets a contract for improving its streets, and the 238 LIABILITY FOE TOKTS COMMITTED BY OE WITH OTflEliS. [Ch. 3 building is being constructed on a city lot, and tbe excavation in tlie sidewalk is not protected as required by ordinance, the owner of tlie lot is liable to persons injured by falling therein, though the work is being done by an independent contractor/^'' Ldability for Acts of Subcontractors. The rule as to contractors is extended to subcontractors.^^' The inquiry in both cases is whether the relationship of master and serv- ant exists between the original contractors and the subcontractors. If it does not, then not the contractors but the subcontractors are liable for their own and for their servants' wrongs.^^* But one who has authorized the doing of an unlawful act is liable for any injury resulting therefrom, although immediately caused by the conduct of a subcontractor. Thus, one who without special authority makes an excavation in the sidewalk of a public street is liable for an in- jury resulting therefrom to a passer-by, though the injury was caused by the negligence of a subcontractor in not properly guarding the excavation.^^* contractor makes excavations in the streets and fails to supply proper guards or liglits, and a traveler is injured in consequence of such failure, the city is liable, and it is immaterial that the city had no notice that the ditch was not guarded or lighted. Wilson v. City of Troy, 60 Hun, 183, 14 N. Y. Supp. 721; Id., 135 N. Y. 96, 32 N. E. 44; City of Sterling v. Schiffmacher, 47 111. App. 141; City of Beatrice v. Eeid, 41 Neb. 214, 59 N. W. 770; KoUock v. City of Madison, 84 Wis. 458, 54 N. W. 725; Hepbui-n v. City of Philadelphia, 149 Pa. St. 335, 24 Atl. 279. And see Bigelow, Lead. Cas. 654; Bish. Noncont. Law, § 605. 112 Spence v. Schultz, 103 Cal. 208, 37 Pac. 220; Crenshaw v. Ullman, li;{ Mo. 633, 20 S. W. 1077; Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S. S'X 82. 113 Cuff V. Railroad Co., 35 N. J. Law, 17; Railroad Co. v. Reese, 61 Miss. 581; The Harold, 21 Fed. 428; Rapson v. Curbltt, 9 Mees. & W. 710; Knight V. Fox, 5 Exch. 721; Overton v. Freeman, 11 C. B. 867. Cf. Ellis v. Gas Co., 2 El. & Bl. 707; Milligan v. Wedge, 12 Adol. & E. 737; Scarborough v. Railway Co., 94 Ala. 497. 10 South. 316. 114 Pack V. Mayor, etc., 8 N. Y. 222. And see Johnson v. Ott, 155 Pa. St. 17, 25 Atl. 751; Dalyell v. Tyrer, 28 Law J. Q. B. 52; Rapson v. Curbitt, 9 Mees. & W. 710., 115 Creed v. Hartinan, 29 N. Y. 591. Oh. 3] KEI.ATIONSHIP. 239 SAME— MASTER AND SERVANT. 75. Iiiability for torts, as affected by the relation of mas- ter and servant, may for convenience be treated under the following heads: (a) Master's liability to third persons for torts of servant. (b) Master's liability to servant. (c) Servant's liability to servant. (d) Servant's liability to master. (e) Servant's liability to third persons. SAME— MASTER'S LIABILITY TO THIRD PERSONS. 76. The master is liable to third persons for torts of his servant only -wrhen the relationship of master and servant exists, and liability attaches to the master in any one or more of the five \«rays in -which lia- bility may attach to a defendant."^ Unless the relationship involved in a third person's attempt to fasten liability on a defendant is that of master and servant with respect to the wrong complained of, then the case does not fall within this category.^^^ As has been seen, liability for tort may in general arise in one or more of five ways, — from personal commis- sion, consent, relationship, instrumentality, and estoppel. It may ussist in understanding a confused subject to apply this idea to cases of master and servant. In the first place, the master may assist the servant in performing a tortious act, and thus become, by personal participation, a joint tort feasor with him. Little trouble arises from so simple a case. Accurately speaking, here the master is not liable for his servant's tort; all the wrong is his own. In the second place, when a master authorizes his servant (or even an independent contractor) ^^Mo undertake a contract to do a tortious 11 « Ante, c. 1. iiT Accordingly, the first matter subsequently considered is tlie establish ment cf relationship of master and servant. 1 1 s Ante, pp. 233, 234, "Independent Contractor." Exception where thing contracted to be done is tortious. 240 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. S thing, the master is liable. This class of cases presents some ques- tions not so easy of solution.^^* The liability which arises from ratification of an unauthorized wrong of a servant rests on similar principles.^'" In the third place, liability may arise from relationship of master and servant and of master to plaintiff (a third person) m an action against the master for the servant's tort.^'^ In the fourth place, the instrumentality of the master may impose a duty on him^ for the violation of which by his servant in connection with such in- strumentality the master may be held liable.^^'' And, in the fifth place, a master may so conduct his business and so profit by his servant's fraud that the law will not allow him to deny responsibil- ity for the employe's wrong. As a matter of fact, the four elements — consent, relationship, instru- mentality, and estoppel — are, as cases arise in actual practice, very much confused, as sources of liability, both in fact and in the theory of law. Therefore, after consent proper has been considered, lia- bility because of relationship (incidentally involving instrumentality) will naturally come up for attention. Liability because of instru- mentality proper is determined by principles of negligence and of the duty to insure safety. Its consideration will therefore be post- poned until those subjects come up in logical order as specific wrongs. 77. The doctrine of respondeat superior applies only where the peculiar relationship here to be described as that of master and servant is shown to exist."* It may be created expressly by agreement of par- ties or inferred from all the circumstances of a given case.. "»Post, p. 245. 120 Ante, c. 1, "Ratification or Adoption." 121 Post, pp. 261-263. 12 2 Post, pp. 264, 265. 123 The early law knew only "servants." "Agent" is a later branching o£E of the same class. "Agent," as a commercial term, first appears In Marlowe and Shakespeare. Whatever distinction there may be between these terms, the rela- tionship of master and servant, principal and agent, employer and employ^, Wl. 3] RELATION:^ HI p. 241 The relationship must be established before the doctrine respond- eat superior will be applied.^ = * It has been seen that the employer is not ordinarily liable for the tort of an independent contractor or of his servant, but as to the liability of the independent contractor to third persons for the torts of his servant the same question aris- es." ° The relationship is based on the peculiar contract of the mas- ter and servant. Mere contract of bailment does not create it."" The contract is usually express; but the consent involved may be also implied, ordinarily by the jury."' The privity does not exist and the like, may be safely treated here as identical. 4 Harv. Law Rev. 301; .5 Haw. Law Rev. 6-9; 28 Am. Law Rev. 18; Munay, Diet. "Agent"; Inni.s, Torts, oS. 124 Thoi-pe V. New York Cent. & H. R. R. Co., 7i; X. Y. 402; Dwinelle r. New York Cent. & H. R. R. C©., 120 N. Y. 117, 24 N. E. 319; Pennsylvania Co. V. Roy, 102 U. S. 431; Wood v. Cobb, 13 Allen (Mass.) 58; Kimball v. Cashman, 103 Mass. 1!>4; Ward v. New England Fibre Co., l."')4 ilass. 419, 28 N. E. 299; Welsh v. Parrish, 148 I'a. St. 509, 24 Atl. 86; Wilson v. Clark, 110 N. C. 3G4, 14 S. E. 902. But see Linnehan v. Rollins, 137 Mass. 123, Burd, Lead. Cas. 68; Reagau v. Casey, 160 Mass. .•!74, .30 N. E. 58; Walker v. Han- nibal & St. J. R. Co. (ilo. Sup.) 20 S. 'W. 3G0. Ejection of a tr.".jpasser from a car by a person carrying a lantern does not show relationship of master and servant. Corcoran v. Concord & M. R. Co., C. C. A. 231, ."JO Fed. 1014. De- fendant constructed a proijer gate. A horse was put into adjoining field. A stranger opened gate. Defendant not liable for injurj' to horse escaping, Peoria, etc., R. Co. v. Aten, 43 111. App. OS. 12 Thus, it has been held that a contractor is not liable for an injury caused by bricks falling from a properly constructed wall, after its com- pletion, through the intentional or negligent act of an employe not acting within the scope of his employment, though proper scaffolding or guards to prevent brick falling have not been erected. Mayer v. Thompson-Hutchi- son Bldg. Co. (Ala.) IC South. 020; Thompson-Huttliison Bldg. Co. v. Mayer, Id. 126 Sproul V. Ilomniingway, 14 Pick. 1; Stevens v. Armstrong, 2 Seld. 435; Rapson v. Curbitt, 9 Mees. & Vi'. 710; Carter v. Berlin Mills, 58 N. H. 52; Powles V. Hider, 6 El. & Bl. 207; A'enables v. Smith, 2 Q. B. Div. 104, 270; King V. Spurr, S Q. B. Div. 104; Schular v. Hudson River R. Co., 38 Barb. 0.5.^. 5-7 Cases sent to jury to determine question of relationship: Button v. Chicago, M. & St. P. R. Co.. 87 Wis. 63. 57 N. W. 1110; Reens v. Mail & Exp. Pub. Co., 10 Misc. Rep. 122, 30 N. Y. Supp. 913; Sandifer v. Lynn, 52 Mo. App. 5.53; Evansville & T. H. R. Co. v. Olaspell (Ind. App.) 30 N. E. 297; Reagan v. Casey, 160 Mass. 374, 36 N. E. 58; Consolidated Coal Co. v. Bruce I,AW OF TOUTS— 16 2-12 IJAIULITY FOR TORTS COMMITTED BY OR WJTH OTHICKS. [Cll. ?> whvic the relationship has been ieruiinated by eillier party. There- fiuc, if a discharged employ*? maliciously misplaces a switch and Avrecks a train, the company may not be liable.^^^ Ordinarily a servant may not make another person a servant of his master,^-" but he may have authority so to do expressly or by implication from the nature of his position, the customary perform- ance of his duty, or by ratification of his conduct by his master."" Necessity may also justify appointment of subaj^ent.^"^ (111. Sup.) 37 N. E. 912. Cases when courts held uo veliitionship of master and scivant: Dean v. Railway Co., 98 Ala. r,m, 13 South. 489; Flynn v. Camp- bell. Kid >Iass. ll'S. :'..-, N. E. 453; Catlett v. Young, 143 111. 74, 32 N. E. 447; Mardy v. Itailway Co. iN. .T.) 31 Atl. 2S1; Kansas City, M. & B. K. Co. v. Philliiis, lis Ala. l."ii. V.i Soiitli. 05; Tennessee C. I. T. R. Co. v. Hayes, 97 Ala. 201, 12 South. 9S: Sageis v. XuckoUs, :j Colo. App. 9.5, 32 Pac. 187; (iaines v. Bavd. 57 Ark. 015, 22 ,S. W. 570: .Toues v. "Iron (.'u., 90 Mich. iis. .55 X. W. i;s4; Tousignant v. Iron Co., 9(i Mich. 87, .55 N. W. G81. Where railroad em- ployes organize a voluntary fire company, and the railroad comjiauy fur- nishes apparatus for the use of the firemen, permits them to drill at regular intervals during work hours without deducting time, and allows the chief, u machinist, an hour each week to inspect the shops as a precaution against fire, it is the chief's duty, in case of fire, to aid in extinguishing it, and in so doing he acts as an employe. Collins v. Cincinnati, N. O. & T. P. Ry. Co. (Ky.) IS S. AV. 11. i2SEa.st Tennessee, V. & G. R. Co. v. Kane (Ga.) 18 S. E. 18. 129 Morgan v. Smith (Mass.) 35 X. E. 101; Catlett v. Young, 143 111. 74, 32 N. E. 447; Dimmitt v. Railway Co.. 40 JIo. Aiip. 063; Glynn v. Houston. 2 Man. & a. 3;!7: Eucas v. Mason, L. R. 10 Exch. 251. 130 Evansville l^- T. H. R. Co. v. Claspell. S Ind. App. 08.5, 30 X. E. 297. Cf. Bowler v. O'Conuell, 102 Mass. 319, :iS X. E. 498 (whether servant or poUcoman); Brill v. Eddy, 115 Mo. 590, 22 S. "\V. 4.SS: Southern Pac. Co. V. Hamilton, 4 C. C. A. 441, .54 Fed. 4(1S; St. Louis, I. M, & S. Ry. Co. V. Haekett, .58 Ark. 381, 24 S. "\V. 881; Xorfolk & W. R. Co. v. Galliher. 8!) 1-1 Kenner v. Bryant, 70 Tex. .540, 15 S. "W. 491. Cf. Sevier v. Birmingham. S. & T. U. Co., 92 Ala. 258. 9 South. 405, Where a factoiy owner is repre- sented \>y an overseer, who allows a card grinder to give orders to other employes, or Imijoses on the card grinder work which he cannot do without assistance, and at his call an employe leaves his ordinary work, and assists him, such employe and the owner stand in the relation of servant and mas- ter while such assistance is being rendered. Patnode \. y\'arven Cotton Mills, 157 Mass. 283, 32 X. E, loi. 14 Am. & Eng. Enc. Law, 810, note ?; Mechem, Ag. § 749: Wood. JIast. & Serv. ;3()(). As to where contract of service ends, and as to its continuity, see :j2 Cent. L;nv .1. :'.:!7. Ch. 3] KELATION'SHIP. 243 While in many cases there uiay be no doubt that the relationship of master and serA-ant exists, it is often no easy matter to determine Mho may be the proper ])erson to be charged A\ith liability as master. In many cases of this kind the master is to be determined by in- spection of contract. Thus, where one sold and delivered fireworks, and sent a man to assist in their exhibition, the purchasers were held, under construction of the contract, not to have been the master of such person, and therefore not liable for the explosion resulting from such person's negligence. "The master is the pei'son in whose business he Is engaged at the time and who has the right to direct and control his conduct." ^^^ Va. 03(1. Ki S. E. 935; Dickson v. Wiildron, 13.1 Ind. .jOT, 34 N. E. .">0G, and 3.- X. E. 1; Tolclipster Beacli Imp. Co. v. SteiuDieier. 72 Md. 313, 20 Atl. 188; Golden v. Xewbrand, 52 Iowa, -.50, 2 N. W. 5.!7; Jewell v. Grand Trunk Ry. Co., 55 N. ?I. s-i; H.'ilnptnok V. Great Northern K. Co., 55 ilhin. 446, 57 N. "\V. 144; Cumberland Vnl. U. Co. v. ilyers. .55 Pa. St. 2S,S; AA'ichtroclit v. Easnacbt, 17 La. Ann. icii; McDaniel r. Uailway Co., 90 Ala. 04, 8 South. 41. For comi)laiut failing to show volunteer to be sirvant, see Hart v. Railway Co., 80 Wis. 483, 57 N. W. !»1; and, generally, see Simons v. Monier, 29 Barb. 410; Suydani v. Jloore, 8 Barb. 3.58; Mayor v. Bailey, 2 Denio, 433; Randleson v. JIurray, 8 Adol. & K. 109; AVheatly v. I'atritk. 2 Mees. it AY. 050. But in certain cases a principal or an agent may not be liable for torts of subagent; and so one superintending the construction of a building, as agent of the conti'actor, is eqiially liable with his principal for an injury to a third person, resulting troi'n a failure to erect proper scaffolding to prevent the fall of bricks, or from the negligent construction of the wall. Mayer v. Thompson- Hutchison Bldg. Co. (Ala.) 10 South. 020; Thompson-Hutchison Bldg. Co. V. ila.yer, Id. 132 w.vllie V. I'almer, 137 X. Y. 248, .33 X. K. 381. Compare Colvin v. Tea- body, 155 ila.ss. 104, 20 X. E. 50. Compare Knight v. Fox, 5 Exili. 225. with Blake v. Thirst, 2 Hurl. & C. 2ti. That a packing company designates, in a contract to manufacture and ship goods, the particular person whom it intends putting in chaige, does not relieve it from liability for the neglect or incompe- tency of such person, on the theory that he has thus become tlie agent of both parlies. I'aige v. Roeding, 00 Cal. :!88, .31 I'ac. 204. Where plaintiff was in- jured l)y the negligence of a truck driver in the employment of defendant, but \-\ho was on that day M'r-\-ing another company under a contract T\hieh de- fondant had made with the latter to furnish it daily with a horse, truck, ami driver, defendant, and not the other company, is liable for the injury. Quinii V. Complete Electric Const. Co., 40 Fed. 50C. Where the owner of a building. at the re(un'st of th(; contractor who was at work thereon, furnished a man to run the elevator for the use of the contraclor, the elevator man is still the 24-i LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 In tlie case of tommon carrier where thcie are many connectiag- lines and many combinations and agreements between them, it is a matter of great difficulty to determine who are the proper parties to sue. This subject will be subsequently considered under the gen- eral subject of ''Common Carriers." A similar question arises as between a railroad company and a sleeping-car company. It sfenis that the porter is the servant of the railroad company sufficiently to attach liability to it for his torts.'^^^ A messenger sent by a District Telegraph Company in response to a call from one of its boxes is the agent of the company, and the company is liable where the messenger carelessly loses a package which he was called to carry.^^* A servant may remain the general servant of his original master and still be the seiTant of the person to whom he may be lent for particular employment. '^^^ servant of the owner, and lie is therefore liable for injuries to a servant of the contractor caused by the negligence of the elevator man. Higgins v. W. V, Tel. Co. (Super. N. Y.) 28 N. Y. Supp. 676. 133 Dwinelle v. New York Cent. & H. R. R. Co., 120 N. Y. 117, 24 N. E. 310; Pullman Talace Car Co. v. Mathews, 71 Tex. (!.')!, 12 S. W. 711; Pullman Palace Car Co. V. Gavin, 93 Tenn. 53, 23 S. W. 70. But see Illinois Cent. R. Co. v. Handy, 63 Jliss. 609. But see Lemon v. Pullman Palace Car Co., 52 Fed. 262. Express messenger is not agent of railroad company. Louisville, N. 0. & T. Ry. Co. V. Douglass, G9 iliss. 723, 11 South. 933. United States postal train agents are not servants of railroad company. Poling v. Railway Co., 38 W. Va. 645, 18 S. E. 782; may be entitled to rights of passenger, Mellor v. Missouri Pac. Ry. Co., 14 S. W. 758; Id., 105 Mo. 455, 16 S. W. 840; Gulf, C. & S. F. Ry. Co. V. AVilson, 70 Tex. 371, 15 S. W. 280. 134 Sanford v. American Dist. Tel. Co. (City Ct. N. Y.) 27 N. Y. Supp. 112. Gateman hired by several roads. Brow v. Boston & A. R. Co.. 157 Mass. 899, 32 N. E. 3(i2; landlord and tenant, or master and servant, Doyle v. Union Pac, Ry. Co., 117 U. S. 413, 13 Sup. Ct. 333. 13 5 Donovan v. Laing [1893] 1 Q. B. 029; ante, p. 228, "Independent Con- tractor." A railroad company is not liable for negligence in the operation of an engine which, at the time of the accident, was rented to and under the lontrol of another company. Byrne v. Kansas City, Ft. S. & M. R. Co., 9 C. C. A. 6UG, 61 Fed. G05. Ch. 3] RELATIONSHIP. 24-5 78. The master is liable for the tort of his servant because of actual consent — (a) When he has authorized its commission in the first instance or made it his own by adoption. (b) "When he has commanded the doing of a thing w^hich necessarily or almost unavoidably results in dam- age to third persons. Turts Authorized or Adopted. The master is clearly liable for all torts which he commanded in the first instance, or which, having been done for his benefit, he has subsequently assented to. Thus, if a master directs his servant to commit a trespass, maintain a nuisance, perpetrate a fraud, or con- vert property of another to his own use, the master is certainly lia- ble.^ ^° Such results are the direct outgrowth of the deliberate in- tention of the master, and he is as much to be charged with the responsibility as if he had performed the act in person. As to cases of this kind the maxim of "qui facit per alium facit per se," — that is, the doctrine of identification of master and servant, — furnishes a sufficient reason. The same reasoning applies to the ratification by the master even of a servant's malicious conduct.^"' The master alone may be liable, or he and his servant may be joint tort feasors. If a man, knowing his sheep to have rot, sends his son to mai'ket to sell them, fraudulently withholding from him the fact that they are diseased, and the son sells them on the represen- tation that they are sound, the father is liable for his own fraud,^^^ 1S6 Soutberne v. Howe, 2 IloUe, 5-26. And see State v. Smith, 78 Me. 260, 4 Atl. 412; Ketchara v. Newman (N. Y. App.; 1894) 30 N. E. 197; Carman v. Railway Co., 4 Ohio St. o9!). If a landlord build a chimney, which, by the act of a tenant, becomes a nuisance, the landlord is not liable. Rich v. Bas- terfield, 4 C. B. 783. But if the use is contemplated and authorized by the landlord, he, as well as the tenant, is the author of the continuance of the nuisance. Harris v. .Tames, 45 L. .1. Q. B. 545; Vogel v. McAulifCe (R. I.) 31 Atl. 1 (to destroy furnace). 137 International & G. N. Ry. Co. v. Miller (Tex. Civ. App.) 28 S. W. 2.j:j. 138 Ludgater v. Love, 44 I^aw T. G94; Grifling v. Diller, 06 Hmi, 033, 21 X. Y. Supp. 407; National lilxch. Co. v. Drew, 2 Macq. H. L. Cas. 103-145, per Lord St. Leonards. 2H) LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Cil. 3 but liie seivaiit may also be liable.^'" The master who commands a tres])ass and the Kerrant who commits it; tlie master wlio author- izes a. false representation and the servant who makes it; and, gen- erally, the master who authorizes a wron^ and the servant who does the wrong, — are responsible as joint tort feasors.^*" Xo amount of care will exonerate parties who autliorize a wronj;- ful act, if it result in damage."^ As has been previously shown, one who orders the doing of an unlawful act, which produces injury, is liable, whether it has been done by his own s(^]vant or by a con- tractor or by a contractor's servant.^*- ''Lawful authority," it is said, "is to receive a strict interpretation, and uu unlawful authority a wide and extended interpretation." "" Thus, if a person ask an editor to "show another up," and the editor of the newspaper does so in gross and unauthorized terms, the person so inciting the editor might be punishable for criminal libel, but not civilly responsible in damages. But if one request another to publish defamatory mat- ter, and the latter publishes the matter, adhering to the sense and substance, but not to the language, the man making the request is liable to an action as publisher.^** But one who requests a deputy sheriiT to execute a writ is not liable for the latter's wanton or vio- lent trcsjiass in executing it, unless he orders or encourages the law- lessness.^*^ In such cases, it is apparent that the very command or request establishes the relationship of master and servant. Injurious Conduct Commanded. Where the master has directed the servant to do something which may not be in itself a cause of injury, but which by its very nature cannot be done without necessarily or almost necessarily eausinu; 139 Lamm v. Port Deposit Homestead Ass'n, 4',) Mil. 2:!:;, 2-M1; Duvall v. I'eaeh, 1 Gill, 172; Lamborn v. Watson, Har. & J. -iryl. lio Bates V. Pilling, 6 Barn. & C. 3S; Peck v. Cooper, 112 111. 192; Lamm v. Port Deposit Homestead Ass'n, 49 Md. 233; Blaen A^-on Coal Co. v. JMcCnl- loh, 59 JId. 403; Moore v. Appleton, 2(J Ala. 033; :Millei- v, Staiiles, 3 Colo. App. 93, 32 Pac. 81. 141 Cougi-eve v. Smith, 18 N. Y. 79. J<2 Houston & G. N. R. Co. t. Meador, 50 Tex. 77; ante, pp. 233, 234, "lude- peudeut Contractor"; Pig. Torts. § '.14; Shear. iV- R. Xeg. § 84. li'^Bac. Max. § 10. i-iiParkes v. Prescott, L. K. 1 Exch. 109-183. i'»" Sutherland v. Ingalls, 03 Mic-h. 020, 30 X. W. 342. t^h. .'i] KEI.ATIONsHlP. 247 damage to otheis, the master is liable. Thus, in a celebrated case the right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a laborer to lay down rubbish to obstruct the way, but not so as to touch the other's wall. The labdipr executed tlic order as nearly as he could, and laid the rub- bish some distance from the wall, but it soon "shingled down," and ran against the wall. For this the employer was held to answer in trespass, not in case. The master in su
  • Baru. it C. 591. And sec Sliarrocl v. !t;iilway Co., 4 Kxcli. ."iSI: Botts v. l>i' Vitro, 3 ('li. App. 4J'.l; Drew v. Peer, IK! Ta. St. 234; AV. I'. Tel. t'n. v. Siittertleld, .'U 111. App. :',Si;. (Jdrdou v. Kolt, 4 Exeh. ■Mio; Smith V. Lawrcncr, 2 Man. & K. 1; Samiucll v. Wright, o Esp. 2i;2: Dean v. Branthwalte. Id. ;!(;: Morley v. Gaisford, 2 II. Bl. 442; Seymour V. (iz-eenwood, 7 Hiu'l. & N. 3.30. i>' Mr. .r. H. Wit,'m(ire. in 7 Marv. Law Rev. .'iS.'!. In Nos. 0, 7, and 8 of 7 Ilarv. Law Iter, will be found Mr. M'igmore's article, of exceptional value and ability, on "Kespcmsibility Inr Tortious .\cts." From this .-irtiele a large 24S LIALilLITV FOR TORTS COMMITTED BY OR WITH OTHERS. [Cll. 3 80. The English courts at an early date recognized the doctrine of particular command as a test of the master's liability. But in England, even from a very eail.v date. i(^ was recognized that command (i. e. before tlie deed) or consent (i. e. before or after tlie deed) was in some vague way the condition of the master's crim- inal liability for the acts of his servant. This principle was extend- ed to the civil liability, and confined the master's liability to cases part of what follows as to the early tests of liability of the master is takeu. The early history of responsibility of the master is to be found in volume of Harvard Law Review. At page 319 Mr. Wigmore recognizes his obliga- tion to Prof. Dr. Helnrich Brunner's article in the Proceedings of the Royal Prussian Academy of Sciences (volume 35; July 10, 18U0), "Ueber absichts- lose ilissethat im Altdeutschen Strafrecht." It is common, and, perhaps, natural, to think of this criterion of liability as being a part of the crudity of legal conceptions current at the time; as being kin, for example, to wager of battle as a means of judicial determination of rights and wrongs. This opinion would lead to a recognition of the changes made as evolution in the law. As has been seen, there is a marked tendency throughout the general scope of the law of torts to regard some kinds of culpability as the basis of the law of torts, and to abandon the old standards of absolute liabilities with- out regard to any mental element. It is suggested, however, that this view of the law's development may not be entirely true. It may be that the vigor- ous Anglo-Saxon instinct, notwithstanding some manifest absurdities, re- garded wrong done from the point of view of the sufferer, and wisely dis- carded many of the subtleties which have been subsequently introduced. The actual development of law was on the lines of the Lex Aquilia. But it must be remembered that there have been at least three infusions of the civil law into the common law,— the first, when Csesar invaded Britain; the sec- ond, at the beginning of the Norman conquest; and the third, after the dis- covery of the treatise of Gaius. WhUe thus the light of the civil law was neither constant nor pure, the darkness has increased by the barren subtle- ties of the scholastics of the Middle Ages. The effect of the philo ophy of the Nominalists will be plainly apparent in the subsequent discussion, espe- cially of the liability of the servant to third persons as to misfeasance, mal- feasance, and nonfeasance. As the practical injustice in administration, and almost hopeless confusion of standards which the consequent refined and un- natmal distinctions have produced, have forced themselves upon the observa- tion of the people and of the jurists, there has been a reaction towards the earlier law. In the United States, this reaction has manifested itself in a vast quantity of legislation with respect to the rights of labor, the control of explosives, fire, et sim. There has been corresponding legislation in Bng- Ch- 3] KEI-ATIO-XSIIIP. 2-1'.* where the command or conHont was particular. Thus, according to Bacon (early in the seventeenth century), "in committing of lawful authority to another a party may limit it as strictly as it pleaseth him; and if the paity authorized do transgress his authority, though it be but in circumstance expressed, yet it sliall be void in the whole act." ^^^ Tliis period is treated as beginning with "Edward I., time 1300, circa." ^^° This cariicd the courts from the one extreme of universal responsibility for tlie conduct of servanls to the other, of responsibility only when the conduct of the servant had been ex- plicitly commanded by the master. Logically, the reason assigned for this test of the liability of the master was identification. The master was liable because the act of the servant was clearly his iict.^^" "Qui facit per alium facit per se." The doctrine, however, land. The ciystallization of wandering cases of absolute liability, by Ry- lands V. Fletcher, into what Mr. Pollock would call "breaches of duty to insure safety," is anotlier illustration. Perhaps the most marked case of re- turn to the primitive standard is to be found in the very late German system iif insurance against dama.i;e. 14S Bac. Max. 16. Similarly, the master was liable for the act of his serv- ant, in accordance with the master's command, for handling ungovernable horses. Michael v. Alestree (V>~J) 'J. Lev. 172. In liiS.",, in Kingston v. Booth, 8kin. 228, it was held that "if I command my servant to do what is lawful, and he misbehave himself, or do more, I shall not answer for my servant, but my servant for himself, for that it was his own act. Otherwise, it was in the power of every servant to subject his master to what actions or penal- ties he pleased. * * * if i command my servant to do a lawful act, as in this case, to pull down a little wooden house (wherein the plaintiff was * * *), and bid them take care they hOTt not the plaintiff, if in this doing my servants wound the plaintiff, in trespass of assault and wounding brought against me, I may plead not guilty, and give this in evidence, for that I was not guilty of the wounding, and pulling down the house was a lawful act." The law on this point will be found set forth with groat clearness and ability in the series of articles on "Responsibility for Tortious Acts," by John H. Wig- more, in the Harvard Law Re\'icw for February, March, and April, 1S94. i^s Mr. Wigmore, in 7 Harv. Law Rev. .".s:!, citing, inter alia. Y. B. 30, 31 Edw. I. 5:52 (Roll's Etl.); Bcaulieu v. Finglam, Y. B. 2 Hen. TV p. IS, pi. U; 9 Hen. VI. p. 53, pi. 37; 21 Hen. VII. p. 22, pi. 21; 2 Doct. & Stud. (Muchall's Kd.) c. 12, p. 2'V6; Seaman v. Browning, 4 Leon, V2:i; Waltham v. Mulgar, Moore, 776; Southern v. How, 2 Rolle, 5, 26; Shelley v. Burr, 1 RoUe, Abr, 2, pi. 7; Noy, Max. c. 41; Cromer v. Humbcrton, 2 Keb. :>>2. 15 .Tu.stice Holmes, 4 Plarv. Law Rev. 34o-364; 5 Harv. Law Rev. 23. -!.')0 LIAIJILITY FOR TORTS CXlMMITTIOf) BY OB WITH OTHERS. [Ch. 3 has not entirely disappeared. A specific command lias in modern limes been held to i-xelude liability for acts done in puisnance of it, but not included within it. Thus, -where a, servant was directed to drive cattle out of a cerlain field, and he drove them elsewhere than out of that field, and one of them died, the master was held not lia- ble (1862).!" 81. The test of liability was extended so as to include lia- bility for conduct in pursuance of general authority expressed or implied. The next test proposed was coniuiaud, not only where the conduct of the servant was particularly or specifically authorized, but also when the command was implied from general authority. The pe- riod during which this reaction from the severe limitation of the particular command test arose, and liability for implied command came to be added, may be said to liave commenced during Lord Holt's time, about 1700.^^^ Thus, in Armory v. Delamirie.^"'' a chim- ney sweeper's boy handed to an apprentice, to be weighed, a jewel which he had found. The apprentice kept the stone. And Pratt, C. J., held that the action well lay against the master, who gave credit to his apprentice, and is answerable for his neglect. Black- stone recognizes command as a test. "As for those things which the servant nia^' do on behalf of his master, the\' seem all to proceed u])on this principle, that the master is answerable for the acts of his servant if done by his command, either expressly given or im- l)lied, — 'nam qui facit per alium facit per se.' Therefore, if a serv- ant commit a trespass by the command or encouragement of his master, the master shall be guilt>' of it. "^ * * In the same man- ner, however, ^\'hat a servant is permitted to do in the usual course of his business is equivalent to a general command." ^'■' i-'i Oxford V. Petoi- (TS<'i2) 28 111. 4:!4. AucT see S;i«eL-s v. NuckoUs, 3 Colo. Aijp. '•)•■', •'t' Pac. 187; PieUcns v. Dieiker, 21 Ohio St. 212; Lyons v. Martin, 8 Aclol. & E. .512; Bolingbroke v. Swindon, L. R. 9 C. P. .575. is^ 7 Han'. Law Rev. 38.3, citing Boson v Sandford, 2 Salk. 440, 3 Mod. :!21; Tuberville v. Stamp, Skin. 681; Middleton v. Fowler, 1 Salk. 282; Jones v. Hart, 2 Salk. 441; Boueher v. Lawson, Lee t. Hardw. 8.5, 194. 15 3 1 Strange, -50.5. i-'il Bl. Comm. 429; Hem v. Nichols. 1 Salk. 2s:i; .Jones v. Hart, 2 Salk. ^'h. 3] KELATIONSHIP. 251 The terminologT and teaching of the Kieat commentator passed into general use and thought. It was employed, and assigned both the reason and the limit of the master's liability, long after the courts had passed beyond the doctrine thus enunciated. Its effect is still to be obser\'ed in the confusion at present existing in the cases on the subjeet.i"'= The fiction of identification, "that master and servant are feigned to be all one person," "" was retained "as a lazy and easy reason put forth to sanction and support a rule of whose practical expediency the courts were perfectly satisfied.^" Ee- spondeat superior was also used to account for the liability." ^-'^ Its use, however, throws no light on the subject. It is a dogmatic statement, not an explanation.^^" 82. More extended liability on the part of the master is no-wr recognized. But courts are not in harmony •w^hether the limit of his responsibility is deter- mined — (a) By the scope of servant's authority; or (b) By the course of his employment. 83. SCOPE OF AUTHORITY— The master is liable for the conduct of his servant within the scope of his au- thority — (a) When liability -woiild attach under test of particular or general comraand.^'" 441; Boucher v. Lawson, Lee t. Hardw. S-j-104. And see Laugher v. Pointer, .'( Barn. & C. •j47-.joo; Williams v. Jones, o H. A: C. ()(»:J-(jU!). 155 "A principal is not civilly liable for the act of hi.s agent, unless the agent's authority be by the agent duly pursued." Parlies v. Prescott (186:)) L. R. 4 Exch. 169-182. And see Mali v. Lord, :'>'.» X. Y. :!S1; Chambers v. Trust ("o., 1 Disu. (Ohio) 32T. 150 Byington v. Simpson, l;U M;iss, 170. 157 7 Harv. Law Kev. 79!). 158 Ellis V. Turner, 8 Term It. ^si. "Itespoudeat superior" is said to be a piece of local English law. 29 Am. Law Rev. 2()9. It ai'ose, however, from tie R(jman law. Holmes, Com. Law, note at page 2:!(A This objection, more- over, applies equally to the whole system of English real-estate law. 2!) Am. Law Rev. 22!). 150 Pol. Torts. S 07. II'" Sl'c ante, pp. 24S-2.11 et seq. 252 LIABILITY FOll TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 (b) When the conduct was for the master's purpose or benefit, and not for the servant's private motives, whether it was an excessive or mistaken execution of authority or a direct violation of the master's command. Includes Command Test. The third test proposed was that the master was liable for the act of his servant for conduct within the scope of his authority. Early in the nineteenth century this was adopted to cover cases of liability lecognized by courts, but not logically covered or accounted for by the doctrine of command. The master remained liable in all cases in which he would have been held responsible under the par- ticular command test ^'^^ and under the general (i. e. exx)ressed or im- plied) command test.^'^ Indeed, one of the commonest classes of cases is of the latter description, — negligence in the performance of admit- ted duty. Thus, one who undertakes the collection of a claim is liable for the negligence of the attorney employed by him, through whose fault the claim is lost.^"^ Includes Excessive or Mistaken Execution of Authority. But, in addition, the master also became responsible for injuries inflicted by his servants in cases not thus attributable to him, but still within the scope of his servant's authority. The master be- came liable for excessive or mistaken execution of authority.^"" Thus, if the master authorized his servant to use force, he was held liable for the violence or misjudgment of his servant in the exercise of force, because he authorized its employment in the first iu- stance.^^^ 103 ShaiTod T. Railway Co., 4 Exch. 580; Gordon v. Holt, Id. 305. 101 Goodman v. Kennell, 1 Moore & P. 241; Patten v. Kea, 2 0. B. (N. S.) 606; Wright v. Wilcox, 19 Wend. 343. i«5 Siner v. Stearne, lo.j Pa. St. 02, 2.j Atl. 00; Bradstreet t. Et arson, 78 Pa. .St. 124; Morgan v. Teuer, 83 Pa. St. 2i>0; post, p. S)15, "Negligence." i«« Paley, Prin. & Ag. 1811; Nicholson v. Moimsey, 1.5 East, 384; Sleath r. Wilson (1839) 9 Car. & P. 607; Story, Ag. 1839; Smith, Mast. & Serv. 1852; Cornfoot v. Fowke (1840) 6 Mees. & W. 358; Coleman v. Riches, 16 C. B. 104; Bolingbroke v. Board (1874) L. R. 9 C. P. 575; Maler v. Randolph, 33 Ivan. 340, Pac. 625; Bnrd, Lead. Cas. 71. 1" Rounds V. Railway Co., 04 X. )L. 12'J; Cohen v. Railway Co., 09 N. Y. Cll- y] RELATIOXSHIP. 253 Includes Liability for Forbidden Gondud. In the same way, implied authority may be strained to justify the use of all means necessary and designed to accomplish the master's purpose, however improper, and even unlawful. Thus a driver may convert hay to supply his master's horses so as to enable him to complete his journey, where none was provided.* Where, how- ever, the act of the servant is willful, and forbidden by the master, it can hardly be said that the command test is sufficient to account for the master's liability. Under the command-test theory the mas- ter was not held responsible for such acts. ' Thus, in McManus v. Crickett f it was held that the master was not liable in trespass 170; Feclc v. Kailway Co., 70 N. Y. 587; Hewett v. Swift, 3 Allen, 4^; Moore v. Railway Co., 4 Gray, 465; Levi v. Brooks, 121 Mass. 501; Fick v. Railway Co., 68 Wis. 469, 32 N. W. 527; Evansville & T. H. Ry. Co. v. MeKee, 09 Ind. 519; Ft. Worth & N. O. Ry. Co. v. Smith (Tex. Civ. App.) 25 S. W. 1032; Baxter v. Railway Co., 87 Iowa, 488, 54 N. W. 350; Oakland City A. & I. See. V. Bingham, 4 Ind. Aj^p. 545, 31 N. E. 383; Rogahn v. Foundry Co., 70 Wis. 573, 48 N. AV. 669; :\Ioore v. Metropolitan Ry. Co., L. R. 8 Q. B. 36; Sey- mour V. Greenwood (1861) 7 Hurl. & N. 355; Toulton v. Railway Co., L. R. 2 Q. B. 534; Bolingbroke v. Board, L. R. 9 C. P. 575; Cosgrove v. Ogden, 49 N. Y. 255; Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; Chicago City Ry. Co. V. McMahon, 103 111. 485. * Potulini V. Saunders, 37 Minn. 517, 35 N. W. 379; Walker v. Johnson, 28 Jlinn. 147, 9 N. W. 032; Levi v. Brooks, 121 JIass. 501; Voegeli v. Pickle Co., 49 Mo. App. 013; Farmers' & Meclianics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125-i:»; People v. Roby, 52 Mich. 577, 18 X. W. 365; Pitts- bm-gh, C. & S-t L. Ry. Co. v. Kirk, 102 Ind. 399, 1 N. E. 849; Quinn v. Power, 87 N. Y. 535. But see Sagers v. Nuckolls, 3 Colo. App. 95. 32 Pac. 187; Cook V. Illinois Cent R. Co., 30 Iowa, 202; Staples v. Schmid (R. I.) 20 Atl. 193- 196; Crocker v. Railway Co., 24 Conn. 249; Thames Steamboat Co. v. Housa- tonic R. Co., Id. 40; Lyons v. Martin, 8 Adol. & E. 512; Poulton v. Railroad Co., L. R. 2 Q. B. 534; Knight v. Luce, 116 Mass. 586. The master is civilly liable if his bartender, in violation of instructions and law, sell liquors to excessive drunkards. George v. Gobey, 128 Mass. 289; Worley v. Spurgeou, 38 Iowa, 465; Peterson v. Knoble. 35 Wis. 80; Smith v. Reynolds, 8 Hun (N. Y.) 128; Ivi-eiter v. Kichols, 28 Mich. 496; Kchrig v. Peters, 41 Mich. 475, 2 N. W. 801. Liability of master for exaction of usury: Payne v. Newcomb, 100 111. 611; Rogers v. Buckingham, 33 Conn. 81; Philo v. Buttei-field, 3 Neb. 256; Cheney v. White, 5 Neb. 261; Cheney v. Woodruff, 6 Neb. 151; Scottish. M. & L. Inv. Co. V. McBroom (N. M.) 30 Pac. 859. fEast, 107 (1800). And see Croft v. Alison, 4 Barn. & Aid. 590; Middle- ton V. Fow.ler, 1 Salk. 2S2. 234 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 for 'the willful act of his servant, as by driving his carriage against another without the direction or assent of the master. In 1802, however, it was held in Limpus v. London Gen- eral Omnibus Co.^"^ that where the driver of an omnibus drove across the road in front of a rival omnibus, which was tliereby over- turned, his employer was liable, although he had expressly for- bidden the driver to obstruct any omnibus. "The question was, did the servant do it to serve his master's interests, or did he act merely from private spite and with the intention of injuring his enemy?'' The master was held liable in the former, but not in the latter, case. What the servant did was called "nursing," and, though wanton and reckless, might have been for the master's benefit. But where the (me let his shed to another, whose servant, by carelessness in light- ing his pipe, caused the shed to burn down, the Jiiaster was not held liable. The act was beyond the scope of his authority.'"' Motive of Servant — Master's Benefit. The introduction of the master's benelit as the test of liability antedated this period.^'" But in modern times its use has been greatly extended. In the cases adhering to the scope of authority nis32 L. .T. Exch. :U, 1 Hiu'l. & C. .",2(;; British Mutual Banking Co. v. Clianiwood Forest Ry. Co. (1S.S7) IS Q. B. Div. 714. In Bayley v. Manchester Ky. Co.. Ij. R. 8 C. P. 1-tS, the rule was laid down: "When a sei-vant is aet- iug witliin the scope of his authority, and in so acting he does something neg- ligently or wrongl'uUy, the employer is liable, even though the act done be the very rever.se of that which the servant ^vas directed to do. The master is not liable where the act is clearly outside the scope of authority." But see Walker v. South Eastern Ry. Co., L. R. .j C. P. G40; Poulton v. London & S. A\'. Ry. Co.. L. R. 2 Q. B. .334: Goff v. Great Northern Ry. Co., 30 L. J. Q. K. 148; Bolingbroke v. Board, L. R. 9 C. P. 07."i; Allen v. Loudon & S. W. Ry. Co.. L. R. G Q. B. GD; Edwards v. London & X. W. Ry. Co., L. R. .5 C. 1'. 44."i, The doctrine of English cases seems to be, in brief, that the master is liable for the exiiress authority for his servant to do wrong, or for implied authority to take all steps necessary to protect property committed to his servant's care, and on the presumed command to do the work properly and without negligence, but the tort, in all cases, must flow out of the scope of authority. The benefit of the master and the servant's purpose, are im- portant elements in determining this, ililler v. Great Northern Ry. Co., 30 L. R. 367. 168 Williams v. Jones (1801) 3 Hurl. & C. 25G. 170 In Tuben'ille v. Stamp. 1 Ld. Raym. 204 (at the close of the seven- teenth century), it was said that "it shall be intended that the servant had Ch. 3] RELATIONSHIP. 25") tc8t tlie duty which the master owes to third parties because of his rchitionship to them was not given controlling force. Thus it has been held that a cashier can rob a bank and the bank be not held liable for his theft.^'i Xor has the duty which the use of instru- mentalities dangerous in themselves, or easily becoming dangerous, imposes, been allowed the effect it is commonly and properly given. Thus, if one be crossing a street-car track and the dri\er curses him, and says, "I will smash you anyhow," and then lets go the brakes whereby such person is danmged, the driver s employer is not to be held liable, if the act was willful on the part of the servant. The element of willfulness makes it the servant's personal tort.^^^ authority from his master, it being I'or his master's benefit." And see Mc- Manns v. Crickett, supra. 171 Foster v. Kssex Banli, 17 JIass. 47!l-.~il0. And ser Isaacs v. Raih'oad Co., -i7 N. Y. 122; .laclison v. Railroad Co., Id. 274, and see Hoai>, J., in Howe V. Newmareh, 12 Allen, -Ii)-.''i7. The owners of a vessel ni'c not liable, even under the maritime law. for a willful and malicious assault by the captain of the vessel on a seaman who refuses to obey a command on the plea of sickness, since, in committing the assault, he exceeds his authority. His command docs not extend over the persons of the seamen, beyond the in- tliction of the usual and necessary punishment in case of disobedience or infraction of rules. JIaynard, Finch, and O'Brien, JJ., dissenting. Gabriel- son V. VYaydell (Super. N. Y.I 14 X. Y. Supp. 12."., and 15 N. Y. Supp. 9T6, reversed. Id., 135 N. Y. 1. 31 X. E. OGO. 1T2 AVood V. Detroit City St. Ky. Co., .j2 Mich. 4(t2, is X. W. 124. And, gen- erally, see "Wright v, "Wilcox, 11> Wend. .'14:'.; Pennsylvania Co. v. Toomey, 91 Pa. St. 25(; (but see McCluug v. Deavborne, 134 I'a. St. :!l)(;, 19 Atl. 698); Frascr v. Freeman, 43 X'. Y. .'r.C; A'anderbuilt v. Richmond Tui'npike Co.. 2 X. Y. 479; JIaty v. Lord, posl; Sanford v. Kighth Ave. Ry.. 7 Hosw. (X, Y.) 122; Illinois Cent. Ry. v. Downey, 18 111. 259; l)e Camp v. Railway Co.. 12 Iowa, 'MS; Marion v. Itailroad Co., .59 Iowa. 42S, l:; X. W. 415; Douglass v. Stephens, IS ;\Io. 302; .M(jore v. Sanl)orne, 2 Mich. 519; Wood v. Railway Co., 52 Mich. 4<)2, IS X. A\'. 124; Snyder v. Railnjad Co.. 60 Mo. 41.".; Sutherland V. Ingalls, 63 Mich. ()2(). .■!(! X. W. 342; Harris v. Xichols, 5 .Munf. 483; Cox v. Keahey, 3C> Ala. 340; Alabama (i. S. R. Co. v. Harris, 71 Miss. 74, 14 South. 263; Delhi v. Ottenville, 14 Lea, 192; Jackson v. Railway Co., 47 N. Y. 274; 1 Shars. Bl. Comm. 431. note; 2 Kent, Conmi. SS 2.59. 2(J0. A raih'oad company Is liable for the act of a conductor wlm. having ordered u trespasser from one of its trains, shot him while be was in the act of alighting, imless the shooting was not done for the purpose of forcing the trespa.sser to get off, but from personal resentment. Soutlicrn I'ac. Co. v. Kennedy (Tex. Civ. App.) 29 S. W. 394. Of. Thorburn v. Smith (AA'asli.) 39 I'ac. 124. And see an in- teresting article, with numerous citations, on the liability of a master for 25G LIABILITY FOE TORTS COMMITTED BY OK WITH OTHERS. [L'h. 3 84. Scope of authority as a test of the master's liability- depends for justification upon reasoning as to the authority of the servant and not the duty of the mas- ter, and is a limit assigned rather by public policy than consistent logic. It appears that the really enlarged meaning of the term "scope of authority" made its way slowly, and despite the more or less appar- ent hostility of the courts to the increased liability of the master. The harshness of the rule holding one person responsible for the for- bidden wrong of another had its due weight. Thus, it is said: "To visit a man with heavy damages when he is able to show that he has exercised all possible care and precaution in the selection of his servants is apt to strike the common mind as unjust." ^" ""We never apply the rule resiiondeat superior without a sense of its hard- ships on the master." "^ Moreover, the language of the particular command test, and es- pecially the general command test,^^'* and the doctrine of identifi- cation^'" as accounting for the master's liability, dropped out of thought very slowly. The futile restatement of the principle of liabil- ity, respondeat superior, continues to be used, through inertia per- haps, gravely, as though it advanced the reasoning. The benefit of the master and the mental attitude of the servant were given positions of great importance, because the courts apparently have permitted Ihe cases to go not to the logical limit of any consistent theory, but 1o the extent of what seemed to be practically expedient. More- persoual injuries to tliird parties, caused by tlie willful or malicious acts of his servants, with leforence to the recent case of Texas N. Y. 113; Lindauer v. Younglove, 47 Minn. 62, 49 N.W. 384; Pabner v. Bates, 22 Minn. 532; Judson v. Corcoran, 17 How. 612; Burgess v. Bragaw, 49 Minn. 462, 52 N. W. 45; Dun v. City Nat. Bank, 7 C. C. A. 152, 58 Fed. 174; Frie- lander v. Railway Co., 130 U. S. 416, 9 Sup. Ct 570. SIB Pickering v. Busk, 14 East, 43; Mackay v. Bank, L. R. 5 P. C. 394; Hal- sted's Ex'rs v. Colvin, 51 N. J. Eq. 387, 26 Atl. 928. Compare Udell v. Ather- ton 7 Hurl. & N. 170; Western Bank of Scotland v. Addie, L. R. 1 H. L. Sc, 146- Kennedy v. JIcKay, 43 N. J. Law, 283. 270 LIABILITY FOE TORTS COMMITTED BY OR WITH OTHEHS. [Ch. 3 ed lands, inducing a trade, makes his principal liable.''^' So, if tlie agent points out tlie wrong land, and the purchase is made in the belief that the land shown is the land purchased, the principal is liable. ''^^ And where a knavish or blundering insurance solicitor induces an applicant for a policy to sign a statement which he did not make, and did not intend to make, the company cannot avoid the policy to the injury of the insurer.^^* The fact that the policy was accompanied by a copy of the application showing the fraud is for the consideration of the jury. The insurance company cannot escape the contract by repudiating the fraud of its agent,^^" nor can it do this by stipulating that the solicitor is the agent of the insurer and not of the insured, without putting the applicant on his guard in advance of the negotiations.^'"' The English rule seems to be quite clear that the principal is liable for the act of his servant in the course of the principal's busi- ness only when the act of his agent is for the principal's benefit; and for fraud beyond the scope of business, if the principal has de- rived a benefit, but only to the extent of the benefit received.'"'^ In America it is recognized that a "man cannot reap the fruit of his agent's fraud and escape liability by denying the agent's author- l^j» 2 22 216 Ehoda V. Annis, 75 Me. 17; Wolfe v. Pugh, 10 Ind. 293; Lynch v. Mer- cantile Trust Co., 18 Fed. 486; Law v. Grant, 37 Wis. 548; Gunther v. Ullrich, 82 Wis. 222, 52 N. W. 88; Leavitt v. Slzer, 35 Neb. 80, 52 N. W. 832; Jewett V. Carter, 132 Mass. 335.' 217 McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800; Burke v. Railway Co., 83 Wis. 410, 53 N. W. 692.' 218 Eilenberger v. Protective Mut. Fire Ins. Co., 89 Pa. St. 464. And see Hopkins v. Hawkeye Ins. Co., 57 Iowa, 203, 10 N. W. 605. 218 Kister v. Insurance Co., 128 Pa. St. 553, 18 Atl. 447. 220 Meyers v. Lebanon Mut. Ins. Co., 156 Pa. St. 420, 27 Atl. 39; Detti-a V. Kestner, 147 Pa. St. 566, 23 Atl. 889. Where the agent, in selling a boat, falsely represents that there are no claims against it, both the agent and his principal are civilly liable for the deceit. Wheeler v. Baars, 33 Fla. 636, 15 South. 584. 221 Barwick v. English Joint-Stock Bank, L. R. 2 Exch. 259 (commenting on UdeU v. Atherton, 7 Hurl. & N. 171); Weir v. Bell, 3 Exch. Div. 238; Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317. 2 22 Jones V. Association, 94 Pa. St. 215; Sunbury Ins. Co. v. Humble, 100 Pa. St. 495. And see Albitz v. Railway Co., 40 Minn. 476, 42 N. W. 394; Mitch- "Oh. 3] RELATIONSHIP. 271 Moreover, the master may be held liable for the fraud of his serv- ant, though forbidden by the master, and resulting in no benefit to him, and though willful and malicious. This principle has been applied to the case of a local agent of a telegraph company who was also the agent of an express company at the same place and who sent a forged dispatch to a merchant in a neighboring city, request- ing him to forward money to his correspondent at the former place, to use in shipping grain. The message was duly received, and the money in good faith forwarded by express in response to the tele- gram, but was intercepted and appropriated by the agent. It was held that the transmission of the forged dispatch was the proxi- mate cause of the loss, and that both companies could be sued, separately or jointly.^'''' But, if the principal owes another no duty to protect against the fraud of his agent, he cannot be held liable for the agent's personal wrong. Thus, where a mercantile agency stipulates expressly that the veracity or correctness of the informa- tion is in nowise guarantied, a subscriber cannot recover damages resulting from the willful and fraudulent act of a subagent in fur- nishing information.^^* 89. The reason of the master's liability is not exclusively or finally — (a) His authority, i. e. the identification of master and servant. (b) His benefit, or the servant's motive. (c) The lawfulness of the conduct, or its unla-wiulness. (d) Respondeat superior. (e) The propriety of making the master rather than an innocent stranger suffer for the servant's wrong. It is a matter of great difQculty to assign any definite single rea- son for holding the master liable for the act of his servant. Cer- ell V. Donahey, 62 Iowa, 376, 17 N. W. 641; Leavitt v. Sizer, 35 Neb. 80, 52 N. W. 832; Continental Ins. Oo. v. Insurance Co., 51 Fed. 884; Busch v. Wil- e-ox, 82 Mich. 336. 47 N. W. 328; Ripley v. Case, 86 Mich. 261, 49 N. W. 40. 223 McCord V. W. U. Tel. Co., 39 Minn. 181, 39 N. W. 315; Jasper Trust Co. V. Kansas City, M. & B. R. Co., 99 Ala. 416, 14 South. 546. 224 Dun V. City Nat. Bank, 7 C. C. A. 152, 58 Fed. 174, overruling 51 Fed. 160. 272 LIABILITY FOK TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 tain negative propositions may be safely made. The authority of the master — ^that is, the doctrine of identification of the master and servant— answers sufficiently for a reason to torts consented to by the master, and perhaps as to torts committed in the course of au- thority, actual or implied. So far as this reason is sufficient, it would seem, on final analysis, to be logically no more than a clear case of the connection of the master as the juridical cause of the in- jury. But as to the large class of torts committed by the servant for which the master is liable, it is clearly insufficient. Thus, it wholly fails to account for the liability where the tort is forbidden, especially where the servant's conduct was for his own private pur- pose. It appears also that the mental attitude of the servant is not the test of liability. The master may be liable for the malicious and capricious act of his servant, — where there is involved a special re- lationship, as that of a common carrier to its passenger; or the pos- session of property being dealt with, as an insurance policy; in a case of fraud; or the custody of a dangerous thing, as a torpedo. Where, however, the service of the master did not in some way make possible the wrongdoing of the servant, and where there was no special duty resting on the master, the matter of the master's bene- fit and the servant's motive is properly a matter to be considered by the jury in determining whether the given conduct was within or without the course of employment. It is not necessary that the act should be for the master's benefit. On the contrary, it may re- sult in injury to him apart from the damage done to the person charging him with the servant's wrong (as where the servant will- fully drives a vehicle against a person and injures both the person and his master's vehicle). Nor is the unlawfulness of the conduct of the servant a test of the master's liability. On the contrary, if such conduct be in pur- suance of the master's command, express or implied, the servant and master may be joint tort feasors. Respondeat superior is useless as a test, because it is a mere restatement of the rule. A similar (and not inconsistent) reason frequently assigned is that, the em- ploy6 having done damage in course of his employment, the master rather than the third person should be liable. In some cases, as conspicuously in fraud, the master may be es- Ch. 3] RELATIONSHIP. 273 topped from denying Ms servant's authority. His liability upon the same state of facts may be regarded as a species of estoppel, based on his duty not to put it into his servant's power to do harm.^^'^ The general reasoning under consideration is, hovi'ever, dangerous and unsound, in that it assumes that where damage is suffered some one must pay. It is elementary that mere damage to an innocent party is not actionable. In addition to such damage it must also be shown that there was a breach of duty, and that the defendant was the juridical cause of the wrong. 90. But while most of these considerations are entitled to ■weight in appropriate cases, the true general rea- sons for the master's liability •would seem to be — (a) That the master o-wes a duty to third persons -which varies with circumstances; (b) That he insures third persons against the violation of such duties; and (c) If his servant in the course of his employment vio- lates such duty, the master is the juridical cause of the consequent injury. Duty. The variation of the duty may depend, for example, upon con- tract or relationship, as in case of common carriers, innkeepers, storekeepers, and the like; or upon the custody, use, or control of dangerous instrumentalities, as engines, ferocious animals, and the like; or upon the custody, use, or control of innocent instrumentali- ties affording the opportunity of mischief by the servant, as the possession of property used to perpetrate fraud, or the facilities of business, and the like. This idea has been clearly put in the Wis- 22 6 That negligence In clothing a person with title and authority may work estoppel to deny a responsibility for consequences, see Brainard v. Knapp. 9 Misc. Rep. 206, 29 N. Y. Supp. 678; Blaisdell v. Leach, 101 Cal. 405, 35 P. c. 1019; Girault v. A. P. Hotaling Co., 7 Wash. 90, 34 Pac. 471; Curtis v. Janzeu, 7 Wash. 58, 34 Pac. 131; McFadden v. Lynn, 49 111. App. 16G. Of. Clarke v. Milligan (Minn.) 59 N. W. 955. Et vide Gould v. Wise, 97 Cal. 532, 32 Pac. 573, and 33 Pac. 323; Foreman v. Weil, 98 Ala. 495, 12 South. 815; Hollis t. Harris, 96 Ala. 288, 11 South. 377; Lawrence v. Investment Co., 51 Kan. 222, 32 Pac. 816; Dolbeer v. Livingston, 100 Cal. 617, 35 Pac. 328. LAW OF TORTS — 18 274 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch.)3 consin cases, to the effect that liability of the master is limited to those cases where the principal owes a duty to third persons. Be- ing responsible for the performance of this duty, if he delegates it to an agent and the agent fails to perform it, it is immaterial wheth- er the failure be accidental or willful, in the negligence or in the malice of the agent. The duty of the principal is equally broken by the negligent disregard or the malicious disregard of the right.*^° So, with respect to the liability of the employer in a case of inde« pendent contractor, it seems clear that he who has a duty to perform cannot shift the duty to the shoulders of another, and is liable for its nonperformance, although the fault may be directly attributable to another who has contracted to do the work.^^^ Indeed, as has been shown, in some cases the master may be liable for the injurious consequences of the conduct of volunteers, interlopers, and mere trespassers. Much misconception on the subject has arisen from the failure to realize that the master's responsibility is graduated according to the circumstances. "The degree of responsibility," says Mr. Pollock, "may be thus arranged, beginning with the mildest: (1) For one's self and specifically authorized agents (this holds always). (2) For servants or agents generally (limited to course of employment). (3) For both servants and independent contractors (duties as to safe repair, etc.). (4) For everything but vis major (exceptional: some cases of special risk, and, anomalously, certain public occupations)." The Master an Insurer against Tm-ts, not against Damage. It is, perhaps, putting the duty of the master too strongly to say that he insures against commission of torts by his servants; but certainly no exercise of care on his part, either in the selection ef his servants ^^* or in the formulation, promulgation, or enforcement 226 Bass V. Railway, 42 Wis. 654; Schaefftr v. Osterbrlnk, 6T Wis. 495, 30 K. W. 0;^2. Et vide Dillon, J., 24 Am. Law Rev. 177. i 227 Tarry v. Ashton, 1 Q. B. Div. 314; Pig. Torts, 94. 22'j Oakland City A. & I. Soc. v. Bingham, 4 Ind. App. 545, 31 N. E. 383; Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543. The. fact that the negli- gence In employing a boy In a place of danger was that of the mine boss, who held a certificate as such, will not relieve the owner of liability, since a mine boss' duties, under the act of 1885, do not comprise the hiring or discharge of men. Weaver y. Iselin, 161 Pa. St. 38ii, I'tJ Atl. 49. C 1. 3J RELATIONSHIP. ' 275 of rules, is sufficient to exonerate him from violation of the duty he may owe third persons. "The master," said Lord Cranworth, in Bartonshill Coal Co. v. Ried,^^" "is considered as bound to guaranty third persons against all hurt arising from the carelessness of him- self or of those acting under his orders in the course of business." The famous reason assigned by Chief Justice Shaw in Farwell v. Boston & W. R. Corp.^^^ has met with universal approval. "The rule is obviously founded on the great principle of social duty that every man in the management of his own affairs, whether by him- self, his agents, or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it." The insurance, however, is against the commission of torts, not against the production of damages by his servant. Thus, to charge the master for the frauds of his servant the frauds must have all essential legal ingredients.'"* Connection as Cnnse. The courts which were satisfied with authority as the test, and identification as the reason, of the master's liability for his servant's torts, naturally did not devote much attention to the doctrine of the master's duty, or to the doctrine of connection of the master as cause. And while the cases in which the owner is held liable for the con- duct of strangers dwelt on the master's original negligence, and on tracing it to him through the third person, such courts would per- haps seem to have overlooked the natural analogy of these cases and of the independent contractor cases to the liability of master and servant. Mr. Innes has clarified the subject by insisting that a person may act directly by himself or indirectly through instrumentalities. In- strumentalities may be personal, as servant and agent, or imper- 2 30 3 Macq. 266-2S3. 231 4 Mete. (Mass.) 49; Bigelow, Lead. Cas. 688. 2S2 Pol. Torts, § 65. lu cases where uot the master's premises, facilities, nor instrumentalities conduced to the wrong, as where there was no special relationship between the party, existing by contract or otherwise, the benefit of the master and the motive of the servant afford a more or less definite test of whether the act was within or without the employment. Smith v. Webster, 23 Mich. 297-300; Marion v. Raih:oad Co., 59 Iowa, 428^30, 13 N. W. 415; McClung V. Dearborne, 134 Pa. St. 396, 19 Atl. 698. 276 LIABILITY FOR TOETS COMMITTED BY OR WITH OTHERS. [Ch. 3 sonal, as a tiger or torpedo. If the right of another be violated, it is immaterial whether the violation was the direct act of the per- son sought to be charged or that of his instrumentality, whether animate or inanimate, rational or irrational. The servant is an in- strumentality of the master. If a duty of the master be violated, he is liable alike whether he or his servant was guilty of the breach. 91. INDEPENDENT TORT— Under no test is the master liable for the independent tort of the servant. What is his independent tort is ordinarily a ques- tion of fact for the jury. The servant acts in an individual capacity, as a servant or as an individual. For his torts in the latter capacity — for his really in- dependent torts — the master is no more liable than would a parent be for the independent torts of his child.^'* But while the servant is in the employment and commits a tort, it is not clear what devia- tion from the course will so interrupt the relation as to make the conduct exclusively his own, and what deviation will not allow the master to escape liability. The early statement that a slight devia- tion is sufficient to exonerate the master has not now the sanction of most courts. The cases occur in classes quite distinctly marked. In cases of assault, for example, while a carrier may be liable for forbidden assaults upon passengers to whom a particular duty is owed,^^* the liability ceases when the duty ceases. Therefore an assault on a passenger after he had left the train creates no re- sponsibility on the part of the railroad company.^ ^° Nor is the com- pany responsible for the purely personal encounter of its employes with persons between whom and the corporation there is no priv- j^y_23 6 Thus, if an engineer stops his train and pursues a boy into his father's house, seizes him and carries him off on the train, the act is not in the range of the engineer's employment, and the master 2SS Hower v. Ulrich, 15G Pa. St. 410, 27 Atl. 37. 234 Baltimore & O. R. Co. v. Barger (Md.) 30 Atl. 560. Even although the assault was committed in resenting an insult. Texas & P. Ry. Co. v. Wil- liams, 10 C. C. A. 463, 62 Fed. 440. 23 Central Ry. Co. v. Peacock, 69 Md. 257, 14 Atl. 709. 28 8 Cofield V. McCabe (Minn.) 59 N. W. 1005. Oh. 3] EKLATIONSHIP. 277 is not liable.^^' Nor is it liable for private quarrels between a brakeraan and prosi>ective passenger, or between its surgeon and his assistants.^^* But a master is liable for the act of his clerk in assaulting another because he refused to pay for the hire of a bi- cycle; ^^' or of his barkeeper in ejecting a person from his sa- loon.-*" The authority of the master is not the test of liability.^*^ The same distinction is drawn in the driving cases. Where the driver of the master's vehicle turns aside from the master's employ- ment and engages in an independent journey, wholly foreign to his employment, and for a purpose exclusively his own, the master is not liable for his act. Thus, where a carman, having finished his work, returned to the shop with his vehicle and obtained the key of the stable, which was close at hand, but, instead of going at once and putting up the horse, as was his duty to do, he, without his master's knowledge or consent, took a fellow workman on a drive, in course of which he ran over a person, the master was not held responsible for his act, because at the time of the accident the 8ev\- S8 7 Gillian v. Railway Co., 70 Ala. 268,— and criticise McManus v. Crickett, 1 East, 106; Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537. In Candiff v. Railway Co., 42 La. Ann. 477, 7 South. 601, defendant's conductor, suspecting deceased to have robbed a train, killed him. Company held not liable. 2oS Little Miami Ry. v. Wetmore, 19 Ohio St. 110; Wise v. Railway Co., 91 Ky. 537, 16 S. W. 351; Campbell v. Railroad Co., 51 Minn. 488, 53 N. W. 768; Cofield V. McCabe (Minn.) 59 N. W. 1005; LouisviUe, N. O. & T. Ry. Co. v. Douglass, 69 Miss. 723, 11 South. 933; Williams v. Car Co., 40 La. Ann. 87, 3 South. 631; Lackat v. Lutz, 94 Ky. 287, 22 S. W. 218; Chicago Ry. v. Mogk, 44 111. App. 17. Compare Fowler v. Holmes (City Ct. Bixok.) 3 N. Y. Supp. 816. 230 Baylis v. Schwalbach Cycle Co. (City Ct. Brook.) 14 N. Y. Supp. 933. 240 Fortune v. Trainor, G5 Hun, 619, 19 N. Y. Supp. 598; Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331. Cf. Rogahn v. Foundry Co., 79 Wis. 573, 48 N. W. 669, with Smith v. Packet Co. (Tenn.) 1 S. W. 104. The latter case is mani- festly at variance with the cuiTent of authority. 38 Cent. Law J. 4i7-i49 (ar- ticle by William L. Murfree). An assault on a passengisr by a railway con- ductor, committed in resenting an insult provoked by his own language and conduct while acting as conductor, was within the scope of his employm nr. Texas & P. Ry. Co. v. Williams, 10 C. C. A. 463, 62 Fed. 440. So eject on, without excessive violence, by servants, under erroneous supposition that plaintiff was traveling wrongfuUy in can-iage, is within the s:ope of se.vants' authority. Lowe v. Railway Co. (1893) 5 Reports, 535. 241 38 Cent. Law J. 447-449. 278 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 ant was not engaged in tlie business of Ms master.^*'' But where a driver, delivering porter by tlie barrel to a customer, at the request of the customer drove to a store to get a faucet, and by reckless driving injured another, it was held to be for the jury to determine whether or not the driver was acting within the scope of his au- thority. ^^ The same distinction is apparent in cases of false an-est. In these cases, as a rule, neither the master's instrumentalities, facilities, nor property puts the servant in a position peculiarly enabling him to commit the wrong. It was early held ia New York that the com- mand of the master, actual or implied, was the test of liability.^** It was, however, soon recognized that it was not the command of master, but the line or course of employment, which determined lia- bility, and the master was held liable, although the <^onduct of the servant exceeded authority and was something the master had not au- thorized.^^" Thus, to illustrate what is and what is not in the course of employment, it was held that the ticket agent who received good money from one whom he suspected to be a counterfeiter, and there- upon caused his arrest, was acting in his capacity as a good citizen I 2*2 Mitchell v. Crass weller, 13 C. B. 237; Rayner v. Mitchell, 2 C. P. Div. 357; Storey v. Ashton, L. R. 4 Q. B. 476; Aycrigg's Ex'rs v. New York & E. Ry.. 30 N. J. Law, 400; Douglass v. Stephens, 18 Mo. 362; Thorp v. Minor, 109 N. C. 152, 13 S. E. 702; Moore v. Sanbome, 2 Mich. 520; Courtney v. Baker, 60 N. Y. 1; Sheridan v. Charlick, 4 Daly (N. Y.) 338; Lee v. Nelms, 57 Ga. 253; Cavanagh v. Dinsmore, 12 Hun, 465; Stone v. Hills, 45 Conn. 44; Mott v. Con- sumers' Ice Co., 73 N. Y. 543; Joel v. Morrison, 6 Car. & P. 501. 243 Guinney v. Hand, 153 Pa. St 404, 26 Atl. 20. Where a servant sent to get a load, on his return, for the purpose of calling at a shop on his own account, goes somewhat out of his usual route, and leaves the team unhitched while he goes into the shop, the master will be liable for an injury to a person from the running away of the team; the servant's acts being in the execution of the master's business, though deviating somewhat from the line of his duty. Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29. Quinn v. Power, 87 N. Y. 535; Flint V. Norwich & N. Y. Transp. Co., 34 Conn. 554; Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959; Joslin v. Grand Rapids Ice Co., 50 Mich. 516, 15 N. W. 887; Venables v. Smith, 2 Q. B. Div. 279; Patten v. Rea, 2 C. B. (N. S.) 606; Whatman v. Pearson, L. R. 3 C. P. 422. 244 Mali V. Lord, 39 N. Y. 381; Lafltte v. New Orleans, C. & L. R. Co., 43 La. Ann. 34, 8 South. 701. 240 Lynch v. Railroad Co., 00 N. Y. 477. ^^' 3J EELATIONSHIP. 2179 desiring the punishment of crime, and not in the employment of the railroad company.^" But where a ticket agent, having disputed with one as to the amount of change passed to her, followed her to the platform, charged her with passing counterfeit money and as being a prostitute, and detained her on the platform, it was held that the agent was engaged in the company's employment in endeav- oring to protect and recover its property, that the tort was not his independent wrong, and that the contpany was liable.^*^ The question of what is within and what is without the course of employment, what is and what is not an independent tort of the servant, it seems, cannot be referred to any very definite rule. Each case rests on its own facts.^** Whether the given conduct is within the course of employment is a question of fact ordinarily, for the jury; ^*° but where there is no evidence that the given conduct was 24 6 Mulligan v. New York & E. B. Ey. Co., 129 N. Y. 506, 29 N. E. 952; Davis V. Houghtelin, 33 Neb. 582, 50 N. W. 705; AUen v. EaUroad Co., L. E. 6 Q. B. 65; Stevens v. Hinshelwood, 55 J. P. 341; Edwards v. Eailroad Co., L. R. 5 O. P. 445. 247 Palmeri v. Manhattan Ey. Co., 183 N. Y. 261, 30 N. E. 1001; Fortune v. Trainor (Sup.) 19 N. Y. Supp. 598 (assault and arrest); Smith v. Webster, 23 Mich. 298; Oakland City Agricultural & Industrial Soc. v. Bingham (Ind. App.) 31 N. E. 383; Barden v. Felch, 109 Mass. 154; Cameron v. Pacific Exp. Co., 48 Mo. App. 99; Kolzem v. Broadway & S. Ave. E. Co. (Com. PI. N. Y.) 20 N. Y. Supp. 700; Duggan v. Baltimore & O. Ey., 159 Pa. St. 248, 28 Atl. 182, 186; Staples V. Schmid (E. I.) 26 Atl. 193. 248 Smith V. Spitz, 156 Mass. 319, 31 N. E. 5; Haehl v. Wabash E. Co., 119 Mo. 325, 24 S. W. 737; Guinney v. Hand, 153 Pa. St. 404, 26 Atl. 20; Brunner V. Telegraph Co., 151 Pa. St. 447, 25 AtL 29; Chicago v. Bixby, 84 111. 82. 2 49 Lang V. New York, L. E. & W. E. Co. (Sup.) 30 N. Y. Supp. 137. Where railroad employes are charged, in addition to other duties, with seeing that refuse materials are properly disposed of, it cannot be said, as a matter of law, that such servants are not acting within the scope of their employment when engaged in placing old timbers, formerly used by the railroad, on a highway, the fee to which land is in the company. Tinker v. New York, O. & W. E. Co., 71 Hun, 431. Distinguishing Mulligan v. New York & E. B. Ey. Co., 129 N. Y. 506, 29 N. E. 952; Pittsburgh, F. W. & C. E. Co. v. Maurer, 21 Ohio St. 421; DeHs v. Stollenwerk, 78 Wis. 339, 47 N. W. 431. Quoting Philadelphia & E. E. Co. v. Derby, 14 How. 482. Eeviewing Quinn V. Power, 87 N. Y. 537; Dwinelle v. New York Cent & H. E. E. Co., 120 N. Y. 117, 24 N. E. 319; Johnson v. Armour, 18 Fed. 490; American Ins. Co. v. Crawford, 89 111. 62; Poulton v. Eailway Co., L. E. 2 Q. B. 534; Pittsburgh, C, C. & St. L. Ey. Co. V. Henderson (Ind. App.) 36 N. E. 377; Goff v. Eail- 280 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 in course of employment, the court may take tlie case from the jury,"* SAME— MASTER'S LIABILITY TO SERVANT. 93. The 'master is liable in tort to his servant for any breach of duty to his servant resulting in damage not exclusively concerning payment of wages or other consideration involved in the relationship. A master owes to the servant the same duty to respect his person, freedom of locomotion, reputation, property, and the like which he owes third persons, from the violation of which an action ex delicto arises. But he owes to the servant certain duties also peculiar to the relationship. If he fail to pay the consideration for which the service is rendered, the action is ex contractu. Between these two extremes, there are duties owed by the master to the servant for the violation of which the law inclines to determine the remedy accord- ing to the law of torts, not contracts. Most of the questions in- volved in this class of cases concern negligence. Accordingly, their consideration is postponed until that specific wrong is treated. SAME— SERVANT'S LIABILITY TO SERVANT. 93. One servant may sue another for torts committed in the course of the common employment. It was said in Southcote v. Stanley: ^°^ "Neither can one servant maintain an action against another for negligence whilst engaged in their common employment." In Massachusetts, it was distinctly way Co., 30 L. J. Q. B. 148; Baylis v. Schwalbacb Cycle Co. (City Ct. Brook.) 14 N. Y. Supp. 933; Wise v. Covington & C. St. Ry. Co., 91 Ky. 537, 16 S. W. 351. 2 50 Towanda. Coal Co. v. Heetuan, 86 Pa. 418; Bank of New South Wales T. Owston, 4 App. Cas. 270. 2 51 1 Hurl. & N. 247-250 (1856). As to this case, see Watlin? v. Oastler, L. R. 6 Exch. 73; Tebbutt v. Bristol & Exeter Ry. Co., L. R. 6 Q. B. 73; Francis v. Cockrell, L. R. 5 Q. B. 184; Holmes v. Northeastern By. Co., I* R. 4 Exch. 254; Williams v. Groncott, 2 Bos. & P. (N. R.) 419; Submarine Tel. Co. V. Dixson, 3 Bos. & P. (N. R.) 572; White v. Philips, 15 C. B. (N. S;)' 245. ^h. 3] RELATIONSHIP. 281 held, in Albro v. Jaquith,^" that one servant is not liable in action by another servant in the employment of the same master for dam- age occasioned by the negligence of the first in such employment The court proceeded on the reasoning of Lord Abinger in the case of Winterbottom v. Wright,^" and on the ground that there was no misfeasance, but merely nonfeasance, for which no action lay.^^* The doctrine of these cases has, however, been generally rejected.^^" It has been aptly pronounced "a judicial aberration." In Osbornt V. Morgan,=">* it was distinctly overruled by the supreme court of Massachusetts. The true theory seems to be that the right of ac- tion does not rest in contract, but sounds in tort. It is based on a duty owed by members of a community to each other. In the little community of the employes of the same employer upon the same general undertaking, the common duties of man to man in society generally should continue to exist, and, as a consequence, liability for breaches of them.^°* 262 4 Gray, 99 (1855). 2B3 10 Mees. & W. 109, 115. 2 64 How enduring are fallacies based on reasoning upon verbal distinc- tions will appear on the survival of the rule as to nonfeasance in Burns v. Pethcal, 75 Hun, 437, 27 N. Y. Supp. 499. 2B6 Wiggett V. Fox, 11 Exch. 832; Degg v. Midland Ry., 1 Hurl. & N. 773; Swainson v. Railway Co., 3 Exch. Div. 341; Haddow v. Roxburgh, 2 Ct. Sess. Cas. (3d Ser.) 748; Rogers v. Overton, 87 Ind. 410; Hinds v. Harbou, 58 Ind. 121; Hinds v. Overacker, 66 Ind. 547; Griffiths v. Wolfram, 22 Minn. 185; Daves v. Southern Pac. Co., 98 Cal. 19, 32 Pac. 708; Hare v. Mclntire, 82 Me. 240. 266 1,30 Mass. 102. 2 68 Breen v. Field, 157 Mass. 277, 31 N. E. 1075; Hinds v. Harbou, 58 Ind. 121; 2 Thomp. Neg. 1062. Suit may be brought by a servant against the master's wife as fellow servant for injuries sustained In using, at the wife's bidding, a ladder known to the wife to be unsafe. Steinhaussr v. Spraul, 114 Mo. 551, 21 S. W. 515, 859. Where the section crew of a railroad com- pany side-track a hand car with which they are working to clear the main track for an approaching train, and the section foreman, who has unlocked the switch, negligently fails to close it, and the train enters on the side track, and kills a section hand, the section foreman is personally liable in damages for his death. Daves v. Southern Pac. Co., 98 Cal. 19, 32 Pac. 708. 282 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch, 3^ SAME— LIABILITY OP SEBVANT TO MASTEB. 94. The servant is liable to the master for conduct wrong- ful to the master. 95. The servant is liable to the master for breach of du- ties peculiar to the relationship, consisting in fail- ure — (a) To be loyal to his trust. (b) To obey instructions. (c) To exercise due care. (d) To account for money and property. 96. Where the master has been compelled to pay out money for the wrongful and forbidden conduct of the servant, he may by legal process compel reim- bursement from the latter. The liability of the servant to the master, apart from the liability peculiar to the relationship, is that of the servant to any third per- son. The servant owes to the master the duty of being loyal to his trust.* " * Thus, in a contract for service there is an implied agreement on the part of the servant that he will do nothing injurious to his employ- er's interest, and that he will be guilty of no criminal misconduct. This duty is violated if the servant seduce the daughter of his em- ployer.^°° Similarly an agent is liable for conversion."** The agent is bound to obey his instructions. If he fails so to do, he is liable for the injury which may ensue, unless the act be illegal or immoral.'"'" Thus, if an agent who was instructed to collect a claim, in a certain prescribed way, ignores his instructions, tries other means, and the claim is lost, he must make such loss good in dam- 2 59 This division of tlie servant's duties is taken from Mech. Ag. bk. 4. The remaining duties of the servant or agent, viz. to account for money and property, and to give notes, would not give rise to an action on the tort 260 Bixby v. Parsons, 49 Conn. 483. 2«i Greenleaf v. Egan, 30 Minn. 316, 15 N. W. 254. 282 Brown v. Howard, 14 Johns. (N. Y.) 119; Davis v. Barger, 57 Ind. 54. ^^- 3] RELATIONSHIP. 283 age, 263 The degree of skill which the servant is bound to exercise will be subsequently considered. The servant is liable to the mas- ter for his negligence, for example, in making loans.^'* So, if an agent to collect rent and rent premises fails to exercise reasonable care in so doing, he is liable.^*' Such agent may be liable for failure to effect insurance.^"" So recovery may be had against an agent for failure to collect, where it is shown that the debtor was solvent and that with proper exertion the claim could have been collect- ed.^^'' The agent is bound to account to the principal for the money and property of the latter intrusted to him.^°* And a proceeding against an agent for an accounting in equity may be joined with a charge of conversion of the principal's property.^ °' ,The servant is liable to the master for all damages which the master has been compelled to pay because of the wrongful act of the servant to a third person.^^" Thus, if a conductor maltreat and damage a female passenger, and the railroad company is compelled to pay for such damage, it can recover from the conductor the amount paid, including the costs and counsel fees involved in the proceedings."'^ Where two or more servants acting independently of each other are all at the same time guilty of a wrong which con- s''' Butts v. Phelps, 79 Mo. 302; Leveson v. Kirke, Rolle, Abr. 105; Cro. Jac. 2G5. 28* Inhabitants of Westfield v. Mayo, 122 Mass. 100; Kennedy v. McClain, 146 Pa. St. 63, 23 Ati. 322; Stewart v. Parnell, 147 Pa. St. 523, 23 Atl. 838; Brooklyn v. Railway Co., 47 N. Y. 475; Friesenhahn v. Bushnell, 47 Minn. 443, 50 N. W. 597. 266 Kirkeys v. Crandall, 90 Tenn. 532, 18 S. W. 246; Fahy v. Fargo, 61 Hun, 628, 17 N. Y. Supp. 604; Id., 63 Hun, 625, 17 N. Y. Supp. 344. 266 Storer v. Eaton, 50 Me. 219; Shoenfeld v. Fleisher, 73 111. 404. 267 Wiley V. Logan, 95 N. C. 358; Buell v. Chapin, 99 Mass. 594; Reed v. Northrup, 50 Mich. 442, 15 N. W. 543. 268 Mechem, Ag. §§ 522-537. 269 Greenleaf v. Egan, 30 Minn. 316, 15 N. W. 254. 270 Where a natural gas company pays judgments obtained against It for damages caused by an explosion resulting from leakagie of its gas main, it may recover the amount thereof from a traction company which excavated about the main and filled the excavation in such a negligent manner as to allow the main to settle and cause the lealtage. Philadelphia Co. v. Central Traction Co., 165 Pa. St. 456, 30 Atl. 934. 271 Grand Trank Ry. Co. v. Latham, 63 Me. 177. 284 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [^Ch. 3 tributes to the injury of the master, all, any, or either of them are liable to the master to the full extent. They are joint tort fea- sors."'' The servant, however, is not liable if the principal is also negligent."^ The master may use damage he may wrongfully have suffered because of his servant's conduct as a set-ofE to a claim held by the servant against him.^^* 97. "Whether an agent is liable to the principal for the torts of a subagent depends principally on the na- ture of the contract. The tendency is to enlarge, not to narrow, the liability. Where the agent or servant has employed a subagent or under- servant, there is much confusion in the cases as to whether such intermediate contractor is liable for the wrong of his employes, or whether the responsibility is limited to the wrong-doing subagdnt and underservant and to the original master or principal.^" Justice Blatchford, in Exchange Nat. Bank v. Third Nat. Bank,^^" has stated with clearness the true principle of the law on this point: "The distinction recurs between the rule of merely personal representa- tive agency and the responsibility imposed by the law of commer- cial contracts. This solves the difficulty and reconciles the ap- parent conflict of decision in many cases. The nature of the con- tract is the test. If the contract be only for the immediate services of the agent and for his faithful conduct as representing his prin- cipal, the responsibility ceases with the limits of the personal serv- ices undertaken. But where the contract looks mainly to the thing to be done, and the undertaking is for the due use of all proper means to performance, the responsibility extends to all necessary and proper means to accomplish the object, by whomsoever used." It was accordingly held in this case that where a Pittsburg bank sent a draft to a New York bank, and the latter to a Newark bank 272 Zulkee v. Wing, 20 Wis. 408. But see, as to independent public officer, Wliite V. Inhabitants of Plilllipston, 10 Mete. (Mass.) 108. 273 Sioux City & P. Ry. Co. v. Walker, 49 Iowa, 273. 274 Challiss V. Wylie, 35 Kan. 506, 11 Pac. 438. 276 St. Nicholas Bank v. State Nat. Bank, 33 Cent. Law J. 266. 276 112 U. S. 276-290, 5 Sup. Ct. 141, Ch.' 3] RELATIONSHIP. 285 for collection, the New York bank was held liable to the Pittsburgh bank for the carelessness of the Newark bank. While there is much uncertainty in the litigated cases,^" the gen- eral principle seems to be that a bank receiving commercial paper for collection is, in the absence of a special agreement, liable for loss occasioned by the wrong of a correspondent or agent selected by it to effect the collection.^'^ A distinct line of cases, however, holds that where the nature of the business in which an agent is engaged requires for the purpose of a reasonable execution the em- ployment of a subagent, the principal agent is not responsible for the default of the subagent, provided a proper subagent is selected.^"* Where a servant hires laborers for his master, he is not responsible for their negligence. Either the laborer who does the negligent act or the master, or both, may be sued, but not the servant hiring.^** But a clerk who directs them, or a contractor who employs them, may be liable.^ '^ 277 The cases are collected in Exchange Nat. Bank v. Third- Nat. Bank, ll? U. S. 276, 5 Sup. Ct. 141. See, also, Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 459-464; Marine Bank v. Rushmore, 28 111. 463; Ide v. Bremer Co. Bank, 73 Iowa, 58, 34 N. W. 749, distinguishing Guelich r. National State Bank, 56 Iowa, 434, 9 N. W. 328; Gheen v. Johnson, 90 Pa. St. 38; Naser v. First Nat. Bank, 116 N. Y. 492^98, 22 N. E. 1077; Corn Exch. Bank v. Farmers' Nat. Bank, 118 N. Y. 443, 23 N. E. 923; Wheatland v. Pry or, 133 N. Y. 97, 30 N. E. 652. 27 8 National Exch. Bank v. Beal, 50 Fed. 355; Id., 5 C. C. A. 304, 55 Fed. 894; British & A. Mortg. Co. v. Tibballs, 63 Iowa, 468, 19 N. W. 319; Warren Bank v. Suffolk Bank, 10 Cush. 582. A mercantile agency that received a draft for collection is responsible for the failure of its agent to pay over the proceeds in the absence of any restriction on its liability. Bradstreet v. Ever- son, 72 Pa. St. 124; Morgan v. Tener, 83 Pa. St. 305; Siner v. Stearne, 155 Pa, St. 62, 25 Atl. 826. 279 Fabens v. Bank, 23 Pick. 330; Dorchester & M. Bank v. New England Bank, 1 Cush. 177; Darling v. Stanwood, 14 Allen, 504; Barnard v. Coffin, 141 Mass. 37, 6 N. E. 364; Warren Bank v. SufColk Bank, 10 Cush. 582; Dun v. City Nat. Bank of Birmingham, 7 C. C. A. 152, 58 Fed. 174. 280 stone V. Cartwright, 6 Term R. 411. 2S1 Wilson V. Peto, 6 Moore, 47. 286 LIABILITY FOR TOKTS COMMITTED BY OE WITH OTHERS. [Ch. S SAME— LIABILITY OF SERVANT TO THIRD PERSONS. 98. A servant is liable to third persons not in the employ of his master, for all violations of duty by him, whether arising from misfeasance, malfeasance, and, it -would appear, from nonfeasance, and ordi- narily -nrhether authorized or unauthorized by his master. Actually undertaking to do what failure to do w^ould not make the servant liable to such persons, may create a duty on his part to perform that w^ork properly. Liability for Misfeasnnce and Malfeasance. The servant is clearly liable for misfeasance and for malfeasance. If his conduct is tortious, ordinarily the authority of his master is no defense.^'*^ "For the warrant of no man, not even of the king, can excuse the doing of an illegal act; for although the command- ers are trespassers, so also are the persons who did the act." ^^^ But where the mental attitude is of the essence of the wrong, ignorance on the part of the servant of the injury he was com- mitting may exonerate him. Thus, in cases of fraud, if he make a false representation, not knowing it to be untrue, but because his master directed him, he will not be liable.^ °* But if he make the representation knowing it to be false and fraudulent, he is liable in damages.'"* One who wrongfully assumes t6 sell land as the agent for the owner is liable in damages to the person whom he de- ceives, for any improvements made.''* 282 Perkins v. Smith, 1 Wils. 328; Stephens r. El wall, 4 Maule & S. 259; Farebrother v. Ansley, 1 Camp. 343; Morse v. Slue, 1 Vent. 238; Nussbaum v. Heilbron, 63 Ga. 312; Knight v. Luce, 116 Mass. 586; McPheters v. Page, 83 Me. 234, 22 Atl. 101; Kimball v. Billings, 55 Me. 147; Perminter v. Kelly, 18 Ala. 716; Josselyn v. McAllister, 22 Mich. 299; Wright v. Eaton, 7 Wis. 495; Thoip V. Bm-ling, 11 Johns. 285; Burnap v. Marsh, 13 111. 535; City of Duluth V. Mallett, 43 Minn. 204, 45 N. W. 154; CuUen v. Trustees, 4 Macq. 424-432; Mechem, Ag. § 571, collecting cases. 2 83 Sands v. Child, 3 Lev. 352, 4 Mod. 76. 2 84 Ante, p. 272, "Torts Consented to by Master." 286 Clark v. Lovering; 37 Minn. 120, 33 N. W. 776; Story, Ag. § 310. 286 Skaaraas v. Finnegan, 32 Minn. 107, 19 N. W. 729. And see Clark v. Lovering, 37 Minn. 120, 33 N. W. 776. ■Ch. 8] RELATIONSHIP. 287 As to liability of the servant for conversion, it is quite clear tliat if the owner of personal property consent to its taking by the serv- ant, the latter is not liable. If, however, the master converts it,*'^ and the agent or servant who, acting solely for his principal or master, and by him directed, and without knowing of any wrong, or being guilty of gross negligence in not knowing of it, disposes of, or assists the master in disposing of, the property, which the latter had no right to dispose of, he is not thereby rendered liable for the conversion."^* Idability for Nonfeasance. According to Judge Story,'*" "The agent is also personally liable to third persons for his own misfeasances and positive wrongs. But he is not, in general (for there are exceptions), liable to third per- sons for his own nonfeasances or omissions of duty in course of his employment. His liability in these latter cases is solely to his prin- cipal, there being no privity between him and such third persons, but the privity exists only between him and his principal." "" The rule comes from the famous saying of Lord Holt, in Lane v. Sir R. Oolton: ''"^ "A servant or deputy cannot be charged for neglect, but the principal only shall be charged for it; but for a misfeasance an action will lie against a servant or deputy, but not as a servant or deputy, but as a wrongdoer." Blackstone furnishes a favorite illus- tration : "If a servant • • • by his negligence does any damage to a stranger, the master shall answer for his neglect. If a smith's servant lames a horse while he is shoeing him, an action lies against 287 Silver v. Martin, 59 N. H. 580. 288 Leuthold v. Fairchild, 35 Minn. 99-111, 27 N. W. 503, and 28 N. W. 218. And see Porter v. Thomas, 23 Ga. 467. 2 8» Story, Ag. c. 12, § 308. 290 To the same effect, see Macdonnell, Mast. & S. 254; 2 Thomp. Neg. 1057; Harriman v. Stowe, 57 Mo. 93; Lottman v. Bamett, 62 Mo. 159; Henshaw v. Noble, 7 Ohio St. 226. And see Reid v. Humber, 49 Ga. 207; Guernsey v. Cook, 117 Mass. 548; Brown Paper Co. v. Dean, 123 Mass. 267; Dayton v. Pease, 4 Ohio St. 80; Henshaw v. Noble, 7 Ohio St. 226. But see Davis v. Vernon, 6 Q. B. 443; Cranch v. White, Bing. N. C. 414. 291 12 Mod. 796, 488. Et vide Woodward, J., in New York & W. P. Tel. Co. V. Dryburg, 35 Pa. St. 298-303. Et vide Ring. Torts, 50. 288 LIABILITY FOR TORTS COMMITTED BY OK WITH OTHERS. [Ch. 3 the master, not the servant" ^'^ But the rule as there laid down has been seriously questioned.^"-* The tliinness and uncertainty of the distinction between the mis- feasance, malfeasance, and nonfeasance leaves an exceedingly un- stable basis on which to rest an important principle of liability. It would indeed seem to be a fair criticism on the subsequent reasoning that the courts liave, in applying the distinction, engaged in a solemn 2»2 1 Cooley's Bl. Comm. §§ 430, 431. This, however, is doubted. Note to Coleridge Ed. As to the general rule of the liability of the servant in cases involving essentially the principle where the action sounds in tcrt, s.e Goddard v. Railway Co., 57 Me. 202; Coleman v. Railroad Co., 106 Mass. 160; Brokaw v. New Jersey B. & Transp. Co., 32 N. J. Law, 328; Kline v. Rail- road Co., 39 CaJ. 587; Hutchinson v. Railway Co., 5 Bxch. 341. And see Hay V. Cohoes Co.. 3 Barb. 42. 293 Jir. Mechem comments on It (Mechem, Ag. § 572) as follows: "Some con- fusion has crept into certain cases from a failure to observe clearly the dis- tinction between nonfeasance and misfeasance. As has baen saen, the agent is not liable to strangers for the injuries sustained by them, because he did not undertake the performance of some duty which he owed to his prin- cipal, and imposed upon him by his relation, which is nonfiarance. Mis- feasance may involve, also, to some extent, the idea of not doing,— as wLerj the agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do, under the circumstances; does not take that precaution, does not exercise that care, which a due regard for the rights of others requires. All this is not doing; but it is not the not doing of that which is imposed upon the agent merely by virtue of his re- lations, but of that which is imposed upon him by law.'as a reipors ble irdi- vidual, in common with all other members of society. It is the same not do- ing which constitutes actionable negligence in any relation." Mr. Wj-a.tDU (Whart. Neg. § 535) insists that the distinction, in this class of cases, be- tween nonfeasance and misfeasance, can no longer be sustained; that the true doctrine is that when an agent is employed to work on a particular thing, and has sun-endered the thing in question into the principal's hands, then the agent ceases to be liable to third persons for hurt received by them from such things, though the hurt is remotely due to the agent's negligence,— the reason being that the causal relation between the agent and the person hurt is broken by the interposition of the principal as a distinct center of legal responsibilities and duties, but that wherever there is no such inter- ruption of casual connection, and the agent's negligence directly injures a stranger, the agent having liberty of action in respect to the Injury, then such stranger can recover from the agent damages for the injury. And see Busw. Pers. Inj. 398. Ch. 3] KELATIOKSHIP. 289 game of logomachy. Thus, in Bell v. Josselyn ^°* it was said that failure of "defendant to examine the state of the pipes in a house before causing the water to be let on would be a nonfeasance; but if he had not caused 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 letting on of the water, there would have been neither nonfeasance nor misfeasance. As the facts were, the nonfeasance caused the act done to be a mis- feasance. The plaintiff suffered from the act done, which was no less a misfeasance by the reason of its being preceded by a nonfea- sance." The futility of such reasoning on the word "nonfeasance" appears fully from the lack of definiti\'eness of the meaning to be given the term.^"^ This solemn legal jugglery with words will probably dis- appear "if the nature of the duty incumbent upon the servant be considered." ^"^ If the servant owe a duty to third persons, derived from instrumentality likely to do harm or otherwise, and he violates that duty, he is responsible. His responsibility rests on his wrong- doing, not on the positive or negative character of his conduct. A wrongful omission is as actionable as a wrongful commission. A driver who injures a third person by his negligence is liable.^''^ So an engineer who negligently handles fire is liable to third persons for the damage done.^"^ Selectmen of a town who ordered the build- ing of a public sewer in one of the streets were liable for injuries oc- casioned to a person employed by them to lay a pipe in the bottom of a trench, by reason of their failure to provide a proper support for the sides of the trench. The fact that the town was also liable did not relieve them.^"" Agents who have possession, charge, and 29*3 Gray, 309. 20 5 Of. Blakeston's Case, 1 W. Jones, 82. 206 Whittaker's Smitli, Neg. p. 200, § 7. 287 Phelps V. Wait, 30 N. Y. 78; Hewett v. Swift, 3 Allen, 420; Hutchinson V. Railway Co., 5 Exch. 341. 29 8 Gilson V. Collins, 66 111. 136. And see Bacheller v. Pinkham, 68 Me. 253. 299 Breen v. Field, 157 Mass, 277, 31 N. E. 1075; Kranz v. Long Island Ry. Co., '123 N. y. 1, 25 N. B. 206; Eagilesfield v. Marquis of Londonderry, 4 Cli. Div. 693. LAW OF TORTS— 19 290 LIABILITY FOR TORTS COMMITTED BY OR AVITH OTHERS. [Ch. 3 management of a wharf/"" or of a building '"^ whicli they rent to tenants, are liable to third persons for injuries done because of their omission to correct the old, worn, insecure, or dangerous con- dition of the premises. So where the privilege was given to the master to haul wood through another's land, and the master directed the servant to close the fence, and the servant passed through with- out closing it, and hogs escaped and were killed, the servant was held liable.^"'' But there are circumstances which impose no duty on defendant If the servant do nothing, he is not liable. Thus, if the master has agreed with a third party to perform a certain duty, and the serv- ant omits to perform that duty, the third party complains of the breach of contract by the master to which the servant is no party, and there is no duty to third persons for the servant to perform. Many cases cited in support of the distinction arise where pri\ity existed between the master and the third person, but not between the servant and the third person. Thus Story cites cases of bail- ment and delivery of goods. So, for example, if a master directs his servant to perform a duty (not involving a contract) imposed on the master, but not on the servant (as, to repair a dangerous walk), and the servant merely forbear, he is not ordinarily liable to third persons for consequent harm. But, as has been seen, under some circumstances the duty to repair might become a personal one to him, with respect to which mere omission (or nonfeasance) will at- tach liability. But when the servant actually undertakes and enters upon the execution of a particular work, he is liable for any negli- gence in the manner of executing it. He cannot, by abandoning its execution midway, and leaving things in a dangerous condition, ex- empt himself from liability to any person who suffered injury by reason of his having so left it without proper safeguards.^"^ Thus, even in cases of bailment, — for example where a mare was given 30 Bah-d v. Shipman, 33 111. App. 503, affirmed 132 111. 16, 23 N. E. 384. But an agent in charge of a building, who fails to make necessary repairs, is not liable to a tenant injured by such failure. Dean v. Brock (Ind. App.) 38 N. E. 829. 301 Campbell v. Portland Sugar Co., 62 Me. 552. 302 Horner v. Lawrence, 37 N. J. Law, 46. 303 Osborne v. Morgan, 130 Mass. 102. Ch. 3] RELATIONSHIP. 291 into a party's keeping to be broken, and was killed by the negligence of such party's servant or agent, — the agent, as ^\'ell as the principal, was liable.^''* SAME— PARTNERS. 99. In order that responsibility be attached to a partner viTith respect to a tort, it is necessary either — (a) That he should have authorized it or joined in its commission in the first instance; (b) That he should have made it his ow^n by adoption; or (c) That it should have been coramitted by his copart- ner in the course and as a part of his employ- ment. ^"^ Where a partner authorizes the commission of a tort, he has done it himself, and is of course liable. So, where he joins in its commission, his liability is rather that of a joint tort feasor pure and simple, because of participation, than that of a partner be- cause of relationship.'"® Indeed, the partnership relation would have no connection as cause of the wrongdoing. Retention of ben- efit derived from a partner's unauthorized tort will attach liabil- ity to all partners. ^.'" The only questions involving difficulty as to the liability of partners, therefore, are those where the liability arises from the relationship. It has been recognized generally by tf-xt writers that the law of partnership is a branch of the law of agency. Consequently it is said that a partner, like a principal, is not liable for the willful acts of his agent, if not done in coui-se if his employment and as part of his business; and this is true not only of assault, battery, libel, and the like, but also of fraud.'"' 30* Miller v. Staples, 3 Colo. App. 93, 32 Pac. 81. Compare 3 Chit. O. & N. 214; Lane v. Cotton, 12 Mod. T96, 488. 30 6 Liudl. Partn. § 299. 306 Graham v. ISIeyer, 4 Blatchf. 129, Fed. Cas. No. 5,073; 24 Myer, Fed. Dec. 131. 307 Ante, p. 209, "Joint Tort Feasoi-s"; U. S. v. Baxter, 46 Fed. 350; Bienen- stok V. Ammidown (Super. N. Y.) 29 N. Y. Supp. 593. 308Lindl Partn. § 299; Cooley, Torts, pp. 535, 536; Swell's Evans ou Agency p ISO; Stockwell v. U. S., 3 Cliff. 284, Fed. Cas. No. 13,466. 1192 LIABILITY FOR TORTS COMMITTED BY OR WITH OTHERS. [Ch. 3 As to what is so within and a part of the business as to attach liability to a copartner, the cases may not have gone as far towards holding to a mutual responsibility as in the case of master and servant. It has, however, been held that if one of several partners drive a coach negligently, a person injured thereby may sue the driver in trespass, or all the partners in case. ^°' Partners are jointly liable for statements made by one of them in derogation of a competitor, in aid of their business,"" for misrepresentation as to lands exchanged,"^ for abuse of trust funds,^^^ for death by the wrongful act of a copartner,^^^ and for an illegal agreement to pay rebate."* Similarly, where one partner acts for the firm in de- manding illegal charges and detaining the goods until they are paid, every member of the firm is liable in damages.^^^ As to what is not within the course, and not a part, of partner- ship business, it would appear that a partner is not liable for tlie willful act of his partner, not because it is willful, but because it is outside of the partnership business.'^® Thus, one partner is not liable for malicious prosecution instituted by his copartner for the larceny of partnership property, unless he advised or partici- pated in it, and then only in his individual capacity.^^^ While, as has been shown, the partner may be liable for the libelous words of a copar-tner, still the copartner uLay, -in: connection with the business, publish a libel for which the only responsibility is his individually. Thus, where a furniture company placarded so 9 Moreton v. Hardern, 4 Bam. & C. 223; Asliworth v. Stanwix, 30 L. J. Q. B. 1S3. So, where two attorneys are in partnersMp, both are liable for the unsuccessful conduct of client's business. Warner v. Iriswold, 8 Wend. 665; Poole v. Gist, 4 McGord, 259. -10 Haney Manuf'g Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073. 311 Stanhope v. SwafCord, 80 Iowa, 45, 45 N. W. 403. And sea Gooding v. Underwood, 89 Mich. 187, 50 N. W. 818. 312 Appeal of Rau, 144 Pa. St. 304, 22 Atl. 740. Cf. Hawley v. Tesch. 88 Wis. 213, 59 N. W. 670. 313 Sagers v. NuckoUs, 3 Colo. App. 95, 32 Pac. 187. 314 McEwen v. Shannon, 64 Vt. 583, 25 Atl. 661. 315 Lockwood v. Bartlett, 130 N. Y. 340, 29 N. E. 257. 310 1 Bates, Partn. § 467. 31'.- Marks v. Hastings, 101 Ala. 165, 13 South. 297; Farrell v. Freidlander, 63 Hun, 254, 18 N. Y. Supp. 215. Ch. 3] RELATIONSHIP. 29o furniture: "Taken back from Doctor W., as he could not pay for it. For sale at a bargain. Moral: Beware of dead beats!"" — this libel was held to be the act of the individual. It had nothing to do with the partnership. The partners other than the one actually publishing it were not liable, unless in some way they authorized the publication.^^* A copartner is, of course, not liable for the conversion by another partner to his own use of a third person's property.^^® In case several persons are sued as partners for a tort, and no partnership is established, the verdict may be against one only, if the tort is established against him.'*^" Even for torts, where liability is attached to partners because of wrong done in course of partnership business, the injured party muy sue all the partners, or any one or more of them, at his election.^ ^^ 318 Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387; Blyth v. Flad- gate (1891) 1 Cb. 337. But see Bienenstok v. Ammidown, supra. 310 Stokes v. Bumey, 3 Tex. Civ. App. 219, 22 S. W. 126. Liability in re- plevin. Tanco v. Booth (Com. PI. N. Y.) 15 N. Y. Supp. 110. 320 Austin V. Appling, 88 Ga. 54, 13 S. E. 955. And see Fay v. Davidson, 13 Minn. 523 (Gil. 491). 321 Wisconsin Cent. R. Co. v. Ross, 142 111. 9, 31 N. B. 412, collecting cases at page 16, 142 111., and page 412, 31 N. E.; Walker v. Trust Co., 72 Hun, 334, 25 N. y. Supp. 432. Cf. Wbittaker v. Collins, 34 Minn. 299, 25 N. W. 632. By far the ablest and clearest discussion of the liability of a partner, gen- eral and special, for the torts of a copartner is to be found in chapter 9 of Principles of Partnership, by James Parsons (1889). 294 DJSCHAKGE AKD LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 CHAPTER IV. DISCHARGE AND LIMITATION OP LIABILITY FOR TOUTS. 100. In GeneraL 101. Discharge or Limitation by Voluntary Act of Party, 102. By Waiver. 103. By Agreement. 104-105. By Agreement before Damage. 10&-107. By Agreement after Damage. 108. Discharge or Limitation by Operation of Law. 109. By Judgment. 110-111. By Death. 112-113. By Statutes of Limitation. 114. By Compliance with Statutory Requirements. 115-116. Discharge of Joint Torts— By Judgment. 117. By Release. 118. By Waiver. IN GENERAL. 100. Liability for torts may be discharged or limited either — (a) By voluntary act of the party; or (b) By operation of la"w. The distinction between discharge by. act of parties and discharge by operation of law is open to criticism, inasmuch as the law only operates in conjunction with some act of the parties. Nevertheless the distinction is practically useful. The discharge of torts may conveniently be divided, for consider- ation, into discharge of ordinary torts as distinguished from joint torts. Many considerations are common to both. Those peculiar to joint torts will be separately considered. DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 101. Liability for torts is discharged or limited by volun- tary act of the party — (a) By -wraiver; or (b) By agreement. Ch. 4] DISCHARGE OB LIMITATIUN BY VOLUNTARY ACT OF PARTY. 295 SAME— BY WAIVER. 102. A tort may be discharged by -waiver operating through consent or estoppel. Much of the uncertainty and confusion which arises in connection with the doctrine of waiver might, it would seem, be eliminated by bearing in mind, in each case, that waiver may be based either upon contract or estoppel. If it is based upon contract, the questions are as to parties, construction, and consideration. These will be subse- quently discussed. If it is based upon estoppel, the questions are of fact, especially with reference to the altered positioji of the par- ties consequent upon the conduct claimed to operate by way of es- toppel. Knowledge of the existence of a right, and the intention to relinquish it, must concur, to create an estoppel by waiver.^ Ac- ceptance of, a benefit, with knowledge of wrong done, may discharge 1 Hamilton v. Home Fire Ins. Co., 42 Neb. 883, 61 N. W. 93. Generally, as to waiver and estoppel, see Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546. In Ellis V. Newbrough (N. M.) 27 Pac. 490-494, Judge Freeman has discovered a new species of estoppel. The plaintiff brought an action of trespass on the case, to recover for labor expended, and damage because of humiliation, against de- fendant.s, who organized a community called "Faithists," to be conducted on the principle contained in the new bible Oahspe. "O, glorious Land of Shalam! O, beautiful Church of Tae! When the appellants, the appellee, Ada Sweet, and Nellie Jones, aforesaid, formed their inner circle, and, like the morning stars, sang together, it matters not whether they kept step to the martial strains of 'Dixie,' or declined their voices to the softer melody of 'Little Annie Rooney,' the appellee became forever estopped from setting up a claim for work and labor done; nor can he be heard to say that 'he has sufCert'U great anguish of mind in consequence of the dishonor and humili- ation brought on himself and children by reason of his connection with said defendant's community.' His joining in the exercises aforesaid consti- tutes a clear case of estoppel in Tae." The familiar objection to the divi- sion of Blackstone based upon the act of the party and the operation of law, that there is no act of the party which has effect without the operation of the law, and that the operation of the law does not exist save upon the acts of the party, would seem to be more verbal than real. As applied to torts, a release of a cause of action may be fairly said to be the voluntary act of the party. On the other hand, the discharge of a right of action sounding in tort by death may, with substantial propriety, be called discharged by operation of law. 296 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 a tort by waiving it. Thus, if a person who has been induced by fraud and deceit to enter into an executory contract for the purchase of personal property, to be delivered and paid for in the future, dis- cover the fraud while the contract is still executory, and, notwith- standing, afterwards accepts the property, under the contract, and uses it, he cannot maintain an action for damage for the fraud, or recoup them in an action for the purchase price of the property.^ Delay in proceeding to secure redress for the violation of rights may bar the action, even under circumstances which would not put into force the statutory limitations. Thus, with respect to proceedings to lay out a highway, public policy requires that such local business arrangements be closed up speedily.^ Accordingly, where persons claim to have discovered fraud in the establishment of a highway, they waive the tort by delay.* It is, however, by no means estab- lished that such delay would have the effect of barring the right to recover damages. It seems quite clear that mere silence in the pres- ence of a willful trespass permitted on one's property waives noth- ing, and consents to nothing. ° As has already been considered, there are many cases in which the person against whom the Avrong has been committed may waive the tort and bring assumpsit." For example, wherever a -person 2 Thompson v. Libby, 36 Minn. 287, 31 N. W. 52. And see Brewer v. Spar- row, 7 Barn. & C. 310; Lytligoe v. Vermon, 5 Hurl. & N. 180, 29 Law J. Exch. 164. A landlord does not waive conversion of timber by tenant, for timber wrongfully cut on the demised premises, by acceptance of rent for a period subsequent to such conversion. Brooks v. Rogers, 101 Ala. Ill, 13 South. 386. A tort in taking property is waived by the owner, if, with knowledge of the facts, he accepts a receipt from the wrongdoer, and afterwards claims credit for the amount thereof. Singer Manuf'g Co. v. Greenleaf, 100 Ala. 272, 14 South. 109. In an action against a carrier for personal injuries received by plaintiff while riding on a free pass, plaintifl: is estopped to assert that the pass was void, being issued to him as a public officer, in violation of the law. Muldoon v. Seattle City Ry. Co. (Wash.) 38 Pac. 995. 8 Wilder v. Hubbell, 43 Mich. 487, 5 N. W. 678. And see Evans v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 28 S. W. 903; Mayor, etc., of City of Nashville v. Sutherland (Tenn.) 29 S. W. 228. 4 Limming v. Bamett, 134 Ind. 332, 33 N. E. 1098, distinguishing Overton V. Rogers, 99 Ind. 595. Leber v. Minneapolis & N. W. Ry. Co., 29 Minn. 250, 13 N. W. 31. 8 "Waiver of Tort, and Suit in Assumpsit," by Mr. Keener, in 6 Harv. Law Ch. 4] DISCHARGE OR LIMITATION RY VOLUKTARY ACT OF PARTY. 297 commits a wrong against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply a contract on the part of the wrongdoer to pay the party injured the full value of all benefits resulting to such wrongdoer; and, in such case, the injured party may elect to sue upon the iinplied contract for the value of benefits received by the wrongdoer J He may, however, have both an action of assumpsit and of tort in the same transaction. Thus, where one loans money on the faith of another's representation that he has property, and, the borrower failing to repay the money when due, the lender sues him for it in assumpsit, and recovers judgment, which remains un- satisfied, and afterwards sues in case for deceit on account of the representation, alleging it to have been false, the borrower cannot plead in bar the judgment in assumpsit.^ Probably the true prin- ciple by which to determine discharge by waiver of tort in such cases is to refer them to estoppel by judgment." Rev. 223-268, and chapter 3, .Keener, Quasi Cont. And see Township of Buckeye v. Clark, 90 Mich. 432, 51 N. W. 528; ante, c. 1. T Bac. Abr. tit. "Assumpsit," 2; Clarence v. Marshall, 2 Cromp. & M. 495; Phillips, T. Humfray, 24 Ch. Div. 439 (462) ; Lightly v. Clouston, 1 Taunt. 112; Shaw v. Coffin, 58 Me. 254; Staat v. Evans, 35 111. 455; Pearsoll v. Chapin, 44 Pa. St. 9; Jones v. Gregg, 17 Ind. 84; Cooper v. Berry, 21 Ga. 526; Goodenow v. Snyder. 3 Iowa, 599; Elliott v. Jackson, 3 Wis. 649; Hunnestone v. Smith, 22 Conn. 19; Stewart v. Balderston, 10 Kan. 131 (142;; Stevens v. Able, 15 Kan. 584; Read v. Jeffries, 16 Kan. 534; Tightmeyer v. Mongold, 20 Kan. 90; Famson v. Linsley, Id. 235; 2 Greenl. Ev. 120; Nolan V. Manton, 46 N. J. Law, 231; Westcott v. Sharp, 50 N. J. Law, 392, 13 Atl. 243; Loomis v. OlNeal, 73 Mich. 582, 41 N. W. 701. 8 Whittier v. Collins, 15 R. I. 90, 23 Atl. 47. On the other hand, an action in trover may not bar an action on breach of contract in same transaction. Snow V. Alley, 1.j6 Mass. 193, 30 N. E. 691. Cf. Union Pac. Ry. Co. v. Kel- ley (Colo. App.) 35 Pac. 923. Owners of land on which plaintiff cut logs, of which he sold part, are not, by filing a bill to restrain further cutting, for an accounting as to the logs already sold, and for the sale under order of court of the unsold logs, estopped to set up title to the latter logs in a re- plevin suit against them by plaintiff. Hogan v. Hogan (Mich.) 61 N. W. 73. Post, p. 321. Where a landlord elects to sue for the destruction of the leased property, he cannot recover rent therefor after its destruction. Wil- cox V. Cate, 65 Vt 478, 26 Atl. 1105. Where a father sues for the wages of his Infant son, employed without his consent, he thereby ratifies the hiring, and waives the tort involved in the harboring of the son. Hopf v. United States Baking Co. (Super. Buff.) 27 N. Y. Supp. 217. See, also, Huggins v. 298 BliiCHAEGE AND LIMITATION OF LIABILITY FOR TOliTS. [Ch. 4 SAME— BY AGREEMENT. 103. Discharge or limitation of liability by agreement will be considered with reference to the time of making the agreement, w^hether — (a) Before damage; or (b) After damage. SAME— BY AGREEMENT BEFORE DAMAGE. 104. "While freedom of the right to contract is fully rec- ognized by the courts, parties to a contract are gen- erally, but not universally, (a) Denied ability to so contract as — (1) To escape liability in tort for negligence or fraud, with respect to a duty based on con- tract; or (2) To determine in advance the amount of damage w^hich may result from such subsequent tort, except, particularly, as to unrepeated tele- grams. (b) Allowed to limit liability by agreement in such cases — (1) By stipulating in advance the value of the prop- erty w^hich may be involved; (2) By prescribing certain reasonable duties to be performed by the injured party in the conduct involved under the contract, and as condi- tions precedent to right to maintain action for damages done; and (3) By defining the physical extent of the under- taking. Watford, 38 S. C. 504, IT S. E. 363. The statement of a landowner, at a hearing before the board of health, that he should claim no damages if the board put a stone drain under ground through his premises, does not estop him from claiming damages caused by a drain on the surface of his land. DriscoU V. City of Taunton, 160 Mass. 486, 36 N. B. 495; Anvil Min. Co. v. Humble, 153 U. S. 540, 14 Sup. Ot 876. Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OB' PARTY. 299 On the one hand, the law recognizes the absolute right of any person to make any lawful contract he may desire to rnake.^" On the other hand, the courts reason that it is not interfering with freedom of contract to deny, for reasons of public policy, the ability to execute certain contracts limiting liability for torts.^^ Thus it has been generally regarded as unwise to allow any one to contract against his own negligence. The recklessness of conse- quences which would result from giving effect to such a provision affords a cogent reason. Moreover, in very many classes of cases the party to the contract insisting on limitations would be in a po- 10 "It must not be forgotten that you are not to extend arbitrarily these rules wliich say that a given contract is void as being against public policy; because if there is one thing, more thai another, public policy requires, it is that man of full age and competent of understanding shall have the ut- most liberty of contracting them, that these contracts when entered into fully and voluntarily shall be held sacred. Therefore you have this paramount public policy to consider; that you a,re not likely to interfere with their freedom of contract." Thus, under a fitipulation In a bill of lading, that the company "agree to forward" and deliver the freight to the consignee, the damages incident to railroad transportation, and loss or damage by fire or the elements while at depot, excepted, the company is not liable for dam- ages from those causes at depots where the cars containing freight stop while in transit. E. O. Stauard Milling Co. v. White Line Cent. Ti-ansit Co., 121 Mo. 258, 26 S. W. 704. So, a condition in a bill of lading exempting the carrier from liability for loss of fires, except such as occur by his own negli- gence, is reasonable, and binds the consignor, though he has neglected to read its terms. Davis v. Central Vt. R. Co., 66 Vt. 290, 29 Atl. 313. Simi- lai-ly, where a steamship company provides a wharf with a covered ware-, house, into which cargo is discharged, and the time and place of discharge are easily ascertainable by consignees, an exemption in its bill of lading from liability for fire happening after unloading is reasonable and valid. Constable v. National S. S. Co., 154 U. S. 51, 14 Sup. Ct. 1062. A valuable note on the extension of the power of a railway company to make restricted contracts in the transportation of live stock, not involving questions of neg- ligence, with numerous citations, by Percy Edwards, will be found in 38 Cent. Law J. 94. A review of recent labor legislation and statutory limita- tions of freedom of contract between employer and employe, by Frederick C. Woodward, will be found in 29 Am. Law. Rev. 236. 11 The defense is allowed, not for sake of defendant, but for the law itself. Oscanyan v. Arms Co., 103 U. S. 261, 268. So a shipo\A?ner. Schulze-Berge V. The Guildhall, 58 Fed. 796; The Hugo, 57 Fed. 403. An express com- pany. Armstrong v. United States Exp. Co., 159 Pa. St. 640, 28 Atl. 448. 300 DISCHARGE AND LIMITATION OF LIABU.ITY i'OE TOUTS. [Ch. 4- sition to dictate absolutely to the party whose right to damages was being contracted away; so that such a contract would really lack the vital element of agreement, — volition. If carriers, tele- graph companies, and employers generally were allowed unrestrict- ed freedom to evade responsibility in tort by agreement, the public- would be practically compelled to submit; and the questions of legal right and wrong would be settled, not in courts, but by coun- sel. The cases on this point arise under contract relationships, af- fording further reasons peculiar to each relationship. It is accord- ingly maintained that the ability to contract against negligence- varies with the relationship involved. Common carriers have been allowed to contract against negli- gence in some jurisdictions.^^ This right, however, has been al- most universally denied them." Indeed, in Willock v. Pennsylva- 12 McCawley v. Railway Co., L. E. 8 Q. B. 57. But see Manchester S. & L. R. Co. v. Brown, 8 App. Cas. 703, per Blackburn, J.; Peek v. Railroad Co., 1<>> H. L. Cas. 473; Magnin v. Dinsmore, 56 N. Y. 168; Kinney v. Railway Co., 32 N. J. Law, 407, .34 N. J. Law, 513; Farmers' & Mechanics' Bank v. Cham- plain Transp. Co., 23 Yt. 186; Griswold v. Railway Co., 53 Conn. 371, 4 AtL 261; Baltimore & O. Ry. v. Skeels, 3 W. Va. 556; Rathbone v. Railway Oo.,- 140 N. y. 48-51, 35 N. E. 418. 13 Pavitt V. Lehigh Val. E. Co., 153 Pa. St. 302, 25 Atl. 1107. Compare- Ohio & M. R. Co. v. Selby, 47 Ind. 471, with Indianapolis, D. & W. Ry. Co. V. Forsythe, 4 Ind. App. 326, 29 N. E. 1138. Et vide Kansas City, St. J. & C. B. R. Co. V. Simpson, 30 Kan. 645, 2 Pac. 821; Coward v. Railway Co.,- 16 Lea (Tenn.) 225; Woodburn v. Railway Co., 40 Fed. 731; Liverpool & G. W. Steum Co. v. Phenix Ins. Co., 129 U. S. 397-441, 9 Sup. Ct. 469. In Railroad Co. v. Lockwood, 17 Wall. 357, the following propositions were laid down: (1) A common carrier cannot lawfully stipulate for exemp- tion from responsibility when such exemption is not just and reasonable. (2) It is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. (3) These rules apply both to the carrier of goods and to the carrier of passengers for hire, and with special force to the latter. Pha'nix Ins. Co. v. Erie & W. Transp. Co., 117 XJ. S. 312, 6 Sup. Ct. 750, 1176;: Providence Ins. Co. v. Morse, 150 U. S. 99, 14 Sup. Ct 55. And see Alabama G. S. R. Co. V. Thomas, 83 Ala. 343, 3 South. 802; The Portuense, 35 Fed. G79; Doyle v. Fitchburg R. Co., 1G2 Mass. 66, 37 N. E. 770; Adams. Exp. Co. V. Harris, 120 Ind. 73, 21 N. E. 340. note; Johnson's Adm'r v. Richmond & D. R. Co., 86 Va, 975, 11 S. E. 829; Hudson v. Railroad Co. (Iowa) 60 N. W. 008; Thomas v. Railway Co., 63 Fed. 200; State v. Western- Maryland Ry. Co., 63 Md. 433; Jones v. Railway Co., 28 S. W. 883; Hutch. Oh. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 30l nia R. Co./' the court went so far as to hold that a stipulation in a bill of lading that the owner, shipper, and consignep severally shall cause the goods to be insured, and that in case of loss the car- rier shall have the benefit of the insurance, if such loss "shall occur from any cause which shall be held to render this line or any of its agents liable therefor," is a contract intended to protect the carrier Carr. § 260 (collecting cases in great number); Mobile & O. R. Co. v. Hop- kins, 41 Ala. 486; Alabama G. S. R. Co. v. Little, 71 Ala. 611; Welch v. Kailroad Co., 41 Conn. 333; Louisville & N. R. Co. v. Owen, 93 Ky. 201, 19 "S. W. 590; Abrams v. Railroad Co., 58 N. W. 780; M'ifannus v. Railway Co., 4 Hurl. & N. 827; Kerby v. Railway Co., 18 Law. T. (N. S.) 658; Peek v. Railway Co., 10 H. L. Cas. 473; Louisville & N. R. Co. v. Grant, 99 Ala. 325, "13 South. 599 (where a release exceiit for willful negligence did not release for negligence of carrier or servant); Armstrong v. United States Exp. Co., 159 Pa. St. 640, 28 Atl. 448; The Hugo, 57 Fed. 403; Atchison, T. & S. F. E. Co. V. Lawler, 40 Neb. 356, 58 N. W. 968. A stipulation that the goods shipped shall be insured, and that the carrier shall have the benefit thereof, if the loss occurs from any cause which shall render the carrier liable, is void, Willock V. Pennsylvania R. Co. (Pa. Sup.) 30 Atl. 948; although the carriage of goods be between different states, St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, 50 N. W. 957. But where, in another state, goods are delivered to a common carrier for transportation into Iowa, under a con- tract limiting its liability, valid where made, but void under the laws of Iowa, the contract is valid, and governs the liability of the carrier, though the loss occurs in Iowa. Hazel v. Chicago, M. & St. P. Ry. Co., 82 Iowa, 477, 48 N. W. 926. As to statutory regulation, see Griswold v. Illinois Cent. R. Co. (Iowa) 57 N. W. 843; Missouri Pac. Ry. Co. v. International Marine Ins. Co., 84 Tex. 149, 19 S. W. 459. While a condition in a free pass ex- empting a common carrier from liability has been held valid, as in Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069, the general opinion is otherwise. See Jacobus v. St. Paul & C. R. Co., 20 Minn. 12.: (Gil. 110). 14 (I'a. Sup.) 30 Atl. 948, citing, inter alia, Farnham v. Railroad Co., 55 Pa. St. .53. McManus v. Railway Co., 4 Hurl. & N. 327; Kirby v. Railway Co., 18 Law T. (N. S.) 658; Peck v. Railway Co., 10 H. L. Cas. 473. Beckman V. Shouse, 5 Rawle, 179; Bingham v. Rogei-s, 6 Watts & S. 495; Laing v. ■Colder, 8 Pa. St 479; Goldey v. Railroad Co., 30 Pa. St. 242; Powell v. Rail- road Co., 32 Pa. St. 414; American Exp. Co. v. Sands, 55 Pa. St. 140; Pennsylvania R. Co. v. Jliller, 87 Pa. St. 395; Grogau v. Express Co., 114 Pa. St 523, 7 Atl. 134;, Pennsylvania R. Co. v. Raiordon, 119 Pa. St. .577, 13 Atl. -324; Western Union Tel. Co. v. Stevenson, 128 Pa. St. 442, 18 Atl. 441; Phcenix Pot Works v. Pittsburgh & L. B. R. Co., 139 Pa. St. 284, 20 Atl. 1058; Buck V. Railroad Co., 150 Pa. St. 171, 24 Atl. 678; Chicago & X. W. Ry. Co. V. Chapman, 133 111. 96, 24 N. E. 417. 302 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 against the consequences of its own negligence, and is void a fortiori. A proA'ision in a contract of shipment limiting the extent of the carrier's liability is ineffectual where the injury is caused by his gross negligence.^ = The public character of the service rendered, and the possibility of connivance between the carrier and his serv- ants, or between either and a third person, are considerations of pub- lic policy particularly applicable to this relation. It has been attempted to draw a distinction in this respect as to telegraph companies. They have been said to be liable only for willful default or gross negligence, and not to be measured by the standard of a common carrier, although it is conceded that the rule is otherwise when the message is repeated.^' The true principle would ^em to be that, while they may limit liability for errors and delays resulting from atmospheric changes, or from disar- rangements of line or instruments from causes which reasonable care could not avoid, they may not stipulate against their own neg- ligence.^^ As between employer and employ^ it is the generally accepted rule that an employer cannot provide by contract against dam- ages by negligence to his employ 6." In New York it does not ap- 15 Wabash Ry. Oo. v. Brown, ]52 111. 484, 39 X. E. 273; Root v. New York & N. E. R. Co., S3 Hun, 111, 31 N. Y. Supp. 357. le Grinnell v. W. U. Tel. Co., 113 Mass. 209; Kiley v. W. U. Tel. Co., 109 N. Y. 231, 16 N. E. 75; Ellis v. American Tel. Co., 13 Allen, 226; 3 Suth. Dam. 2i;irp. That a telegraph or telephone company is a common carrier: DelaA\'are & A. Tel. & Tel. Co. v. State, 3 V. S. App. 30-105, 2 C. C. A. 1, 50 Fed. 677; Shear. & R. Neg. §§ 554, 555. That it is not: Express Co. v. Caldwell, 21 Wall. 264^270; Telegraph Co. v. Texas, 105 U. S. 460-464; Primrose v. W. U. Tel. Co., 154 U. S. 1-14, 14 Sup. Ct. 1098; Leonard v. Tele- graph Co., 41 i\. Y. 044; Breese v. United States Tel. Co., 48 N. Y. 132; Tyler V. AV. U. Tel. Co., 60 111. 421. 17 Brown v. Postal Tel. Co., Ill N. C. 187, 16 S. E. 179; Fleischner v. Cable Co., 55 Fed. 738 (collecting eases, page 741); W. U. Tel. Co. v. Linn. 87 Tex. 7, 26 S. W. 490; Id. (Tex. Civ. App.) 23 S. W. 895. 18 Bank of Ky. v. Adams Exp. Co., 93 U. S. 174; Richmond & D. R. Co. v. .Tones, 92 Ala. 218, 9 South. 276; Louisville & N. R. Co. v. Orr, 91 Ala. 548, 8 South. 300; Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E. 322; Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467; .Johnson's Adm'x v. Richmond & D. R. Co., 86 Va. 975, 11 S. E. 829; Kansas Pae. Ry. Co. v. Peavey, 29 Kan. 169. As to limitation on liability of mercantile agencies Ch. 4] DISCHARGE OR LIMITATION BY VOLUNTARY ACT OF PARTY. 303 pear that public policy forbids the exaction by a railway from its employes of such a contract; but, in the absence of a new consid- eration, the contract is void for that reason.^" A limitation contained in a contract which stipulates that the dam- ages to be recovered in cases of negligence of one of the parties to the contract shall not exceed a certain sum, is regarded as a discharge from a part of the liability of negligence, and is therefore invalid in those jurisdictions in which the right to contract against negli- gence is denied.^" Accordingly, where a horse worth $1,500 was shipped under a contract providing that "the liability of the com- pany for valuable live stock shall not exceed f 100 for each animal," it was held that this was not merely an agreed value of the animal, but an attempt to limit the carrier's responsibility for negligence, and was therefore void.^^ However, a stipulation on a telegram blank that the company will not be responsible in damages beyond by contract with subscriber, see Dun v. City Nat. Bank, 7 C. 0. A. 152, 58 Fed. 174, overruling 51 Fed. 160; Koesner v. Herrmann, 8 Fed. 782; Little Rock & F. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808. 19 Purdy V. Rome, W. & O. R. Co., 125 N. Y. 209, 26 N. B. 255; Brewer v. New York, L. E. & W. R. Co., 124 N. Y. 59, 26 N. E. 324. Compare Georgia Pac. Ry. Co. v. Dooley, 86 Ga. 294, 2 S. E. 923. 20 Jloulton V. St. Paul, M. & M. Ry. Co., 31 Minn. 8.-|, 16 N. AV. 497; Louis- ville & N. Ry. Co. V. Sowell. 90 Tenu. 17, 15 S. W. 8:^,7; Louisville & N. U. Co. V. Owen, 93 Ky. 201, 19 S. W. 590; Eells v. St. Louis, K. & N. AV. Ry. Co., 52 Fed. 903; Louisville & N. R. Co. v. AA'ynu, 88 Tenn. 320, 14 S. W. 311. 21 Hart V. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151 (a leading case). Et vide Railroad Co. v. Lockwood, 17 Wall. 357; Grogan v. Adams Exp. Co., 114 Pn. St. .523, 7 Atl. 134; Lawrence v. New York, P. & B. Ry., 36 Conn. 63; Baughman v. Railroad Co., 94 Ky. 150, 21 S. W. 757; Eells v. St. Louis, K. & N. AV. Ry. Co., 52 Fed. 903 (a leading case); Adams Exp. Co. V. Stettaners, 61 111. 184. Cf. AVestern Transp. Co. v. Newhall, 24 111. 466; Boscowitz V. Adams Exp. Co., 93 111. 523; Abrams v. Milwaukee, L. S. & AV. Ry. Co.. 87 AA^s. 485, 58 N. W. 780; Rosenfeld v. Peoria, D. & E. Ry. Co., 103 Ind. 121, 2 N. E. .344; Hart v. Chicago & N. AV. R. Co., 69 Iowa, 485, 29 N. W. 597 (statute); McCune v. Railroad Co., 52 Iowa, 600, 3 N. AV. 615; Kan- sas City, St. J. & C. B. R. Co., v. Simpson, 30 Kan. 645, 2 Pac. 821; Orndoi-ff V. Adams Exp. Co., 3 Bush (Ky.) 194; JIcFadden v. Missouri Pac. Ry. Co.. 92 Mo. 343, 4 S. AA'. 689 (a leading case); Richmond & D. R. Co. v. Payne, 86 Va- 481. 10 S. E. 749; St. Louis, A. & T. Ry. Co. v. Robbins (Tex. App.) 14 S. AV. 1075. In the following cases, however, such limitation has been allowed: Belgei- v. Dinsmore, 51 N. Y. 166; Louisville & N. R. Co. v. AA'ynn 304 DISCHARGE AND LIMITATION OF MABILITY FOR TORTS. [Ch. 4 the price of the message unless the message be repeated at the sender's expense has been sustained by the supreme court of the United States as reasonable and valid." But this applies only to the sender, not to the recipient." The wrong of which the sender complains is a quasi tort; the recipient's wrong is a tort pure and simple.^* The responsibility may be limited by an express agreement made at the time the contract is executed, provided the limitation be (Jan. 2, 1890) 88 Term. 320, 14 S. W. 311 (-where a limitation to a specific sum was sustained because of abatement in freig-lit cliarges); Coward v. Railroad Co., 16 Lea (Tenn.) 225; Ballou v. Eaile, 17 R. I. 441, 22 Atl. 1113; Pacific Exp. Co. V. Foley, 40 Kan. 457, 26 Pac. 665. A lengthy collection of authorities on the effect of the limitation of liability to a specified amount, with a review of the decisions of the courts of the several states. Alair v. Northern Pac. R. Co., 8 Am. R. & Corp. R. 452 (Minn.) 54 N. W. 1072. 2 2 Primrose v. W. U. Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098. Of. Francis v. W. U. Tel. Co. (Minn.) 59 N. W. 1078. That a telegraph company may not limit liability, for negligence in sending a message, to its cost, see Wertz v. W. U. Tel. Co., 8 Utah, 499. 33 Pac. 136; Wertz v. W. U. Tel. Co., 7 Utah, 446, 27 Pac. 172; Ayer v. W. U. Tel. Co., 79 Me. 493, 496, 498, 10 Atl. 495; or to 50 times such sum, Brown v. Postal Tel. Co., Ill N. C. 187, 16 S. E. 179. A review of the decisions of the several states in relation to the effect of lim- iting the liability for unrepeated messages. 9 Am. Ry. & Corp. Rep. 748. And where the sender of an unrepeated telegram signed the company's blank form, releasing it from liability for delay in the delivery of such a tele- gram, he cannot recover on the ground that the delay would have occurred if the message had been repeated. Birkett v. W. U. Tel. Co. (Mich.) 61 N. W. 645. But such a stipulation does not protect the company against lia- bility for damages which such repetition could have no tendency to prevent. Therefore, notwithstanding such a stipulation, the company will tie held liable for the failure of Its operator to inform the sender of an important message that its line was down, or to send it by a competing line. Fleischner V. Pacific Postal Tel. Cable Co., 55 Fed. 738. And see W. U. Tel. Co. v. Ly- ■ man, 3 Tex. Civ. App. 460, 22 S. W. 656. 2 3 New York & Washington Printing Tel. Co. v. Dryburg, 35 Pa. St. 298; Tobin V. W. U. Tel. Co., 146 Pa. St. 375, 23 Atl. 324; W. U. Tel. Co. v. Lowrey, 32 Neb. 732, 49 N. W. 707. 24 Ante, chapter 1; post, p. 897, "Negligence"; "Contractual Duties." How- ever, the receiver of a message, as well as the sender, is bound by a condi- tion in the contract requiring claims for damages to be presented to the telegraph company within 00 days after the day the message is filed for transmission. Findlay v. W. U. Tel. Co. (C. C.) 64 Fed. 459. Ch. 4] DISCHARGE OR LIMITATION BY VOLDNTAEY ACT OF PARTY. 305 such, as the law can recognize as reasonable and not inconsistent with sound public policy. A contract by a common carrier stipu- lating in advance the value of the property carried, with the rate of freight, based .on the conditions that the carrier assumes lia- bility only to the extent of the ai^reed value, even in cases of loss or damage by the negligence of the carrier, has been sustained,^" and again held not binding.^" The value must be fixed at the shipping 2 6 Hart V. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 113 (the leading case). This doctrine would seem to be accepted more or less clearly in the following cases, in many cases as the result of statutory construction: Louis- ville & N. R. r'o. y. Sherrod, 81 Ala. ITS, 4 South. 29 (but willful and wanton negligence will avoid limitation); St. Louis, I. M. & S. Ry. Co. v. Weakly, 50 Ark. 397, 8 S. W. 131 (in the absence of deceit): Scammon v. Wells, Fa.rgo & Co., 81 Cal. 311, 24 Pac. 284 (under the Code); Ormsby v. Union Pac. R. Co. (Colo.) 2 McCrary, 48, 4 Fed. 170; Overland Mail & Exp. Co. V. Carroll, 7 Colo. 43, 1 Pac. 682; Goupland v. Housatonic R. Co., CI Conn. 531, 23 Atl. 870; Hartwell a-. Xorthem Pac. Exp. Co., 5 Dak. 4(33, 41 N. W. 732 (but see Hazel v. Chicago, M. & St. P. R. Co., 82 Iowa, 477 48 N. W. 92G); Oppenheimer v. United States Exp. Co., 69 111. 62; Rosenfeld v. Peoria & E. Ry. Co., 103 Ind. 121, 2 N. B. 344; Adams Exp. Co. v. Harris, 120 Ind. 73, 21 N. E. 340; Kallman v. United States Exp. Co., 3 Kan. 2i;.j; Pacific Exp. Co. V. Foley, 4(i Kan. 457, 26 Pac. 665; Little v. Boston & ?!. R. Co., 06 Me. 239; Hill V. Boston, H. I. & W. R. Co., 144 Mass. 284, 10 X. E. 836 (et vide Graves v. Railroad Co., 137 Mass. 33); Brehme v. Dinsmore, 25 Md. 328;- How. Ann. St. Mich. § 3418; Hutchinson v. Chicago, St. P., M. & O. Ry. Co., 37 Minn. 524, 35 N. W. 433 (statute); Snider v. Adams Exp. Co., 03 Mo. 376;^ Harvey v. Ten-e Haute & I. R. Co., 74 Mo. 538; Atchison & C. R. R. v. ^^'ash- burn, 5 Neb. 117; Westcott v. Fargo, 61 N. Y. 542; Zimmer v. New York Cent. & H. R. R. Co., 137 N. Y. 460, 33 N. E. 642 (this is a fortiori true whei-e the property is of a special value); Rathbone v. New York Cent. & H. R. R. Co., 140 N. Y. 48, 35 N. E. 418; Stames v Louisville & X. R. Co., 91 Teun. 675, 19 S. W. 675; Zouch v. Chesapeake &. O. Ry. Co., 36 W. Va. 524, 15 S. EV 185 (dissenting opinion of Lucas, J.); Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113; Richmond & D. R. Co. v. Payne, 86 A'a. 481, 10 S. E. 749 (cf. Virginia & T. R. Co. V. Sayers, 26 Grat. 328); Browning v. Goodi'ich Transp. Co., 78 Wis. 391, 47 N. W. 428; Boorman v. Adam.s Exp. Co., 21 Wis. 154 (but sec Black V. Goodrich Transp. Co.. 55 AAis. 319, 13 N. W. 244); Johnstone v. Rich- mond , 17 S. E. 512; Alair v. Northern Pac. R. Co., 53 Minn. 100, 54 N. AV. 1072. These cases sustain the proposition. They are to be classified according to state. Et vide Lord Blackburn in Manchester, S. & L. Ry. Co. V. Brown, 8 App. Cas. 703-712. 26 In Pennsylvania, on the other hand, it has been held that, notwithstand- ing the fact that rates were based on a stipulated value, the owner may HW Cit TOUTS— 20 306 DISCHAKGE A.\D I.I.MCTATION OF LIABII-ITV FOK TORTS. [Ch. 4 point and not at the point of destination." Coui-ts will, however, look into attempts to limit the carrier's respousibiliry for negli- gence by stipulation as to agreed value, and will often avoid them."^' There are many regulations for the conduct of business which the law will reco.niiize and enforce. Thus, a common carrier may require a passenj^er to conform to reasonable rules, as to turn to the right on leaving a car,^'' and a master may require his servant to obey his instructions in dangerous employments, as to make couplings with a stick. ^^ Tile parties to a contract may specify certain reasonable require- ments uf the party complaining of a tort, after it has occurred, as necessary preliminaries to his right to recover. Thus, the claim for damages may be required to be made within a certain reasona- ble time after the alleged injury.^^ If, however, the stipulation is unreasonable, as to tequire bringing of suit within 40 days after in- I'ecover the actual value in excess of such stipulated value. Weiller v. Penn- sylvania R. Co., 134 Pa. St. 310, 19 Atl. 702 (dissenting opinion of Mitchell, .J.); Farnham v. Camden & A. E. Co., 55 Pa. St. 5:J. The same position would seem to have been lield — not always very distinctly — in the folowinjf cases: Southern Exp. Co. \. Seide, 67 Miss. 609, 7 South. 547; Southern Exp. Co. V. Moon, 39 Miss. 822; Chicago, St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017; United States Exp. Co. v. Backman, 28 Ohio St. 144; The Lydian Monarch, 23 Fed. 298: M. P. R. Co. v. Barnes, 2 AVillstfn, Civ. Cas. Ct. App. 507; Pied- mont Manuf'g Co. v. Columbia & G. R. Co., 19 S. C. 353 (statute; but see Levy V. Southern Exp. Co., 4 S. C. 234); Baughman v. Ijouisville, E. & St. L. R. Co. (Ky.) 21 S. W. 757. Et vide Louisville & N. R. Co. v. Owen, 93 Ky. 201, 19 S. W. 590. 2T Taylor, B. it II. 11. Co. v. ilontgoiuery (Tex. App.) 16 S. W. 178-182; International & G. N. R. Co. v. Anderson, 3 Tex. Civ. App. S, 21 S. W. 691; Ft. Worth & D. C. R. Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834. And see Rogan V. Wabash R. Co., 51 Mo. App. 065. 28 See ante, note 21. 29 Post, p. 1086, "Negligence"; "Common Carriers." A common carrier may limit its liability for goods sent C. O. D., while in its possession for purpose of collection, to that of a warehouseman. Pacific Exp. Co. v. Wallace (Ark.) 29 S.-W. 32. -" Post, p. 1001, "Negligence"; "Master una Servant"; "Rules." 31 Lewis V. Great Western Ry., 5 Hurl. & N. 867; W. U. Tel. Co. v. James (Ga.) 16 S. E. 83 (60 days within which to present claims sustained); Ex- press Co. V. Caldwell, 21 Wall. 2ii4; Selby v. Wilmington & W. R. Co., 113 N. C. 588, 18 S. E. 88; Wolf v. W. U. Tsl. Co., t;2 Pa. St. 83: Young v. W. U. Ch. 4] ])I,S(.:lIAU4.j, 58 N. W. 1120. And see State v. Baltimore & O. E. Co., 36 Fed. 655. In Fuller v. Baltimore & O. E. R. Ass'n, 67 Md. 433, 10 Atl. 237, it was held that if the wife and child recover damages, the mother cannot recover benefits. This, however, is ranli injustice. The two claims rest on different footings. 34 Am. Law Reg. 234. 61 Sieber v. Amunson, 78 \yis. 679, 47 N. W. 112G. Post, p. 314, note 65. 2 Sobieski v. St. Paul & D. R. Co., 41 Minn, 169, 42 N. W. 863. Further, as to what is not stitflcient, Richmond & D. R. Co. v. Walker, 92 Ga. 4S;j, 17 S. E. (»4; Landou v. Hultou, .'0 N. .1. Eq. 500, -!."i AU. 953; Davidson v. Burke, 143 111. 139, 32 N. E. 51-i. OS Hinlde v. Minneapolis. & St. L. Ry. Co., 31 Minn. 4:^,4. 18 N. W. 275. 4 Hobbs V. Electi-ic Light Co., 75 Mich. 550, 42 N. W. 965; Pennsylvania Co. V. Dolan, 6 Ind. App. 109, 32 N. E 802; Conner v. Dundee Chemical Works (N. J. Ch.) 17 Atl. 075; White v. Richmond & D. R. Co., 110 N. C. 456, 15 S. E. 197. But not where the retention in employment is for such time as may suit the employer. Gulf, C. & S. F. Ry. Co. v. Winton (Tex. Civ. App.) 26 S. W. 770. A parol promise to re-oiuploy him is a sufficient consideration for a re- lease, executed by au employe, of a claim for pereonal injuries. In an action on a promise to give plaintiff employment, which, with the payment of $100, formed the consideration of plaintiff's release of a claim for personal injuries, the fact that the written release executed by him recites only the money con- 314 UISUHAKGE AND LIMITATION OF LIABILITY FOR TOUTS. [Ch. 4 sideration of the contributions of a railroad company to said asso ciation, and of its guaranty of the payment of benefits, signs a con- tract releasing the company from liability by reason of any acts that may happen to him in course of employment, an action will not lie against the company where, both before and after begin- ning the action, he received money from the association on account of the injury.'^ This would seem to be true even where the em- ])]oj6 was a minor at the time of executing the contract.'" To con- stitute accord and satisfaction, there must be both accord and sat- isfaction. Mere accord is not sufficient.^' A binding contract may, however, be taken in satisfaction."* Where a sum certain is sideration does not prevent recovery on the parol contract for employment. Pennsylvania Co. v. Dolan (Ind. App.) 32 N. E. 802. And see Smit)i v. St. Paul c& D. Ry. Co. (Minn.) 62 N. W. .392. Cf. Jlyron v. Union R. Co. (R. I.) 32 Atl. Itio. «5 State V. Baltimore & O. R. Co., 36 Fed. 655; Chicago, B. & Q. R. Co. v. Bell (Neb.) 62 N. W. 314; Johnson v. Philadelphia & R. R. Co., 163 Pa. St. 127, 29 Atl. 854; Spitze v. Railroad Co., 75 Md. 162, 23 Atl. 307; Lease v. Pennsylvania Co., 10 Ind. App. 47, 37 N. E. 423. Cf. Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. 1120 (under statute) ; but see Clements v. London & N. W. Ry. (1894) 70 Law T. (N. S.) 531; JliUer v. Chicago, B. & Q. Ry. Co., 65 Fed. 305. And, generally, see Martin v. Baltimore & G. R. Co., 41 Fed. 125; Graft v. Balti- more & O. R. Co. (Pa. Sup.) 8 Atl. 206. And see ante, 60. An agreement by an employ^ of a railway company, on joining a "relief department," that, in con- sideration of certain contingent payments by the company to the funds of such department, which payments are of trivial amount, his acceptance of benefits from such department shall operate as a release of the company from claims for damages, does not bar his action against the company for injuries caused by its negligence. Jliller v. Chicago, B. & Q. Ry. Co. (C. C.) 65 Fed. 305; ante, note 60, p. 313. 68 Martin v. Baltimore & O. R. Co., 41 Fed. 125-127, and cases cited; Lease V. Pennsylvania Co., 10 Ind. App. 47, 37 N. E. 423. Cf. Johnson v. Railroad Co.. 163 Pa. St. 127, 29 Atl. 854; Graft v. Railroad Co. (Pa. Sup.) 8 Atl. 206; Donald V. Chicago. B. & Q. R. Co. aowa) 61 N. W. 971; Griffiths v. Earl of Dudley, 9 Q. B. Div. 357. 67 Braunn v. Keally, 146 Pa, St. 519, 23 Atl. 389; Giboney v. German Ins. Co., 48 Mo. App. 185; Rogers v. City of Spokane, 9 Wash. 168, 37 Pac. 300; Yazoo & M. V. R. Co. v. Fulton, 71 Miss. 285, 14 South. 271; Lynn v. Bruce, 2 H. Bl. 317; Wray v. Milestone, 5 Mees. & W. 21; Gabriel v. Dresser, 15 C. B. 622; Hardman v. Bellhouse, 9 Mees. & W. 596. 68 Flockton V. Hall, 14 Q. B. 386. And see Lavery v. Turley, 6 Hurl. & N. 239. An accord and satisfaction may be .self executing. Jones v. Sawkins 5 C. B. 142; Crowther v. Farrer, 15 Q. B. G77. Cf. James v. David, 5 Term R. Ch. 4] DISCHARGE OK LIMITATION BY VOLUNTARY ACT OV PARTY. 315 to be paid, a lesser sum cannot be paid by the debtor °^ in satisfac- tion of a greater;'" but where the claim is for unliquidated dam- ayes, or is uncertain, a less sum may be paid and accepted in sat- isfaction^i^ But, even with respect to unliquidated damages, the amount of the consideration, under special circumstances, may be- come material.'- A seal sufficiently imports a consideration,'^ but may be inquired into upon an allegation of fraud.'^ Intent to Disclmrye Wrong in Issue. An agreement as to satisfaction of a claim based on a tort is gov- erned by ordinary principles of contract. Words employed in a release will receive a fair construction, but will not be extended beyond the consideration. Otherwise, a release would be made for the parties where they never intended or contemplated one.'" 141. Arbitration and award may operate as an accord and satisfaction. Allen V. Milner, 2 Cromp. & J. 47; Harris v. Reynolds, 7 Q. B. 71. "s As to obligation of and accord by a third person, see Bidder v. Bridges (1887) 37 Ch. Div. 406; Clarli v. Abbott, 53 Minn. 88, 5.5 N. W. 542; Fowler v. Smith, 153 Pa. St. 639, 25 Atl. 744. Cf. Marston v. Bigelow, 150 Mass. 45, 22 N. E. 71. 7 Pinnel's Case, 3 Coke, 117a, 238; Foakes v. Beer, 9 App. Cas. 605; Jaftray T. Davis, 124 N. Y. 164, 26 N. E. 351. Cf. Perkins v. Lockwood, 100 Mass. 249, with Wober v. Couch, 134 Mass. 26; Bird v. Smith, 34 Me. 63. But see Schweider v. Lang, 29 Minn. 254, 13 N. W. 33; Thurber v. Sprague, 17 R. I. 634, 24 Atl. 48. Cf. Savage v. Everman, 70 Pa. St. 315. 71 Adams v. Tapling, 4 Mod. 88; Hinkle v. Railway Co., 31 Minn. 434, 18 N. W. 275; Preston v. Grant, 34 Vt. 201; Stockton v. Frey, 4 Gill (Md.) 406; Dono- hue V. Woodbuiy, 6 Cush. 148; Renihan v. Wright, 125 Ind. 536, 25 N. B. 822; Fuller V. Kemp, 138 N. Y. 231, 33 N. E. 1034. 72 Thus, where a woman's husband and her only son were killed in the same accident, and she was in such poverty that she had to gi^te away her remain- ing child, a release of damages, made by her in ignorance of her rights, in consideration of $70 and a ticket worth $3.25, is of no efCect. Byers v. Nash- ville, C. & St. L. Ry. Co., 94 Tenn. 345, 29 S. W. 128; Aliston v. Nashville, C. & St. L. R. Co., Id. 7 3 Spitze V. Baltimore & O. R. Co. 75 Md. 102, 23 Atl. 307. 7 4 Wain V. Wain, 53 N. J. Law, 429, 22 Atl. 203. 75 Codding v. Wood, 112 Pa. St. 371, 3 Atl. 4.'35. Damages from fire. Fi- delity Title & Trust Co. v. People's Natural Gas Co., 150 Pa. St. 8, 24 Atl. 339. Malprosecution. Kirchner v. New Home Sewing Mach. Co., 62 Hun, 620, 16 N. Y. Supp. 761; Id., .59 Hun, 186, 13 N. Y. Supp. 473; Id., 135 N. Y. 182, 31 N. E. 1104; Duff V. Hutchinson, 57 Hun, 152, 10 N. Y. Supp. So7. And see Up- 316 DISCHARGE AND LIMITATION OF LIABII-ITY VOU TORTS. [Oh. 4 The agreement may be conditional. If a receipt is given foi- an amount received in discharge of damage, with the understanding, although not expressed in the document, that the person injured should not thereby exclude himself from further compensation if his injury turned out more serious than was supposed at the time, he will not be debarred from suing for damages in respect to in- juries which have subsequently developed.^' It may fail to cover cause of action in issue.''' A release of all claims and demands, ^'from the beginning of the world to this day," does not cover in- juries not therein mentioned, and not known to exist at the time the release was executed.''^ But a simple receipt in full — for ex- ample, "$15 in full for damages sustained by a bull hooking a horse" — is a sufficient discharge.'' 107. The person executing the agreement claimed as a re- lease of a cause of action sounding in tort may, notwithstanding it, maintain his action if he can show that the release had been obtained by such fraud of the defendant as w^ill entitle him to have it set aside (in many jurisdictions, without return of w^hat degrove v. Pennsylvania S. V. R. Co., 132 Pa. St. 540, 19 Atl. 283; Cory v. Chicago, B. & K. C. R. Co., 100 Mo. 282, 13 S. W. 346. And see Robertson v. Hunter, 29 S. C. 9, 6 S. E. 850; Heller v. Charleston Phosphate Co., 28 S. C. 224, 5 S. E. 611. An agreement to compromise a pending suit will not be en- forced where the writing makes no mention of the suit, but simply releases all claims against defendant. Lampkins v. Vicksburg, S. & P. R. Co., 42 Ija. Ann. 997, 8 South. 530. 76 Lee V. Lancashire & Y. R. Co., 6 Ch. App. 527. 7 7 Where a blast-by defendant injures plaintiff's building, and the damage 4one by such trespass quare clausum fregit has been settled, the defendant may still recover for the interruption of his business and the loss of time of his workmen. Hunter v. Farren, 127 Mass. 481. 7 8 Union Pac. R. Co. v. Artist, 9 C. C. A. 14, 60 Fed. 365. A short note, with numerous authorifes, on the effect of a release execute.! by the person Injured, of all claims for damages, will be found in 40 Cent. Law J. 236. 7 8 Curi-ier v. Bilger, 149 Pa. St. 109, 24 Atl. 168; Battle v. McArthur, 49 Fed. 715; Guldager v. Rockwell, 14 Colo. 450, 24 Pac. 550. A collection of authori- ties on the validity of releases to railroads for damages through personal in- juries. Bliss V. Now York Cent. & H. R. R. Co., 9 Am. R. & Corp. R. 49;{ (Mass.) 36 N. E. 65. oil. 4] DISCHARGE OR J. IMITATION BY VOLUNTARY ACT OF PARTY. 317 ■was paid under it by the tort feasor), if he act ■w^ithout laches in asking for a rescission. Such an agreement may be rescinded in the same action ■wrhich a-wards damages for the -wrong done. "Fraud vitiates all it touches." While a release of a cause of action sounding in tort, containing proper words of release, or for a suflScient consideration, executed l)y proper parties, is a bar to an action,*" such release may be set aside for fraud, like a receipt,^^ in the same suit in which claim for damages is made.*^ A fraud, to vitiate a release, must have been perpetrated by the defendant, or some one representing him. If, for example, the signature to a release of a claim for seduction was obtained by some third per- son, not connected by evidence with the defendant, the fraud does not vitiate; ^^ but the defendant's attorney is his agent in the sense that the attorney's fraud in procuring a release in such a case is the defendant's fraud.** The release, if void for one purpose, is void for all. Therefore, if a release is void as to inspectors' fees, it is void as to damage occasioned by plaintiff's work, for which work those fees were charged, being delayed by the municipality.*'* A release is not impeached merely because the releaser could not read or understand its contents, since his signing in such a case so Chicaso, W. & V. Coal Co. v. Peterson, 39 111. App. 114; Stone v. Weiller, 128 N. Y. 655, 28 N. E. 653; Virdin v. Stockbridge, 74 Jld. 481, 22 Atl. 70. 81 Hartshorn v. Day, 19 How. (U. S.) 211; George v. Tait, 102 U. S. 564-570. As to fi-audulent representations and practice in avoidance of contract, see Bell V. Ryerson, 11 Iowa, 233; Freedley v. French, 154 Mass. 339, 28 N. E. 272; Illinois Cent. R. Co. r. Welch. .52 111. 183; Schultz v. Chicago & N. W. R. Co., ■14 Wis. 638; Chicago, R. I. & P. R. Co. v. Doyle, 18 Kan. 58; Michigan Cent. R. Co. V. Dunham, 30 Mich. 12S; Davis v. Wood, 56 Hun, 648, 10 N. Y. Supp. 460. s2 Girard v. St. Louis Car-Wheel Co., 46 Mo. App. 79; Id., 123 Mo. 358, 27 S. W. (;48 (resort to equity unnecessary); Russian v. Milwaukee, L. S. & W. Ry. Co., 56 Wis. 325. Accord procured by fraud. Ball v. McGeoch, 81 Wis, 160, 51 N. W. 443; Hayes v. East Tennessee, V. & G. R. Co., 89 Ga. 264, 15 S. E. 361. 83 Meka v. Rrown, 84 Iowa, 711, 45 N. W. 1041, and 50 N. W. 46; Vander- velden v. Chicago & N. W. R. Co., 61 Fed. 54. "4 Gurley v. People, 31 III. App. 465. t-o Newell V. City of New York, 61 Hun, 356, 15 N. Y. Supp. 911. 318 Ul.SCHAKUE AND LIMITATION OF LIABILITY FOK TORTS. [Cll . 4 raises the presumption of gross negligence, wliich he has the bur- den to disprove.^" But there are many circumstances under which misrepresentation as to the contents of a release may entitle the sufferer in tort to liave it set aside. Thus, where the contents of a paper whi(-li tlie injured person was unable to read, because of dizziness, caused by injury to his face and head, were misrepre- sented to him, such a release does not prevent his recovery for per sonal injury suffered."' So, Miu-re ii releasp is misrepresented to be a receipt ^* for wages,^° or a hospital regulation,'" pay roll,'^ or voucher for expenditures."- Indeed, the courts have gone so fai' as to say that "where false and fraudulent representations are made to a person, in order to induce him to sign an instrument other than the one he supposed he was signing, and such fraudu- lent party afterwards claims benefit of the fraud, it does not lie in his mouth to claim that the party defrauded might have pro- tected himself from such imposition by greater precaution. Such a rule shocks the raoial sense, and we do not think any considera- tion of public policy requires it to be established here." *^ Mere mistake as to the extent of an injiiry, where no misrepresentation «o Albi-echt v. Milwaukee & S. R. Co., 87 Wis. 105, 58 N. W. 72; Mateer v. Missouri Pac. Ry. Co., 105 Mo. 320, 16 S. W. 839; .Jenkins v. Clyde Coal Co., 82 Iowa, 618, 48 N. W. 970. And see Fuller v. Madison Mut. Ins. Co., 36 Wis. 599; Sanger v. Dun, 47 Wis. 615, 3 N. W. 388. As to conseQuences of failing to read over to an illiterate person writing executed by them, see SufCern v. Butler, 18 N. J. Eq. 220; Selden v. Myers, 20 How. 506; Ti-ambly V. Ricard, 130 Mass. 250; O'Xeil v. Lake Superior Iron Co., 63 Mich. 690, 30 N. W. 088. sf Lusted V. Chicago & N, w. Ry. Co., 71 Wis. 391, 36 N. W. 857. And sei> National Syrup Co. v. Carlson, 47 111. App. 178; Girard v. St. Louis Car- Wheel Co., 123 Mo. 358, 27 S. W. 648; .lones v. Alabama & V. Ry. Co. (Miss.) 16 South. 379. 88 Bliss v. New York Cent. & H. R. R. Co., 160 Masis. 447, 36 N. E. 65. For damages to clothes, see Smith v. Steamship Co., 99 Cal. 462, 34 Pac. 84. 89 Cleary v. Municipal Electric Light Co. (Sup.) 19 N. Y. Supp. 951; Bean V. Western N. C. R. Co, 107 X. C. 171, 12 S. E. 600. 00 Pederson v. Seattle Consolidated St. Ry. Co.. 6 Wash. 202, 33 Pac. 351. 01 Butler V. Richmond & D. R. Co., 88 Ga. 594,' 15 S. E. 068. 9 2 Eagle Packet Co. v. De Fries, 94 111. 598-002. 9 3 Chicago, R. I. & P. Ry. Co. v. Lewis, 13 111. App. 166-170, citing Anderson V. Field, 6 Bradf. 307-312; Butler v. Regents, 32 Wis. 122; Schultz v. Chicaso. & N. W. Ry. Co., 44 Wis. 045; Eagle Packet Co. v. De Fries, 94 111. 598; IHi- Oh. 4] DISCHARGE OE LIMITATION BY VOI.UNTAltV ACT UF VAKTY. 319 can be charged to the defendant, or to his physician, and no arti- fice is used on the part of the tort feasor to prevent the injured person from ascertaining the true nature of the injury, will not avoid an accord and satisfaction."* A mistaken opinion as to the cure of the injury, expressed in good faith by the pliysician of the wrongdoer, is not a fraud which will avoid the release."'^ But where false representations are made to a person suffering from an accident, as to the medical opinion given as to his state, inducinji him to accept an almost nominal sum for satisfaction, he can re- cover, notwithstanding."" A case of personal injui-y already begun may be settled by the injured person, without the consent of the •ittorney of record; "' but such settlements are scrutinized severely, and will be set aside where there is any appearance of fraud or undue influence."* Undue influence may vitiate a release for torts on much the same principle as it would a will. Thus, upon the commencement of a suit by a married woman against a railroad company for injuries sustained by her through its negligence, the company's station agent, assisted by a physician, wlio was also u lawyer, induced her uncle to interview her regarding a settle- ment. He told her it would be a great disgrace to be brought into court, that the suit would be repeatedly put off, and that she would get nothing in the end. Her husband was absent, her children were sick, and she was very pooi-. The court set aside the release on the ground of undue inflnence."" nois Cent. R. Co. v. Welch, 52 111. 187; ilulber v. Old Colony Uy., 127 Mass. 86; LininKton v. Strong, Chi. Leg. Ntws (April 7, 18s:!) 243; Sheanon v. P.t- ciflc Miit. Life Ins. Co., 83 Wis. .nn7-.'".27. .":! N. W. 878. 94 Hayes v. East Tennessee, V. & G. Ry. Co., 89 Ga. 264, 15 S. li. 361; Bc- cles V. Union Pac. Ry. Co., 7 Utah, 335, 26 Pac. 924. 96 Doty V. Chicago, St. P. & K. C. Ry. Co., 49 Minn. 499, 52 N. W. i:-..".; Vandei-velden v. Chicago & N. "NA". R. Co., 61 Fed. .54-.5(5. 96 Stewart v. Great Western Ry. Co., 2 De Gex & S. 319. 9 7 Dolloff V. Cun-an. .59 Wis. 332, 18 N. W. 260. 98 Voell V. Kelly, 04 Wis. 504, 25 N. W. 5.36; Bussi;iu v. Milwaukee, L. S. & W. Ry.Co., 56 Wis. 325, 14 N. W. 452. i'ii Stone V. Chicago & W. M. Ry. Co., 00 Mich. 70, 33 N. W. 24. And set' Flummerfelt v. FlummerfeU, 51 X- -T. Eq. 432, 26 Atl. 857. As to what is not sufEcient, see Alabama & V. liy. Co. v. Turnbull, 71 Miss. 1029, 10 Soutti. M6; In re Rockey's Estate, 155 Pa. St. 453, 26 Atl. 656. 320 DISCHARGIi: AND LIMITATION OF LIABILITY FOR TOKTri. [Ch. 4 Where the settlement of the wrong done was induced by fraud, it is not necessary for the plaintiff to return to the defendant what he has recovered under the terras of the settlement before he is en- titled to pursue his action. Thus, if the defendant obtains a sig- nature of the plaintiff to a paper, purporting to be a settlement and discharge of the cause of action, by fraudulent representations that it is merely a receipt for a gratuity, the plaintiff may maintain liis action without returning the money paid him, and the jury will deduct from its award the amount already received.^"" Bat on this point the authorities are not agreed.^" This principle ap- plies, a fortiori, where the cause of action sued on was not included in the release.^"" A court will not readily set aside a formal settlement of a matter in dispute. The burden to avoid a satisfaction or discharge of a tort rests on the party attacking it.^°^ A party defrauded is bound to use active diligence to allow no avoidable delay in com- plaining of the wrong done him in fraudulently procuring a settle- ment. Any delay which is not reasonably necessary under the (drcumstances is fatal. ^"^ 100 Mullen v. Old Colony Ry., 127 Mass. 86. Of. Bliss v. New York Cent. & H. K. R. Co., 160 Mass. 447, 36 N. E. 65; Cleary v. Municipal Electric Light Co., 65 Hun, 621, 19 N. Y. Snpp. 951 (distinguishing) McGlynn v. Railway Co., 93 N. Y. 655; Dixon v. Railway Co., 100 N. Y. 170, 3 N. E. 65); Shaw v. Webber, 79 Hun, 307, 29 N. Y. Supp. 437; Girard v. St. Louis Oar-Wheel Co., 46 Mo. App. 79; Id., 123 Mo. 358, 27 S. W. 648; O'Brien v. Railway Oo. (Iowa) 57 N. W. 425; Butler v. Richmond & D. R. Co., 88 Ga. 594, 15 S. E. 668. And see Knoxville, 0. G. & L. R. Oo. v. Acuff, 92 Tenu. 26, 20 S. W. 348. See Duff V. Hutchinson, 57 Hun, 52, 10 N. Y. Supp. 857. 101 However, where an accord and satisfaction is fully executed, the party receiving money from the other cannot rescind on the ground of fraud, or of his own mental incompetency to make a contract, without refunding, or offer- ing to refund, the money received. Strodder v. Stone Mountain Granite Co., (Ga.) 19 S. E. 1U22. But see Vandervelden v. Chicago & N. W. R. Co., 61 Fed. .54-56, citing Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ot. 311; BiUings v. Smelting Co., 3 0. 0. A. 69, 52 Fed. 250. 102 Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182, 31 N. E. 1104. 103 Addys.ton Pipe & Steel Co. v. Copple, 94 Ky. 292, 22 S. W. 323; Peder- son V. Railway Co., 6 Wash. 202, 33 Pac. 351; Helling v. United Order of Honor, 29 Mo. App. 309. 104 Lewless v. Detroit, G. H. &. M. Ry. Co., 65 Mich. 292-302, 32 N. W. 700, citing ca.ses. International & G. N. Ry. Co v. BrazzU, 78 Tex. 31 1, 14 -g. w. C'h. 4] DISCHARGE OK I.IMXTATIOK IIY Ol'EUATIOM OF LAW. 321 DISCHARGE OR LIMITATION BY OPERATION OF LAW. 108. Liability fbr torts may be discharged by operation of la^w by — (a) Judgment; (b) Death of either party; (c) Statutes of limitation; (d) Compliance ^vith statutory provisions. SAME— DISCHARGE BY JUDGMENT. 109. A tort is discharged by a judgment rendered in a former action, although the form of action may have been different, provided — (a) The court had jurisdiction; (b) The action -was bet-ween the same parties, and on the same cause of action; and (c) The judgment ■vsras on the merits, and final. Reason. When an action is brought, and the plaintiff recovers judgment, the original right in respect to which he sues is merged in the higher and better right which he attains by his judgment. It being gone, the party may proceed to obtain its fruits by execution, or to revive it by a fresh action on his judgment. "For you shall not bring the same cause of action twice to a final determination; 'Nemo debet bis vexari pro eadem causa;' and what is the same cause of action is where the same evidence will support both actions." "= "Interest reipublicse ut sit finis litium." "" The judgment of a foreign court is not in force, in the sense that it destroys the cause of action, although it may estop the party from disputing the matter of facts it has decided."" If tho judgment be 609; Chicago, St P. & K. C. Ry. Co. v. Pierce, 12 C. C. A. 110, 04 Fed. 20:J; Fist Y. Fist, 3 Colo. App. 273, 32 Pac. Tin. 105 Kitchen v. Campbell, 3 Wils. 304. The principle does not apply to e.iect- ment. Eiehert v. SchafEer, 161 Pa. .St. 510, 29 Atl. 393. 106 Broom, Leg. Max. 331, 343; 2 Co. Litt. 303. loT Higgen's Case, 3 Coke, 344; Smith v. NicoUs, 5 Bing. X. C. 208; Aus- LAW or TORTS— 21 322 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 satisfied, however, this is otherwise.^"' In America a domestic judgment on the merits is conclusive between the same parties on all issues actually tried and passed on.^"" But a judgment rendered without jurisdiction does not establish the plea res judicata/^" A judgment in another suit must be plead- ed specially/^^ tralasia Bank v. Harding, 9 C. B. 661. But see Dunstan v. Higgin.s, 63 Hun. 031, 17 N. Y. Supp. 887. As to effect of foreign judgment In rem, see Cas- trique V. Imrie, L. R. 4 H. L. 414; Wright v. Omnibus Co., 2 Q. B. Div. 271. In England a judgment in a county court is a bar to an action for the same cause of action in any other court! Austin v. Mills, 9 Exch. 288. Compare Brunsden v. Humphrey, 14 Q. B. Div. 141. 10 8 Barber v. Lamb, 8 C. B. (N. S.) 95. The judgment of a state supreme court reversing a judgment in favor of a railway employe for personal in- jui-y, and granting a new trial, does not preclude such employ^, on subse- quently taking a nonsuit, from maintaining! a like suit in a federal court, or from offering therein evidence tending to show a like state of facts to that which Avas shown by the evidence before the state supreme court. Gardner V. Michigan Cent. R. Co., 150 U. S. 349, 14 Sup. Ct. 140. The finding and judgment made by the church in the trial of the clergyman on the charges is not competent evidence for either party, in a suit for damages for the libel, and is properly stricken out of the answer of the deacons. Piper v. Woolman, 43 Neb. 280, 61 N. T\'. 588. 100 Lord V. Thomas (Cal.) 36 Pac. 372; .Johnson v. Johnson (Minn.) 58 N. W. 824. The constitution of the United States ordains that full faith and credit shall be given in each state to the judicial proceedings of every other state, and also that congress may prescribe the effect which judicial proceed- ings had in one state shall be given in each of the others. Congress, in the exercise of this power, after prescribing how such proceedings shall be au- thenticated to render them admissible in evidence, has declared that, when so authenticated, they "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." Rev. St. U. S. p. 170, § 905. As to judgment in state court which has been transferred to United States circuit court, see Roberts v. Railway Co., 48 Minn. 521, 51 N. W. 478. As to judgment of courts of same state, see Johnson v. Johnson (Minn.) 58 N. W. 824. 110 Attorney General for Trinidad & Tobago v. Eriche [1893] App. Cas. 518; Reed v. Chilson, 142 N. Y. 152, 36 N. E. 884; Wright v. Wright, 99 Mich. 170, 58 N. W. 54; Winchester v. County Com'rs, 78 Md. 206, 27 Atl. 1075. Cf. In re ElUs' Estate, 55 Minn. 401, 56 X. W. 1056. 111 Norton v. Norton (Ivy.) 25 S. W. 750; Spargur v. Romine, 38 Neb. 736, 57 N. W. 523; Field v. Sims, 96 Ala. 540, 11 South. 763: McCreary v. Jones. Ch. 4] DISCHARGE OR LIMITATION BY OPEUATION Oi' LAW. •6i6- Identity of Parties and Cause of Action. It is onlj when the causes of action in two suits are identical tliat tlie recovery of judgment in one can l)e a bar to the other."^ A judgment in an action against the lessee for a breach of the covenant to pay rent is not a bar to an action for damages for neg- ligence in the care of the premises."'' It is generally true that where a party, claiming to have been in- jured, has an option of using one of several modes of legal redress, elects to take one, vs^hich is adequate, and prosecutes the same to a final judgment, he cannot subsequently resort to another legal pro- ceeding for the same wrong."* But if he seek in vain to rescind a contract, for fraud, he may subsequently sue for damages.^^^ However, the subject-matter may be the same, but the causes of action (and not merely the forms of procedure) may be different. ^^^ 96 Ala. 592, 11 South. 600; Dunklee v. Goodenough, 65 Vt. 257, 26 Atl. 98S; Lynde v. Columbus, C. & I. C. Ry. Co., 57 Fed. 993; Bi-yson v. St. Ueleii, 79 Hun, 167, 29 N. Y, Supp. 524; Kilpatrick v. Railroad Co., 38 Net). 620, 57 N. W. 664; David Bradley Manuf'g Co. v. Eagle Manuf'g Co., 7 C. C. A. 442. 58 Fed. 721. 112 Where a physician sues for services and defendant confesses judgment, the latter cannot subsequently sue the former for malpractice. Bellinger v. Craigue, 31 Barb. 534; Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 N. Y. 150. And, generally, see Cromwell v. County of Sac. 94 U. S. 351; Featherston v. President, etc., of Newburgih «& C. Turnpike Road, 71 Hun, 109, 24 N. Y. Supp. 603. A judgment, on the other hand, may be conclusive evidence against parties. Tbus, in an action against a city for personal in- juries caused by an obstruction placed in the street by a contractor who was constructing a sewer therein, notice was given to the contractor to defend. It was held that a judgment for plaintiff was an adjudication that the con- tractor's wrongful act caused the Injui-y, and was conclusive on defendant in an action by the city on the contractor's bond to recover the amount of such judgment. City of New York v. Brady (Sup.) 30 N. Y. Supp. 1121. 113 Wright V. Tileston (Minn.) 61 N. W. 82.'!. 114 Thomas v. Joslin, 36 Minn. 1, 29 N. W. 344; Sanger v. Wood, 3 Johns. Ch. 416; Washburn v. Insurance Co., 114 Mass. 17.3; Terry v. Munger, 121 .\. Y. 161, 24 N. E. 272; Conrow v. Little, 115 N. Y. 387, 22 N. E. 340. 115 Cf. Marshall v. Gilman, 47 Minn. 131, 49 N. W. 688; Savings Bank of St. Paul V. Arthier, 52 Minn. 98, .".;! N. W. 812. And see Strong v. Strong, 102 N. Y. 69, 5 N. E. 799. 11" Spear v. Tidball, 58 N. \V. 708; AM v. Goodhart, 161 Pa. St. 455, 29 Atl. 82. A recovery by wife for personal injury to herself dues not liiir her .;-4 DISLIIAKC.E AND LIMITATION OP LIABIMTY FOE TOHTS. [Ch. 4 Therefore judgment in an action for false imprisonment may not be a bar to an action for malicious prosecution arising from the same t^late of facts."' A fortiori, this is true where the wrongful con- duct may be the same, but the parties to the judicial proceeding are different, or parties claim under different rights.^ ^^ In the same way, where one suffers several damages, as where both his person and his property are negligently injured by another, there are two independent riglits of action, and after recovering judgment on one he may proceed on the other.^" While, however, ordinary damages, not several, afford the basis husband. Watson v. Texas & P. Ry. Co. (Tex. Civ. App.) 27 S. W. 924; Texas & P. Ry. Co. v. Nelson (Tex. Civ. App.) 29 S. W. 78. Plaintiff had recovered a .iudgment against the agent for the amount he had received from the seller of the land, as being a secret profit made by connivance of the latter, to which plaintiff, as principal, was entitled, and this judgment was satisfied. It was held that this did not operate as a satisfaction of a former judgment against the agent for damages for his deceit, and is no bar to an action for deceit against the present defendant, the seller of the lands. The damages were essentially different. Glaspie v. Keator, 5 C. C. A. 474, 56 Fed. 203. Cf. Keator v. St. John, 42 Fed. 585. 11' Post, p. 030 (distinction between false imprisonment and malicious pros- ecution). lis Furlong v. Banta, 80 Hun, 085, 29 N. Y. Supp. 985. A judgment for trespass in cutting trees on lands of a church, recovered by one who sued as a deacon of the church, cannot be pleaded by defendant as an adjudica- tion in an action for the same trespass by the trustees of the church. Al- lison V. Little, 93 Ala. 150, 9 South. 388. The right of a posthumous child to recover damages for the death of his father, caused by wrongful negligence, is not barred by a previous recovery by other parties of the damages sus- tained by them. Nelson v. Galveston, H. & S. A. Ry. Co., 78 Tex. 621, 14 S. AV. 1021. Recovei-y by a husband for injm'ies to himself is not a bar to a subsequent action for injuries to his wife, sustained at the same time, as a result of the same negligence. Texas & P. Ry. Co. v. Nelson (Tex. Civ. App.) 29 S. W. 78. And, generally, see Burgin v. Raplee, 10 Ala. 433, 14 South. 205; Stanton v. Hennessey, 78 Hun, 287, 28 N. Y. Supp. 855, and 29 N. Y. Supp. 615; Norton v. Norton (Ky.) 25 S. W. 750; Malsky v. Schumacker (Com. PI.) 27 N. Y. Supp. 331; Guy v. Fisher & Burnett Lumber Co., 93 Tenn. 213, 23 S. W. 972. 119 Guest V. Warren, 9 Exch. 379, 23 L. J. Exch. 121. Cf. Phillips v. Berry- man, 3 Doug. 286. A cause of action for damages for the negligent killing of two horses, at the same time and place, is entire and indivisible, and a re- covery in a separate action for the death of one is a bar to a subsequent ae- Ch. 4] DISCHARGE OR LIMITATION BY OrERATION OB^ LAW. 325 of but a single suit, fresh damages may create a fresli cause of ac- tion. Thus, in an action for slander, for the utterance of slander- ous words on a particular occasion, only one action can be brought, but any fresh slander creates a fresh cause of action. So each suc^ cessive act of trespass may constitute a distinct cause of action. The test is whether, on the cause alleged in the action on which the judgment is founded, the damage sued for in the second could have been recovered. ^^^ The mere fact that the injured person at the time of recovery of judgment, did not recover all the damage con- sequent upon the wrong, will not save him from the bar of the first judgment. Thus, where, after the first judgment was rendered in an action of assault and battery, a piece of the injured person's skull came out, the original judgment was a bar to another action. ^"^ Final Judgment on the Merits. A mere common-law nonsuit is not a determination of the cause on the merits, and therefore does not bar another action; ^^^ nor does a judgment of dismissal, on the plaintiff's own motion, without tion for the death of the other. St. Louis S. W. Ry. Co. v. ]\Ioss (Tox. Civ. App.) 28 S. W. 1038. Punitive damages will be allowed for assault and bat- tery, although defendant has been convicted and fined in a criminal court for same wrong. Rhodes v. Rodgers, 151 Pa. St. 634, 24 Atl. 1044; Virgo v. Virgo, 69 Law T. 4G0; Jlorch v. Raubitschek, 159 Pa. St. 5.59, 28 Atl. 369; Marceau v. Travelers' Ins. Co., 101 Cal. 388, 35 Pac. S5(i, and 36 Pac. 813: People v. Leland, 73 Hun, 162, 25 N. Y. Supp. 943; .Tohnson v. Girdwood (Com. PI.) 28 N. Y. Supp. 151; Thisler v. Miller, 53 Kan. 515, 36 Pac. 1060; Govin V. De Miranda, 79 Hun, 329, 29 N. Y. Supp. 347. A judgment for dam- ages, recovered in a civil action for assault and battery, is not a bar to a criminal prosecution against the plaintifif therein, since both he and defendant may have been guilty. People v. Kenyon, 93 Mich. 19, 52 N. W. 1033. 120 Clerk & L. Torts, 120. 121 Fetter v. Beale, 1 Ld. Raym. 339, 692. So, where the owner of a patent obtained a decree for a perpetual injunction against infringement, and was awarded damages and profits for infringements occurring prior to a certain time, it was held that he could not maintain a second suit against the same defendant to recover damages and profits arising from other acts of infringe- ment committed during the same period, but of which no evidence was given in the former suit, and no recovery asked. Horton v. New York Cent. & H. E. R. Co. (O. 0.) 63 Fed. 897. 122 Merrick v. Hill (Sup.) 2.S N. Y. Supp. 237. A nonsuit is but like the blowing out of a candle, which a man, at his own pleasure, may light again. Olapp V. Thomas, 5 Allen (JIass.) 158, 160. And see Harvey v. Large, 51 32(i DISCHARGE AND LIMITATION OF INABILITY FOR TORTS. [Ch. 4 1lie defendant's consent, bar another action for the same purpose.^" If, before the final submission of the case to the jury, the court dis- miss i1. this, it seems, is a common-law nonsuit, and does not bar subsequent action. Therefore, where one was injured in a rolling mill, and at the close of his case the court sr^^nted a motion to dis- miss, it was held the plaintiff could subsequently sue for the same injury.!" j^^ judgment cannot be pleaded in bar during the time for appeal therefrom, and while a motion for a new trial is pending.^" No judgment operates as an estoppel unless it is a judgment on the merils.!-'' j^ judgment by consent for the defendant, after a plea in abatement has been sustained, is not on the merits.^" SAME— DISCHARGE BY DEATH. 110. At common law, the aeath of either (a) the person who did the wrong, or (b) who suffered the wrong, discharged liability in tort. The death of a human being w^ould not support an action, even by per- sons w^ho stood to the deceased in the relation of Barb. (N. Y.) 222; Lindvall v. Woods, 47 Fed. 195; Audubon v. Excelsior Ins. Co., 27 N. Y. 216; Brown v. Kirkbride, 19 Kan. 588; Wanzer v. Self, 30 Ohio, :'.78. 123 Pierce v. Hilton (Cal.) 36 Pac. o\)7>. As to common-law retraxit, see Walker v. St. Paul City R. Co., 52 Minn. 127-130, 53 N. W. 1068; Chit. Gen. Prac. l.-ilS. 124 Craver v. Christian, 34 Minn. 397, 26 N. W. 8; Woodling v. Knicker- bocker, 31 Jlinn. 2(;8. 17 N. W. 387; Andrews v. School Dist. No. 4, 35 Minn. 70, 27 N. W. 303. However, questions once determined by a court of com- petent jurisdiction, if the judgment has become final, are conclusive on the parties and their privies, without regard to the form in which the questions were raised. MeNeely v. Hyde (La.) 15 South. 167. 12 5 Fresno Milling Co. v. Fresno Canal & Irrigation Co. (Cal.) 30 Pac. 412. But dismissal by the trial court, at the end of plaintiff's case, on the ground that plaintiff's testimony failed to show his right to recover, and a subsequent aiipeal to the supreme court of the state, and an attirmance by that court, is not an adjudication on the merits that can be pleaded in bar when an action on the same wrong is commenced in the federal courts. Lindvall v. Woods, 47 Fed. 195. 126 Taylor v. Larkin, 12 Mo. 103; Bell v. Hoagland, 15 Mo. 360; Houston V. Musgrove, 35 Tex. 594; Yerhein v. Schultz, 57 Mo. 326. 127 Gorden v. Siefert, 126 Mass. 25. Ch. 4] DISCHARGE OR LIMITATIO.N BY OPERATION 01' LAW. 327 master and servant, parent and child, or husband and -wrife, for the recovery of damages for loss of service or society. Exceptions to this principle cre- ated by the early statutes, or by the courts, did not substantially modify it. History of Rule. In IGOfi, in Higgins v. Butcher,"^ where the defendant had as- saulted and beaten the plaintiff's wife, from which she died, it was held that the plaintiff could not recover. All the case decided was that, where the person to whom a wrong is done dies, the action (jjpg 120 rjTjjg question was not raised again in England until 1808, when, in Baker v. Bolton,^^'' Lord Ellenborough laid down his fa- mous proposition, that "in a civil court the death of a human being could not be complained of as an injury." Tlie law was extended in Osborne v. Gillott,^^^ by holding that while a master can sue for injury done his servant by wrongful act or negligence, whereby the service of the servant is lost to his master, still, if the injury result in the servant's death, the master's compensation is gone. The early American cases were not in accord with Baker v. Bol- ton.^ ^^ Tlie common-law rule, however, has been unanimously ac- cepted by the courts of the various states and of the United States.123 128 Yelv. 89. 129 Tiff. Death Wrongf. Act, c. X. 130 1 Camp. 493. 131 L. R. 8 Exch, 88. 132 Tiff. Death Wrongf. Aot, § 6; Omss v. Gutheiy (1794) 2 Root, 90; Ford V. Monroe (18.38) 20 Wend. 210; Plummer v. Webb (1825) 1 Ware, 09, Fed. Cas. No. Il,2;i4; Carey v. BerLshire Ry. Co. (1848) 1 Cush. 475. See Palfrey v. Portland, S. & P. R. Co., 4 Allen, .55; Eden \. Lexington & F. R. Co. (1853) 14 B. Mon. 165; James v. Christie (1833) IS Mo. li;2; Shields v. Yonge, 15 Ga. 349; Chicli v. Railway Co., 57 Ga. 357; JIcDowell v. Railway Co., GO Ga. 320; Sullivan v. Union Pac. R. Co., 3 Dill. 3;i4. Fed. C;is. No. 13,599; McGovem v. New York Cent. & H. R. R. Co., G7 N. Y. 417; Cutting V. Seabury, 1 Spr. 522, Fed. Cas. No. 3,521. 113 Connecticut Mnt. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 205; City of Eureka v. Merrifleld (Kan.) 37 Pac. 113; Green v. Hudson River R. Co., 28 Barb. 9; Insurance Co. v. Brame, 95 U. S. 754; .\sher v. Cabell, 32'S DISCHARGE AKD LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 Reason of Rule. None of the many reasons assigned for the rule has been generally accepted as satisfactory. It has been suggested as a reason that process in tort was a sub- stitute for private war, and was against the man, not against the estate. Tbe difference in practice has also been referred to as pro- viding an explanation. "If one doth a trespass to me, and dieth, the act is dead, also, because it should be inconvenient to recover against one who was not a party to the wrong." ^^* In England it has been urged that the rule is based on the merger of the wrong resulting in death into the felony involved. The suffi- ciency of this reason has been denied in England, and in America the doctrine has been generally repudiated."'^ Forfeiture,"" as an explanation, is as objectionable."^ "Actio personalis moritur cum persona"' is a restatement, and not an explanation, of the rule, iloreovei-, it does not apply to any one not a party to the action, as the master, parent, or husband.^^* Public policy, that enlightened nations are unwilling to set a price on human life, that the value of life is too great to be estimated in money, or that the law refuses to recognize the interest of one person in the death of another, are all unsatisfactory, if not absurd, reasons.^ ^^ It is of no practical utility to search further for the reason of the rule.^*" The rule is barbarous, and rests on adjudication, in fact.^*^ 1 C. 0. A. 693, 50 Fed. 818-S24; The Corsair, 145 U. S. 335-344, 12 Sup. Ct. 049; Hyatt v. Adams, 16 Mich. 180-185 (collecting: cases); TlfC. Death Wrongf. Act, §§ 11, 13, 14 (collecting cases). 13* Y. B. (1440) 19 Hen. VII. 135 Hyatt V. Adams, 16 Mich. 180; Carey v. Berkshire R. Co., 1 Cush. 475; 2 Bish. Or. Law (2d Ed.) § 270. 13 6 Shields v. Yonge, 15 Ga. 349. 13T Grosso V. Delaware, L, & W. R. Co., 50 N. J. Law, 317, 13 Atl. 2.33. 138 Green v. Hudson River R. Co., *41 iN. Y. 294, 28 Barb. 9. 139 Osborne v. Gillett, L. R. 8 Exch. 88; Smith, Neg. (2d Ed.) 256; Hyatt V. Adams, 16 Mich. ISO: Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265. 140 Leonard, J., in Green v. Hudson River R. Co.. *41 N. Y. 294. 141 Pol. Torts, 53. The rule rests more on artificial distinction than any real principle, and savors more of the logic of the schoolmen than of common sense. Hyatt v. Adams, 16 Mich. 180. Ch. 4] DISCHARGE OE LIMITATION BY OPERATION OF LAW. S29 Ap2}Ucation of Rule. At common law, subject to the exceptions to be noted, death dis- charged a tort, not only as to the sufferer who might die, so far as his or her estate, master, parent, husband, or wife is concerned, but it also operated as a discharge when the tort feasor died."^ A number of early English statutes modified the rule so far as to allow executors or administrators the same action for injury done to the personal estate of the deceased in his lifetime, whereby it has become less beneficial to executors or administrators, as the deceased might have had.^*^ This right was extended to cases where injury was done to the freehold of the person who subsequently dies.^** Apart from these statutes, a remedy for the wrongful act can be pursued against the estate of the person by whom the act was com- mitted when the property or proceeds of the property belonging to another have been appropriated by the deceased person. ^^^ Indeed, the English courts have gone very far towards limiting the discharge by death to cases of mere personal torts.^*' The maxim does not apply where the cause of action arises ex contractu.^*' In cases of quasi tort, — as, for example, where death is caused by the breach of a carrier's contract for safe carriage, — the executor or adminis- trator of deceased, although he could not sue in tort, might sue in contract, and recover damages."^ Nor did it apply to damage to property, as distinguished from person. 1*2 2 Inst. 301; Williams, Ex'rs (8th Ed.) pt. 4, bk. 2; Overend v. Gnrney, L. R. 4 Ch. App. 701. i" 4 Edw. III. c. 72."i: 5 Edw. III. c. 5. 144 3 & 4 AVni. IT. c. 42: Hatchard v. Mege, 18 Q. B. Div. 771; Kirk v. Todd, 21 Ch. Div. 484-488. 145 Powell V. Rees, 7 \dol. & E. 426; Phillips v. Homfray, 24 Ch. Div. 4.30 (Basgallay, L. J., dissenting); Ashley v. Taylor, 10 Ch. Div. 7(;s. Compare with Hambly v. Trott, 6 Mod. 127; Bailey v. Birtles, T. Rayni. 71; Perkin- son V. Gilford, Cro. Car. 539. 146 Piilling V. Great Eastern Ry. Co., 9 Q. B. Div. 110 (commenting on Twycross v. Grant, 4 C. P. Div. 40). 147 Williams, Ex'rs (8th Ed.) p. 87. 148 Knights V. Qnarles, 2 Brod. it B. 102; Potter v. Metropolitan Dist. Ry. Co., .30 Law T. (N. S.) 7(i.'i; Bradshaw v. Lancashire Ry., L. R. 10 C. P. 189; Leggott v. Great Northern Ry. Co., 1 Q. B. Div. 590. Doctrine sustained in The City of Brussels, 6 Ben. 370, Fed. Cas. No. 2,745; AVinnegar's Ad'mr V. Central Passenger Ry. Co., 85 Ky. .547, 4 S. W. 237. It was held not to 330 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Ch. 4 111. Except as modiflei by statute, the common-laTv rule as to discharge by death remains in force. But, al- most universally, direct legislation has practically abrogated it by creating a new^ action. The English statute ("Lord Campbell's Act") for compensating the families of persons killed by accident was passed in 1846. Stat- utes similar to this have been passed by most of the states of the United States of America and by many of the provinces of Can- ada."'* These acts do not repeal nor create an exception to the common law. "A totally new action," said Lord Blackburn,^ ^^ ''is given against the person who would have been responsible to the deceased if the deceased had lived, — an action which * * * is new in its species, new in its quality, new in its principle, in every way new, and which can be brought by a person answering the description of the widow, parent, or child who, under such circumstances, has suf- fered pecuniary loss." The constitutionality of the various acts giving a remedy in case of death has not been seriously questioned,^'^^ but generally sustain- ed; even where the remedy was made to apply exclusively to rail- road corporations. ^'^'^ apply to personal injury inflicted by a deceased surgeon. Vittum v. Oilman, 48 N. H. 416; Jenkins v. French, 58 N. H. .532. Et vide Cregin v. Brooklyn Crosstown R. Co.. 75 N. Y. 192, 83 N. Y. 595; Crowley v. Panama Ry., 30 Barb. 99; Hyde v. Wabash, St. L. & P. R. Co., Gl Iowa, 441, 10 N. W. 351. 149 Tiff. Death Wrongf. Act, p. xvii. (Analytical Table of Statutes). 150 Seward v. Vera Cruz, L. R. 10 App. Cas. 59; Blake v. Midland Ry. Co., 18 Q. B. 93, 21 Law J. Q. B. 233; Whitford v. Panama R. Co.,'23 N. Y. 465; Littlewood v. Mayor, etc., 89 N. Y. 24; Russell v. Sunbury, 37 Ohio St. 372; Hamilton v. Jones, 125 Ind. 176, 25 N. E. 192; Hulbert v. City of Topeka, 34 Fed. 510; Mason v. Union Pac. R. Co., 7 Utah, 77, 24 Pac. 796. 151 South Western Ry. Co. v. Paulk, 24 Ga. 3.jG; Board of Shelby Co. v. Scearce, 2 Duv. (Ky.) 576; Georgia Railroad & Banking Co. v. Oaks, 52 Ga. 410. 152 Boston, C. & JI. R. v. State, 32 N. H. 215; Louisville Safety-Vault & Trust Co. V. Louisville & N. R. Co., 92 Ky. 233, 17 S. W. 567. Compare Smith V. Louisville Ry., 75 Ala. 449. And, generally, see Denver, S. P. & P. Ry. Co. V. Woodward, 4 Colo. 162; Chicago, St. L. & N.,0. R. Co. v. Pounds, 11 Lea. (Tenn.) 127. Ch. 4] DISCHARGE OR LIMITATION BY OPERATION OF LAW. 331 The authorities are about equally divided as to whether these statutes are to be liberally or strictly construed. On the one hand, it is .'-aid that they are remedial, and should consequently re- ceive a liberal construction.^" On the other hand, it is said that they are in derogation of the common law, and should consequently receive a strict interpretation.^^* Except so far as modified by statute, the common-law rule as to effect of death on causes of action sounding in tort remains in full effect. Accordingly, unless the statute expressly provides to the contrary, a cause of action sounding in tort, and not falling within the common-law exceptions, abates on the death of the wrongdoer, and cannot be maintained against his personal representatives.^ '^'^ The Statutory Action. In order that a cause of action under Lord Campbell's act and similar statutes shall exist, it is ordinarily necessary that the follow- ing circumstances concur: (1) That the death shall have been caused by such wrongful act, neglect, or default of the defendant that an action might have been maintained therefor by the party injured, if death had not ensued; ^^^ (2j that there be in existence some one 1S3 Tiff. Death Wrongf. Act, c. 2, § .T2. collecting cases. 15-4 Tiff. Death Wrongf. Act, c. 2. § 32, collecting cases. 15 5 Green v. Thompson, 26 aiinn. 500, 5 N. W. 376; Hamilton v. .Tones, 12."> Xnd. 176, 25 N. E. ll.>2; Pennsylvania Co. v. Davis, 4 Ind. App. 51, 29 N. ih. 425. Compare Yertore v. Wiswell, 16 How. Prac. 8, and Doedt v. Wiswell, 15 How. Prac. 12S, with Norton v. Wiswell, 14 How. Prac. 42, and Hegerich v. Kcddie, 09 N. Y. 258, 1 N. E. 787: Jloriarity v. Bartlett. 99 N. Y. 651. 1 N. B. 794. Et vide Pessinl v. Wilkins, 54 N. Y. Super. Ct. 146; Davis v. Nichols, .54 Ark. 358, 15 S. W. 880; Russell v. Sunbury, 37 Ohio St. 372: Moe v. Smiley, 125 Pa. St. 136, 17 Atl. 22S. But an action for personal injury does not abate after verdict by death of plaintiff. Cooper v. Railway Co., 55 JMinii. 134, 56 N. W. 588. And see I^yons v. Third Ave. Ry. Co. (1867) 7 Rob. (N. Y.) 605; Wood V. Philips (1871) 11 Abb. Prac. (N. S.) 1; Kelsey v. Jewett, 34 Hun, 11; Corbett v. Twenty-Third St. Ry. Co., 114 N. Y. 579, 21 X. E. 10;!3. 15 6 Therefore, where an owner of land wrongfully held by another is not civiUy liable for the killing of the occupant while resisting the owner's at- tempt to regain possession without the use of more force than was reason- ably necessary. Burnham v. Stone, 101 Cal. 164, 35 Pac. 627. As to willful homicide, see Rome R. Co. v. Barnett (Ga.) 20 S. E. 355. But the variations in statutory enactments appear conspicuously in this: That sometimes the statutory plaintiff (as the widow or next of kin) can recover when the deceased 332 DISCHARGE AND LIMITATION OF LIABILITY FOR TORTS. [Cll. 4 of the persons for whose benefit the action may be brought; (3) that the actual party plaintiff be such a one as the statute prescribes; (4) that the time within which the action must be brought has not elapsed; and (5) according to some authorities, that the beneficia- ries, or some one of them, shall have suffered pecuniary loss by rea- son of the death.^^'' In order that recovery may be had by statutory parties, the con- duct complained of, and producing the death, must have the essen- tial elements of a tort, so that the party injured might himself have maintained the action. There must be a breach of duty by the de- fendant. The duty may be created by common law, as where death results from the use, custody, or control of dangerous property.^''* The duty may arise out of a state of facts of which a contract is a part, as where the master has been guilty of a breach of duty to the servant, resulting in the servant's death; ^''" so as between com- mon carrier and passenger,^"" landlord and tenant,^" vendor and purchaser.^^^ The duty may be prescribed by statute;^"' nor is it material that such statute was enacted subsequently to the action could not had he been merely hurt, not killed. Clark v. Railway Co., 160 Mass. 39, 35 N. E. 104. 1" Tiff. Death Wrongf. Act, § 60. 158 Kiix V. Nieman, 68 Wis. 271, 32 N. W. 223; Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 699. Thus, if a vicious dog caused a runaway, and thereby death of deceased, its owner is liable under the statute. Mann v. Wieand, 81 Pa. St. 243, 4 Wkly. Notes Cas. 6. So, where death was produced by explosion of blast. Munro v. Reclamation Co., 84 Cal. 515, 24 Pac. 303. 15 9 Hutchinson v. York N. & B. R. Co., 5 Exch. 341; Kumler v. Junction R. Co., 33 Ohio St. 150; Congrave v. Southern Pac. R. Co., 88 Cal. 360, 2ft Pac. 17.t; De Forest v. Jewett, 88 N. Y. 264; Titus v. Bradford, B. & K. R. Co., 136 Pa. St. 618, 20 Atl. 517. 160 Sheridan v. Brooklyn Ry., 36 N. Y. 39. 161 Moore v. Steel Co. (Pa. Sup.) 7 Atl. 198; Albert v. State, 66 Md. 325, 7 Atl. 697; Sta.te v. Boyce, 73 Md. 469, 21 Atl. 322. 162 Davis V. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; Brunswigi v. White, 70 Tex. 504, 8 S. W. 85. 163 Thus, railroad companies are liable for death resulting from failure t» give signals as required by statute. Becke v. Missouri Pac. Ry, Co., 102 Mo. 544, 13 S. W. 1053; Palmer v. New York Cent. & H. R. R. Co., 112 N. Y. 234. 19 N. E. 678; Galveston, H. & S. A. Ry. Co. v. Cook (Tex. Sup.) 16 S. W. 1038. So- druggist is liable for clerk's failure to label poison resulting in Ch. 4] DISCHARGE OR LIMI IWl lO-N BY OPEUATFON OF LAW. 333 creating a right of action for injury resulting in death.^" The breach of duty must be the proximate legal cause of the death/"" The plaintiff must not have disentitled himself by his own act.^"" In order that there may be a recovery, it is necessary that the statutory beneficiaries exist at the time the action is brought."' I'hese beneficiaries are usually the widow and next of kin. It is sufficient if there be either the widow or next of kin. It is not nec- ; Price v. Baldauf. 82 Iowa, 669, 46 N. W. 983, and 47 N. W. 1079. 50 Before a court of chancery will interfere to prevent a multiplicity of suits, there must be several persons controverting the same right, and each 51 As to injunctions against threatening circulars, see Siusheimer v. United Garment "Workers of America (Sup.) 26 N. Y. Supp. 152, reversed in 77 Hun, 215, 28 N. Y. Supp. 321. But see Shoemaker v. South Bend Spark-Arrester Co.. 135 Ind. 471, 35 N. E. 280. Cf. New York Filter Co. v. Schwarzwalder^ 58 Fed. 577. 358 KKMicDiKs. [Gh. 5 But the proud boast of equity is, "Ubi jus ibi remedium." This maxim forms the root of all equitable decisions.''^ "Every just or- der or rule known to equity courts was bom of some emergency, to meet some new conditions, and was therefore, in its time, without precedent. If based on sound principles, and beneficent results follow their enforcement, affording necessary relief to the one party without imposing illegal burdens on the other, new remedies and unprecedented orders are not unwelcome aids to the chancellor to meet the constant and varying demands for equitable relief." ^^ Ac- cordingly, injunction against conspiracies by employes, against boy- cotts, and against similar wrongs which are also torts, has become a conspiciuus feature of our government.^* The time-honored rule standing upon his own pretension. Carney v. Hadley, 32 Fla. SH, 14 South. 4. Whenever the complainant's title Is disputed in cases of trespass, a court of equity will not interfere by injunction on the ground of multi- plicity of suits, until he has successfully established his title by trial at law. Carney v. Hadley, supra; Lake Erie & W. R. Co. v. Young, 135 Ind. 426, :;.". X. E. 177; Smith v. Bivens, 56 Fed. 3.52; Chadbourne v. Zilsdorf, 34 Minn. 43, 24 N. W. 308 (trespass, way). 5 2 Ross, J., in U. S. v. Clune, G2 Fed. 79S. 5.1 Toledo, A. A. & N. JI. Ry. v. Pennsylvania Co., 54 Fed. 746. 54 An injunction will issue against interference in restraint of interstate <;ommei'ce for the passage of the mails. Thomas v. Railway Co., 62 Fed. 803-824; U. S. v. Elliott, Id. 801; Sisson v. Johnson (Cal.) 34 Pac. 617. An injunction Avill issue against threatened violence. Goeur d'Alene Consol. & Min. Co. V. Jliners' Union of Wardner, 51 Fed. 260; Longshore Printing & I'ub. Co. V. Howell (Or.) 38 Pac. 547. An injunction will issue to prevent parties to a contract — for example, actors — violating their contract by acting elsewhere. Montague v. Flockton. L. R. 16 Eq. 189. And see 24 Am. Law Rev. 661, as to enticement of. An injunction will not be granted, under normal conditions, to prevent the enticement of servants. Reynolds v. Ever- ett, 67 Hun, 204, 22 N. Y. Supp. 306, collecting cases; Id., 144 N. Y. 189, 36 N. B. 72. But no injvmction will compel the affirmative performance of a •contract of personal services, as an agreement to sing, act, or play. Powell Duffiyn Steam Coal Co. v. Taff Vale Ry. Co., 9 App. Gas. 331. Therefore, an injunction will not issue to compel employes of a railway company to con- tinue to work and not to strike. Jenkins, J., in Farmers' Loan & Trust Go. V. Northern Pac. R. Co., 60 Fed. 803, overruled by Harlan, J., which is Minne- sota law, in Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310. Cf. Blindell v. Hagan, 54 Fed. 40, affirmed 6 C. C. A. 86, 56 Fed. 696 (crew of a ship). Courts have gone so far as to issue an omnibus injunction — that is, against all persons generally — to refrain from commission of public nuisance. IJ. S. ^^- •''] COMMON-LAW RKMEIJIES. 359 that the jurisdiction of equity is exercised only to protect rights in property is not only shaken, =>^ but almost shattered. Slime — Receivers. On proper conditions,'^" a court of equity will appoint a receiver for the prevention of further wrong " and the preservation of the subject of litigation. V. Debs, 64 Fed. 724; In re Debs, 15 Sup. Ct. 900. A timely and valuable article on the legal restraint of labor strikes, by William P. Aiken, will be found in 4 Yale Law J. 13, and an interesting article on the Western Union Telegraph Company as an accomplice of Debs, in 28 Am. Law Rev. "Hm. A collection of authorities on what will constitute a conspiracy by employes of railroad companies, engaged in the transportation of mails and interstate commerce, will be found in Arthur v. Oakes, 59 Am. & Eng. K. Cas. 671, 11 C. U. A. 209, and 63 Fed. 310. The act "to protect trade and commerce against unlawful restraints and monopolies" (Act Cong. July 2, 1890) confers no right upon a private indi- vidual to sue in equity for the restraint of the acts forbidden by such stat- ute, an action at law for damages being the only remedy provided for private persons, and the right to bring suits in equity being vested in the district attorneys of the United States. Pidcock v. Harrington, U4 Fed. 821. The rule as to injunctions against boycotts is thus stated in Barr v. Essex Trades Council I.N. J. Ch.) 30 Atl. 881: "Even when there is a legal remedy, equity will interfere by injunction to prevent (1) an injury which threatens irrepar- able damage, and (2) a continuing injury, when the legal remedy therefor may involve a multiplicity of suits. The criterion of the application of this jurisdiction is the inadequacy of the legal remedy, depending on whether (1) the injury done or threatened is of such a nature that, when accom- plished, the property cannot be restored to its original condition, or cannot be replaced by means of compensation in money; (2) whether full compen- sation for the entire wrong can be obtained without resort to a number of suits." 5 5 Fetter, Eq. 297-310. 5 6 Ante, c. 2, p. 205, note "Eeceivers." 5T Ttius a scheme for issuing and selling bonds, the practical effect of which was to enrich a few at the expense of an ignorant and confiding peo- ple, may be deception, and fraudulent in its nature,— simply gambling. In re National Endowment Co., 142 Pa. St. 4.j0, 21 Atl. 879; U. S. v. JIc- Donald, 59 Fed. 563; Horner v. U. S.. 147 U. S. 449, 13 Sup. Ct. 409. Under such circumstances, the fund in the treasury of the company, being ob- tained through fraud, and in danger of misapprehension, will be put in the hands of a receiver to prevent further fraud, and for its own preservation. McLaughlin v. Investment Co., 64 Fed. 908. 3GU REMEDIES. [Ch. 5 Ordinary Remedies. , The ordinary, and by far the most usnal, remedy for torts is a civil action to recover a pecuniary indemnity from the wrongdoer, — that is, an action for damages. SAME— DAMAGES. 124. Damages recoverable in tort may be considered with reference as to -whether they are — (a) Designed to compensate ; (b) Designed to do more or less than to compensate; (c) In aw^ard disproportionate; (d) In a-wrard divisible or indivisible; (e) In a-ward determined by statute. 125. It is naturally and legally proper that the compensa- tion should be equivalent to the injury.^ Ordinary damages are a sum awarded as a measure of compen- sation. They should be precisely commensurate to the injury, — neither more nor less, — whether the injury is to the person or to the estate.'^" The subject of damages is too intimately connected with the cause of action in tort, especially when the right violated is a right not to be harmed, to be summarily remitted to books on Damages. But each specific wrong has, to a considerable extent, a measure of damages peculiar to itself. It will therefore be con- venient to consider ordinary damages under each specific wrong, in order. However, one general principle has been emphasized by Mr. Pollock: "Compensation, not restitution, is the proper test." Thus, where a tenant for years carried away a large quantity of val- uable soil from his holding, the reversioner could recover, not what 6 8 Bussey v. Donaldson, 4 Dall. (U. S.) 194, 206. And see Dexter v. Spear, 4 Mason (U. S.) 115, Fed. Gas. No. 3,867; 7 Am. & Bng. Enc. Law, 449; 2 Bl. Comm. 248. 69 2 Greenl. Ev. § 250; 1 Suth. Dam. c. 3; 1 Sedg. Dam. c. 2; Baker v. Drake, 53 N. Y. 211; Noble v. Manufacturing Co., 112 Mass. 492; Brewster V. Van Liew, 119 111. 554, 8 N. E. 842; South Covington & C. S. Ry. Co. v. Gest, 34 Fed. 628; Northrup v. McGill, 27 Mich. 234; Reynolds v. Franklin, 44 Minn. 30, 46 N. W. 139; Peltz v. Eichele, 62 Mo. 171; Cressey v. Parks, 7fi Me. 532. Ch. 5] DAMAGES. 361 it would cost to replace the soil, but the diminution in the value of the reversion/" One askinji compensatory daijiages for a wrong- eo Pol. Torts, c. 5, citing Wliitham v. Kershaw, 16 Q. B. Div. 613; Gwalt- ney v. Land Co., 11.5 N. C. 579, 20 S. E. 465 (compensation with reference to property interest). Tlie difference between the market value of a house and lot before and after a fire, by which the house is destroyed, is the measure of the damage occasioned by the fire, where theie is any evidence that the house and lot together have a market value. Pacific Exp. Co. v. Smith (Tex. Sup.) 16 S. W. 998. But in an action by a lot owner for damage done by water, thrown from a public street on his land by a ditch dug by a city, plaintiff is entitled to recover the cost of filling up his lot, where the flooding of the lot is continuous, and the filling is necessary in order to keep out the water. Weir V. Plymouth Borough, 148 Pa. St. 560, 24 Atl. 94. And further as to damages to land or crops, see Pope v. Benster, 42 Neb. .304, 60 N. W. 561; Terre Haute & L. R. Co. v. Walsh (Ind. App.) 38 N. E. 534; Colorado Coasol. Land & Water Co. v. Hartman (Colo. App.) 38 Pac. 62. Cf. City of Nash- ville V. Sutherland, 94 Tenn. 350, 29 S. W. 228; Chicago & E. R. Co. v. Barnes, 10 Ind. App. 460, 38 N. E. 428. It has been held, however, that in an action to recover damages resulting from negligence in the construction of defend- ant's railroad in obstructing ditches and destroying fences, the measure of damages is the cost of removing those obstructions and replacing the fences. Waters V. Greenleaf-Johnson Lumber Co., 115 N. C. 648, 20 S. E. 718. Where one sells land by fraudulently misrepresenting the value thereof, the grantee may recover, as his measure of damages, the difference between the real value of the land at the date of his purchase and what it would have been worth at that time if the representations had been true. Speed v. Hollingsworth, 54 Kau. 436, 38 Pac. 490. As to measure of damages, see Davenport v. An- derson (Tex. Civ. App.) 28 S. W. 922. As to damages in personal injury eases, see Board Com'rs of Jackson Co. v. Nichols (Ind. Sup.) 38 N. E. 526; Omaha & R. T. Ry. Co. v. Ryburn, 40 Neb. 87, 58 N. W. 541; Healy v. Visalia & T. R. Co., 101 Cal. 585, 36 PaC. 125; Edwards v. Common Council (Mich.) 60 N. W. 454; Dooner v. Delaware & H. Canal Co., 104 Pa. St. 17, 30 Atl. 269; Haden v. Sioux City & P. R. Co. (Iowa) 60 N. W. 537. Whore an attor- ney is paid his fee in advance, its amount is not the measure of damage f(ft- breach of professioiml duty. Quinn v. Van Pelt, 56 N. Y. 417; Denver, T. & Ft. W. R. Co. V. Dotson iColo. Sup.) 38 Pac. 322; Jacksonville, T. & K. V\'. Ry. Co. V. Peninsular Land, Transp. & Manuf'g Co., 27 Fla. 1, 157, 9 South. 661; Toddv. RailwayCo., 39Minn. 186, 39N. W. 318; Karst v. St. Paul, S. &T. F. Ry. Co., 22 Minn. 118; Baldwin v. Railway Co., 35 Minn. 354, 29 N. W. 5; Bar- nett V. Water-Power Co., 33 Minn. 265, 22 N. W. 535. The measure of dam- ages for breaking a wagon is the difference between its value just before and just after the injury, and a reasonable sum for the loss of use for a period necessary to repair it. Hoffman v. Metropolitan St. Ry. Co., 51 Mo. App. 273. ;jG2 REMEDIES. [Ch. O ful act must gis'e the jury means of ascertaining the amount there- of." Interest is generally not allowed in uncertain and unlitjuidated 01 Watts V. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. E. 521. In an action for malicious prosecution, nothing can be recovered for attorney's fees in- curred when their value is not proved. Mitchell v. Davies, 51 Minn. 168, sa N. "W. 363. In an action for the value of property wrongfully detained, and for damages for such detention, plalntifE cannot be allowed to testify, as a conclusion, the amount of damages she has sustained, independently of the value of such property. Wellington v. Moore,. 37 Neb. 560, 56 N. W. 200; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 1001. Plaintiff was prop- erly pe]'mitted to state to the jury that his farm was worth $1,200 less after than before the fire, and to give the reason for his opinion. Chicago & E. R. Co. V. Kern, 9 Ind. App. 505, 36 N. E. 381; Little Rock & M. R. Co. v. BaiTy, 58 Ark. 198, 23 S. W. 1097 (medical expenses); Atchison, T. & S. P. Ry. Co. V. Click, 5 Tex. Civ. App. 224, 23 S. W. 833 (medical expenses); Cou- sins V. Lake Shore & M. S. Ry. Co., 96 Jlieh. 386, 56 N. W. 14 (medical ex- penses); Salt River Canal Co. v. Hickey (Ariz.) 36 Pac. 171 (refusal to de- liver certificate of stock); La Duke v. Township of Exeter, 97 Mich. 450, 56 N. W. 851 (damage to plaintiff's horse). As to evidence of market price and value, AXcLennan v. Lemen (Minn.) 59 N. W. 628; Greenebaum v. Taylor, 102 Oal. 624, 36 Pac. 957; Aulls v. Young, 98 Mich. 231, 57 N. W. 119; Den Bleyker v. Gaston, 97 Mich. 354, 56 N. W. 763; Dorr v. Beck. 76 Hun, 540, 28 N. Y. Supp. 206; Galveston, H. & S. A. Ry. Co. v. Silegman (Tex. Civ. App.) 2:', S. W. 298; Glovinsky v. Cunard S. S. Co., 6 Misc. liep. 388, 20 N. Y. Supp. 751; Constant v. Lehman, 52 Kan. 227, 34 Pac. 745; Galveston, H. & S. A. Ry. Co. V. Williams (Tex. Civ. App.) 25 S. W. 1019; Union Pac. D. & G. Ry. Co. V. Williams, 3 Colo. App. 526, 34 Pac. 731; Bassett v. Shares, 63 Conn. 39, 27 Atl. 421; Gulf, C. & S. F. Ry. Co. v. Matthews, 3 Tex. Civ. App. 493, 23 S. W. 90. And see, also, Brusch v. Railway Co., 52 Minn. 512, 55 N. W. 57; Olson V. Sharpless, 53 Minn. 91, 55 N. W. 125; Mitchell v. Davies, 51 Minn. 168, 53 N. W. 363; Stiff v. Fisher, 2 Tex. Civ. App. 346, 21 S. W. 291; Chicago & E. R. Co. v. Smith, 6 Ind. App. 262, 33 N, E. 241; Geutrj V. Railroad Co., 38 S. C. 284, 16 S. E. 893; Martin v. Railroad Co., 62 Conn. 331, 25 Atl. 239. Generally, as to burden of proof and necessity of proof, see Green v. Barney (Cal.) 36 Pac. 1026; Llttlehale v. Osgood, 161 Mass. 340, ;!7 N. E. 375; Gulf, C. & S. F. Ry. Co. v. Rosslng (Tex. Civ. App.) 26 S. W. 243; Watts v. Norfolk & W. R. Co., 39 W. Va. 196, 19 S. E. 521; Metropolitan St. R. Co. V. Johnson, 91 Ga.. 466, 18 S. E. 816; Schriver v. Village of Johns- town, 71 Hun, 232, 24 N. Y. Supp. 1083; Campbell v. Alston (Tex. Civ. App.) 2;j S. W. 33; Ohio & M. Ry. Co. v. Hill, 7 Ind. App. 255, 34 N. E. 646. An to sufficiency of evidence, Texas & P. R. Co. v. McDowell (Tex. Civ. App.) 27 S. W. 177; Texas & P. R. Co. v. Bailey (Tex. Civ. App.) 27 S. W. 302; Steph- enson V. Flagg, 41 Neb. 371, 59 N. W. 785; Norfolk & W. R. Co. v. Draper, Ch. 5] DA-MAGES. 36o causes of action.''^ Thus, it cannot be allowed in actions ex de- licto, based upon simple negligence of a party to "whom no pecun- iary benefit could accrue by reason of the injury inflicted,"^ nor where the loss of profits is the measure of damage."' There ;ire, however, many torts in which interest from the time of ac- crual of cause of action is ordinarily allowed. Thus, the measure of damages in case- of a common carrier is the value of goods in- trusted to him for transportation with interest from the time they ought to have been delivered."'^ But where the highest court of a state has, because of statute, held the rule to be otherwise, the United States court will follow the holding of the state court.'*'' Interest has also been allowed in trespass"^ for taking goods, and in 90 Va. 245, 17 S. E. 883; Netherland-American Steam Nav. Co. v. Hollanclei, 8 C. O. A. 169, .59 Fed. 417; Pill v. Brooklyn Heights R. Co., 6 Misc. Rep. 267, 27 N. Y. Supp. 230; Haitman v. Pittsburg Incline Plane Co.. l-">!) Pa. St. 442, 28 Ati; 145; Crow v. Manning, 4.j La. Ann. 1221, 14 Sontli. 122; Gaines- ville, H. & "\V. R. Co. V. Lacy, 86 Tex. 244, 24 S. W. 269; St. Louis & S. P. B. Co. V. Farr, 6 C. C. A. 211, 56 Fed. 994; Orsor v. Metropolitan Cross Town R. Co., 78 Hun, 100, 28 X. T. Supp. 960; :Missom-i, K. & T. R. Co. v. Reynolds (Tex. Civ. App.) 20 S. W. 879; Carney v. Brome. 77 Hun, 58::;. 28 N. Y. Supp. 1019. Weight of ey\;»ert testimony as to damage is not conclusive in the court. Isear v. Burstein (Super. N. Y.) 24 X. Y. Supp. Ols. 62 Anon., 1 Johns. 315. 63 Marshall v. Schricker, 63 Mo. .308; Kenney v. Railroad Co.,Id.99; Galves- ton, H. & S. A. R. Co. V. Dromgoole (Tex. Civ. App.) 24 S. W. 372; Meyer V. Railroad Co., 64 Mo. 542; De Stelger v. Railroad Co., 73 Mo. 33; Wade v. Raih-oad Co., 78 Mo. 362. 64 Wiggins Feriy Co. v. Chicago & A. R. Co. (Mo.) 27 S. W. 568. 65 Mobile & M. R. Co. v. Jurey, 111 U. S. .-.84, 4 Sup. Ct. 506. And see Gulf, C. & S. F. R. Co. V. Dunman, 6 Tex. Civ. App. 101, 24 S. W. !;05; In- ternational & G. N. R. Co. V. Dimmitt Co. Pasture Co., o Tex, Civ. App. ISd, 23 S. W. 754. The award of interest may be regulated by statute. Thus, in South Dakota, award of interest on damage to property, caused by negligence, is left to the discretion of the jury. Uhe v. Railway Co. (S. D.) .57 X. \V.^ 4.s4. Measure of damages from delay in transportation. Gulf, C. & S. F. Ry. Co. v. Gilbert, 4 Tex. Civ. App. 300. 23 S. W. 320. And see note l.y Victor Levy in 1 Am. Law Reg. (N. S.) 220. 66 New York, L. E. & W. R. Co. v. Estill, 147 U. S. .591. 13 Sup. Ct. 444. 6 7 Beals V Guernsey, 8 Johns. 446. So, where plaintiff recovers judgment for destruction of his crops by an overflow, he is entitled to interest on their value Gulf, C. & S. F. R. Co. v. Calhoun (Tex. Civ. App.) 24 S. W. 362; Gulf C & S.' F. R. Co. V. Duulap (Tex. Civ. App.) 20 S. W. 0.55. 364 REMEDIES. [Ch. 5 trover/' on the value of chattels from the time of trespass or of lonversion. 126. Compensatory damages may be — (a) Such as the law presumes from the invasion of a simple right, or (b) Such as the law, in all other cases, requires to be proved as a condition precedent to recovery. 127. Whenever the law presumes damages, the character of the damages suffered is immaterial to the right of the plaintiff to sue, however it may affect the ex- tent of his recovery. 128. "Whenever the law does not presume damages, before the plaintiff can recover he must plead and prove damages w^hich conform to the legal staadard; that is, such damages must not be — (a) Trivial or fanciful, (b) Merely sentimental, or (c) Kemote, as distinguished from proximate. CompL'nsatory damages may be of many kinds. As to quantity, they may be substantial or nominal; as to origin, direct or conse- quential ; as to cause, proximate or remote ; as to pleading, general or special. These various hinds of damages may conveniently be considered in this order. Direct and Consequential Damages. There is an unfortunate ambiguity in the use of the terms "di- rect"' and "consequential," with respect to damages. On the one hand, they are sometimes employed as indicating the character of the connection of defendant's conduct, as the cause of the dam- ages complained of. Here "consequential" is equivalent to "in- direct." "" On the other hand, the same terms frequently define 68 Eddy V. Lafayette, 4 U. S. App. 247, 1 C. C. A. 441, 49 Fed. 807; Blssell V. Hopkins, 4 Cow. 53; Hyde v. Stone, 7 Wend. 354; Baker v. Wheeler, 8 T\'end. 505; First Nat. Bank v. Lyncli, 6 Tex. Civ. App. 590, 25 S. W. 1042. And see damages in conversion, post, 737. Suth. Dam. c. 2, pp. 19, 20. <^Il. 6] DAMAGES. 36r. the old distinction between trespass and ease, and the same idea therein involved, as it survives the repeal of mere forms of action. In cases of trespass, in the old phraseology, or of the violation of simple or absolute rights, in the modern, the damages are direct; in cases of trespass on the case, in the old phraseology, or of the viola- tion of a right not to be harmed, in the new, the damages are con- sequential. Here "consequential" is used to describe, not the re- lationship of cause and effect, but to set forth the very nature of the wrong. Such damages must be alleged and proved. Direct damages may be presumed. If a man run an umbrella into an- other's eye intentionally, the damage is direct, not consequential. The remedy was trespass, not case. The right violated is a simple or absolute one. But if the same act be done carelessly the remedy was case, not trespass. The damage Mas consequential, and the right violated was a right not to be harmed.* Consequential damages are also sometimes confused with special damages.'" It may conduce to simplicity of treatment, perspicuity of lan- guage, and clearness of thought, to apply only the terms "proxi- mate"' and "remote" (with the convenient subdivision into "direct" and "indirect") to damages so far as connection as cause is con- cerned, and, in discussing damages as an element essential to re- covery on the part of the person injured, to consider (1) damages which the law will presume, and (2) damases which the law will not presume. * This serves to illustrate the unsatisfactory classification of the law as to rights. As a matter of fact, decisions on this point were reached because the judges regarded not so much the nature of the right as the nature of the wrong. The difference between the conduct of a man who commits an as- sault and another who, by his carelessness, does damage, is a real one. Speaking with strict accuracy in both cases, the right of the sufferer which was violated is the right not to be harmed. 7 Mr. Sutherland (volume 1, §§ 14, 15) defines "direct damage's" as includ- ing damages for all such injurious consequences as proceed immediately from the cause which is the basis of the action; and "consequential damages," as those which the cause in question naturally, but indirectly, produced. He cites, as an illustration of consequential damages, Teagarden v. Hetfield, 11 Ind. 522, which was a case of trespass, in which the damages were necessarily direct, and not consequential; but the damages were special, as distinguished from generaL 36G IIEMEDIES. I.(Jh. 5 Wliea Damages are Presumed, Nominal damages are those awarded when, from the nature of the case, some injury has been done the amount of which the proof entirely fails to show.'^ Nominal damages, it has been seen,^^ are those which the law presumes to follow the invasion of another's simple rights, as dis- tinguished from his rights not to be harmed. Accordingly, in such cases, the law refuses to apply the maxim, "I)e minimis non curat lex." '' Thus, in an English case, a court directed a verdict to be entered for one penny damages.'* The maxim will not be applied to trespass to land." So, when a person, as a joke, took reins worth |3 from another's horse, it was held error to dismiss an action therefor.'" The slightest willful injury to the person, on the same 11 Bellingliam Bay & B. C. E. Co. v. Strand, 4 Wash. 311, 30 Pac. 144. In contracts, "nomiual damages" are defined to mean a sum of money which has no existence, in point of quantity, — a mere peg on which to liang costs. Beaumont v. Greathead, 52 E. 0. L. 498. And see Farmer v. Crosby, 43 Minn. 459-462, 45 N. W. 866; Eaton v. Lyman, 30 Wis. 41; Hicliey v. Baird, 9 Mich. 32; Jennings v. Loring, 5 Ind. 250; Willson v. McEvoy, 25 Cal. 170, and cases. But this distinction can hardly be applicable to cases in tort. Pig. Torts, 125. '2 Ante, c. 1, "Injuria sine Damno"; c. 4, "Statute of Limitations." And see Cowley v. Davidson, 10 Minn. 392 (Gil. 314); Woods' Mayne, Dam. 7; Quin V. Moore, 15 N. Y. 432; Mitchell v. Mayor, etc., 49 Ga. 19; Smith v. Whiting, 100 Mass. 122; Fitzpatrick v. Railway Co., 84 Me. 33, 24 Atl. 432; Munroe v. Stickney, 48 Me. 462; Bagby v. Harris, 9 Ala. 173; Champion v. Vincent, 20 Tex. 811. 73 As to refusal to assess nomiual damagies, see Funk v. Evening Post Pub. Co., 78 Hun, 497, 27 N. Y. Supp. 1089; Shipps v. Atkinson, 8 Ind. App. 505, .'5(! N. E. 375; Schwartz v. Davis (Iowa) 57 N. AV. 849; Ady v. Freeman, Id. 879; Kenyon v. W. U. Tel. Co., 100 Cal. 454, 35 Pac. 75. See the answer of Holt, C. J. (Ashby v. AVhite, 2 Ld. Raym. 953), to Powys, J. (2 Ld. Raym. 944), and Whitcher v. Hall, 5 Barn. & C. 209-277; Pindar v. Wadsworth, 2 East, 154; Seneca R. Co. v. Auburn & R. R. Co., 5 Hill, 170. "De minimis non curat lex" does not apply to trespass on land, because it might be evi- dence of title. Bragg v. Laraway, 65 Vt. 673, 27 Atl. 492. 7* Feize v. Thompson, 1 Taunt. 121 (case cited by Heath, .T.); Wright v. Freeman, 46 111. App. 421; Warden v. Sweeney, 86 "\A'is. 161, 56 N. W. 647. ^ 5 Bragg v. Laraway, 65 Vt. 673, 27 Atl. 492. '6 Wartman v. Swindell (N. .1, Err. & App.) 25 Atl. 356; 1 Hil. Torts, 90; Seneca Road Co. v. Auburn & R. R. Co., 5 Hill, 171. Cll- 5] DAMAGES. 367 principle, is a sufficient basis for recovery." One court, however, has gone so far as to refuse to hold a sheriff liable for unlawfully using a person's pitchfork to remove hay properly attached, when the pitchfork was returned uninjured.'" "When damages are thus presumed from conduct, they may not strictly be called "compensatory." ^^ Indeed, they may be awarded although the in- jury results in an actual benefit to the complainant.'" On the other hand, they may be strictly coincident with the actual extent of the harm suffered, and if the same state of facts convince the jury that the plaintiff suffered more, he can recover substantial damages.*^ Accordingly, they sometimes are, and sometimes may not be, strictly compensatory. When Damages are not Presumed. Where the damages for which recovery is sought are not pre- sumed, but must be proved, — that is, where the right violated is not a simple right, but a right not to be harmed, — the law requires proof of damages which comes up to the legal standard. If the damage thus required and proA'ed be so small as to show that the suit was trivial, vexatious, or hard, the courts will not sustain the claim.'- In such cases the law will not refuse to apply the mnxii'i. "De minimis non curat lex." '^ It would seem, however, that if the 77 Holt, C. J., in Asbby v. Wbite, 2 Ld. Raym. 955, approved; Brent v. Kimball, 60 111. 211. And see Tatnall v, Courtney, 6 Houst. (Del.) 434. 7 8 Paul V. Slason, 22 Vt. 231. But see FuUam v. Stearns, 30 Vt. 443. And see Kullman v. Greenebaum, 92 Cal. 403, 28 Pac. 674. T9 Pig. Torts, 127. ■ 8 Rich V. Bell, 16 Mass. 2!t4; Stowell v. Lincoln, 11 Gray, 434; Gile v. Stevens, 13 Gray, 146; Jewett v. Whitney, 43 Me. 242; Hibbard v. W. U. Tel. Co., 33 Wis. 558; Francis v. Sehoellkopf, 53 N. Y. 152. 81 There is no rale limiting the recovery for wrongful assault to nominal damages, but the amount thereof is a question for the jury. Caldwell v. Cen- tral Park, N. it E. R. R. Co. (Com. PI.) 27 N. Y. Supp. 397. And see Wam- pach V. Railway Co., 22 Minn. 34. 82 Potter V. Mellen, 36 Minn. 122, 30 N. E. 4;!,S; Steinbach v. Hill. 2.") Mich. 78; Kenyon, C. J., in Wilson v. Rastall, 4 Term R. 7-53; Williams v. Mostyn, 4 Mees. & W. 144; Young v. Spencer, 10 Barn. & C. 145. 8 3 pio- Torts; Clerk ^t L. Torts. And see Mietzsch v. Berkhout (Cal.) 3.> Pac. 321. "It is not only to those who are greatly damnified by the illegal act of another to whom the law gives redress; but its vindication extends to every person who is damnified at all, unless, indeed, the loss sustained is 368 KEMKDIES. [Ch. 5 complaint shows that the plaintiff is entitled to nominal damages, it is not demnrrable.^* Pi'obably the clearest illustration of the principle is in the case of nuisance, in which the courts require the harm complained of to be substantial, not merely fanciful.*" Mental Suffering. Again, some courts have refused to recognize mental suffering unaccompanied by actionable injury as sufficient harm to be en- titled to legal recognition.*" The broadest argument against the award of such damages is— First, that the mental suffering cannot, as a matter of fact, be sufficiently traced as a natural and probable consequence, in the ordinary course of things, of the wrongful con- duct complained of; and, second, that if the connection as cause and effect can be traced, the difficulty of determining whether the injuries were caused by the negligent act would be greatly in- creased, and a wide fleld would be opened for imaginative claims, and purely speculative litigation encouraged.*^ Sometimes, how- ever, the case is said to rest on the limitation as to natural and probable consequences of defendant's conduct,** and some- so small as to be unnoticeable, by force of maxim, 'De minimis non curat lex.' " Beasley, J., in Beseman v.. Railroad Co., 50 N. J. Law, 235, 13 Atl. 1G4. _Ancl see Freeman v. Vernier, 120 Mass. 424. A rare and trifling injury, necessarily resulting from a lawful business, will not sustain an action at law. Price v. Grantz, 118 Pa. St. 402, 11 Atl. 794. Of. Brown v. Watson, 47 Me. 161. 84 Tort, Larson v. Chase, 47 Minn. 307, 50 N. W. 238; Hudson v. Archer 56 (physical and mental suffering from false imprisonment). 04, Bovee v. Danville, 53 Vt. 183; Chicago, B. & Q. R. Co. v. Hines, 45 111. App. 299; Chicago, R. I. & P. R. Co. v. Caulfleld, 11 C. O. A. 5.52, 63 Fed. :'96. Where, however, a hoy nine years old is injui'ed so as to be crippled for life, it is proper to allow him for his mental anguish arising from this act. Schmidt V. St. Louis, I. M. & S. Ry. Co., 119 Mo. 256, 24 S. W. 472. And it has been held that, in an action for personal injuries, the jury may consider the pain received at the time of the injury, any pain afterwards endured from such injuries, or which may result from such injuries as the natural cause; and any disfigurement to the person. St. Louis S. W. Ry. Co. v. Dobbins (Ark.) 30 S. W. 887. 9 5 American Waterworks Co. v. Dougherty, 37 Neb. 373, 55 N. W. 1051. Actual damages cannot be recovered for mental anguish caused by fright, un- accompanied by physical injury. Chicago, R. I. & T. Ry. Co. v. Hitt (Tex. Civ. App.) 31 S. W. 1084. Southern Pac. Co. v. Ammons (Tex. Civ. App.) 26 S. W. 135. OT San Antonio & A. P. Ry. Co. v. Corley (Tex. Sup.) 29 S. AV. 231. OS Warner v. Chamberlain, 7 Houst. (Del.) 18, 30 Atl. 638. ^« Post, p. 392, "Exemplary Damages." As to damages for mental suffer- ing on being carried beyond destination, see Trigg v. Railway Co., 74 Mo. 147. No recovery can be had for great "distress of mind, anxiety, mortiflca- Ch. 5] DAMAGES. 371 excluded because of color or other reason,^"" is a proper element for a jury's consideration. Injury to the good name and character of a family, and the shame, mortification, and mental suffering of a parent because of the seduction of a child, are proper elements of damage.^"^ Indeed, courts haAe gone so far as to recognize the right to recover for injured sensibilities in cases of unlawful in- terference with dead bodies.^"^ A person's recovery for mental anguish is confined to his feel- ings as to himself, and does not extend to his anxiety for third per- sons.^°° It is required, in actions for injuries to the reputation, that the damage complained of must be based on a temporal or materini loss, capable of being estimated in money; that is to say, the dam- age must be pecuniary.^"* Proximate and Remote Damages. Where damages are of the gist of a cause of action, the action will not lie if they are remote.^"" If damages are not of the gist of the plaintiff's cause of action, even then he cannot recover re- mote damages. tion, and suspense" consequent on failure to run special train to enable plaintiff to see his sick father. Wilcox v. Railroad Co., 3 C. C. A. 7.'., 52 Fed. 264. ^100 West Chester & P. R. Co. v. Miles, m Pa. St. 2O0; Chicago & N. W. Ry. Co. v. Williams, 55 111. 185; Pleasants v. Railroad Co., 34 Cal. 586. 101 Garretson v. Becker, 52 111. App. 256; Phelin v. Kenderdine, 20 Pa. St. 354; Suth. Dam. (2d Ed.) § 1283. In an action by a wife for the aliena- tion of her husband's affections, she can recover damages, without proof of loss of support. Rice v. Rice (Mich.) 62 N. W. 834. 102 Meagher v. Drlscoll, 99 Mass. 281; ante, p. 13, "Ecclesiastical Courts"; Smith V. Railroad Co., 23 Ohio St. 10; Chicago & A. R. Co. v. Flagg, 43 111. 364; Baltimore & O. R. Co. v. Kean, 65 Md. 394, 5 Atl.-325. 103 Keyes v. Railway Co., 36 Minn. 290, 30 N. W. 888. 104 "It is well setUed that, in an action for Ubel on them in their business by two or more partners, damages cannot be recovered for any injury to their feelings." Donaghue v. Gaffy, 53 Conn. 43-49, 2 Atl. 397. And post, p. 8US, "Libel and Slander." 105 1 Suth. Dam. 50; Lamb v. Stone, 11 Pick. (Mass.) 527; Bradley v. Tal- ler, 118 Mass. 239; Harrison v.- Redden, 53 Kan. 265, 36 Pac. 32.j. 372 REMEDIES. [Ch. 5 129. In determining -what is a proximate and what a re- mote consequence, the English courts incline to ac- cept the measure of damage in cases of contracts, and to award such damages as (a) directly and necessarily result from the w^rong complained of; and (b) such further damages as should have been foreseen by the w^rongdoer, in view^ of his know^ledge, actual or constructive, of the special circumstances of the case. 130. The American courts do not seem to have determined very definitely whether the test is — (a) What a reasonably prudent man w^ould or should have foreseen under the circumstances ; or (b) What follows as a natural result in the ordinary course and constitution of nature. 131. A much wider liability is recognized when the -wrong complained of arises from illegal, fraudulent, or malicious conduct. English Ride. As has been seen, a person is held liable for the natural and prob- able consequences of his conduct. But there is much dispute as to how such consequences are to be determined, and when the damage is proximate and recoverable, or when it is remote and not actiona- ble.^"' The English courts incline to hold that "the rule with regard to the remoteness of damage is precisely the same whether the dam- ages are claimed in actions of contract or of tort." ^"^ Accordingly, the measure of damages in torts follows the rule for damages in contracts laid down in Hadley v. Baxendale.^"" Therefore, a wrong- doer is liable for damages resulting directly from his conduct, and for such consequential damages as were, or in reason sihould have been, contemplated by him.^^" Thus, where a woman alleged spe- 107 Ante, c. 1, "Conuection as Cause." 108 The Notting Hill (1884) 9 Prob. Div. 105-113, per Lord Esher, M. R. 10 9 23 L. .T. Exch. 179. And see Paine v. Sherwood, 21 Minn. 225; Frohreich V. Gammon, 28 Minn. 476, 11 N. W. 88; Freeman v. Dempsey, 41 lU. App. 554. 110 Sharpe v. Powell, L. R. 7 C. P. 253; ante, p. 61, "Connection as Cause." But see Hydraulic Engineering Co. v. McHaffie, 4 Q. B. Div. 670. And see Ch. 5] DAMAGES. 37;) cial damages from slander, wliereby she lost the consortium of her husband, Lord Wensleydale said : "To make the words actionable by reason of special damages, the consequences must be such as, tak- ing human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reason- ably have been anticipated and feared would follow from the speak- ing the words, not what would reasonably follow or we think ought to follow." ^^^ However, to correspond to the rule in contract, the rule in torts is more accurately said to be that the wrongdoer is liable for the natural and probable consequences of hif> conduct, and for any special consequences which may ensue, if he has at the time of his wrongdoing notice of the special circumstances by reason whereof those consequences will naturally and probably ensue as to the result of his wrongdoing.^^^ Thus, a man is responsible for the ordinary consequences likely to result from his act, but not when a fresh train of circumstances are set on foot, and the natural course of events is altered by some other impelling agency; for that agency then becomes the causa proxima, unless, indeed, a reasonable man could have foretold that new cause. Thus, where D., in breach of statute, washed a van in the public street, and the waste water ran towards a grating choked with ice, and then ran to the street and froze, and C.'s horse slipped on the ice, D. was held not liable. How could he expect the frozen accumulation at the grating? ^^^ There is, however, authority for referring actionable consequences to the connection existing in the course and constitution of nature, — that is, normally or likely or probable of occurrence in the ordinary course of things, — whether in fact foreseen, or whether they should reasonably have been foreseen; it being sufficient if they followed naturally.^" Smith v. Railway Co., L. K. 6 C. P. 14 (per Pollock, B.); Cattle v. Waterworks, L. R. 10 Q. B. 453; Greenland v. Chaplin, 5 Bxch. 243; Osborne v. London & N. W. R. Co., 21 Q. B. Div. 220; 57 L. J. Q. B.. 618; Pig. Torts, 164. 111 Lynch v. Knight, 9 H. L. Cas. 577. Cf. Lord EUenborough, in Towu- send V. Wathen, 9 East, 277. "A man must be taken to contemplate the probable consequence of what he does." Eraser, Torts, 164, 165. 112 Clerk & L. Torts, 97. And see cases cited in Hayne, Dam. (4th Ed.) 45-59. 113 Shearw. Torts, p. 53; Sharpe v. Powell, L. R. 7 C. P. 253. 114 Grove, J., in Smith v. Green, 1 C. P. Div. 92-06; Allsop v. Allsop, 5 .';74 RKMEDIES. [Ch. 5 Amaican Rule. In America, there is no absolute unanimity of opinion on the sub- .iect."° On the one hand, there is a class of cases which incline to test the extent to which consequences are actionable by the degree to which they could and should have been foreseen. "The primary cause may be the proximate cause of a disaster, though it may oper- ate through successive instr-uments, as an article at the end of a chain may be moved by force applied to the other end, that force being the proximate cause of the movement. The question always is, was there an unbroken connection between the wrongful act and the injury, — a continuous operation? Did the fact constitute a con- tinuous succession of events, so linked together as to make a nat- ural whole, or was there some new and independent cause interven- ing 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 wariant a finding that negligence, or an act not amounting to wan- ton wrong, is a proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negli- gence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances." ^^* Thus, where a common carrier undertook to transport freight from Philadelphia to Pitts- Hen. & M. 534. Cf. Lord Bllenborough, in Vicars v. Wilcocks, 8 East, 1, with Ijord Wensleydale, in Lynch v. Knight, 9 H. L. Cas. 577. 115 See Earl, J., in Bhrgott v. Mayor, 96 N. Y. 264-280. In Chicago, M. & St. P. R. Co. T. Elliott, 5 C. C. A. 347, 55 Fed. 949, the distinction between the two standards does not seem to have been recognized. lie Jlilwaukee, etc., R. Co. v. KeUogg, 94 U. S. 469; Scheffer v. Railroad Co., 105 U. S. 249; Oilman v. Noyes, 57 N. H. 627. But see opinion of Ladd, .T. "Damage is too remote if, according to usual experience of mankind, the result ought to have been apprehended." Lane v. Atlantic Works, 111 Mass. 136, per Colt, J. Hill T. Wlnsor, 118 Mass. 251; Lowery v. W. U. Tel. Co., 60 N. Y. 198; Jackson v. Wisconsin Tel. Co., 88 Wis. 243, 60 N. W. 430; Pear- son r. Cox, 2 C. P. Div. 369. "The ordinary and natural consequences are regarded, sometimes, as those which should have been foreseen." Hoag v. Railroad Co., 85 Pa. St. 293. Cf. Henry v. Southern P. R. Co., 50 Cal. 176- 183, Chicago & A. R. Co. v. Pennell, 110 111. 435, and Fent v. Railroad Co., 59 111. 349, 357-302. It is not essential that such consequences should not have been foreseen in fact. Alabama G. S. R. Co. v. Chapman, 8 ) Ala. 615, 2 South. 738. t"ll. o] DAMAGES. 375 burg by canal, and by reason of lame mules lost his cargo by flood, it was held that his negligence in having lame horses was a condi- tion, not a natural and probable cause. Human foresight could not have foreseen the consequences of the lameness. It could not know the time of flood or danger. Chief Justice Lowry supposes a case: "A blacksmith pricks a horse by careless shoeing. Ordinary fore- sight might anticipate lameness and unfitness for use for some time to come, but could not anticipate that by lameness the horse would be delayed passing through a forest until a tree fell and killed his rider." Such injury would not be the measure of the blacksmith's liability."^ It is to be remembered, however, with respect to many actions of this kind, that they are based on quasi contracts or quasi torts. The cases, accordingly, reason much after the contract measure of damages.^ ^* But there is an increasingly strong tendency to refer natural and probable consequences to the ordinary course and con- stitution of nature. The introduction of the capacity to foresee (even of the law's beloved, the ordinarily prudent man) is either a useless 117 Morrison v. Davis, 20 Pa. St. 171. lis Denny v. New York Cent. R. It., 13 Gray, 481. As to the test that damages are proximate only when they are natural and probable, in the sense that a man of ordinary intelligence and prudence might reasonably hav • expected that they would result from his conduct complained of, see X w- man, ,T., in Block v. Milwaukee St. Ry. Co., 89 Wis. 371, 61 N. W. 11 1-llOJ, citing Atkinson v. Goodrich Transp. Co., 60 Wis. 141-1G3, 18 N. W. 764; Barton v. Pepin County Agricultural Soc, S3 Wis. 19, 52 N. W. 1120. And see Travelers' Ins. Co. v. Melick, 12 C. C. A. 544, 65 Fed. 178. Therefore the purchase by a father, for his son 11 years of age, of an air gun, intended and commonly used as a toy or plaything, is not, per se, an act of culpable negligence, and cannot be held to have been made in reasoiable anticipation of an injury caused by the use of the gun by another bjy to whom the son had loaned it. Harris v. Cameron, 81 A'S'is. 239, 51 X. "W. 437. But see Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. a5G, 911; Pennsylvania R. Co. v. Hope, 80 Pa. St. 373; Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 354; Poeppers v. Missouri, K. & T. R. Co., 67 Mo. 715; Maher v. Winona & St. P. R. Co., 31 Minn. 401, 18 N. ^\. 1' 5; Penn yl- van'ia R. Co. v. KeiT, 62 Pa. St. 353; Morrison v. Davis, 2U Pa. St. 171; Lynch v. Knight, 9 H. L. Cas. 577; Crater v. Binninger, 33 N. J. Law, 513; McGrew v. Stone, 53 Pa. St. 436; Henry v. Southern Pae. R. Co., 50 Cal. 17(i; Doggett V. Richmond & D. R. Co., 78 N. C. 305; Stanley v. Unon Depot R Co., 114 Mo. 006, 21 S. W. 8.32; Weick v. Lander, 75 111. 93; Daniels v. Bal- 376 REMKDIKS. [Ch. 5 ciicuitT or deviation in reasoning or it serves to lessen materially, consequences producing actionable damages. If a prudent man should be held to foresee what would ordinarily happen under the circumstances, then nothing is gained by introducing him into the test. He could not be held to foresee more. There is neither au- thority nor reason for holding that he should see less. Indeed, the modern tendency is to widen rather than narrow the consequences of conduct for which a man is held responsible.^" So, there are many cases holding that liability extends to those injuries which are direct and immediate consequences of the wrongful conduct, but also to such consequential injuries as, according to common experi- ence, are likely to, and in fact do, result from his act."" Therefore, it is not essential that the wrong complained of could or could not hare been foreseen."^ While the injury complained of must have been the result of the conduct attributed, the rule is that whoever commits a tort is liable for all the injury he does, although the injury could not have been contemplated as the result of the act done. Damages are not too remote if, according to the usual experience of mankind, the result ought to have been apprehended. It is enough if the injury now appears to have been a natural consequence. lantiue, 23 Ohio St. 532; Fent v. Toledo, etc., Co., 59 111. 349; Greenland v. Chaplain, 5 Exch. 243; Atkinson v. Goodrich Transp. Co., 60 Wis. 141, 18 N. W. 764; 1 Shear. & E. Neg. 29; Submarine Tel. Co. v. Dickson, 15 O. B. (X. S.) 759; Higgins v. Dewey, 107 Mass. 494; Lowery v. Manhattan K. Co., 99 X. Y. l.>8. 119 Davis V. Garrett, 6 Bing. 716, per Tuedall, C. J.; Cate v. Gate, '0 N. H. 144. 120 Lane v. Atlantic Works, 111 Mass. 136; Hill v. AYinsor, 118 Mass. 251. This is the rule in criminal law. Why should civil responsibility be less extensive? Lord Campbell, in Gerhard v. Bates, 2 El. & Bl. 490, quoted by Whart. Neg. § 78, said: "If the wrong and legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, the wrong and the damage are not suflBciently conjoined or concatenated as cause and effect to supiiort an action." 121 Brown v. Chicago, il. & St. P. Ry. Co., 54 Wis 342, 11 N. W. 3J6, 911 (as in cases of assault); Vosburg v. Putney (Wis.) 50 N. W. 403; Eten v. Lujster, 60 N. Y. 252 (conversion); Harrison v. Berkley, 1 Strob. (S. C.) 525 (selling liquor to slave, resulting in death); Henry v. Railway Co., 50 Cal. 176. Ch. 5] DAMAGES. 377 Hence, where a passenger, by reason of the wreck of a caboose, caused by negligence of the railroad company, was left nine miles from a station, on a cold winter night, from which he suffered, then and afterwards, from rheumatism, the company was held liable.^" While, on the one hand, under the test of consequences which should have been foreseen, a suicide is too remote to be the proxi- mate result of physical injuries caused by another's negligence,^ ^* 122 Schumaker v. St. Paul & D. R. Co., 46 Minn. 39, 48 N. W. 559. Com- pare Drake v. Kiely, 93 Pa. St. 492, where the court left the case under sim- ilar circumstances to the jury to determine the question of proximate cause. "The rule laid down in the Squib Case is applicable to all cases of negligeme. Not an author nor a decision confines it to the case of intentional tort." Elli- ott, J., in LouisviUe, N. A. & O. Ry. Co. v. Falvey, 104 Ind. 409^33, 3 N. E. 889, and 4 N. E. 908. In Ehrgott v. Mayor, etc., 96 N. Y. 264, it was said: "When a party commits a tort resulting in, a personal injury he cannot fore- see or contemplate the consequences of his tortious act. He may knock a man down, and his act may, months after, end in paralysis or in death, re- sults which no one contemplated or could have foreseen. A city may leave a street out of repair, and no one anticipate the possible accident which may happen or the injury which may be caused." "If one is legally responsible for an act, he is chargeable with the direct results of the act, however sur- prising." Prof. J. H. Beale, Jr., in The Langdell, "Twenty-Fifth Anniversary Number" of the Harvard Law Review (vol. 9, pp. SO, 81); citing Harrison v. Berkley, 1 Strob. 525; Tice v. Munn, 94 N. Y. 621; Cunnington v. Railway Co., 49 Law T. (N. S.) 392; Eten v. Luyster, 60 N. Y. 252. And see Stevens V. Dudly, 56 Vt. 158, 1C6; Louisville, N. O. «& T. R. Co. v. Durfree, 09 Miss. 439, 13 South. C9T (obstructing a crossing). Cf. St. Louis S. W. R. Co. V. Thomas (Tex. Civ. App.) 27 S. W. 419; Texas & P. Ry. Co. v. Ludlam, 2 C. 0. A. 633, 52 Fed. 94. And see Whart. Neg. § 77; 1 Suth. Dam. § Hi, and cases cited; Baltimore & O. R. Co. v. Kemp, 61 Md. 619; Brown v. Chicago, M. & St. P. R. Co., 54 Wis. 342, 11 N. W. 356, 911 (cf. Phillips v. Dickerson, S5 111. 11); International & G. X. R. Co. v-. Terry, 62 Tex. 380; Cincinnati, H. & I. R. Co. V. Eaton, 94 Ind. 474; Klein v. Receiver, 26 N. J. Eq. 474; Matteson v. Railroad Co., 62 Barb. 364; Memphis & C. R. Co. v. Whitfie:d, 41 Mis.^. 466; Spicer v. Railroad Co., 29 Wis. 580 (but cf. Trigg v. Railroad Co., 74 Mo. 147); Pullman v. Barker, 4 Colo. 344; Lewis v. Flint & P. M. R. Co., 54 Mich. 55, 19 N. W. 744. 123 Sheffier v. Railroad Co., 105 U. S. 249; Haile's Curator v. Texas & P. Ry. Co., 9 C. C. A. 134, 60 Fed. 5.'57; Southern Pac. Co. v. Ammons (Tex. Civ. App.) 26 S. W. 135. Cf. hypothetical cases of Cockburn, C. J., in Hobbs v. Raihvay Co., L. R. 10 Q. B. 111. 378 REMEDIES. [Ch. 5 on the other hand, paralysis/'* or death by contagion/'^ according to the natural consequence criterion, may be the proximate result of such harm so caused. In New York, L. E. & W. E. Co. v. Estill,"^ a common carrier with- out notice that cows were with calf undertook to ship them. The unborn calves were lost through premature birth induced by a col- lision. The carrier was held liable for such deterioration in value, notwithstanding the objection that such damages we'-e too remote, — ^that "it was something the defendant could not anticipate or know anything about." The only limit to the inquiry, the court held, is "whether or not the subsequent development of the animal is trace- able directly to the injury inflicted by the carrier. The difficulty in proof is one of fact, not one of law." ^^'' Illustrations of Remote Damages. At one extreme are cases in which the connection between the wrongful conduct and the harm complained of is so contingent that the damages are said to be merely possible (as distinguished from natural and probable) or speculative. Thus, if a steamboat run down a fisherman's net, a recovery may be had for property de- stroyed, but not for fish which might otherwise have been caught.^^^ On essentially similar principles, anticipated profits of a business, of which the plaintiff charges he was deprived by the J 2-* Bishop v. Railroad Co., 48 Minn. 26, 50 N. W. 92T. And see Eh gott v. Mayor, 9G N. Y. 264. 125 state v. Fox (Md.) 29 Atl. COl. 126 147 XJ. S. 591, 13 Sup. Ct. 444. 127 Generally, as to the test that the proximate cause is determn?d by the ordinary course of nature, or in accordance with common experi nas, or the normal or likely or probable consequences in the ordinary course of things. East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315; Gerlard V. Bates, 2 El. & Bl. 476; Henry v. Southern Pac. Co., 50 Cal. 176; S i ethust V. Barton Square Ind. Cong. Church, 148 Mass, 261, 19 N. E. 38T; Hoacley V. Northern Transp. Co., 115 Mass. 304; Derry v. Flitner, 118 Mass. 131; Hoey V. Felton, 11 C. B. (N. S.) 143; Lane v. Atlantic Works, 111 Mass. 13(;; Smith v. Green, L. R. 1 C. P. 92; McDonald v. Snelling, 14 Allen, 290; Wellington v. Downer Kerosene Oil Co., 104 Mass. 04; Louisville, N. A. & C. Ry. Co. V. Wood, 113 Ind. 544, 14 N. B. 572, and 16 N. E. 197; JefEersonviUe, M. & I. E. Co. V. Riley, 39 Ind. 568; Whart. Neg. § 77. 12 8 Wright V. Mulvaney, 78 Wis. 89, 46 N. W. 1045. And see Rhines v ^^- y] DAMAGES. 379 defendant's wrongful act, as by blocking up access to his place of business/^" are generally,"" but not always,"^ regarded as too remote to justify recovery, unless the defendant's conduct was an injury of a simple right, and constituted an invasion of the plain- tiff's property."^ So a bank that wrongfully refuses to honor a check drawn on it by a depositor is not liable in damages for the arrest and imprisonment of the drawer of the check, on complaint of the payee, for issuing a false check, but is liable only for injuries Royalton, 61 Hun, 624, 15 N. Y. Supp. 944; Montgomeiy & E. R. Co. v. Mallette, 92 Ala. 209, 9 South. 363; Broussard v. Railway Co., 80 Tex. 329, 16 S. W. 30. i2» Todd V. Minneapolis & St. L. Ry. Co., 39 Minn. 186, 39 N. W. 318; Simmer v. City of St. Paul, 23 Minn. 408. 130 The Lively, 1 GaU. 315-325, Fed. Cas. No. 8,403, per Sorty, J.; Boyd y. Brown, 17 Pick. 453; City of Terre Haute v. Huduut, 112 Ind. 542, 13 N. E. <>S6; Smith v. Condry, 1 How. (U. S.) 28; Blancliard v. Ely, 21 Wend. 342. Preventing a directors' meeting, Martin v. Deetz, 102 Cal. 55, 36 Pac. 308. Or by a malicious prosecution, O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601; Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, and 37 N. E. 14; Williams V. Wood, 55 Minn. 323, 56 N. W. 1006; Homan v. Franklin Co. (Iowa) 57 J^J. W. 703 (unless specially pleaded). In an action for misrepresentations on the sale of a horse, allegations as to the amount the horse would have been able to earn if soimd and capable of trotting at a certain rate of speed are too remote and speculative to constitute a proper element of damage. Wil- liamson V. Brandenberg, 133 Ind. 594, 32 N. E. 834; Silsby v. Michigan Car Co., 95 Mich. 204, 54 N. W. 761. But profits which would have been made on an abandoned contract are ascertainable and not speculative. Lee v. Briggs, 99 Mich. 487, 58 N. W. 477; Jackson v. Stanfield, 137 Ind. 572, 36 N. E. 345, and 37 N. E. 14. And see, Rio Grande W. Ry. Co. v. Rubenstein considerable length in tracing the consequences of a wrongful act. This is especially true as to damages originating from negligence with fire. Thus, where fire was carelessly allowed to escape from a locomotive, and, as the weather was dry and windy, spread con tinuously to property 10 miles away, the damage to such property was not so remote, nor so much the result of a mere possibility, as to release the railroad company from liability.^*^ With respect to wrongs of fraud, it is said, on good authority, that damages are limited to losses within the reasonable contempla- tion of the wrongdoer at the time of the wrong.^*^ On the other hand, however, it would seem to be more generally thought that a cause is not remote, in wrongs of fraud, malice, wantonness, or will- fulness, when it would be in other kinds of tortious conduct.^** The theory is that want of proximateness is supplied by inten- tion.^*° "The jury is not bound to weigh in golden scales how much injury a party has sustained by a trespass." '*' 142 Atchison, T. & S. F. K. Co. v. Stanford, 12 Kan. 354, followed. Cni- caso, R. I. & P. Ry. Co. v. McBi-ide, .54 Kan. 172, 37 Pac. 978. 143 Bigelow, Fraud, 614. i4i Lansridge v. Levy, 2 Mees. & W. 519; approved, 4 Mees. & W. .■!H7; Lumley v. Gye, 2 El. & Bl. 216, 22 Law J. Q. B. 463; Jeffei-sonville, II. & I. R. Co. V. Riley, 39 lud. 568; Suth. Dam. 71; Bigelow, Torts, 313, note 4; 5 Am. & Eng. Enc. Law, 11, and cases cited; Morgan v. Cur ley, 142 JIass. 107, 7 N. E. 726; Smith v. Goodman, 75 Ga. 198; West v. Forrest. 22 Mo. H41; Hawes v. Knowles, 114 Mass. 519; Blsh. Noncont. Law, §§ 16-142; Day V. Woodworth. 13 How. (U. S.) 363: Drake v. Kiely, 93 Pa. St. 495; Carter V. I^ouisville, N. A. & C. R. Co., 98 Ind. 555; Sauter v. New York Cent. & H. R. R. Co., 66 N. Y. 50; Brown v. Chicago, M. & St. P. Ry. Co., 54 Wis. 342, 11 N. W. 356, 911. Sb, in libel and slander, Gathercole v. Miall, 15 Mees. 6 W. 318 (per Pollock, B.). Cf. Parkes v. Prescott, L. R. 4 Exch. 1(59-177. And see Chamberlain v. Boyd, 11 Q. B. Div. 407. 14 5 Clerk & L. Torts, 97, citing Cattle v. Stockton A^'ater Works, L. R. 10 Q. B. 453. But see Chamberlain v. Boyd, 11 Q. B. Div. 407. no Gillard v. Brittan, 8 Mees. & W. 575. ^"- '"'J DAMAGES. 383 132. With respect to questions of pleading, damages are divided into two classes : (a) General and (b) Special. 133. General damages are such as are ordinarily and com- monly the consequence of the conduct complained of. 134. Special damages are such as are the natural, but not the necessary, consequence of the conduct com- plained of, and arise from the peculiar circumstances of the case. The term is, however, currently used in two senses : (a) Its technical sense, as meaning particvilarized damage, as distinguished from general damage ; and (b) As meaning such special injury as will enable plain- tiflf to recover w^hen damages are not presumed. What are General Damages. General damages are such as the law implies to have accrued from the Avrong complained of.^*' Or, more accurately, general damages are such as are ordinarily and commonly the conse- quences of the conduct complained of.^** Thus, where a person collided with another's sleigh, the expenses involved in remedying the injuries so caused to the latter person were general damages.^** (Jeneral damages may be direct, as where the ordinary and imme- 147 Chit. PI. (IGth Am. Ed.) 396, 515; 2 Sedg. Dam. (7tli Ed.) 606; 1 Sutli. Dam. 163; Dumont v. Smith, 4 Denio (N. Y.) 319. Ks Swayne, J., in Roberts v. Graham, 6 Wall. (U. S.) 578. The phrase, "The law will presume damages," is ambiguous. It sometimes means that the Ifiw presumes that damages do flow from wrongful conduct (as in cases of invasion of a simple or absolute right); but it may also mean what dam- ages flow from given vrcngful conduct (although the conduct be not action- able per se). What is meant by saying general damaires are such as the law presumes to follow (i. e. general damages) would be clearly put by saying that such damage inevitably follows, as pain from a wound (whether caused by negligence or assault and battery). But "inevitable" is too strong a word, and too much limits the scope of general damage. It is better to say that general damages are such as naturally follow in the ordinary course of events. 149 Farker v. Burgess, 04 Vt. 442, 24 Atl. 743; Hutchinson v. Granger, 13 384 REMEDIES. [Ch. 5 diate consequences of a trespass are recovered ; ^^° or they may be indirect, as where the cause of action depends upon proof of conse- quential damages. ^^'^ What are Special Damages. But where damages, though the natural consequences of the act complained of, are not a necessary result of it, they are tei-med ''special damages." ^^^ That is, damages which can be particular- ized.^^^ Here the damage may be derived from the peculiar char- acter, circumstance, or condition of the person wronged, or also of the wrongdoer. Thus, the cost of procuring a new wooden leg, in consequence of injury to one by another's actionable wrong, is special damage.^^* So, knowledge of one that an article which he converts has a peculiar value to the owner, may entitle the lat- ter to special damage.^ "^ Special damages may be dii*ect. Thus, Vt. 386. Plaintiff, in an action for damages sustained while riding a bicycle, by a collision with a buggj', was not entitled to show what he paid out for •doctor bills, medicine, and for repairs to his bicycle, without showing the value of each article. Schimpf v. Sliter, &4 Hun, 4R3, 19 N. Y. Supp. 64i. 150 Denver & R. G. Ry. v. Harris, 122 U. S. 597-608, 7 Sup. Ct. 1286 (loss of power to procreate, as the proximate result of a wound); Wade v. Leroy, 20 How. 34-44. 151 Smith V. Railway Co., 30 Minn. 169, 14 N. W. 797. 152 2 Greenl. Ev. § 254; Chamberlain v. Porter, 9 Minn. 260 (Gil. 244). 153 Pig. Torts, 150. 154 North Chicago St. Ry. Co. v. Cotton, 41 111. App. 311. In an action against a railroad company In trespass for laying tracks in front of plaintiff's lot, the law does not presume that plaintiff has a family, a house on the lot. that the said house is plastered and papered, and that said plastering and painting, etc., were injured, or that more time and attention to children were required. This is special damage, and must be so pleaded. Spencer v. Rail- way Co., 21 Minn. 362. Damage to plaintiff's well from an overflow of de- fendant's privy Is special. Solms v. Lias, 16 Abb. Prac. 311. So is loss of breeding capacity of a mare. Stevenson v. Smith, 28 Cal. 103; Shaw v. Hoff- man, 21 Jlich. 151; Patten v. Libbey, 32 Me. 378. And, generally, see Adams V. Gardner, 78 111. 568; Chicago, B. & Q. Ry. Co. v. Hale, 83 111. 360; Chicago V. O'Brenan, 65 111. 160. 155 Post, p. 737, "Trover and Conversion." See Bodley v. Reynolds, L. R. 8 Q. B. 779, explaining France v. Gaudet, L. R. 6 Q. B. 199. In an action by a husband for the alienation of his wife's affection, that he contracted venereal disease as the result of his wife's wrong is special damage. Dow- dell V. King, 97 Ala. 635, 12 South. 405. t^h. 5] DAMAGES. 885 in trespass for killing a mare, the value of the mare would be direct, general damage, but the value of an unweaned colt, killed through death of mare, would be special.^" Special damages may be consequential, as in a nuisance ^^^ or negligence."® So, in manr cases of slander, the only ground of recovery is special damage.^''" But special damages can be recovei-ed only when they are proxi- mate,^"" not when they are remote.^"^' The term "special damage," as commonly employed, is ambigu- ous.^"^ It may be used in the sense just considered, viz. as tech- nical, particularized damage. But it is also applied distinctively to the damage which must be proved in order to make out a cause of action on the part of the person claiming that a tort has been committed against him. In many such cases it is said that the party plaintiff must prove "special damage." Conspicuously in nuisance; for example, if the wrong be a public one, then no pri- vate individual can recover unless he can show that he has suf- fered some peculiar individual harm, as distinguished from the community in general. ^"^ The damage a sufferer from a failure to 156 Teagarden v. Hetfield, 11 Ind. 622. So, in trover, supra. Moon v, Raphael, 2 Bing. N. C. 310; Sedg. Dam. 475, "Trover." 157 Ante, c. 1. 158 Ante, c. 1. 158 Post, p. 486, "Slander." 160 Ashley v. Harrison, 1 Esp. 48; Vicars v. Wilcocks, 8 East. 1. 161 Moore v. Adam, 2 Chit. 198; Myer v. King (Miss.) 16 South. 245. 162 Pig. Torts, 150. 16 3 This is, indeed, only a branch of the general proposition that, where the cause of action arises from a breach of public duty, plaintiff can recover only when he suffers a special injury particular to himself. Such duty, in the absence of such special injury, is owned by all to all. O. W. Holmes. Jr., 7 Am. Law Rev. 652. In many of such cases, the wrong is also indict- able, and "where an indictment may be maintained, there is no remedy by action without proof of individual damage." But this does not apply where the injury complained of is not one affecting the public generally, but only a particular class or section of persons. Harrop v. Hirst, L. R. 4 Exch. 43. And see Mary's Case, 9 Coke, 113a. "The law abhors multiplicity of suits for nominal damages, but not for substantial damages." Pig. Torts, 155. Accord- ingly, an indictment is a sufficient remedy where the harm is general, but not where the harm affects plaintifC especially. See Baxter v. Turnpike Co., 22 Vt. 114. LAW OF TOKTS — 25 386 liEMKDIES. [Ch. 5 repair a highway must show, in order to recover, is "special." Mere inconvenience or delay of business is not sufficient special injury. In this sense, "special damage" may be either particularized (i. e. technical special damage) or general.^"* For example, if one man publish libelous words concerning another, which are actionable in themselves (i. e. from which the law presumes damage) the lat- ter can- recover general damages without proof of actual loss; ^°° but he can recover for consequent defeat in an election (if at all)^"" only on due allegation and proof, in detail, of such particularized damage.'"' But suppose the M-ords are not actionable in them- 164 Hartley v. Herring, 8 Term R. 130; Iveson v. Moore, 1 Ld. Raym. 480. But cf. A^'estwood v. Cowne, 1 Stai-kie, 172. 165 Post, p. 4t5o, "Libel aud Slander." i«6 So to charge tliat a candidate was bribed in a former contest with another person to give up the contest, is not .ictionable, as charging an in- dictable offense, or as spoken in the way of the candidate's office or busiress; nor would an allegation of special damage — 1. e. that he had been thereby defeated, lost the emoluments of the office, and been brought into bad repute — render it such, as said damage is too remote and speculative. Field v. Oolson, 93 Ky. 347, 20 S. W. 264. 167 Holston V. Boyle, 46 Minn. 432, 49 N. W. 203. So a charge of unchas- tity on the part of a woman at common law was not actionable, unless special injury (as loss of marriage) resulted. Accordingly, such peculiar loss must have been specially pleaded. Newell, Defam. 779. However, in Burt v. McBain, 29 Mich. 260, the publication imputed to the plaintiff a want of chastity. The plaintiff was permitted to show that, because of the pub- lication, she was excluded from society, and was affected in mind and health. This was held not to be error, although the declaration did not claim special damages. The court say: "These results are the natural, and we might say the inevitable, results, of the slander of a virtuous yovmg woman, and they might be shown without setting them out in the declaration. It is to be bome in mind that our statute makes the imputation of a want of chastity action- able per se, so that the necessity for the averment of special damage in order to show a cause of action is not requisite here, as it otherwise would be; and some decisions, to which we were referred, which were made in states where no such statute exists, are for this reason not applicable." "The rule there laid down is that, under the declaration, which set out a libel which is actionable per se, it is necessary, in order to introduce evidence of so-called special damages, to show that the results which naturally flow upon the publication did in fact appear. But, in an action for such libel, testimony that plaintiff's associates ridiculed him, and that he left his em- ployment temporarily in consequence of it, Is not admissible unless such Ch. 5] DAMAGES. 3S7 selves, but become so only on proof of damage (i. e. special injury) ; then, also, the damage may be general or special. Thus, in Ashley V. Harrison^'s where a libel led a performer on the stage to refuse- to act, her employer, if he could recover at all, could recover only because of injurious consequences. It was held in that case that the plaintiff could show diminished receipts of the house as gen- eral damages, but not that particular individuals had given up their boxes, because such damages were special (i. e. technically), and had not been specially laid in the declaration."' To avoid this ambiguity, various terms have been suggested. Tt damages are averred in the declai-ation; since they are not within the necessary consequences of the publication, and are therefore special, and not general, damages." Montgomery, J., in Hatt v. Evening News Ass'n, 94 Mich. 114, 53 N. W. 952; Id., 94 Mich. 119, 54 N. W. 766. But see 3 Suth. Dam. § 1215 (in which the conventional rule is stated) ; Warner v. Clark, 45 La. Ann. 863, 13 South. 203 (in which natural lines are followed as to slander); Mitchell V. Bradstreet, 22 S. W. 724 (in which natural lines are followed in libel, especially as to loss of business); Daniel v. New Yorlv News Co., 67 Hun, 649, 21 N. Y. Supp. 862; Bradstreet v. Gill, 72 Tex. 117, 9 S. W. 753; Brown v. Durham, 3 Tex. Civ. App. 244, 22 S. W. 868. In RadclifC v. Evans [1892] 2 Q. B. 524, an action was brought for intentionally publishing a mali- cious falsehood concerning plaintiff's business, not actionable as a personal libel, nor defamatoi-y in itself. Evidence that a general less of business had been the direct and natural consequences of such falsehood was held to be admissible, and sufficient, if uncontradicted, to maintain the action. So a plaintiff, in an action for libel, who alleges that he has suffered special and general damages, as the result- of certain letters sent out by defendants, may question the parties who received the letters, or heard their contents discussed, as to the effect thereby produced upon them, where such evidence is offered, not to prove the meaning of the word used, or the innuendo charged, but the substantive fact of damage sustained. 29 Mich. 260. 168 1 Esp. 48; Evans v. Han-ies, 1 Hurl. & N. 251. But see Kelly, C. B.. in Riding v. Smith, 1 Exch. Div. 91. Cf. Westwood v. Cowne, 1 Starkie, 172. ISO Kelly, C. B., in Harrop v. Hirst, L. R. 4 Exch. 43: "The questiarley Main Colliery Co. v. Mitchell,^*^ that, ^\'here the support to land was wrongfully withdrawn, a fresh action could be brought as each subsidence occurred; for under such circumstances there is not merely an original act, the results of which remain, but a state of things continued." ^'^ So, where there 277 There is no presumption that the wrong will continue forever. Whit- more v. Bischofe, 5 Hun, 176. 2T8 Ante, p. 409, note 268. 27" RecoveiT with satisfaction for erecting a structure without aulhoritv on another's land does not operate as a purchase of the right to continue such erection. Russell v. Brown, 63 Me. 203. And see Brakken v. Rail- way Co., 31 Minn. 45, 16 N. W. 459; Adams v. RaiU-oad Co., 18 Minn. 200 (Gil. 236); Hartz v. Railroad Co., 21 Minn. 358; Sherman v. Railroad Co., 40 Wis. 645; Anderson, L. ifc St. L. R. Co. v. Kemodle, 54 Ind. 314; Holmes V. Wilson, 10 Adol. & E. 503. Compare Hudson v. Nicholson, 5 Mees. & W. 43(), with same case used as Illustration in 10 Adol. & E. 509. Et vide Winterbourne v. Morgan, 11 East, 395; Rosewell v. Prior, 2 Salt. 459; John- son V. Long, 1 Salk. 10; Rex v. Pedly, 1 Adol. & E. 822; Bowyer v. Cook, 4 C. B. 230; Battishill v. Reed, 18 C. B. 696; Thompson v. Gibson, 7 Mees. & W. 455; Shadwell v. Hutchinson, 4 Car. & P. 333; Cumberland v. Hitchings, 65 ile. 140; Morris v. Ryerson, 27 N. J. Law, 457; Dill v. McCloskey, 9 Phila. 76. 2S0 Note to Hambleton v. Veere, 2 Saund. 161. And see Galway t. Metropoli- tan El. Ry. Co., 128 N. Y. 132, 28 N. E. 479 (a leading case on statute of lim- itation), and cases collected in great number at page 134, 128 N. Y., and page 479, 28 N. E.; American Bank Note Co. v. New York El. R. Co., 129 N. Y. 264, 29 N. B. 302; Doyle v. Railway Co., 136 N. Y. 512, 32 N. E. 1008; Rumsey V. Railroad Co., 133 N. Y. 82, 30 N. E. 654; Rosewell v. Prior, 2 Salk. 459 (ancient light). 2 81 11 App. Cas. 127. 282 Per Bowen, L. J., Mitchell v. Darley Main Colliery Co., 14 Q. B. Div. 125- 41^ REMEDIES. [Ch. 5 is a continuing illegal obstruction to use of water, "the general rule is that successive actions may be brought as long as the obstruction is maintained. A recovery in the first action establishes the plain- tiff's right. Subsequent actions are to recover damages for a con- tinuance of the obstruction." ^^^ And, generally, "new actions may be brought as often as new damages arise." ^'* To constitute a con- ass Mercur, J., In Bare v. Hoffman, 79 Pa. St. 71. And see Earl, J., in Uline V. New York Cent. & H. R. R. Co., 101 N. Y. 98, 4 N. E. 536, a leading case. So, obstruction of ditch draining farmer's land, Steinlie v. Bentley, 6 Ind. App. 663, 34 N. E. 97. Et vide St. Louis, A. & T. H. R. Co. v. Claunch, 41 III. App. 592; so, obstructing a ditch discharging on plaintiff's land, Wendlandt v. Cavanaugh, 85 Wis. 256, 55 N. W. 408; diversion of a bed by constiuction of a roadbed, George v. Wabash Western K. Co., 40 Mo. App. 433; obstruction of water course, each continuance a fresh one, Ohio & M. Ry. Co. v. Thillman, 143 111. 127, 32 N. E. 529; as to erection of buttress, Holmes v. Wilson, 10 Adol. & E. 503. So, if a railroad company, by excessive and improper use, substan- tially destroy the easement of way of ingress and egress appurtenant to an abutting lot, the owner of such lot can maintain successive action for such nuisance, recovering the damages that have accrued up to the time the action was brought, and a recovery in one action will not bar a subsequent one brought for a continuance of such wrong. Harmon v. Railroad Co., 87 Tenn. 614, 11 S. W. 703; UUne v. New York Cent. & H. R. R. Co., 101 N. Y. 98, 4 N. E. 536. Damages for overflowing and washing land by the construction of a boom in the river on winch it abuts can be recovei-ed only to the date of commencing action therefor, as the continuance of the trespass gives a new cause of action. Rogers v. Coal River Boom & Driving Co., 39 W. Va. 272, 19 S. E. 401. Cf. Russell v. Brown, 63 Me. 203; Lackland v. North Missouri Ry. Co., 31 Mo. 180; Hopkins v. Western Pac. Ry. Co., 50 Cal. 190; Carl v. The Sheboygan & F. du L. Ry. Co., 46 Wis. 625, 1 N. W. 295; Pinney v. Berry, 01 Mo. 359; Cumberland v. Hitchings, 05 Me. 140; Park v. Railway Co., 43 Iowa, 036; Frith v. City of Dubuque, 45 Iowa, 406; Savannah & O. Canal Co. v. Bourquin, 51 Ga. 378; Hatfield v. Central Ry. Co., 33 N. J. Law, 251; Brakken V. Minneapolis & St. L. Ry. Co., 29 Minn. 41, 11 N. W. 124; Gould v. McKenna, m Pa. St. 297; Bare v. Hoffman, 79 Pa. St. 71; Westbourne v. Mordant, Cro. Eliz. 191; Penruddock's Case, 5 Coke. 205; Same v. Barwith, Cro. Jac. 231; Shadwell v. Hutchinson, 4 Cai-. & P. 333. 284 Troy V. Cheshire Ry. Co., 23 N. H. S3; Hicks v. Herring, 17 Cal. 568; Phillips V. Terry, ''42 N. Y. 313; Hopkins v. Western Pac. R. Co., 50 Cal. 190-194; Patterson v. Great Western Ry. Co., 8 U. C. C. P. 89; Cumberland & O. Canal Corp. v. Hitchings, 65 Me. 140, and cases cited; Hodgas v. Hodges, 5 Mete. (Mass.) 205; Preudenstein v. Heine, 6 Mo. App. 287; Pinney v. Berry, 61 Mo. 359; Van Hoozier v. Hannibal & St. ,1. R. Co., 70 Mo. 145; Delaware 6 R. Canal Go. v. Wright, 21 N. J. Law, 469; Blunt v. McCormick, 3 Denio, Ch. 5"1 DAMAGES. 413 tinuing nuisance, however, there must have been an original nui- sance.^* ° The jury maj' not consider judgments recovered for the earlier maintenance of the same nuisance, for the purpose of reducing dam- ages. ^^^ On the contrary, "very exemplary damages vs'ill probably be given if, after one verdict against him, the defendant has the hardiness to continue the nuisance." ^" Recovery of a judgment not only does not bar plaintiff's right to recover in a subsequent ac- tion for a continuance of the same nuisance,"** but, also, such judg- ment cannot be collaterally attacked in an action for continuance of the same nuisance. If the defendant in such action admits tlie continuance of the nuisance, the only question for the jury is the amount of damages.^ *^ The defendant is, hov^'ever, entitled to a reasonable time after notice within which to abate; and, if he abates within a reasonable time after such notice, the plaintiff has no cause of action for a continuing nuisance.^"" ^& 140. Legislation has generally changed the common la^wr as to damages, both as to — (a) The extent of recovery; and (b) The Mrrong for -which recovery can be had. Extent of Recovery. Of the many instances in which the common-law rule as to the extent damages are recoverable has been changed by statute, what are ordinarily known as double or treble damages afford a good il- lustration. Oommon-law damages were always single.^"^ It is al- 283; Thayer v. Brooks, 17 Ohio, 489; Bare v. Hoffman, 79 Pa. St. 71; Dun- can v. Markley, Harp. (S. C.) 276; Hazeltine v. Case, 1 N. W. 66. 285 Atkinson v. City of Atlanta, 81 Ga. 625, distinguishing Smith v. City of Atlanta, 75 Ga. 110. 286 Baltimore & P. R. Co. v. Fifth Baptist Chm-ch, 137 U. S. 568, 11 Sup. Ct. 185, collecting cases page 575, 137 U. S., and page 185, 11 Sup. Ct. 287 3 Bl. Gomm. § 220; McCoy v. Danley, 57 Am. Dec. 680. 288 Byrne v. Minneapolis & St L. R. Co., 38 Jlinn. 212, 36 N. W. 339; Sloggy V. Dilworth, 38 Minn. 179, 36 N. W. 451. 2 8 Paddock v. Somes, 102 Mo. 226, 14 S. W. 740. 2 90 As applied to draining of surface water on plaintiff's ground, Rychlicki Y. City of St. Louis, 115 Mo. 662, 22 S. W. 90S. 2»i 1 Burrill, Prac. 237. 414 KEMKDIES. [Ch. 5 most universally provided by statute that, as to certain trespasses, — tonspicuously, where ornamental shrubs and trees are injured, — double or treble damages may be awarded.^^^ Similar provisions are common with respect to killing stock.^"' The legislature has the power to provide for the recovery of a certain sum, as punitive damages, where an injury is caused by an illegal act, though the same illegal act may subject the offender to a criminal prosecution.^'* Where a general verdict is returned under such a statute, the presumption is that it includes all the damages to which the plain- tiff is entitled. ^''= However, it has been held that the better prac- tice is for the jury to find for single damages in terms, and for the court, on motion, to double or treble them, as the case may re- quire.^ ^° Such statutes are penal. Therefore they are strictly con- strued.^" Damages for Death by Wrongful Act. Where damages are awarded for death by wrongful act, ordinarily both the cause of action and the extent of recovery are created and determined by statute.^"* The ordinary statutory extent of recov- ery is the reasonable expectation of pecuniary benefit of the statu- tory beneflciaries.^"" It is commonly (but not invariably) provided 2»2 Yocum V. Zaliner, 162 Pa. St. 468, 20 Atl. 778; Brown v. State, 100 Ala. 92, 14 Soutli. 701; Humes v. Proctor, 73 Hun, 265, 26 N. Y. Supp. 315. Berg V. Baldwin, 31 Minn. 541, 18 N. W 821; Potulnl v. Saunders, 37 Minn. 517, 35 N. W. 310. 233 Spoalman y. Missouri Pac. R. Co., 71 Mo. 434; Scott v. St. Louis, I. M. & S. K. Co., 75 Mo. 136; Henderson v. Wabash R. Co., 81 Mo. 605. 2 94 State V. Schoonover, 135 Ind. 526, 35 N. E. 119. Cf. State v. Stevens, 103 Ind. 55, 2 N. E. 214. But see dissenting opinion of Judge Elliott. 295 Tait V. Thomas, 22 Minn. 537; Livingston v. Platner, 1 Cow. (N. Y.) 175. 290 Cross v. X>. S., Gall. 26, Fed. Cas. No. 3,434; 1 Sedg. Dam. (7th Ed.) 588; 1 Suth. Dam. 820; Eoyse v. Maj', 93 Pa. St. 454; Chipman v. Emeric, 5 Cal. 239; Palmer v. York Bank, 18 Me. 166; Shrews1>ury v. Bawtlitz, 57 Mo. 414; Osburn v. Lovell, 36 Mich. 246. It would seem that, to entitle plaintiff to double or treble damages, the complaint must distinctly refer to the statute. Livingston v. Platner, supra. And see Strange v. Powell, 15 Ala. 452. 297 Sedg. St. & Const. Law, 284. 298 Ante, p. 330, "Death by Wrongful Act." 290 Kelley v. Central R. Co., 48 Fed. 6fj3; Boden v. Demwolf, 56 Fed. 846. Loss of companionship or society, e. g. of a husband, is not an element of damage. Schaub v. Railroad Co., 106 Mo. 74, 16 S. W. 024; Atchison, T. & ^ll- 5] DAMAGES. 415 that the recovery shall, under no circumstance, exceed a stated amount."" Of such a statute, Judge Parker said in Dwyer v. Rail- way Co.: "1 "When we have a statute so barbaric, and almost bru- tal, as to prohibit the consideration by the jury of that terrible agony, grief, and suffering of the faithful wife and her children for their loss by death of such a husband and father as Dwyer, we should award fairly compensatory damages. The award should be made with a reasonably liberal spirit. Under this statute, man is considered only an animal, — a beast of burden, like a horse or a mule, — with nothing to be considered, when he is killed by negli- gence, but his earning capacity. Then, under such a condition, when his earning power is fairly shown, and manifestly the jury have not gone beyond it, in giving damages to his wife and children, we cannot infer that they have done that which is shocking to its sense of justice, or that they acted from passion or prejudice." S. F. R. Co. V. Wilson, 4 U. S. App. 25, 1 C. O. A. 25, 48 Fed. 57. But see Harkins v. Car Co., 52 Fed. 724. Nor can damages be given for the pain and suffering of deceased, nor the wounded feelings or gi'ief of his relatives. Kelley v. Central R. Co., 48 Fed. 6G3; Cheatham v. Red River Line, 56 Fed. 248; The Corsair, 145 U. S. 335, 12 Sup. Ct. 949. 300 Cooley, Torts, 319; 5 Am. & Eng. Enc. Law, 128, note 2. 801 52 Fed. 87-90. As in Calif omia. Code Civ. Proc. Cal. § 377; In re Hum- boldt Lumber Manuf rs' Ass'n, 60 Fed. 428. In Colorado a parent may recover damages for the death of a child, although the latter never contributed to the parent's support. Jlollie Gibson Consolidated Mining ifc Jlilling Co. v. Shaip (Colo. App.) 38 Pac. 850. The limit in many of the state statutes, as well as that of congress, in such cases should have weight in fixing the amount of damages to be recovered. Cheatham v. Red River Line, 5U Fed. 248-250. lu this case Billings, .T., said: "There are no tables of productive lives. It is human experience that some lives are almost worthless to those dependent on them, and some which are and Avhich promise to be support and comfort come to produce nothing but shame and sorrow. In fixing the value of human life, and in trying to be just alike to the injm-ed and the injurer, no chimerical estimate should be made, but rather should there be a resort to sober judgment." Limiting jury to certain mathematical calculations is erro- neous. St. Louis, I. M. & S. Ry. Co. v. Needham, 10 V. S. App. 339, 3 0. C. A. 129, 52 Fed. 371. In Harkins v. Car Co., .32 Fed. 724, it was held that the wife's maximum of recovery was not necessarily limited to a sum which would produce an annual income equal to one-half his annual earnings. Accordingly, a verdict of $7,000 for the deatli of a day laborer was sustained. 416 EEMKDIES. [Ch. 5 Oivil Damage Acts. In many states it is expressly enacted that liquor dealers may be held liable in civil damages for harm caused by the sale of intoxi- cants. °°^ 302 Black, Intox. Liq. c. 13; Cooley, Torts, pp. 283-307. Among the more recent illustrative cases on this subject are State v. Cox (ICan. App.) 40 Pac. 816; Cornelius v. Hultman (Neb.) 62 N. W. 891; Franklin v. Frey (Mich.) C3 N. W. 970; Ford v. Cheever, Id. 975; Plucknett v. Tippey (Neb.) 63 N. W. 845. Part II. SPECIFIC WRONGS. CHAPTER VI. WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. 141. False Imprisonmeut— Deflnition. 142. Who Liable. 143. Defenses. 144^146. Justification. 147. Mitigation. 148. Assault— Deflnition. 149. Battery— Deflnition. 150. Assault and Battery— Force and Intent. 151. Defenses. 152. Justiflcation. 153. Mitigation. FALSE IMPRISONMENT. 141. False imprisonment is the unlawful and total r estraint of the liberty of the person. Legality of Restraint. The restraint must be illegal, but need not be malicious. Law- ful authority to restrain the freedom of locomotion of another per- son is a full defense to an action for false imprisonment.^ At com- mon law, the arrest of a privileged person was not the basis for an action of false imprisonment, because such arrest is voidable only, and not void. It could not constitute a trespass, and so was unavaila- ble and insufficient as a foundation for the action.^ The arrest of 1 Diehl V. Friester, 37 Ohio St. 478. Post, p. 424, "Legal Authority as Jus- tification." Where a firm holds property in trust, a misappropriation by one partner, with the knowledge and assent of tlie other, is a misappropriation by the latter, so far as the right to arrest him in a civil action for a breach of the trust is concerned. Boykln v. Maddrey, 114 N. C. 89, 19 S. E. 106. Patteson, J., in Bird v. Jones, 7 Adol. & E. (N. S.) 742-752, 7 Q. B. 742. And see Bauer v. Clay, 8 Kan. 580, and Come v. Knowles, 17 Kan. 440. 2 Deo V. Van Valkenburgh, 5 HiU, 242; Kreiser v. Scofield, 10 Misc. Rep. 350, 31 N. Y. Supp. 23; Sn'iith v. Jones, 76 Me. 138; 7 Am. & Eng. Bnc. Law, 094, and notes; 3 Lawson, Rights, Rem. & Prac. 1067, and note; Cooley, Const. Lim. (5th Ed.) 162, note. LAW OF TOUTS— 27 417 418 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 the person may have been entirely proper, but subsequent deten- tion, as for an unreasonable time, or refusal to accept any or rea- sonable bail, may constitute false imprisonment/ At common law, trespass, not case, lay for false imprisonment.* Accordingly, liability proceeded, not on the theory of evil motive or of negligence, but of acting at peril." Therefore, to entitle the plaintiff to recov- er, it is not necessary for him to allege or prove either malice or want of probable cause.* Malice is material only so far as the question of damage is concerned.' It is immaterial whether the detention be accomplished with or without legal process.* 3 Manning v. Mitchell, 73 Ga. 660; Ocean Steamship Co. v. Williams, 69 Ga. 251; Gibbs v. Randlett, 58 N. H. 407. But it is not an actionable trespass for a sheriff to arrest the accused on a wan-ant procured by defendant in one county, take him into a second for Identification, and finally into a thii'd,— his own county. Knight v. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87. Of. Kent v. Miles, 65 Vt. 582, 27 Atl. 194. * 1 Chit. PI. (14th Am. Ed.) p. 185; Withers v. Henley, Cro. Jac. 379; Maher V. Ashmead, 30 Pa. St. 344; Bebee v. Steel, 2 Vt 314; Kent v. Miles, 65 Vt. 582, 27 Atl. 194; Knight v. International & G. N. Ky. Co., 9 C. C. A. 376, 61 Fed. 87; Castro v. De Uriarte, 12 Fed. 250; Holly v. Carson, 39 Ala. 345; Piatt V. Niles, 1 Edm. Sel. Cas. (N. Y.) 230; Price v. Graham, 3 Jones (N. C.) 545. In Michigan, trespass on the case lies for false imprisonment (by stat- ute), and the two may be joined in one action. Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. And see Barhydt v. Valk, 12 Wend. 145; Nebenzahl v. Townsend, 61 How. Prac. 353. 5 State V. Hunter, 106 N. C. 796, 11 S. W. 366; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 1001. 6 Cunningham v. Bast River Electric Light Co. (Super. N. Y.) 17 N. Y. Supp. 372; King v. Johnston, 81 Wis. 578, 51 N. W. 1011; Rich v. Mclnery (Ala.) 15 South. 663; Boaz v. Tate, 43 Ind. 60; Akini v. Newell, 32 Ark. 605; Boeger V. Langenberg, 07 Mo. 390, 11 S. W. 223; Rosen v. Stein (Sup.) 7 N. Y. Supp. 368. See Smith v. Botens, 59 Hun, 617, 13 N. Y. Supp. 222; Clow v. Wright, Brayt. (Vt.) 118; Krebs v. Thomas, 12 111. App. 266; Neall v. Hart, 115 Pa. St. 347, 8 Atl. 628; Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Olmstead V. Doland (Sup.) 6 N. Y. Supp. 130; Mitchell v. Malone, 77 Ga. 301; Going v. Dinwiddle, 86 Cal. 633, 25 Pac. 129; Murray v. Friensberg (Sup.) 15 N. Y. Supp. 4.50. 7 Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995; Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913. But see Beebe v. De Baum, 8, Ark. 510; Akiui V. Newell, 32 Ark. 605; Chrisman v. Carney, 33 Ark. 316; RufCner v. Williams,! 3 W. Va. 243; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411. r 8 Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77; Hildebrand v. ^jCrum,* 101 Ind. 61. ' ' ' ■ Ch. 6] FALSE IMPRISOMMENT. 419 Sufficiency of Restraint. The restraint must be total, not partial. A man is not impris- oned who has an escape opened to him. A mere partial obstruc- tion of his will does not constitute an actionable restraint of his liberty. "A prison may have its boundary, large or narrow, visible or tangible, or, though real, still in the conception only. It may be movable or fixed, but a boundary it must have, and that bound- ary the party imprisoned must be prevented from passing. He must be prevented leaving that place within the ambit of which the party imprisoning would confine him, except by prison breach." Thus, where one entered an enclosure by which another had ap- propriated a part of the public highway for seats to view a boat race, and was prevented from going onward, but was allowed to re- main or go back as he chose, it was held that there was no total re- straint, or forcible detention against his will, constituting false im- prisonment." Every confinement of the person is an imprisonment, whether it be in a common prison or a private house, or in the stocks, or even by forcibly detaining one in the public street.^" Detention within railway gates until fare is paid may constitute such restraint.^ ^ So, where conspirators enticed a man into a room to see their sister, and then charged him with having agreed to pay a large sum for breach of promise to marry her, and intimidated him into admit- ting it, his suit for false imprisonment was sustaiaed.^^ A for- tiori, keeping a suspect in confinement an unreasonable time, with- out taking him to a magistrate, is actionable restraint.^ ^ And the = Bird T. Jones, 7 Q. B. 742, 7 Adol. & E. (N. S.) 742, 752; Hill v. Taylor, 50 Mich. 549, 15 X. W. 899; Wright v. Wilson, 1 Ld. Raym. 739: Mowry v. Chase, 100 Mass. 79; Hart v. Flynn, 8 Dana (Ky.) 190; French v. Bancroft, 1 Mete. (Mass.) 502. 103 Bl. Comm. p. 127; Year Book, Book of Assizes, fol. 104, p. 85. 11 Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77. 12 Hildebrand v. MeCrum, 101 Ind. 61. So, where a cashier locked plaintiff in a bank. Woodward v. Washburn, 3 Deuio, 369. 13 Cochran v. Toher, 14 Minn. 385 (Gil. 293); Lavina v. State, 63 Ga. 513; Anderson v. Beck, 64 Miss. 113, 8 South. 167; Hayes v. Mitchell, 69 Ala. 452; Hopner v. McGowan, 116 N. Y. 405, 22 N. E. 558. 420 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 plaintiff may recover although only a portion of the time of the im- prisonment was illegal." Actual manual touching of the body is not necessary to consti- tute false imprisonment. "It is absurd to contend that every im- prisonment involves a battery." ^° Thus, if the officer tells defend- ant that he arrests him, and locks him in a room, there is an ar- rest.^ ^ So, to make one, thi-ough fear, pay fare on a public ferry, by threatening not to allow him to leave otherwise, is false impris- onment, although the detention was only for 10 or 15 minutes.^'' Even so slight an interference with freedom of locomotion as be- ing shadowed by a detective is sufiflcient restraint to be the basis of an action for false imprisonment.^^ While, in general, no actual force or compulsory seizure is nec- essary to constitute an arrest or seizure, there must be words used and acts done, towards the person to be arrested, clearly showing an intention to arrest, and his submission must be to a threatened and reasonably apprehended force. ^° There must be detention against the will of the plaintiff. "For," said Earl, J., in Moses t. Dubois,^" "if he voluntarily place himself in a situation where an- other may lawfully do that which has the effect of restraining liber- ty, especially if he refuses to depart when he may, he cannot com- plain that he is unlawfully imprisoned against his will." It is, therefore, absolutely essential that plaintiff should know of the im- prisonment. Hence, a schoolboy, who was detained from his fami- ly by his schoolmaster, to enforce payment of tuition fees, could not recover in trespass for assault and false imprisonment when it was 14 Bauer v. Clay, 8 Kan. 580. A police ofBcer wlio arrests a person on a criminal charge without a warrant, and detains him an unreasonable time without arraigning him before a magistrate, and without any direction of a magisti-ate, is liable as a trespafsser ab initio. Pastor v. Began, 9 Misc. Rep. 547, 30 N. Y. Supp. 657. 15 Emmett v. Lyne (1805) 1 Bos. & P. (N. R.) 255; Genner v. Sparks (1704) 1 Salk. 79; Searls v. Viets, 2 Thomp. & C. 224, commenting on earlier cases. 16 Williams v. Jones, Hardw. Cas. Temp. 298. 17 Smith v. State, 7 Humph. (Tenn.) 43. M vide McNay v. Stratton, 9 111, App. 215. IS Fortheringham v. Adams Exp. Co., 36 Fed. 252. 19 Greathouse v. Summerfleld, 25 111. App. 296. ao 1 Dudley (S. C. Law) 209; Spoor v. Spooner, 12 Mete. (Mass.) 281. Ch. 6] FALSE IMPEISO.NxMEKT. 421 not shown that he knew of the restraint upon his person.^^ There must be some sort of personal coercion. Merely to inform a man that he is under arrest and not take him into custody does not con- stitute false imprisonment.^^ If an ofQcer informs a man that he is under arrest, and thereupon the arrested person volunteers to go with the oflficer and meet the charge, there is no false imprison- ment; ^^ but it would be otherwise if he went upon compulsion.-* Detention against desire, prevention from going where one may wish, is false imprisonment" SAME— WHO LIABLE. 142. All persons -who accomplish, procure, aid, or assist in an unla-wful detention are liable as principals. Liability may also attach by ratification, or by virtue of relationship of parties.^" Where one has directly and unlawfully restrained another, as in case of an officer who improperly arrests, he is the immediate' 21 Herring v. Boyle, 1 Cromp., M. & R. 377. 22 Hill V. Taylor, 50 Mich. 549, 15 N. W. 899; Greathouse v. Summerfield, 25 111. App. 296; Brushaber v. Stegemann, 22 Mich. 2G7. 23 Cf. Genner v. Sparks, 1 Salk. 79; Homer v. Battyn, Bull. N. p. p,2; War- ner V. Kidrtiford, 4 C. B. (N. S.) ISO (205); Chinn v. Morris, 2 Car. & P. 361; Russen V. Lucas, 1 Car. & P. 1.j3,— with Williams v. Jones, Hardw. Cas. Temp. 298; Arrowsmith v. Le Mesurier, 2 Bos. & P. (N. R.) 211; Lawson v. Buzines, 3 Har. (Del.) 417; Coppinger v. Bradley, 5 Ir. Law T. 282; Peters v. Stanway, 6 Car. & P. 737; Grainger v. Hill, 4 Bing. N. C. 212; Strout v Gooch, 8 Greenl. (Me.) 126; Marshall v. Heller, 55 Wis. 392, 13 N. W. 236; Moore v. Thompson,. 92 Mich. 498, 52 N. W. 1000 (see dissenting opinion by Grant, J.); Gold v. Bissell, 1 Wend. 210; Emery v. Chesley, 18 N. H. 202; Mooney v. Chase, 109- Mass. 79. 2* Pike V. Hanson, 9 N. H. 491. 2 5 Wood V. Lane, 6 Car. & P. 774; Chinn v. Morris, 2 C. B. 361; Pocock v. Moore, Ryan & M. 321. Wherefore, when plaintiff was hoaxed into a paid, ride for a horse thief, he could not complain, because he went voluntarily. State V. Lunsford, 81 N. C. 528; Hawk v. Ridgway, 33 111. 473; Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259; Comer v. Knowles, 17 Kan. 436. 2 8 In 7 Am. & Eng. Enc. Law, 665, the cases on false imprisonment are- collected by Mr. James KeiT, as to liability of parent, guardian, teacher, and other persons, under direct titles. It is beyond the scope of this book to go into particulai-s on this point. 422 WRONGS AFFECTING SAFETY AND FREEDOM OF PEESON. [Ch. 6 wrongdoer, and is, of course, liable." He may be liable alone, or jointly with others.^' It has been said that false imprisonment is an act of trespass, a direct wrong in which the defendant must have personally participated.^" The defendant, however, is liable if he directed the arrest.''" But merely giving testimony as a corn- s' In an action for false imprisonment, against a sheriff, an instraotlon Is misleading which states that if defendant had giood reason to and in good faith did believe that plaintiff was guilty of adultery he was warranted In making the arrest on such charge, and holding him therefor, since a prosecu- tion for adultery can only be instituted by the husband or wife of one of the guilty persons, and an ofBcer, whatever his suspicions may be, has no right to make such an arrest. Filer v. Smith, 96 Mich. 347, 55 N. W. 999; TwlUey T. Perkins, 77 Md. 252, 26 Atl. 286; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 3001. And, see, in Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688, seven rules are formulated by the editor as to the liability of judges and magistrates. 2 8 Where a mittimus is void for not properly stating the cause of commit- ment, the person who at the request of the justice draws up the commitment, as well as those who arrest him thereunder, and take him to and imprison him in jaU, are liable for false imprisonment. Clyma v. Kennedy, 64 Conn. 310, 29 Atl. 539. As to an attorney advising, and the sheriff executing, a void warrant, see Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659; sheriff and dep- Tity, Wolf V. Pen-yman, 82 Tex. 112, 17 S. W. 772; sheriff and judge, Zeller T. Martin, 84 Wis. 4, 54 N. W. 330; father and son, Carson v. Dessau (Super. N. Y.) 13 N. Y. Supp. 232; Id., 142 N. Y. 445, 37 N. B. 493. Where plaintiff was arrested without a warrant by an officer at the request of defendant, the fact that in an action against both for false imprisonment the ofHcer was found not guilty, and defendant guilty, is no gir-ound for setting aside the verdict. Bur- roughs V. Eastman, 101 Mich. 419, 59 N. W. 817. 2 a Brown v. Chadsey, 39 Barb. 253-261. 3 Hopkins v. Crowe, 7 Car. & P. 373, 4 Adol. & E. 774. Compare Davis V. Russell, 5 Bing. 354; Sail v. Horrigan, 65 Hun, 621, 19 N. Y. Supp. 913. But merely calling attention to violation of ordinance does not attach liabil- ity. Veneman v. Jones, 118 Ind. 41, 20 N. E. 644. Compare Barthe v. I^ar- quie, 42 La. Ann. 1312, 7 South. 80; McGari-ahan v. Layers, 15 R I. 302, 3 Atl. 592. Et vide Hawkins v. Manston (Minn.) 59 N. W. 309. Thus, where defendant went to the magistrate's office, said he wanted a warrant for plain- tiff, stated the facts, swore to the information, procured the warrant, and handed it to the officer to serve "right away," offered to provide a "rig," and later sent word to the officer where he could (and did) find plaintiff, the in- formation and warrant being void, as failing to state a crime, defendant was liable for plaintiff's false imprisonment thereunder. Hewitt v. i^ewburger 141 N. Y. 538, 36 N. E. 593; Id., C6 Hun, 230, 20 N. Y. Supp. 913. Ch. 6] FALSE IMPEISOXMENT. 423 plaining witness, or honestly making a complaint, does not attach liability. Such a witness may be liable if he has directed the oflScer to take the plaintiff into custody." Liability may attach because of ratification or adoption of thfe false imprisonment.'* It may arise out of relationship of master and servant, from appli- oation of respondeat superior, on principles already considered.^'' It is subject to exemptions previously discussed.'* 31 Lock V. Ashton, 12 Q. B. 870; Hopkins v. Crowe, 7 Car. & P. 373, 4 Adol. & E. 774; Brown v. Chapman, 6 C. B. 365; West v. Smallwood, 3 Mees. & W. 418; Barber v. Rolllnson, 1 Cromp. & M. 330; Leigh v. Webb, 3 Bsp. 165; Oarratt v. Morley, 1 Q. B. 18; Brown v. Chadsey, 39 Barb. 253; Nowak v. Waller, 56 Hun, 647, 10 N. Y. Supp. 199; Booth v. Kuitus, 55 N. J. Law, 370, 26 Atl. 1013; Murphy v. AValters, 34 Mich. 180: Coffin v. Varila (Tex. Civ. App.) 27 S. W. 956. Where one requests an officer to arrest another, it is immaterial whether or not he acts maliciously, or whether or not there is want of probable cause, unless the officer makes the arrest because it is re- quested, and not of his own volition. Rich v. Mclnery (Ala.) 15 South. GG3. Further, as to distinction between action, interference, and mere submission to judgment of tribunal, see Green v. Blgie, 5 Q. B. 99; Austin v. Dowling, L. R. 5 0. P. 534. 82 Though plaintiff was not arrested by defendant's order, the aiTest is rati- fied and constitutes a technical false imprisonment, where defendant after- wards ordered the officer to detain plaintiff, though it was only for a few min- utes. Callahan v. Searles, 78 Hun, 238, 28 N. Y. Supp. 904. Adopted, Clark V. Starin, 47 Hun, 345; Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 420, 56 N. W. 9; Travis v. Standard, etc., Ins. Co.. 86 Mich. 2SS; Ante, p. 43, "Ratification." 33 Gillingham v. Ohio R. R. Co., 35 W. Va. 588, 14 S. E. 243; Cunningham V. Seattle Electric Railway & Power Co., 3 Wash. St. 471, 28 Pac. 745; Pin- kerton v. Gilbert, 22 111. App. 568; Pearce r. Needham, 37 111. App. 90; Travis v. Standard Life Ace. Ins. Co., 86 Mich. 288, 49 N. W. 141; Neimitz v. Conrad. 22 Or. 164, 29 Pac. 548; Duggan v. Baltimore & O. Ry., 159 Pa. St. 248, 28 Atl. 182, 186. A railroad company is not liable for the action of its local check clerk of freight in prosecuting one without probable cause, for tiie theft of articles from its cars. Flora v. Russell (Ind. Sup.) 37 N. E. 593. A railroad company is liable for the false arrest and imprisonment by its depot agent of a man who used a water closet at its depot set apart for ladies only. Illinois Cent. R. Co. v. King, 69 Miss. 852, 13 South. 824. In an action for false imprisonment, the testimony of one who arrested plaintife that he did so by order of defendant, without showing the relationship between defend- ant and witness, does not justify a judgment against defendant. Hawkins V. Manston (Minn.) 59 N. W. 309. 8* Judge acting without jurisdiction, Rudd v. Darling, 64 Vt. 456, 25 Atl. 424 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Cll. 6 SAME— DErENSES. 143. Defenses peculiar to actions for false imprisonment may operate by "way of — (a) Justification, or (b) Mitigation. 144. In an action for false imprisonment a complete justi- fication is made out where it is shown that — (a) The arrest was under a s'uflacient warrant, or (b) The arrest was lawful without a warrant. 145. An arrest under a warrant, of the person described therein, for the offense charged, is justified when the w^arrant is regular on its face and is issued by a court of competent jurisdiction under regular proceedings in accordance with valid legislation, even though the warrant is, in fact, irregular and voidable, but not w^hen it is void. 146. Both by common Isiw and, commonly, by statute, an arrest without a w^arrant may be justified, de- pendent on the person making the arrest (w^hether an officer of the law or a private person), the dig- nity of the offense, and the time and place of its commission. Justification by Judicial Warrant. A sufficient judicial warrant takes away from an imprisonment the essential element of illegality, and completely justifies an ar- 479. Justice and irregular process, Austin t. Vrooman, 128 N. Y. 229, 28 N. E. 477; Booth v. Kurrus. 65 N. J. Law, 370, 26 AU. 1013; Butler v. Potter, 17 Johns. 145. City recorder, Brunner v. Downs, 63 Hun, 626, 17 N. Y. Supp. 633; Boutte v. Emmer, 43 La. Ann. 980, 9 South. 921. Compare Thompson V. Whipple, 54 Ark. 203, 15 S. W. 004. Whether acting In public or private capacity, i. e. as police officer or watchman, or as a servant, see Pratt v. Brown, 80 Tex. 608, 16 S. W. 443; Norfolk & W. R. Co. v. Galliher, 89 Va. 639, 16 S. E. 935; Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 313, 20 Atl. 188; Southern Pac. Co. v.' Hamilton, 4 C. C. A. 441, 54 Fed. 468. Et vide Oppenheimer v. Manhattan Ry. Co., 63 Hun, 633, 18 N. Y. Supp. 411; Wells V. Washington Market Co., 19 D. 0. 385. Ch. 6] FALSE IMPRISONMENT. 425 rest.^' If the warrant be wrongfully obtained, although upon sufficient legal proceedings, the civil action should be malicious prosecution, and not false imprisonment.^* It is by no means clear when a warrant is not sufftcient to justify the arrest. If it be void on its face, it is, of course, not sufficient."' To be regular on its face, the warrant must at least charge the commission of a criminal wrong,^* and conform in other respects with statutory provisions and recognized practice.'" If the arrest is made under process which ..is voidable only, because of irregu- larities in the proceedings under which the writ was issued, it would seem that the warrant may not be collaterally attacked,*" 3 5 Marks v. Townsend, 97 N. Y. 590; JefCries v. McNamara, 49 Ind. 142-145, collecting cases: Joiner v. Ocean S. S. Co.. 86 Ga. 238, 12 S. E. 361; Knight v. Railway Co., 9 C. C. A. 376, 61 Fed. 87; Finley v. Gutter Co., 99 Mo. 559, 13 S. W. 87; Lieb v. Shelby Iron Co., 97 Ala. 626, 12 South. 67; Pratt v. Brown, 80 Tex. 608, 16 S. W. 443; Kent v. Miles, 65 Vt. 582, 27 Atl. 194. 8 6 Hobbs v. Ray (R. I.) 25 Atl. 694; Murphy v. MarUn, 58 Wis. 278, 16 N. W. 603. Post, p. 630, "Malicious Prosecution." S7 Gelzenleuchter v. Niemeyer, 64 Wis. 816, 25 N. W. 442; Id., Chase, Lead. Cas. 88, collecting cases on page 322, 64 Wis., and page 442, 25 N. W.: Mc- Lendon v. State, 92 Tenn. 520, 22 S. W. 200; Emery v. Hapgood, 7 Gray, 55; Gold V. Bissel, 1 Wend. 210; Ely the v. Thompson, 2 Abb. Prac. 468. And see Wachsmuth v. Bank, 96 Mich. 426, 56 N. W. 9; Buzzell v. Emerton, 161 Mass. 176, 36 N. E. 790. 3 8 Hall T. Rogers, 2 Blackf. (Ind.) 429; Frazier v. Turner, 76 Wis. 562. 45 N. W. 411; Collins v. Brackett, 34 Minn. 339, 25 N. W. 708. The officer must take notice if the wan-ant is void on its face. Grumond v. Raymond, 1 Conn. 39; Lewi's v. Avery, 8 Vt. 287; Clayton v. Scott, 45 Vt. 386; Fisher v. McGirr, 1 Gray, 1; Ely v. Thompson, 3 A. K. Marsh. 76; Grace v. Mitchell, 31 Wis. 533. 3 9 In Minnesota, the warrant need not show all facts essential to consti- tute an indictment. It must charge that at least an offense was committed, and that there was reason to believe that the accused committed it. Col- lins V. Brackett, 34 Minn. 339, 25 N. W. 70S. As to essentials for arrest at night, in New York, see Murphy v. Kron, 20 Abb. N. C. 259. The warrant for arrest for larceny, in Wisconsin, must show value of property stolen, or it is no defense. Frazier v. Turner, 76 Wis. 562, 45 N. W. 411. *o Jennings v. Thompson, 54 N. J. Law, 55, 22 Atl. 1008; Swart v. Rickard, 74 Hun, 339, 26 N. Y. Supp. 408; Aldrich v. Weeks, 62 Vt. 89, 19 Atl. 115; Fischer v. Langbein, 103 N. Y. 84, 8 N. E. 251; Id., 62 How. Prac. 238; Everett v. Henderson, 146 Mass. 89, 14 N. B. 932; Johnson v. Morton, 94 Mich. 1, 53 N. W. 816. Such a writ has been held to be a justification, 426 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 and that it justifies an oiBcer in making an arrest under it. Ir- regularities in the process may be waived, as by giving bail.*^ Where, however, the warrant is void, either from material defect in its language, for want of jurisdiction of the court, or because of the court having no power to issue it, the sheriff who executes it, the attorney who prepares it,*^ the client who authorizes it, and the witness who causes the arrest, all are liable at common law for the false imprisonment.*' It would seem that if the legislation un- der which the warrant is issued is invalid, the warrant may still be a good defense.** If, however, the ofiQcer arrests a man not de- scribed in the warrant, such authority may mitigate punitive dam- ages, but will not justify the arrest. *° And, au contraire, arrest of the right person by the wrong name, through misnomer in the pro- cess, without allegation that the true name is unknown, has been held to be false imprisonment.*' An illegal arrest for larceny under an insufficient warrant can- not be justified, in an action for damages on that account, as an ar- «ven where tlie officer knew of facts invalidating it. Marks v. Sullivan, Utab, 12, 33 Pac. 224. And such process, when set aside, leaves acts done under it without justification, and illegal. Everett v. Henderson, 146 Mass. 89, 14 N. E. 932, cases collected at page 92, 146 Mass., and page 932, 14 N. E. 41 Neimitz v. Conrad, 22 Or. 164, 29 Pac. 548. But submitting to examina- tion on oath does not. Carleton v. Akron Sewer Pipe Co., 129 Mass. 40. And see Buzzell v. Emerton, 161 Mass. 176, 36 N. E. 796. And see Reynolds v. Church, 3 Gaines (N. Y.) 274; Dale v. Radcliffe, 25 Barb. (N. Y.) 333. 42 Barker v. Braham, 2 W. Bl. 866, Bigelow, Lead. Cas. 235; Pig. Torts, 300. The courts must not only have .iurisdiction of the subject, but also of the process. Grumon v. Raymond, 1 Conn. 39; Vauglm v. Congdon, 56 Vt. 111. But see, ante, p. in, "Exemption of Judicial Officers as to Process." 4 3 Hewitt V. Newburger, 141 N. Y. 538, 36 N. E. 593, overruling Id., 06 Hun, 230, 20 N. Y. Supp. 913. 44 Brooks V. Mangan, 86 Mich. 576, 49 N. W. 633; Trammel v. Bussellville, 34 Ark. 105; Wheeler v. Gavin, 5 Ohio Cir. Ct. R. 240. Compare Judson v. Beardon, 16 Minn. 431 (Gil. 387) ; GifCord v. Wiggins, 50 Minn. 401, 52 N. W 904. But see State v. Hunter, 106 N. C. 796, 11 S. E. 306. 4 5 Holmes v. Blyler, 80 Iowa, 305, 45 N. W. 756; Form wait v. Hylton, 66 Tex. 288, 1 S. W. 376; Mitchell v. Malone, 77 Ga. 301; Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393; Dunston v. Paterson, 2 C. B. (N. S.) 495. Compare Knight V. International & G. N. Ry. Co., 9 C. C. A. 376, 61 Fed. 87. 46 Hoye V. Brash, 1 Man. & G. 775; Scheer v. ICeown, 29 Wis. 586. ■t)h. 6] FALSE IMPRISONMENT. 427 rest for a different offense, such as reckless discharge of firearms, or resisting an offlc^r.*' Justification withotU Warrant. An arrest without a warrant may be justified by public authority. At common law, a public police ofiBcer is justified in arresting a person whom he has reasonable cause to suspect has committed, or is about to commit, a felony,*' provided the person arrested be above the age of seven years,*" and in detaining him until he can be brought before a magistrate for examination.'" Where, how- ever, the ofi'ense is only a misdemeanor, such an officer is not jus- tified in making an arrest without a warrant unless a breach of the peace is threatened.^^ He is justified in arresting, without a warrant, a person committing a breach of the peace in his pres- ence,"^ and in imprisoning him so long as,'' but not longer than, there is danger of a renewal of the offense. A private individual is justified in arresting a person for felony only where the felony has been actually committed, and there are reasonable grounds for suspicion that the person arrested has com- mitted it.'* A private individual may also arrest a person actual- ly committing a breach of the peace, but not after the affray has ended." ^^ Murphy v. Kron, 20 Abb. N. C. 259. *s 4 Bl. Oomm. 292; Codd v. Cabe, 1 Exch. Div. 352, 45 Law J. Bxch. 101; Galliard v. Laxton, 2 Best & S. 363; Beckwith v. Pbilby, 6 Barn. & C. G35, 9 Dowl. & R. 487; Buckley v. Gross, 3 Best & S. 566, 32 Law J. Q. B. 129. *9 Marsh v. Loader, 14 C. B. (N. S.) 535. 60 Allen V. Wright, 8 C. B. 522; Hall v. Booth, 3 Nev. & M. 316. 61 Quinn v. Seisel, 40 Mich. 576; Griffin v. Coleman, 4 Hurl. & N. 265, 28 Law J. Exch. 134; Fox v. Gaunt, 3 Barn. & Adol. 798; Bowditch v. Balchin, 5 Exch. 377. 6 2 Timothy v. Simpson, 1 Oromp., M. & R. 757; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000; Derecourt v. Gorbishley, 24 Law J. Q. B. 313, 5 El. & Bl. 188; Josselyn v. McAllister, 25 Mich. 45. 6 3 Queen v. Lesley, 29 Law J. M. Cas. 97. 54 Allen V. Wright, 8 Oar. & P. 522; Hall v. Booth, 3 Xev. & M. 316. Wheieas the public officer may arrest on reasonable grounds of suspicion, even although no felony has been actually committed. Beckwith v. Philby, 6 Barn. & C. 635. Et vide Stev. Dig. Cr. Proe. c. 12, 1; Hogg v. Ward, 3 Hurl. & N. 417; 27 Law J. Exch. 443. 6 6 Price V. Seeley, 10 Clark & F. 28; Hawley v. Butler, 54 Barb. 4C0; Ti.nothy 428 WEONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6- In America the common law must be construed in connection with the statutes of each state. Generally, however, the substanc^ of the rule stated has been preserved."" "What is reasonable cause for suspicion to justify an arrest may be said, paradoxical as the statement looks, to be neither a question of law nor fact, at any rate in the strict sense of the terms, — not of fact, because it is for the judge and not for the jury; and not of the law, because no definite rule can be laid down for the exercise of the judge's discretion." ^'' V. Simpson, 1 Cromp., M. & R. 757. A breacli of the peace may not, however, be an actual affray. It is sufficient to justify an arrest if the conduct on the part of the person arrested directly tends to produce a breach of the peace,— as continually ringing a door bell without an excuse, Grant v. Moser, 5 Man. & G. 123; or tiTing to force one's self into a house in the presence of a mob. Compare Green v. Bartrom, 4 Car. & P. 308, with Rose v. Wilson, 1 Bing. 353, and Ingle v. BeU, 1 Mees. & W. 516. And see Cohen v. Huskisson, 2 Mees. & W. 477; Howell v. Jackson, 6 Car. & P. 723; Webster v. Watts, 11 Q. B. 811, 17 Law J. Q. B. 73; Wheeler v. Whiting, 9 Car. & P. 2G2; Wooding v. Oxley, Id. 1; Lucas v. Mason, L. R. 10 Exch. 251. Where plaintiff and others were gathered together In the street, and the oflBlcer ordered them to move on, and the others obeyed but plaintiff did not, and he was arrested by the officer, he can recover damages, because one person could not obstruct the street, and this was no violation of the ordinance without request to disperse. State v. Hunter, 106 N. C. 700, 11 S. B. 366. As to arrest not authorized by statute, see Winn V. Hobson, 54 N. Y. Super. Ct. 330. If, however, the officer arrested without a warrant, he is liable for committing, without examination, the plain- tiff, who is entitled to an immediate hearing. Newby v. Gunn, 74 Tex. 455, 12 S. W. 67. 56 As to arrest by police officer without warrant on suspicion for felony, not in fact committed: Rohan v. Sawin, 5 Gush. 281; Eanes v. State, 6 Humph. (Tenn.) 53; Biyan v. Bates, 15 111. 87; Taylor v. Strong, 3 Wend. 38^1; Quinn v. Heisel, 40 Mich. 576; In re Powers, 25 Vt. 261; McCarthy v. De Armit, 99 Pa. St. 63; Scircle v. Neeves, 47 Ind. 289; Doering v. State, 49 Ind. 56; Neal v. Joyner, 89 N. C. 287; Malcolmson v. Scott, 56 Mich. 459, 23 N. W. 166. But see Shanley v. Wells, 71 111. 78; JVewton v. Locklin, 77 111. 103; Pow V. Beckner, 3 Ind. 475; Schmeider v. McLane, 36 Barb. 495; Phillips v. Fadden, 125 Mass. 198; Moore v. Durgin, 68 Me. 148; Kennedy v. Favor, 14 Gray, 200; McLennon v. Richardson, 15 Gray, 74. Arrest by private person, without warrant, of persons suspected of felony: Wakely v. Hart, 6 Bin. 310; Com. v. Deacon, 6 Serg. & R. 49; Renek v. McGregor, 32 N. J. Law, 70; Allen V. Leonard, 28 Iowa, 529; Morley v. Chase, 143 Mass. 396, 9 N. E. 767; Holley V. Mix, 3 Wend. 350; Gurnsey v. Lovell, 9 Wend. 320. " Pol. Torts, citing Hailes v. Marks, 7 Hurl. & jST. 56; 30 Law J. Exch. 389: Lister v. Perryman, L. R. 4 H. L. 521, 535, 540. Ch. 6] FALSE IMPfilSONMENT. 429 Reasonable cause, however, is for the judge, and not for the jury."' The burden of proof is on the defendant to show facts which would create reasonable suspicion in the mind of a reasonable man.'''' The judge may ask the jury whether the defendant acted on an honest belief, and whether he used reasonable care to inform him- self of the facts."" Private authority may justify interference with freedom of per- sonal locomotion. Thus, a schoolteacher, in the exercise of the right to make and enforce reasonable rules for the regulation of a school, may without liability detain pupils after school hours."^ So, by common law, any one might arrest a dangerous lunatic." - The justification, however, is not the benefit of the supposed insane person, but self-protection."* Similarly, imprisonment to prevent bodily harm may be justifiable in self-defense."* 5 8 Cochran v. Toher, 14 Minn. 385 (Gil. 293); Lock v. Asliton, 12 Q. B. 871. •Compare Perry v. Sutley, 63 Hun, 636, 18 N. Y. Supp. 633; Murray v. Friens- berg (Sup.) 15 N. Y. Supp. 450; Newman v. New York, L. E. & W. E. Co., 54 Hun, 335, 7 N. Y. Supp. 500; Filer v. Smith, 96 Mich. 347, 55 N. W. 999; White v. McQueen, 96 Mich. 249, 55 N. W. 843. 69 Broughton v. Jackson, 18 Q. B. 378, 21 Law J. Q. B. 266, per Lord Camp- bell, C. J.; Kosenkranz v. Haas (City Ct. N. Y.) 20 N. Y. Supp. 880. What is reasonable cause depends on the circumstances of each case (Hogg v. Ward, 3 Hurl. & N. 417, 27 Law J. Exch. 443; Joyce y. Parkurst, 150 Mass. 243, 22 N. E. 899), and is generally a question of law for the courts (Filer v. Smith, 96 Mich. 347, 55 N. W. 999). Cf. White v. McQueen, 96 Mich. 249, 55 N. W. 843; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772. But mere im- pression that innocent defendant resembled the accused does not justify. Maliniemi v. Gronlund, 92 Mich. 22, 52 N. W. 627. Street walking: Pinker- ton V. Verberg, 78 Mich. 573, 44 N. W. 579. 6 Stev. Mai. Pros. c. 7. ci Fertich v. Michener, 111 Ind. 472, 11 N. E. 605. 02 Fletcher v. Fletcher, 28 Law J. Q. B. 134; and see cases cited in a note to Elliott v. Allen, 14 Law J. C. P. 136. But physicians fraudulently and falsely certifying to insanity may be held liable for false imprisonment by their victim. Hurlehy v. Martine, 56 Hun, 648, 10 N. Y. Supp. 92. es Look v. Dean, 108 Mass. 110. 64 But when an unarmed plaintiff, intrenched in a comcrib, is imprisoned for an hour and a half there, and shot at by defendant, armed with a re- volver, there is not reasonable apprehension of fear, nor imprisonment rea- sonable and necessary under the circumstances. McNay v. Stratton, 9 111. App. 215-220. 4 30 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. & 147. Evidence showing the absence of malice is admissi- ble, not by way of justification, but by way of mit- igation of punitive damages. One who has been wrongfully restrained of liberty of locomotion may recover, not only compensatory damages, but wanton disre- guard of legal right will entitle him to punitive damage; as in an ac- tion by a young girl for humiliation, insult, and wounded sensibility consequent upon her arrest."^ While malice or want of proper cause is no part of the plaintifif's case in an action for false im- prisonment, proof that the defendant believed himself to be legally right in making an improper arrest Mill mitigate exem- plary damages, but will not diminish actual damages.'*® But com- pensatory damages are not necessarily limited to actual money losses. For an unlawful incarceration in an insane asylum .one may recover, not only money expended in procuring his release, but also for consequent humiliation, shame, disgrace, and injury to reputation." 6 5 Ball v. Horrigan, 65 Hun, 621, 19 N. Y. Supp. 913; Ross v. Leggett, 61 Mich. 445, 28 N. W. 695; Pearce v. Needham, 37 lU. App. 90; Taylor v. Cool- idge, 64 Vt. 506, 24 Atl. 656; Hewlett v. George, 68 Miss. 703, 9 South. 885, A verdict for $2,917 damages has been set aside as excessive for three hours' detention in a lockup. Woodward v. Glidden, 33 Minn. 108, 22 N. W. 127. And a verdict of 6 cents for detention long enough to walk across the street has been sustained as adequate. Henderson v. McReynolds, 60 Hun, 579, 14 N. Y. Supp. 351. Et vide Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62; Wiley V. Keokuk, 6 Kan. 94. 6 8 Holmes v. Blyler, 80 Iowa, 365, 45 N. W. 756; Livingston v. Bun-ough.s,. 33 Mich, 511; Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659; Comer v. Knowles, 17 Kan. 436; Sleight v. Ogle, 4 E. D. Smith, 445; Miller v. Grlce, 2 Rich. Law,, 27; McDaniel v. Needham, 61 Tex. 269; Rogers v. Wilson, Min. (Ala.) 407; Hill V. Taylor, 50 Mich. 549, 15 N. W. 899; Roth v. Smith, 41 111. 314. Good faith as a justification, Aldrich v. Weeks, 62 Vt. 89, 19 Atl. 115; Provocation, no justification, Grace v. Dempscy, 75 Wis. 313, 43 N. W. 1127; nor bad char- acter of defendant, Hurlehy v. Martine, 56 Hun, 648, 10 N. Y. Supp. 92. 6 7 Such damages, not being punitive, may be recovered after death of de- fendant. Hewlett V. George, 68 Miss. 703, 9 South. 885. Ch. 6] ASSAULT. 431 ASSAULT— DEriNITION. 148. An assault is an attempt with force or violence to in- flict corporal injury on another, accompanied by- apparent physical means to effect such injury if not prevented.^ Generally speaking, to constitute an assault there must be an attempt, which may be either real or apparent. A real attempt occurs when the party assaulting proceeds with intent to accom- plish the injury threatened. Thus, in a leading case on this sub- ject, one who, at a parish meeting, advanced with his fist clenched towards the chairman with intent to strike him, but was stopped by the church warden, who sat next but one to the chairman, was held liable for assault.*' And where one pursued another with an up- lifted whip, intending to strike him, and the latter made his escape, it was held an assault. '''' Accordingly, whenever a real attempt is present, and the assaulted person is aware of such attempt, there can be no question that an assault is committed. Apparent at- tempt occurs when there is no actual purpose or intent to do the 68 Cooley, Torts, 160; De S. v. De S. Lib. Ass. p. 99, pi. 60; Read v. Coker, 13 O. B. 850; Barbee v. Reese, 60 Miss. 906; Pol. Torts, 182; Richmond v. Fisk, 160 Mass. 34, 35 N. B. 103; Pig. Torts, 290; Hays v. People, 1 Hill, 351; Bishop V. Ranney, 59 Vt. 316, 7 Atl. 820. The ina,ccuracy of generally ac- cepted legal definitions is well illustrated in the case of assault. While the one given in the text Is generally recognized as correct, still, popularly, the word assault is used to include battery, and no less an authority than Mr. Pollock says that "no reason appears for maintaining the distinction in our rnodern practice." Assault, in the penal codes of many states, also includes battery. 69 Stephens v. Myers, 4 Car. & P. 349. Tlndal, 0. J., saying that, "though ho was not near enough at the time to have struck him, yet if he was advan- cing with that intent, I think it amounts to an assault in law." Et vide Cobbett V. Grey, 4 V^xch. 729; Handy v. Johnson. 5 Md. 450; Alexander v. Blodgett, 44 Vt. 476; Tombs v. Painter, 13 East, 1; State v. Neeley, 74 N. G. 425. 7 Mortin v. Shoppee, 3 Oar. & P. 373. So, to shake one's fist in another's face, and to threaten to strike, is an assault. Mitchell v. Mitchell, 45 Minn. 50, 47 N. W. 308. And see 1 Bac. Abr. "Assault and Battery," 370. 432 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 injury threatened, but a display of force under such circumstances as to cause one reasonably to expect and fear the injury." But in every case there must be an attempt. Threats alone are not sufficient. Mere words, unaccompanied by some act indicating an intention to carry the threat into execution, do not constitute an assault, for the obvious reason that words alone are insufficient to induce, in the mind of a reasonable man, fear of present corporal injury." Words, however, may qualify an action or gesture which would ordinarily be considered an assault, and by showing that the assaulted party has no intention to do the violence, removes from the act the element of assault. Laying one's hand on one's sword and saying, "If it were not assize time, I would not take such language from you," is not an assault. ''^ So the irate farmer, who would have knocked a man down "if it were not for his gray hairs," was not guilty of an assault.''* In these cases, the accompanying words negative the idea of immediate injury to the party to whom the words are directed, and hence any alarm or fear which he may entertain on account of such acts and words is groundless and un- reasonable. But mere intent to execute the threat is not essen- tial." 71 Smith V. Newsam, 1 "Vent. 256; Osborn v. Veitch, 1 Fost. & F. 317. In ■Read v. Coker, 13 C. B. 850, defendant gathered his workmen around plain- tiff. They tucked up their aprons and sleeves, and threatened to break plain- tiff's neck if he did not get out of the premises. Plaintiff feared violence. Defendant was guilty of an assault. There was threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execu- tion. 72 state v. Merritt, Phil. (N. C.) 134; Fatnall v. Courtney, 6 Houst. (Del.) 437; Smith V. State, 39 Miss. 521; Johnson v. State, 35 Ala. 363; Reed v. State. 71 Ga. 865; 1 Hawk. P. G. 263; People v, Yslas, 27 Gal. 631. T3 Tuberville v. Savage, 1 Mod. 3. And see Warren v. State, 33 Tex. 517; Mitchell V. State, 41 Ga. 527; Lawson v. State, 30 Ala. 14. Ti State V. Grow, 1 Ired. 375; Gom. v. Eyre, 1 Serg. & R. 347; State v. Hamp- ton, 63 N. C. 13. So to waken a debtor in order to dun him entitles to damages, not necessarily nominal. Richmond v. Fisk, 160 Mass. 34, 35 N. E. 103; Green Bag, Feb. 1894, p. 97. 7 5 Beach v. Hancock, 27 N. H. 223; Mercer v. Gorbin, 117 Ind. 450, 20 N. E. 132. Ch. 6] ASSAULT. 433 Apparent Means of Effecting Attempt. The civil wrong of assault rests upon the infringement of right of every person "to live in society without being in fear of personal harm.'"?.^ Hence, in determining the tort of assault, the question always is, was the attempted violence or force sufficient and fitting to put a man of ordinary courage and reason into fear and alarm.'' ^ If so, the wrong is effected, independent of the fact that the assault- ing party did not harbor the intention to perpetrate the injury ro.enaced. And it would therefore seem that, if one makes a real attempt to inflict corporal injury on another, but such other was not aware of the attempt, there is no civil wrong, because of no ap- prehension of harm. But, in the crime of assault, the rule is es- sentially different. Here the intent, as in all criminal acts, be- comes a necessary element, and the riuestion is, did the party as- saulting make the outward^jiisplaxjof force with the intention of effecting the threatened injury? If so, the crime has been commit- ted. '* Hence, one might be criminally assaulted, though entirely ignorant of the attempt, and hence absolutely free from fear.''' If the force threatened and the accompanying circumstances are of such a character as to raise, in the mind of a reasonable person, an appre- hension of immediate bodily harm, the assault is complete. Thus, [ if one point an unloaded gun at another, within shooting range, knowing it to be unloaded, it is an assault if such other person has no reason to believe it unloaded. In such cases, he is put in fear and alarm, and it is that which the law purposes to prevent.*" However, in an assault, the intent must be wrongful, — that is, hos- tile or unlawful. 78 Beacli v. Hancock, 27 N. H. 223; 1 Add. Torts (6th Ed.) 138; Cooley. Torts, 161; Chapman v. State, 78 Ala. 463; Pig. Torts, 292. TT Pig. Torts, 293; Pol. Torts, 182. 78 State V. Crow, 1 Ired. 375; State v. Davis, 35 Am. Dec. 735; Kobinson V. State, 31 Tex. 170; McKay v. State, 44 Tex. 43; Rose. Or. Ev. (.8th Ed.) 423; State v. Godfrey, 17 Or. 300, 20 Pac. 625; People v. Lilley, 43 Hich. 521, 5 N. W. 982. Many authorities hold the contrai-y. 7 9 People V. Lilley, 43 Mich. 525, 5 N. W. 982; Chapman v. State, 78 Ala. 463. 80 Parke, B., in Keg. v. St. George, 9 Car. & P. 483; De S. v. De S. lib. Ass. p. 99, pi. 60; Beach v. Hancock, 27 N. H. 223; Smith j. Newsam, 1 Vent. 256; State v. Smith, 2 Humph. 457; Lewis v. Hoover, 3 Blackf. 407; Tombs V. Painter, 13 East, 1; State v. Cherry, 11 Ired. 475; Handy v. Johnson, 5 ild. LAW OF TOKTS — 28 ■434 WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch, 6 BATTERY— DEFINITION. 149. Battery is the unpermitted application of force to the person of another. Every assault, where carried to the extent of physical contact, becomes a battery, and every battery includes an assault. Battery is an accomplished assault. It consists in a violent, angry, rude, insolent, or unauthorized touching or striking of a person, either by the party guilty of the battery, or by any substance put in mo- tion by him." The distinction between assault and battery is well illustrated by Smith v. Newsam," where defendant drew a sword and waved it in a menacing manner, but did not touch the plain- tiff, and the jury was ordered to find the defendant guilty of assault but not of battery. 450; Osborn v. Veitch, 1 Fost. & F. 317; State v. Churcli, 53 N. C. 15; Richard- son v. Van Voorhis (Sup.) 3 N. Y. Supp. 599. Further, as to self-defense, see Shorter v. People, 2 N. Y. 193: Panton v. People, 114 111. 505, 2 N. B. 411; Marts v. State, 26 Ohio, 162; Seribner v. Beach, 4 Denio, 448; Penn v. Ward, 2 Cromp., M. & K. 338; Oakes v. Wood, 3 Mees. & W. 150. 81 Com. v. McKle, 1 Gray, 61; 1 Hawk. P. O. c. 62, § 2; Pig. Torts, 293; Cooley, Torts, 162; Add. Torts, 139; Rawlings v. Till, 3 Mees. & W. 28; Pur- sell v. Horue, 3 Nev. & P. 564; Clark & L. Torts, 130; Cole v. Turner, 6 Mod. 149, where Holt, C. J., says— First, the least touching of another in anger is a battery; second, if two or more meet in a narrow passage, and, without any violence or design of harm, the one touches the other gently, it will be no batteiT; third, if any of them use violence against the other, to force his way, in a rude, inordinate manner, it will be a battery; or any stiniggle about the passage to that degree as may do hurt will be a battery. McCabe V. State, 44 Tex. 48; Cooper v. McKenna, 124 Mass. 284; Boyle v. Case, 18 Fed. 880; Bicker v. Freeman, 50 N. H. 420; Fredericksen v. Singer Manuf'g Co., .38 ]Mlnn. 356, 37 N. W. 453; Fitzgferald v. Fitzgerald, 51 Vt. 420. 82 (1674) 1 Vent. 256. Ch. 6] ASSAULT AND BATTERY. 435 ASSAULT AND BATTEKY— rORCE AND INTENT. 150. In both assault and battery, liability in tort depends upon — (a) Force (attempted in assault, and exerted in battery), in its ordinary sense, or as amounting to not more than contact, or even deception; and (b) Fault or intention on the part of the wrongdoer. Force. Whenever violence, in its ordinary sense, is threatened *' or used,** an assault or battery is clearly committed. Thus, forcible defilement of a woman is actionable assault and battery.*^ It is not necessary, in assault, that any actual violence be done to the person,** and where violence is used it is not indispensably necessary that it should be to the person. Upsetting a chair or carriage " in which a person is sitting, or striking a horse ** on which one is riding, compelling a person to run into his garden *° to avoid being beaten, are all assaults."" Every person has the right to live in society with the sense of perfect security; hence, it is not necessary, to constitute an assault or a battery, that the force, threatened in the one or exerted in the other, be of a violent nature, or of such a character that one would fear or suffer serious bodily injury."^ It is the policy of the law 83 Bloomer v. State, 3 Sneed (Tenn.) 6G; State v. Eawles, 65 N. C. 334; State V. Martin, 85 N. G. 508; State v. Shipman, 81 N. C. 513; State v. Neeley, 74 N. C. 425; Hairston v. State, 54 Miss. 392; U. S. v. Myers, 1 Cranch, C. C. 310, Fed. Cas. No. 15,845; State v. Church, 63 N. O. 15; State v. Home, N. 0. 805; State v. Morgan, 3 Ired. (N. C.) 186. 84 Clark, Cr. Law, p. 202; 1 Russ. Crimes, 1020; 3 Bl. Coram. 120. 8 5 Dean v. Raplee, 75 Hun, 389, 27 N. Y. Supp. 438. 8 6 Liebstadter v. Federgreen (Sup.) 29 N. Y. Supp. 1030. 8 7 Hopper V. Reeve, 7 Taunt. 698. 8 8 1 Steph. N. P. 210. And see Marentille v. Oliver, 2 N. Kirland v. State, 43 Ind. 146. 8 9 Mortin v. Shoppee, 3 Car. & P. 373. 8 Clark v. Downing, 55 Vt. 259. 91 Com. V. McKie, 1 Gray (Mass.) 61. Where a miTkman, against the ex- press commands of one of his customers, entered the latter's sleeping room in the early morning, took hold of his arms and shoulders, and used sufficient 436 WR(;.\(j;s AFFJCCTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 to protect one's person, not only from threat of violent attack, but also from threat of the slightest physical contact against Ms will. Hence, the attempt to interfere in any measure with another's per- sonal security is an assault.^^ Force, often, is no more than contact. To put one's arms, though tenderly, around a woman's neck against her will, without some innocent reason or excuse, is an assault and battery.'^ And a man who sat upon a bed occupied by a woman and leaned over her, making repeated and persistent improper pro- posals, was liable in assault.** — Personal offense is what the law aims to relieve against by the action of assault and battery. Ordinarily, indignities do not con- stitute an assault; "^ but it has been held that one who enticed a woman out of her house while in bare feet and thin clothing, and barred the door against her re-entrance, was liable for assault and battery.*' force to awaken him, for the purpose of presenting his bill, he was held guilty. Richmond v. Fiske (Mass.) 35 N. E. 103. 9 2 Moi-tin v. Shoppee, 3 Car. & P. 373. 3 Goodrum v. State, 60 Ga. 509. »* Newell V. Whitcher, 53 Vt. 589. In the latter case, the court held that where the acts of the party complained of are of themselves innocent and harmless, and may become wrongful by the manner in which they are done, then a man is to be judged by the common and ordinary effect of such acts. But where the act itself is wrongful, and, if peiTpetrated, criminal, then the party must answer for all actual injuries sustained. Compare Alexander v. Blodgett, 44 Vt. 476. »5in Stearns v. Sampson, 59 Me. 568, the defendant removed plaintiff's furniture from her house and sleeping room, caused the windows to be re- moved, prevented food from being carried to the house, brought a blood- liouud into the building, and left him with the tenant. The plaintiff finally Jeft, by compulsion, with an officer, and was sick several weeks. It was held not to be an assault, the court using this language: "Acts which embarrass and distress do not necessarily amount to an assault. Indignities may not constitute an assault. Acts aggravating an assault differ materially from the conduct aggravated." And see Jleader v. Stone, 7 Mete. (Mass.) 147. As- saulting a person in a courthouse, and denouncing him, in the presence of bystanders and officers of the court, as a thief, and threatening to cowhide him, are indignities and insults actionable in themselves, without reference to character or reputation. Caspar v. Prosdame, 46 La. Ann. 36, 14 South. 317. no Jacobs V. Hoover, 9 Minn. 204 (Gil. 189), Ch. 6] ASSAULT AND BATTERY. 4o7 Deception has been sometimes held to be equivalent to force as an ingredient in assault; °^ for one is guilty of assault and battery who knowing that a thing to be eaten contains a foreign substance, and concealing the fact, delivers it to another who innocently eats it and is injured in health.'^ Fault or Intention. The early conception of trespass was, as has been seen, that it lay for a breach of absolute rights corresponding to absolute duties. According to this conception the defendant acted at his peril, and it was immaterial whether he was at fault or not, so long as he actually invaded the sanctity of the plaintiff's person. The later cases, however, incline strongly to recognize that there can be no recovery in assault and battery unless there was fault or in- tention on the part of the defendant. In other words, the law rec- ognizes unhappy accidents, which would not have occurred except for the intervention of human agency, but are results "rather to be deplored than punished." °° But however slight or however harm- less the touch, if rudely, or angrily, or unlawfully done, or in a hos- tile manner, the wrong is complete. Thus, spitting upon a man may be an assault,^"" and one who endeavored to strike another with a stick, and when it was wrenched from his hand by the other drew a pistol, which in the ensuing struggle was discharged, is guilty of assault and battery.^ "^ Every one has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege. But the essence 9 7 Cooley, Torts, 163; McCue v. Klein, 60 Tex. 168. 9 8 Com. V. Stratton, 114 Mass. 303. The fact that deceased killed himself by the making of a wager as to the quantity of liquor he could swallow cannot relieve those who Induced him to act from liability. The unlawful infliction of an Injury by administering poison constitutes an assault. Oarr V. State, 135 Ind. 1, 34 N. E. 533. 99 Harvey v. Dunlop, Lalor Supp. (N. Y .) 193, approved in Nitroglycerine Case, 15 Wall. 524; Stanley v. Powell, 1 Q. B. 86, 60 Law J. Q. B. 52; Holmes v. Mather, L. K. 10 Exch. 261. 44 Law J. Exch. 176. 100 Reg. v. Cotesworth, 6 Mod. 172. So, jostling a man out of the way, throwing water on him, Pursell v. Horn, 8 Adol. & E. 602; or forcibly cutting his hair, Forde v. Skinner, 4 Car. & P. 239. 101 Engelhardt v. State, 88 Ala. 100, 7 South. 154. 43S WRONGS AFFECTING SAFETY AND FREEDOM OF PERSON. [Ch. 6 of battery lies more in the animus and manner in whicti it is done than in the contact itself. Thus, to touch another lightly in a spirit of pleasantry, or to strike him on the hand or shoulder in conversa- tion in a gentle manner does not involve a battery.^"^ For a touch or stroke in jest an action will not lie.^"^ But recovery may be had for actual damage resulting from such unpermitted contact, although there was no intention to injure. Thus, where one injured another by kicking him on the leg during school hours, damages were al- lowed though no injury was intended.^"* An action will lie for assault and battery though the conduct com- plained of was reckless only, and not willful. If B., in endeavoring to hit C, hits A., an action vnll lie by A. against B."° It is not essential that there should be a direct or specific intention to com- mit an assault and battery at the time the violence is done. There is little distinction, except in degree, between a positive will to do wrong and an indifference whether wrong is done or not.^"" There- fore the rider ctf a bicycle, who ran over a man in plain sight, and only a few feet away, was held liable for an assault and battery, and not for mere negligence.^"^ SAME— DEFENSES. 151. Defenses to an action for assault and battery may operate by "way of — (a) Justification, or (b) Mitigation. 102 Williams v. Jones, Hardr. 298. Compare Coward v. Baddeley, 4 Hurl. & N. 478, 28 Law J. Exch. 260, and Wiffin v. Kincard, 2 Bos. & P. (N. R.) 472, with Rawlings v. Till, 3 Mees. & W. 28. 103 Williams v. Jones, Hardr. 301. 104 Vosbm-g V. Putney, 80 Wis. 523, 50 N. W. 403. 105 Weaver v. Ward, Hob. 289; Hopper v. Reeve, 7 Taimt. 698; Talmage v. Smith, 101 Mich. 370, 59 N. W. 656; Carmichael v. Dolen, 2o Neb. 335, 41 N. W. 17S; Peterson v. Haffner, 59 Ind. 130; State v. Myers, 19 Iowa, 517; Bullock V. Babcock, 3 Wend. 391; Com. v. Hawkins, 157 Mass. 551-553, 32 N. E. 862, collecting cases. Compare Com. v. Pierce, 138 Mass. 165-180. 106 1 Bish. Or. Law, c. 20. 107 Mercer v. Corbin, 117 Ind. 450, 20 N. E. 132; Kendall v. Drake (N. H.) SO Atl. 524. Ch. 6] ASSAULT AND BATTERY. 439 152. The charge of assault and battery may be justified by the person alleged to have committed it by bringing it within the limits of— (a) Private defense, or (b) Legal authority, whether public or private. Private Defense of Person. Assault is justifiable if it is committed in self-defense.'"' In the language of the early law, this was the defense of son assault dem-esne. In order that self-defense may be justified, assault must hare been threatened. Thus, a person is justified in defending him- self by shooting his assailant, if he has reason to believe that the assailant intends to do him great bodily harm, and that he is in danger of such harm, and no other means can effectually prevent it."" But, on the other hand, where a creditor followed a debtor, disputing about a bill, saying: "This thing must be settled now," and the latter struck him while he was walking with his hands in his pockets, it was held that no assault had been threatened by the debtor and self-defense was not made out.^^° To avoid becoming an assailant, however, the person originally attacked need not necessarily retreat.^^^ 10 8 The rule is essentially the same in civil and criminal cases as to the ex- tent of the right. As to facts, however, in criminal cases only is there given the defendant the benefit of a reasonable doubt. March v. Wall5:er, 48 Tex. 372. 100 Com. V. O'MaUey, 131 Mass. 423; Clyma v. Kennedy, 64 Conn. 310, 29 Atl. 539; Landrum v. Wells (Tex. Civ. App.) 26 S. W. 1001; E'rench v. Wai-e, 65 Vt 338, 26 Atl. 1096. 110 Rhodes V. Rodgers, 151 Pa. St. 634, 24 Atl. 1044. So, in an action for assault and battery, where the evidence shows that defendant, while quarrel- ing with plaintiff, stopped his wagon and got out, and walked several feet to where plaintiff was standing with his hands in his pockets, and struck plain- tiff in such position, the question of justification under an answer of son assault demesne should not be submitted to the jury. Morganstein v. Nejedlo, 79 Wis. 338, 48 N. W. 652. Et vide Sargent v. Carnes, 84 Tex. 156, 19 S. W. 378; Hulse v. Tollman, 49 111. App. 490. 111 Haynes v. State, 17 Ga. 465; State v. Tweedy, 5 Iowa, 433; Norris v. Case], 90 Ind. 143; Steinmetz v. Kelly, 72 Ind. 442; State v. Dixson, 75 N.. C. 275; Townsfnd v. Briggs, 99 Cal. 481, 34 Pac. 110. But see Howland v. Day, 56 Vt. 318. 440 WRONGS AFFECTING SAFKTY AND FREEDOM OF PERSON. [Ch. 6 Abusive words, written or spoken, maligant leers, and taunting grimaces, though made for the purpose of inducing an assault, do not justify it. There is said, however, to be an exception to this with respect to words "grossly insulting to females. * * * At least, one would be excused where grossly insulting language was employed in the presence of his family, if he were promptly to put a stop to it by force." This was applied in a case inrolving an assault made on a charivari party which, having been warned to desist on the first night, when they came to the defendant's house, returned on two subsequent nights and terrified his wife and children. The matter of self-defense was sent to the jury, with instructions that there was a difference in law between an assault by a body of rioters and one by a single person, and that, in the former case, the assaulted person may act with more prompt- ness and resort to more forcible means to protect himself and fam- ily than in the latter case.^^^ "^ Same — Defense of Family, Servants, and Friends. A man has a right to use necessarj^ force to protect his family, neighbors,^^^ or servants from violence.^^* What a father and the head of a house can legally do in defense of his house the son can do.^^^ Where the defendant was rightfully on the premises of the plaintiff's husband, and was interfered with in his work by plain- tiff's mother, he had the right to rid himself of such annoyance, and plaintiff had no right to assault him in defense of her mother, if defendant was in the use of reasonable care<^^° The right of the master to come to the defense of his servant does not extend to ii2Higgins v. Minaghan, 76 Wis. 298, 45 N. W. 127; Mipaghan v. State, 77 Wis. 643, 46 N. W. 894; Higgins v. Minaghan, 78 Wis. 602, 47 N. W. 941. 113 Compare 1 Bl. Comm. 429, aii Edmondson v. Machell, 2 Term R. 4. 10 Fluker v. Railroad Co., 81 Ga. 461, 8 S. E. 529. 11 McCarthy v. Guild, 12 Mete. (Mass.) 291; Sullivan v. Union Pac. R. Co., 3 Dill. 334, Fed. Gas. No. 13,599; Pol. Torts, 54. And see Osborne v. Gillett, 8 Exch. 88. 12 Coleridge, J., in Lumley v. Gye, 2 El. & Bl. 216-253; Bowen v. Hall, 6 Q. B. Div. 333. 13 State V. Hoover, 107 N. C. 795, 12 S. B. 451; Boulier v. Macauley, 91 Ky. 135, 15 S. "W. 60; Ward v. State, 70 Miss. 245, 12 South. 249. On a trial for willfully interfering with and enticing away a servant while under con- tract for a specific time, under Code 1892, § 1068, the mere employment of the servant after he had left his former master is not sufficient to sustain a conviction. Jackson v. State (Miss.) 16 South. 299. 1* Huntoon v. Hazelton, 20 N. H. 388; Gale v. Parrott, 1 N. H. 28; Coughey V. Smith, 47 N. Y. 244. 15 Philp V. Squire, Peake, 83; Haight v. Badgeley, 15 Barb. 499; Duckett V. Pool, 33 S. C. 238, 11 S. E. 689; Mllburne v. Byrne, 1 Cranch, C. C. 239, Fed. Gas. No. 9,512; Butterfield v. Ashley, 2 Gray (Mass.) 254; Scidmore v. Smith, 13 Johns. (N. Y.) 322; Bixby v. Dunlap, 56 N. H 456; Huff v. Wat- kins, 15 S. C. 82; Sherwood v. Hall, 3 Sumn. (U. S.) 127, Fed. Gas. No. 12,777; LAW OF TORTS — 29 450 INJURIES IN FAMILY EELATIONS. [Ch. 7 there has grown up a branch of laT\- in which malice is an essential ingredient. Its consideration is therefore postponed until mali- cious wrongs are under consideration.^" Where the wrongful act causes the death of a servant, however, it was held at common law that no action will lie." No such action lies where the servant breaks no contract.^ ^ Form of Action. The wrong consisted in actual damage by reason of loss of service or capacity to serve. ^° It was not actionable per se. It was there- fore necessary to allege a per quod, i. e. per quod servitium amisit The action was not for the direct injury, but for consequent dam- age. For some time it was doubtful ^'' whether the trespass or case laj,^^ but it was finally decided that both could be used, — trespass where there was violence, and case where there was deceit or neg- ligence, the latter being the commonest instance.^ ^ Plummer v. Webb, 4 Mason (XJ. S.) 380, Fed. Cas. No. 11,2.33; Jones v. Block- er, 43 Ga. 331; Cavew v. Rutherford, 106 Mass. 1; Noice v. Brown, 39 N. J. Law, 569; Hudson v. State, 46 Ga. 624; Lee v. West, 47 Ga. 311; Walker y. Cronin, 107 Mass. 555; Ames v. Union R. Co., 117 Mass. 541; Roseberry v. State, 50 Ala. 160; Salter v. Howard, 43 Ga. 601; Caughey v. Smith, 47 N. Y. 244; Sargent v. Mathewson, 38 N. H. 54: Jackson v. State (Miss.) 13 South. 935 (under statute); Armistead v. Chatters (Miss.) 5 South. 9 (under statute). 16 Post, p. 634. 17 Osbom v. Gillet, L. R. 8 Exeh. 88. 18 Compare Nichol v. Martyn, 2 Esp. 734, and Hart v. Aldridge, 1 Cowp. 54, with ICedne v. Boycott, 2 H. Bl. 511, and Sykes v. Dixson, 9 Add. & B. 693; Cox v. Munsey, 6 C. B. (N. S.) 375. When service is determined no ac- tion lies for harboring servant. Blake v. Lanyon, 6 Term R. 221. Et vide Campbell v. Cooper, 34 N. H. 49. 10 Fluker v. Railroad Co., 81 Ga. 461, 8 S. B. 529; Knight v. Wilcox, 14 N. Y. 413. The measure of damages is said to be the same as in a suit by the servant against the master for a wrongful discharge. Lally v. Cantwell, 40 Mo. App. 44; Robert Marys' Case, 9 Coke, 113a. And see cases cited su- pra, note 19. 2 McFadzen v. Olivant, 6 East, 387, per Bovell, O. J., in Bvans v. Walton, L. R. 2 C. P. 615; 3 Bl. Oomm. 139. Debauching a female servant was a trespass. Bdmondson v. Machell, 2 Term R. 4. 21 Moran v. Dawes, 4 Cow. (N. Y.) 412; Ditcham v. Bond, 2 Maule & S. 436. 22 Chamberlain v. Haglewood, 6 Mees. & W. 515; Martinez v. Gerber. 3 Man. & G. 88. Ch. 7] PARENT AND CHILD. 451 PARENT AND CHILD. 156. The common la-vr recognized the right of a parent to recover for Tvrongs committed against a child, ■whenever such parent suffered damage thereby- through the loss of the service of his child. In order that a parent should be able to recover at common la'w for harm done to his child, he must show — (a) Injury to the child. (b) Consequent loss by the parent of the service of the child. The common law regarded the right of the parent to recover for the seduction, enticement, or other injuries to the child as interrup- tion of the relationship of master and servant, and not of parent and child, and did not undertake to compensate the father for wounded sensibilities.^^ Accordingly, the recovery of the parent was based upon, and varied with, the damage done because of the loss of serv- ice, and on the relationship of master and servant, not parent and child. The form of action was "per quod servitium amisit." ^* To entitle the parent to recover, he must sbow the existence of the re- lationship of master and servant. Therefore, the parent's right of action terminates whenever the child leaves the parent's house with intention not to return.^'* It has been held, however, that if the child in fact returns to the father, the defendant is liable.-® So, when the child has been emancipated by the parent, the right to re- cover is gone.^^ It is not necessary to show that the child rendered valuable serv- ices. Pouring tea, or milking cows, has been held to be an act of 23 Evans v. Walton, L. R. 2 C. P. 615. 2i Martin v. Payne, 9 Johns. (N. Y.) 387; Cooley, Torts, 268, et seq. 2 6 Dean v. Peel, 5 East, 45. Et vide Griffiths v. Teetgen, 15 C. B. 344. A grown-up daughter, keeping a separate establishment, is not a parent's serv- ant. Manley v. Field, 7 0. B. (N. S.) 96. Et vide Hedgies v. Tagg, L. R. 7 Exch. 283. 2 8 Martin v. Payne, 9 Johns. 387; Bigelow, Lead. Cas. 286. 2 7 McCarthy v. Boston & L. R. Corp., 148 Mass. 550, 20 N. E. 182. 4-32 INJURIES IN FAMILY RELATIONS. [Ch. 7 service.-' Services may continue, notwithstanding a temporary ab- sence.^" Even a married daugliter living apsirt from her husband may, in this sense, render services to her father.^" Proof of actual service of an infant is unnecessary. Eight to service is enough." If the child is of age, there must have been loss of service to entitle the parent to recover.^'' The legal right of the parent at the time to command the service of the child, though she resides and is tem- porarily employed elsewhere, is sufficient.''^ It rests on his legal 28 Per Abbotts, C. J., Carr v. Clarke, 2 Chit. 201; Mann v. Barrett, 6 Bsp. 23; Bennett v. Allcott, 2 Term R. 168. 29 Edmondson v. Macliell, 2 Term R. 4; Griffiths v. Teetgen, 15 C. B. 344. Compare Thompson v. Ross, 5 Hui-1. & N. 16; Hedges v. Tagg, L. R. 7 Exch. 283. 30 Harper v. Luffliin, 7 Barn. & C. 387. Or an unman-ied daughter: Mar- tin V. Payne, 9 Johns. 387. So where the daughter is an adult: Sutton v. Huffman, 32 N. J. Law, 58. Et vide Lipe v. Eisenlerd, 32 N. Y. 229; Brown V. Ramsay, 29 N. J. Law, 117. 31 Terry v. Hutchinson, L. R. 3 Q. B. 599-602; Bartley v. Richtmeyer, 4 N. Y. 39^7. Where the daughter was of age: Kendrick v. McCrary, 11 Ga. 603. 3 2 Where, however, the daughter is over age, there must exist some kind of service, however slight. Martin v. Payne, 9 Johns. 387; Keller v. Donnelly, 5 Md. 211; Vossel v. Cole, 10 Mo. 634; Mulvehall v. Mill ward, 11 N. Y. 342; Briggs V. Evans, 5 Ired. (N. C.) 16; Whitney v. Elmer, 60 Barb. 2.50; Wert v. Strouse, 38 N. J. Law, 184; Lamb v. Taylor, 67 Md. 85, 8 Atl. 760; Lee v. Hodges, 13 Grat. 726; Patterson v. Thompson, 24 Ark. 55. But see Joseph V. CavaJider, cited 3 Steph. N. P. 2354, and Roscoe, N. P. Ev. 911. S3 Boyd V. Byrd, 8 Blackf. (Ind.) 113. Even though the seducer was her employer: Simpson v. Grayson, 54 Ark. 404, 16 S. W. 4. Compare Speigjht V. Oliviera, 2 Starkie, 493. Et vide Rist v. Faux, 32 L. J. Q. B. 386; Bart- ley V. Richtmeyer, 4 N. Y. 38; White v. Murtland, 'il 111. 250; Ellington v. El- lington, 47 Miss. 329; Blmery v. Gowen, 4 Me. 33; Clinton v. York, 26 Me. 167; Kennedy v. Shea, 110 Jlass. 147; Nickleson v. Stryker. 10 Johns. (N. Y.) 115; Furman v. Van Sise, 56 N. Y. 435; Clark v. Fitch, 2 Wend. (N. Y.) 459, 20 Am. Dec. 639; Mulvehall v. Millward, 11 N. Y.,342; Mercer v. Walms- ley, 5 Har. & J. (Md.) 27; Mohry v. Hoffman, 86 Pa. St. 358; Hornketh v. Barr, 8 Serg. & R. 36. Et vide Wilson v. Sproul, 3 Pen. & W. (Pa.) 49; Fern- sler V. Moyer, 3 Watts & S. 416; Riddle v. McGinnis, 22 W. Va. 253; Ben- son V. Remington, 2 Mass. 113; Roberts v. Connelly, 14 Ala. 235; Greenwood V. Greenwood, 28 Md. 369; Bolton v. Miller, 6 Ind. 262; Franklin v. McCorkle, 16 Lea (Tenn.) 609, 1 S. W. 250; Hewitt v. Prime, 21 Wend. (N. Y.) 79; Doyle V. Jessup, 29 111. 460; Davidson v. Abbott, 52 Vt. 570; Abrahams v. Kidney, 104 Mass. 222; Knight v. Wilcox, 14 N. Y. 413; Blagge v. Ilsley, 127 Mass. 191; Russell v. Chambers, 31 Minn. 54, 16 N. W. 458. These cases go beyond Ch. 7] PARENT AND. CHILD. 453 obligation to provide for her support and education, and his conse- quent right to the profits of her labor.^* This fiction of service as the basis of the right of parent to sue for wrongs done the child is generally recognized in America, al- though much criticised.'"' SAME— ACTIONS FOR INJURIES TO CHILD. 157. At common la-w the right to command the service of the child, even though temporarily employed else- ■where, determined the proper party plaintiff in an action to recover for -wrrongs to the child. At common law the proper party plaintiff was determined by the person who was entitled to the service of the child. Any one en- titled to such service could bring suit for wrong to the child.^'^ The father was the normal plaintifi'.^' The mother's right to recover is based upon her right to the service of the child, and therefore could not exist until she became entitled to the child's service by the death — or, by statute, the desertion — of the father.^* The mother the English rule. Dean v. Peel, 5 Bast, 45; Blaymire v. Haley, 6 Mees. & AV. 55; Hams v. Butler, 2 Mees. & W. 539; Grinnell v. Wells, 7 Man. & G. 1033. Compare Hedges v. Tagg, L. R. 7 Exch. 283-285. This is true even where the child is an imbecile. Hahn v. Cooper, 84 Wis. 629, 54 N. W. 1022. Et vide Lipe v. Eisenlerd, 32 N. Y. 229. 3-4 Keunedy v. Shea, 110 Mass. 147 (citing cases). Et vide Furman v. Van Sise, 56 N. Y. 485, 444; Emery v. Gowen, 4 Greenl. (Me.) 33; Clinton v. York, 26 Me. 167; Griffiths v. Teetgen, 15 C. B. 344. Father's inability to support child does not, by itself, deprive him of right. Benson v. Remington, 2 Mass. 113; Martin v. Payne, 9 Johns. 387, Bigelow, Lead. Cas. 286. 3 6 Ellington V. Ellington, 47 Miss. 329 (reviewing authorities at length); Mulvehall v. Millward, 11 N. Y. 342, Chase, Lead. Cas. 218; Hornketh v. Barr, 8 Serg. & R. (Pa.) 36; Osborn v. Francis, 44 N. J. Law, 441; Clark v. Pitch, 2 Wend. (N. Y.) 459; IngersoU v. Jones, 5 Barb. (N. Y.) 661; Kennedy v. Shea, 110 Mass. 147. So in England: Sergeant Manning's note to Grinnell v. Wells, 7 Man. & G. 1033-1044; Starke's note to Speight v. Oliviera, 2 Starkie, 493-496. 3 6 Hamilton v. Lomax, 26 Barb. (N. Y.) 615; Pence v. Dozier, 7 Bush (Ky.) 133; Ellington v. Ellington, 47 Miss. 329; White v. Nellis, 31 N. Y. 405. 3T Vossel V. Cole, 10 Mo. 634. 3 6 Furnam v. Van Sise, 56 N. Y. 435; Sargent v. Dennison, 5 Cow. (N. Y.) lOG. Et vide Ryan v. Fraliek, 50 Mich. 483, 15 N. W. 561; Heinrichs v. Krechner, 454 INJURIES IN KAMII.Y RELATIONS. [Ch. 7 could not recover when the daughter became pregnant after she came into the mother's service."" Generally, any person who stands in loco parentis, and who was entitled to the service of the child, may recover. Thus, a guardian,*" or a stranger in blood who has adopted the person seduced, may be a proper party plaintiff.*^ At Common Laio .the Seduced Child could not Recover against Her Seducer. The seduced child could not recover at common law, not only be- cause in many cases she was a party to the wrong, but because the only recognized action was based upon the loss of service.*^ The injustice of the common-law rule is well illustrated by Ellington v. Ellington.*^ There a daughter made her permanent home with her seducer, her uncle. Her parent could not sue, for the child was ■out of his service and beyond control; the child could not sue, for she was particeps criminis; the uncle could not sue, for he was the author of the outrage. "Thus, the ruin of the girl must go unre- venged, and the author of it go unwhipt of justice." 35 Mo. 578; Felkner v. Scarlet, 29 Ind. 154; Gray v. Durland, 50 Barb. (N. Y.) 100; Texas & P. Ry. Co. v. Brick, 83 Tex. 52G, 18 S. W. 947; Davidson v. Ab- bott, 52 Vt. 570; Parker v. Meek, 3 Sneed (Tenn.) 29. ss Logan v. Murray, 6 Serg. & R. (Pa.) 175; Dunlap v. Linton, 144 Pa. St. 335, 22 Atl. 819. Bt vide South v. Deniston, 2 Watts (Pa.) 474. io Fernsler v. Moyer, 3 Watts & S. (Pa.) 416; Blancliard v. Ilsley, 120 Mass. 4S7. 0; Hawn v. Bang-hart, 76 Iowa, 683, 39 N. AV. 251; Fry v. Leslie, 87 Va. 269, 12 S. B. 671; Leckey v. Bloser, 24 Pa, St. 401; McAulay v. Birkhead, 13 Ired. (N. C.) 28; Tillotson v. Cheetham, 3 Johns. 56; Shewalter v. Bergman,- 12:j Ind. 155, 23 N. E. 686; Grable v. Margrave, 3 111. 372; Rea v. Tucker, 51 111. 110; Thompson v. Clendening-, 1 Head. (Tenn.) 287; Haynes v. Sinclair, 23 Vt. 108. 76 Peters v. Lake, 66 lU. 206; Mullin v. Spangenberg, 112 111. 140; White v. Gregory, 126 Ind. 95, 25 N. B. 806; De Haven v. Helvie, 126 Ind. 82, 25 N. B. 874; Grable v. Margrave, 4 Scam. (111.) 372; Hosley v. Brooks, 20 111. 116; La very v. Orooke, 52 Wis. 612, 9 N. W. 599. Evidence: The plaintiff is not confined as to evidence to a particular day or week, or to a particular act, but may give evidence covering many acts and extending over considerable time, McCoy V. Ti-ueks, 121 Ind. 292, 23 N. E. 93; Badder v. Keefer, 100 Mich. 272, 58 N. W. 1007; may introduce evidence of the time when she became preg- nant, Baird v. Boehner, 77 Iowa, 622, 42 N. W. 454; evidence of certain acts and statements of plaintiff, not limited to a time before the alleged seduction, was inadmissible. Cliff ton v. Granger, 86 Iowa, 573, 53 N. W. 316; bad repu- tation of the woman after seduction is inadmissible, Shewalter v. Bergman, 123 Ind. Iu5, 23 N. E. 686; correspondence referring to the alleged seduction is proper evidence, Lee v. Cooley, 13 Or. 433, 11 Pac. 70; where pregnancy was alleged to have resulted from the intercourse with defendant, evidence that the girl had intercourse with another man after the seduction, but before pregnancy, is incompetent, Ayer v. Colgrove, 81 Hun, 322, 30 N. Y. Supp. 788. 70 A father may maintain an action for harboring and secreting his minor daughter, and persuading her to remain absent from her family and service, without his consent. Stowe v. Heywood, 7 Allen, 118. As to an action for harboring plaintift''s son, and refusing to allow plaintiff to get possession and control of him, see Loomis v. Deets, 30 Atl. 612. Oh. 7] PARENT AND CHILD. -1(31 benefit of her son.''^ The consent of the father, when obtained by fraud, is no defense to such an action.'* Nor is the general loose- ness of morals of the enticed child and of her family a defense.'"' But the parent may not recover damages for the improper expul- sion of his child from school,^" or procure an injunction to prevent publication of its portrait,*^ because there is no loss of service, and the law does not compensate for such sentimental suffering. The law, regarding the right of service as property,*^ recognizes two classes of injuries, when an infant suffers personal injury, as distinguished from seduction, viz. the injury of the parent because of his loss of service consequent upon the damages done, and the injury of the child because of the damage inflicted upon him. The right of the father to recover indemnity for expense of care, medical attendance, and the like, to which he was put by injury to his chUd, although it were incapable of rendering service, was duly recog- nized.*^ This doctrine has been declared until it is now asserted without reservation that an action of this sort rests, not upon the relation of master and servant, but upon that of parent and child, and that the damages may include a reasonable allowance for prospective • loss of service, based upon the evidence in the case.** The in- fant may sue, by the proper statutory parties, for the damage he suffers; and the father, on his peculiar separate cause of action. 7 7 Bradley v. Shaffer (Sup.) 19 N. Y. Supp. 640. Et vide Pollock v. Pollock a. St. 40:., 2T Atl. 1110, 1111. But see HoULT .. Chicagij, B. & Q. R Co., 59 Fed. 423. I .'imsylvania R. Co. v, *;'"ideaougli (N. 3. Kn-. & App.) 2^ Atl ? ' Ob. 8] DEFAMATION DEFIKED. 473 CHAPTER VIII. WRONGS AFFECTING REPUTATION. Prosecution Distin- 165. Defamation Defined. 366. Publication— Libel, Slander, and Mallei guished. 167. AYhat Constitutes. 168. Republication. 169. Application to Plaintiff. 170. Damages as the Gist of Libel and Slander. 171. Presumption in Actions for Slander. 172. Presumption in Action for Libel. 173. Construction of Language Used. 174. Signification of Words. 175. Malice. 176. Defenses. 177. Common-Law Defenses. 178-180. Justification. 181. Mitigation. 182. Slander of Title or Property. DEFAMATION" DEFINED. 165. Defamation is a false publication calculated to bring: into disrepute. As to its objects, it may refer to — (a) Persons, when it is commonly called libel and slan- der; or (b) Things, w^hen it is commonly called slander of prop- erty or title. Defamation is the generic name for injuries to reputation. While it is commonly called slander of title when it concerns prop- erty, still, where the words of a publication apply to property, in such a way as to injure the reputation of the owner by exposing him to hatred, contempt, or ridicule, it is a libel on such person.^ 1 State V. Mason (Or.) 38 Pac. 130; or to write that a bookmaker sells im- moral books. Tabart v. Tipper, 1 Camp. 350; or that a merchant's wine is poi- soned or tea coppered. Colteman, J., in Ingram v. Lawson. 6 Bing. N. C. 212- 216. But see Willard v. Mellor, 19 Colo. 584, 30 Pac. 148 ("rubbish" not li- belous). 474 WRONGS AFFECTING HEl'UTATION. [Ch. 8 The right of reputation is a confused one.'' It is sometinios re- garded as an absolute or simple right, from the violation of which damage will be presumed. In many, perhaps in most, cases, the right is a right not to be harmed, from the violation of which there is no presumption of damage, and no cause of action arises unless damages conforming to the legal standard can be proved. It does not seem to be definitely settled whether the right of reputation must be respected at peril, — as is true, for example, of the right of personal security, or of freedom of locomotion.^ More- 2 "Now I think no one can examine the authorities upon the law of slande- without seeing that there are a number of distinctions to be found which can- not be supported on any satisfactoi-y principle." Lord Herschell in Alexander V. Jenliins [1S92] 1 Q. B. 797-800. s The uncertainty of the law on this point is well illustrated in Massa- chusetts cases. It was accepted without dissent that "a person publishes libelous matter at his peril." Holmes J., in Burt v. Advertiser Newspaper Co., 154 Mass. 238-245, 28 N. E. 1,— citing Watson v. Moore, 2 Gush. 133-140; Parkhurst v. Ketchum, 6 Allen, 406; Olai-k v. Brown, 116 Mass. 504. But in Hanson v. Globe Newspaper Co., 159 Mass. 298, 34 N. E. 462, it was held that if defendant use plaintiff's name by mistake for that of another person in a defamatoiy way, there was no liability. "The reason of this is obvious. De- famatory language is harmful only as it purports to be the expression of the thought of him who is using it. In determining the effect of a slander, the ■questions involved are, what is the thought intended to be expressed? and how much credit should be given to him who expresses it?" Per Knowlton, J., pages 295, 296, 159 Mass., and page 462, 34 N. E. And see Lawrence v. New- berry, 64 Law T. (N. S.) 797. On the other hand, Holmes, J., in dissenting opin- ion, sets forth what would seem to be the better reasoning: "On general prin- ciples of tort, the private intent of the defendant would not exonerate it. It knew it was publishing statements purporting to be serious, which would be hurtful to a man if applied to him. It knew it was using as the subject of those statements words which purported to designate a particular man, and would be understood by its readers to designate one. If the defendant had supposed that there was no such person, and had intended simply to write an amusing fiction, that would not be a defense, at least unless its belief was justifiable. Without special reason, it would have no right to assume that there was no one within the sphere of its influence to whom the description answered. The case would be very like firing a gun into a street, and, when a man falls, setting up that no one was known to be there" (Holmes, J., in Han- son V. Globe Newspaper Co., 159 Mass. 293-aOl, 34 N. E. 462). Hull's Case, J. Kel. 60; Rex v. Burton, 1 Strange, 481; Rigiftaidon .Case, 1 Lewin, Crown Cas. 180; Reg. v. Desmond, 11 Coj^ 146, Ster.n. Dig. Or. Law, 163. So, where ^h. 8] DEFAMATION DEFINED. 475 over, malice is an essential ingredient of the wrong. Accordingly, while the right to reputation is a natural, as distinguished from an the description wliich points out the plaintiff is supposed by the defendant to point out another man, whom in fact it does not describe, the defendant is «qually liable as when the description is supposed to point out nobody. On the general principle of tort the publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it. This would seem to be in accordan e with the general trend of authorities. Mistake is ordinarily no excuse. Shep- veard v. Whitaker, I;. R. 10 0. P. 502; Pox v. Broderick, 14 Ii. G. L. 453; Mayue . Fletcher, 4 Man. & R. Mag. 5G, note; Rex v. Paine, 5 Mod. 163; Alliger V. Brooklyn Daily Eagle, 6 N. Y. Supp. 110; Griebel v. Rochester Print. -Co., 60 Hun, 319, 14 N. Y. Supp. 818; JIcLean v. New York Press Co. (Sup.) 19 N. Y. Supp. 2G2. And see Davis v. Mai-xhausen (Mich.) 01 N. W. 604; Loibl v. Breidenbach, 78 Wis. 49, 47 N. W. 15; Brett v. Watson, '20 Wkly. Rep. 723. It is not necessary that plaintiff should intend to injuro defendant if that was the manifest tendency of his words. Curtis v. ilus sey, 6 Gray, 261-273; Haire v. Wilson, 9 Bam. & C. 643; King v. Cl^'rk. 1 Barnard, 304; Odger, Sland. & L. (2d Ed.) 638. Indeed, one publishing a libel without knowing it may be civiUy and criminally responsible. Dun v. Hall, 1 Ind. 344 (where, contrary to orders, servant published a libel, and the master was held responsible). And see Rex v. Guteh, Moody & iX. 433; Rex V. Walter, 2 Esp. 21; Com. v. Morgan, 107 Mass. 199. An inadvertent publi- cation is a legal wrong. Rex v. Abingdon, 1 Esp. 228. So, also, punitive damages may be given for reprehensible negligence in publishing an article without verification of its truth. Morning Journal Ass'n v. Rutherford, 2 C. C. A. 354, 51 Fed. 513; Smith v. Sun Printing & Pub. Ass'n, 5 C. 0. A. 91, 55 Fed. 240. So for malice or gross negligence. Cooper v. Sun Printing & Pub. Ass'n, 57 Fed. 566; Davis v. Marxhausen (Mich.) 61 N. W. 504 (in which a libel was published of plaintiff because of a mistake in names. Montgomeiy, J., said: "While the case is manifestly one in which large damages should not be awarded, yet it is clear that the record fails to show conclusively that the publication occurred through mistake, and while in the exercise of reasonable «are"). A note on the liability of a newspaper proprietor for libel published without his knowledge or consent. State v. Mason (Or.) 26 Law.v. Rep. Ami. 779, 38 Pac. 130. Query: Does the opinion of a majority of the court in Han- son v. Globe Newspaper Co., supra, coiTespond to the modification of the or- dinary conception of trespass in the law of trespass to the person, apparent in Stanley v. Powell [1891] 1 Q. B. 86, and Holmes v. Mather, L. R. 10 Exch. 261, or the modification of the formula as to the duty of insuring safety which arose out of Rylauds v. Fletcher, L. R. 1 Exch. 277, L. R. 3 H. L. 330, apparent in Cork v. Blossom, 162 Mass. 330, 38 N. E. 495; 8 Harv. Law Rev. 225 (cf. Gorham v. Gross, 125 Mass. 232); and Berger v. Gaslight Co. (Minn.) 62 N. W. 336 (cf. Cahill v. Eastman, IS Minn. 324 [Gil. 292]). It would cer- 47(3 WRONGS AFFECTING REPUTATION. [Ch. 8 acquired, one, it can scarcely be accurately called an absolute right.* The right to recover for personal defamation depends upon suflQ- cient and consistent allegation and proof that, first, words or other signs (a) capable of a disparaging meaning (b) were used in that sense (c) with reference to plaintiff; second, that such words or signs were (a) published by defendant so that (b) one third person, at least, understood the ill meaning; and, third, that damage resulted to plaintiff either (a) from presumption of law (which is more liberal to the plaintiff in libel than in slander) or (b) from proof of special injury, which has been specially averred. Historical differences, however, make it inconvenient to consider these subjects in this or- der. PUBLICATION— LIBEL, SLANDER, AND MALICIOUS PROSECUTION DISTINGUISHED. 166. Publication of defamatory matter consists in com- municating it to a third person or persons. ° Ac- cording to the manner of publication, it is either — (a) Slander, which is defamation of a person by mere talk; talnly seem that in all these cases the effect of the law inclines, not towards the theory of tort, that a man may act at his peril, but that responsibility is based upon some mental element involving the doctrine of culpability. The absence of a conception of the tendencies in the general law of torts is as apparent in the opinion of Knowlton, J., as perhaps the wedded fondness for his theory is apparent in the opinion of Justice Holmes. i "The right of every man to have his good name maintained unimpaired is a jus in rem, a right absolute and good against the world." Odger, Sland. & L. p. 1. Sten-ett, J., in CoUins v. Dispatch Pub. Co., 152 Pa. St. 187, 2.j Atl. 546, 547. And see Holt, Libel, 15; 1 Bl. Comm. bk. 1, c. 1; 2 Kent, Comm. (13th Ed.) 1(5-26; 1 Chit. PI. 399-407; Delamater v. Eussell, 4 How. Prac. 233. But see Townsh. Sland. & L. §§ 47, 48, 57, to the effect that, "if the supposed right to reputation be an absolute right, then any invasion of it must be a wrong; but reputation is often invaded without such invasion amounting to a wrong. Hence, the inutility for any practical purpose of the definition of a wrong as an invasion of a right. * * * There was no reason for describing that as an absolute right which is something else." 5 Pol. Torts, 215; or giv.ing the defamatory charge to the world, Cooley, Torts, p. 193. Ch. 8] PUBLICATION. 477 (b) Libel, which is personal defamation by any other means, except through courts of justice; or, (c) Malicious prosecution, "which is defamation through courts of justice. Pablication — lAbel and Slander. There are many attempted definitions of libel and slander. A favorite distinction is that in slander intelligence is communicated to the sense of hearing; in libel, to the sense of sight." This is essentially true. Slander is, generally speaking, published by word of mouth J libel, by writing, printing, pictures, emblems, or effigies.^ However, gestures and signs — for example, movements of lips of dumb people — are equivalent to spoken words, and publish slan- der, not libel. They are, however, addressed to the sense of sight, and not to the sense of hearing.' Perhaps a more vital distinction is that in slander the defamatory matter has a fugitive form; in libel it is embodied in a permanent form. In slander, production and publication are identical; in libel, its production is one thing and its publication another." , A telegrapher talks over a wire, or by use of a knife between the prongs of a fork, so that third persons understand him to publish 6 Cooley, Torts, p. 193; Townsh. Sland. & L. c. 1. 1 A gallows at tlie door of an obnoxious person is a libel on bim. 5 Coke, 125b. And see Eyre v. Garlick, 42 J. P. 68. Query: Is not Jeiferies v. Dun- combe, 11 Bast, 226 (pimp and bawdy house), a case of libel, not of nuisance. See Clerk «& L. Torts, 424, note b. A display of a placard, concerning tbe m3ther of a boy sent to an industrial school, "We know the tree by its fruit," is libel. Kay V. Jansen, 87 Wis. 118, 58 N. W. 245. A statue, 1 Hawk. P. C. (8th Ed.) 542. A caricature, Austin v. Culpepper, 2 Show. 313. Chalk marks on wall, Tai-pley v. Blaby, 7 Car. & P. 395. Scandalizing plaintiff by can-ying follow about with horns blowing at plaintiff's door, etc.. Sir AVilliam Bolton v. Deane, Skin. 123 (cited in Austin v. Culpepper, 2 Show. 313). And see Spall v. Massey, 2 Starkie, 559; Cropp v. Tilney, 3 Salk. 225. Malicious protest of a draft. May V. .Tones, 88 Ga. 308, 14 S. E. 552. 8 Pol. Torts, 204, 205. Lord Abinger, in Gutsole v. Mathers, 1 Mees. & W. 404-501. » Clerk & L. Torts, § 423; Fraser, Torts, 75. "In every slander there are two acts: (1) The composing; (2) the publishing. In every libel there are three acts: (1) The composing; (2) the writing; (3) the pubUshing." Townsh. Sland. & L. p. 58, § 70. 478 AVUONGS AKFl'XTIXG REPUTATION. [tlh. 8 defamatory words. This is "talk," as much as spoken words. The mere media by which ideas are communicated, unless because of peculiar attribute (as permanency), should not alter the legal aspect of the conduct involved. And if a person talk to a phonograph so that a third person would overhear him in the act, this would be slander; but if the publication consisted in the subsequent repro- duction of the language to a third person from the permanent coil, it would be hard to understand why this would not be libel. But intelligence would be communicated to the sense of hearing, not that of sight. Again, slander is a wrong which cannot be committed by joint tort feasors. Libel can. "An action for slander will not lie jointly against two. Such an action cannot be maintained, because the words of one are not the words of another. A separate action for words spoken must be prosecuted against each. Even if a husband and wife utter similar words simultaneously, they were regarded as two separate publications, and an action had to be brought against the husband alone for what he said, and against both husband and wife for her words." ^° There is another distinction between libel and slander, which follows rather as a consequence, after it has been determined whether the wrong in a given case is to be regarded as libel or slander, than as means for determining the nature 'of the wrong in issue. Thus, libel is a criminal wrong, while slander at common law was not, and in most places is not now, punishable as a public wrong.^^ Mr. ToM'nshend insists that there is a third means of publishing defamation, viz. by courts of justice.^^ To this proposition it would be hard to take exception. But it can scarcely be said to be true that injury to the reputation is the only one produced by malicious prosecution. Damages, in this form of wrong, may be "to plaintiff's 10 Van Syckel, J., in Van Horn v. Van Horn, 5G N. J. Law, 318, 28 Atl. 639- 671, citing Townsli. Sland. & L. §§ 113-118; Tliomas v. Rumsey, 6 Johns. 26; Odger, Sland. & L. 371, and cases cited. 11 As to "scandalum magnatum," see Townsh. Sland. & L. § 138. As to dis- tinction between civil and criminal, see Warnock v. Mitchell, 43 Fed. 428. 12 Townsh. Sland. & L. VI. "An action for libel is upon all fours with an action for malicious prosecution. The latter is but an aggravated form of an action for libel, as in it the libel is sworn to before a magistrate." Briggs v. Garrett, 111 Pa. St. 404, 2 Atl. 513. ^'''- ^] PUBLICATION. 479 property or his reputation, or may arise from his being put in danger of life, limb, or liberty." Moreover, while in both libel and slander • damages are, perhaps, in a great majority of cases, presumed," this cannot be said in case of malicious prosecution.^* And many au- thorities insist that before an action of malicious prosecution can be brought there must be interference with the plaintiffs person or a seizure of his property." SAME— WHAT CONSTITUTES. 167. Publication consists in — (a) The giving out of defamatory matter by the defend- ant; (b) The taking in by a third person or third persons. The Giving Out. No amount of malice in thought can make silence or inactivity actionable as libel and slander. Unless the defamatory matter has been given out to some third person, there can be neither actual damages nor a basis on which the law can, with any show of reason, presume damage. There is no injury to the reputation." There is, however, no magic in the number of persons to whom the intelli- gence is communicated. A single person,^' though invisible,^' is sufficient. But the communication must be to a third person.^* Where persons mutually engage in exchange of opprobrious epithets, neither can maintain an action for slander.^" A husband and wife 13 Shearw. Torts, 34. 1* Post, p. 627, "Malicious Prosecution." 15 Post, pp. 627, 628, "Malicious Prosecution"; 1 Starkie, Sland. & L. SCO; Cooke, Defam. 87. 18 Generally, see Pittard v. Oliver [1891] 1 Q. B. Div. 474; Bacon v. Mich- igan Cent. R. Co., 55 Mich. 224, 21 N. W. 324; Young v. Clegg, 93 Ind. 371; Spaits V. Poundstone, 87 Ind. 522; Marble v. Chapin, 132 Mass. 22.j; Mielenz V. Quasdorf, 68 Iowa, 726, 28 N. W. 41. 17 Adams v. Lawson, 17 Crat. 2.")0. 18 Desmond v. Brown, 33 Iowa, 13; ShefHll v. Van Deusen, 13 Gray, 304; Giles V. State, 6 Ga. 276. 13 SheffiU V. Van Deusen, 13 Gray, 304; Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822; Shepheard v. Whi taker, L. R. 10 O. P. 502. 20 Goldberg v. Dobberton, 46 La. Ann. 1303, 16 South. 192. "The uttering of a libel to the party libeled is clearly no publication, for the purposes of a 4S0 WRONGS AFFECTING REPUTATION. [C'll. 8 may be so far one person that the statement by the one to the other is not publication, unless, for example, they are living apart,^^ or a third person overhears the remarks.^^ But communication to a wife by a third person of vrords defamatory to her husband is a legal publication. 2 5 The testimony of ministers, who in their minis- terial office have drawn from one statements of an ancient transac- tion which is the ground of suit, is admissible to show publication of the slander.^* While an allegation that defamatory matter was "published" is a sufficient allegation that it was given out,^" a charge that it was "printed" has been held insufficient,^ '= although printing implies passing through a compositor's room and should, therefore)! perhaps be held to be prima facie publication." If the libel charged be con- tained in a sealed letter, read only by the plaintiff, there is no giv- ing out to a third person.^^ But it is otherwise if the letter refer in libelous words to the plaintiff, and a third person to whom it is sent reads it,^'* even if such person be the plaintiff's wife ^° ofTrl^rk,?^ civil action." Phillips v. Jansen, 2 Bsp. 624; Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41; 28 Am. Law Keg. 276, 413; Wennhak v. Morgan, 20 Q. B. Div. 635. 21 Wennhalc v. Morgan, 38 Alb. Law J. 24; Sesler v. Montgomery (Oal.) 19 Pac. 686 (but see revisal in 78 Cal. 486, 21 Pac. 185); Trumbull v. Gibbons, 3 City H. liec. 97. Such cases may also be regarded as involving privilege. 2 2 State V. Shoemaker, 101 N. C. 690, 8 S. E. 332. 23 Wemnan v. Ash, 13 0. B. 836. 2 4 Tickers v. Stoneman, 73 Mich. 419, 41 N. W. 495. 2 5 Wilcox V. Moon, 64 Vt. 450, 24 Atl. 244; Id., 61 Vt. 484, 17 Atl. 742. 2 Sproul V. Pillsbury, 72 Me. 20; Prescott v. Tousey, 50 N. Y. Super. Ct. 428. 2T Baldwin v. Elphiiiston, 2 W. Bl. 1037. 2 8 Wamock v. Mitchell, 43 Fed. 428, and cases collected at page 430; Spaits V. Poundstone, 87 Ind. 522; Lyle v. Clason, 1 Caines, 581; Willard v. Mello^, 19 Colo. 534, 36 Pac. 148. And see Delaware Ins. Co. v. Croasdale, 6 Houst. 181; Holland v. Batchelder, 84 Va. 664, 5 S. E. 6^; Barrow v. Lewellin [1615] Hob. 62. ^sYovtag Y. Clegg, 93 Ind^ 371; Gough v. Goldsmith, 44 Wis. 262; Fowles V. Bowen, 30 N. Y. 20. / 3 Wenman v. Ash, 13 C. B. 836, 22 Law J. O. P. 190-192, per Maule, J.'; Schenck v. Schenck, 20 N. J. Law, 208. 31 Delacroix v. Thevenot [1817] 2 Starkie, 63. Ch. 8] PUBLICATION. 481 or it is read aloud to a stranger by the writer.^- Indeed, a dictated typewritten letter,'®^ or a telegi'am sent,'* or a postal card niailed,^^ or the signing and delivery of a petition,^'* may necessarily involve the publication of libelous contents to third persons. The tech- nical sense of publication is essentially different from the colloquial. Distribution of painphlets,'' posting in a conspicuous place a notice calling attention to specimens of defective work and materials of an architect or contractor, is publication.'^ And, generally, sale and delivery of a libelous publication '" constitute legal publication. Every sale of a ntewspaper is a fresh publication,*" but a news vendor is not necessarily liable as a publisher of defamatory matter contained in what he sells.*^ It is no publication to show a cojjy of a caricature to a person who asks to see it.*^ If the plaintiff do the act which constitutes publication, he cannot re- cover for the defamatory matter he has communicated. Therefore, if one sends another a sealed letter containing defamatory matter, and which the latter reads aloud, he cannot recover, because the publica- tion is his own act.*' Again, the act of publishing is not the defend- 82 Snyder v. Andrews, 6 Barb. 43. Of. McOoombs v. Tuttle, 5 Blackf. 42S- 432. And see Miller v. Butler, 6 Gush. 71. 8 3 Pullman v. Hill [1891] 1 Q. B. Dlv. 524. Giving a letter containing mat- ter defamatory of another to a clerk to copy, which he does, is a publication. State V. Mclntire, 115 N. C. 7G9, 20 S. E. 721. 3 4 Williamson v. Freer, L. R. 9 C. P. 393. 3 5 Robinson v. Jones [1879] L. R. 4 Ir. 391. So it is libel to send through the mail an envelope having indorsed thereon, in large letters, "Bad-Debt Col- lecting Agency." State v. Ai-mstrong, 106 Mo. 395, 16 S. W. 604. so CotuUa V. Kerr, 74 Tex. 89, 11 S. W. 1058. 3 7 Woods V. Wiman, 122 N. Y. 445, 25 N. E. 919. And see Warnock v. Mitchell, 43 Fed. 428. 3 8 Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68. And see Kay v. Jansen, 87 Wis. 118, 58 N. W. 245. 39 Duke of Brunswick v. Harmer, 14 Q. B. 185, 10 Law J. Q. B. 20; Thoiiie V. Moser, 1 Denio, 488; Staub v. Benthuysen, 30 La. Ann. 4G7; Belo & Co. v. Wren, 63 Tex. 686-723; Com. v. Blanding, 3 Pick. 304. *o See post, notes 44, 45. *i See post, notes 44, 45. ' *2 Smith V. Wood, 3 Camp. 323. And see Delacroix v. Thevenot, 2 Starkic, 63 (putting a libel in desk). 4 3 Wilcox V. Moon, 64 Vt. 450, 24 Atl. 244. LAW OF TORTS— 31 482 WRONGS AFFECTING REPUTATION. [Ch. 8 ant's, if he does not know .of it. "A newspaper is not like a fire. A man may carry it about without being bound to suppose that it is likely to do any injury." ** But it would seem that a man so far acts at his peril, with respect to defamatory matter which he has originated, that if, without intention, as by inadvertence on his part, it reaches and is known to third persons, he should be held to have published it.*° The Taking in by Third Persons. The essence of publication is not the employment of means to give out the defamatory matter, but the actual communication of intel- ligence to third persons. This is not accomplished until such mat- ter is understood.*" Therefore, when the language is foreign, it must be shown to have been comprehended.*' If not understood, *i Emmens v. Pottle, 16 Q. B. Div. 354, per Bowen, L. J., at ptige 358; Id., 55 Law J. Q. B. 51. i5 8 Hai-v. Law Rev. 206; Fraser, Torts, 85. But see Tompson v. Dash- wood, 11 Q. B. Div. 43, 52 Law J. Q. B. 425. Cf. PuUmau v. Hill, supra (with which it is inconsistent). 4 6 Sullivan v. Sullivan, 48 111. App. 435. See, also, French v. Detroit Free Press Co.,' 95 Mich. 168, 54 N. W. 711; McAllister v. Detroit Free Press, 95 Mich. 164, 54 N. W. 710. Where the alleged slanderous words are, "She is ornrier than two hells," it is competent to show by persons who heard the words what they xmderstood them to mean. Wimer v. AUbaugh, 78 Iowa, 79, 42 N. W. 587. As to evidence of witnesses as to understanding of words, see Johnston v. Morrison (Ariz.) 21 Pac. 465; Republican Pub. Co. v. Miner, 12 Colo. 77, 20 Pac. 345. 4 7 Kiene v. RufC, 1 Iowa, 482, Burdick, Lead. Cas. Torts, 215; Warmouth v. Cramer, 3 Wend. 395; Townsh. Sland. & L. (4th Ed.) 94; 1 Starkie, Sland. & Jj. 361. But, in an action for slander, a witness who heard the words spoken cannot testify as to what his understanding of them was. Callahan v. In- gram, 122 Mo. 355, 26 S. W. 1020. Cf. Dickson v. State (Tex. Cr. App.) 28 S. W. 815; Dressel v. Shippman (Minn.) 58 N. W. 684; Walker v. HoefCner, 54 Mo. App. 554; Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488; Howland v. George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656; Halley v. Gregg, 82 Iowa, 622, 48 N. W. 974; Edwards v. Wooton, 12 Coke, 35,; Hicks' Case, Hob. 375 (see these cases considered in Wsrnock v. Mitchell, 43 Fed. 423- 433). Defamatory words spoken by a lunatic, whose insanity was obvious, or known to all the hearers, are not actionable. Dickinson v. Barber, 9 Mass. 224^227; Bryant v. Jackson, 6 Humph. 199; ante, c. 2; Yeates v. Reed, 4 Blackf. 403. So, also, of words spoken or u];iderstood as a jest. Donoghue V. Hayes, 265. Drunkenness is no defense. Kendrick v. Hopkins, Gary, 133; Gates V. Meredith. 7 Ind. 440. Ch. 8] PUBLICATION. 483 the publication is not actionable.** When the language published may be understood in two senses, one very damaging to a certain person and the other harmless, the publisher cannot object that his readers gave it the sinister meaning.*" Accordingly, witnesses are generally allowed to state their own understanding of the words spoken.^" In other words, the rule is that the plaintiff must prove a publication by the defendant in fact. That the third person had an opportunity of reading the libel or hearing the slander is not sufficient, if the jury are satisfied that he did not read the libel or hear the slander, even tEbugh it is clear that the defendant desired and intended publication.'^ SAME— REPUBLICATION. 168, Not every repetition^ but every republication, gives rise to a new cause of action. "Every repetition," it was said in Earl of Northampton's C^se, "is a new publication, and gives rise to a new cause of action." *^ So far as mere repetition is concerned, this rule has been aban- doned.°' But there is an important, valid, and subsisting distinc- tion between repetition and republication. "Eepublication is a sec- . ond or subsequent publication in the same langjiage. Repetition is a publication of language "of the same import or meaning, as the language of a previous publication^ Repetition is a subsequent pub- lication, independent and distinct from the first publication. There may be a republication of a writing, i. e. a publication of the ma- terial written upon, with the writing thereon, and there may be a <8 Broderick v. James, 3 Dal.y, 481-484. 48 Jacksonville Journal Co. v. Beymer, 42 111. App. 443. See, also, Moiey V. Morning Journal Ass'n, 49 Hun, 606, 1 N. Y. Supp. 475. 00 Freeman v. Sanderson, 123 Ind. 204, 24 N. E. 239. Of. Wirner v. AUbaugli, 78 Iowa, 79, 42 N. W. 587.- 51 As to libel, see Odger, Sland. & L. (2d Ed.) 154, citing Clutterbuek v. ChafEers, 1 Starkie. 471; Day v. Bream, 2 Moody & R. 55; Ponville v. Mc- Neasel Dud. (S. C.) 303. 'As to slander, see SheffiU v. Van Deusen, 13 Gray, 304. 5 2 12 Coke, 132-134. 03 1 Hil. Torts, 410-415; Oilman v. Lowell, 1 Am. Lead. Gas. 242, note, and cases cited. Post, p. 546, "Mitigation." ■4S4 WROXGS AFFECTING REPUTATION. [Ch- 8 repetition of the subject-matter of a writing; also, there may be a repetition of oral language(speech), but there cannot be a republica- tion of oral language." " Therefore, if after a recovery and satis- faction for one slanderous utterance or libelous publication, the same defamatory matter is uttered or published again by the wrongdoer, this is a new injury, and another cause of action, and there may be another recovery and satisfaction from him." But a repetition of the same article, as an issue of the newspaper subsequent to the commencement of the action, operates to show malice and to aggra- vate damages.^" SAME— APPLICA'riON TO THE PLAINTIEF. 169. To recover for publication of defamatory words, the plaintiff must shovr — (a) Their personal application to him.;^^ and (b) In a disparaging sense. Personal Application . A general charge is not sufficient. "If a man wrote that all law- yers were thieves, no particular lawyer could sue him, unless there is something to point to the particular individual." °* However, a general charge may, by evidence that a certain person was specif- ically referred to, be made sufScient,^^ unless by its own nature it Si Townsh. Sland. & L. p. 92, § 112. And see Woods v. Pangburn, 75 N. Y. 495; Id., 14 Hun, 540; Tillotsou v. Cheetha.m, 3 Johns. 56; Thomas v. Rumsey, 6 .Johns. 26; Rockwell v. Brown, 36 N. Y. 207. With all due al- lowance for mitigating circumstances, damages will be awarded for injury to character by slander, aggravated by repetition. Rev. Oiv. Code, par. 3, arts. 1934r-2315. 5 5 Wood v. Pangburn, 75 N. Y. 495. 5 6 Welch V. Tribune Pub. Co., 83 Mich. 661, 47 N. W. 562; Ellington v. Taylor, 46 La. Ann. 371, 15 South. 499; post, p. 520, "Actual Malice"; note 220. B7 McCallum v. Lambie, 145 Mass. 234, 13 N. E. 899, and cases collected; Le Fanu v. Malcomson, 1 H. L. Cas. (!36. 58 Willis, .T., in Eastwood v. Holmes, 1 Fost. & F. 347-349. But of. Lord Campbell, in Le Fanu v. Malcomson, 1 H. L. Cas. 636-668; Dexter v. Harrison. 146 111. 169, 34 N. E. 46. 58 Thus "dagos" may be applied to plaintiff. Craig v. Pueblo Press Pub. Ch. 8] PUBLICATION. 485 is too uncertain.*" But, on the other hand, such person need not be described by his own name.'^ He makes out his case by show- ing that he is, and was understood to be, the person referred to.*^ He must so satisfy the jury.*^ A court may determine this matter, iiowever, together with the defamatory nature of tlie words. Thus, it has been held libelous as a matter of law to nickname Senator Buckstaff "Senator BecksnifE" (by reason of similarity to a Pecksnili), the "legislative God," — and the like.''* The application must be to the plaintiff's person, not to his prop- erty.^° To be libelous against a particular person, it must concern him, not a third person, even his wife.®" So far as pleading is con- Co. (Colo. App.) 37 Pac. 945. And see Boehmer v. Detroit Free Press Co., 94 Mich. 7, '53 N. W. 822. 60 As to saj% "One of you three is perjured." Sir John Bourn's Case, cited Cro. Eliz. 497. 61 James v. Rutlech (1509) 4 Coke, 17b; Dressel v. Shippman (Minu.3 5S N. W. 684. 62 Roach V. Garvan (1742) 2 Atlt. 469; O'Brien v. Clement (1846) 1.5 Mees. & W. 434, 435; Dexter v. Harrison, 146 111. 169, 34 N. E. 46. Indeed, it may be described by the name of some one else, Levi v. Milne (1827) 4 Bing. 195; or by a fictitious name, King v. Clerk (1720) 1 Barnard. 304; or by asterisks, , Bourke v. Warren (1826) 2 Oar. & p. 307. But see Hanson v. Globe News- paper Co., 159 Mass. 293, 34 N. E. 462, 03 La-n-rence v. Newberi'y (1801) 64 Law T. (N. S.) 797; Smart v. Blanchard, 42 N. H. 137; De Armond v. Armstrong, 37 Ind. 35; Goodrich v. Davis, 11 Aletc. (Mass.) 473; Boehmer v. Press Co., 94 Mich. 7, 53 N. W. 822; Ayres v. Toulmin, 74 Mich. 44. 41 N. W. 855. 64 BuckstafC V. VialJ, 84 Wis. 129, 54 N. W. 111. The actionable quality of the words is one thing, the application to plaintiff another. Smith v. Coe, 22 Minn. 276; Petsch v. Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034; Carlson v. Minnesota Tribune Co., 47 Minn. 337, 50 N. W. 229, construing Gen. St. Minn. 1878, c. 66, § 115 (Rev. St. Minn. 1894, § 5257). In Stewart v. Wilson, 23 Minn. 449, the publication complained of was as follows: "As Mr. Wilson has s^vorn to this answer, here is a gogd chance for the 'deacon' to bring a complaint against hiroi for perjury. We have not the slightest doubt but there is a great deal of perjury in these numerous cases, and it ought to be shown up. We have no idea, however, that ilr. Wilson is tainted with it in the slightest." Held that, in the absence of averment connecting plaintiff with the deacon, there was no cause of action. «B Ante, p. 473. 86 The mere fact that a publication charges plaintiff's wife, since deceased, with having procured a miscarriage upon her person, is not libelous against 486 WRONGS AFI-'ECTING REPUTATION. [Ch. 8 cerned, it is now commonly suflBcient to allege generally that the defamatory matter was published concerning the plaintiff.'^ Disparaging Sense. A word naturally defamatory may be so used that it is neither in- tended nor understood to have its literal and damaging meaning, but to be harmless."^* Thus, if one should say, "Thou art a mur- derer," the words would not be actionable, if he could make it ap- pear that the person with whom he was conversing concerning un- lawful hunting had admitted killing several hares, and that by the expression used he meant a "murderer" of the hares so killed."'' So one may, without responsibility in damages, denounce another as a "thief," and mean and be understood to mean no more than that the latter had been guilty of mismanagement of corporation affairs.'"' DAMAGE AS THE GIST OF LIBEL AND SLANDER. 170. Damage sometimes is of the gist of libel and slander, and sometimes is not. Mr. Townshend has demonstrated that history is silent as to the introduction of the action for defamation. Accordingly, he applies hypothesis as a means of investigation as to the manner in which- the law protects reputation, and concludes that pecuniary loss is the gist of the action. He regards the rule of law that certain lan- guage is, per se, and without other evidence, conclusive proof of pe- cuniary loss, as only a rule of evidence, while the rule of right re- plaintiff. Wellman v. Sun Print, and Pub. Co., CC Hun, 331, 21 N. Y. Supp. 577. A married ^Yoman, thougli living with her husband, may maintain action for slander in her own name, and without joining him with her. Pavlovski V. Tboi-nton, 89 Ga. 829, 15 S. E. 822; Harper v. Pinkston, 112 N. C. 203. IT S. E. 161. «i Katcliffe v. Evans [1892] 2 Q. B. 524; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752; Nelson v. Wallace, 48 Mo. App. 193. 6 8 starkie, Sland. & L. 98, 99, et seq.; Van Rensselaer v. Dole, 1 Johns. Cas. (N. y.) 279. And see valuable note to second edition. «i) Lord Cromwell's Case, 4 Coke, 13. TO Kidd V. Ward (Iowa) 59 N. W. 279; Delaney v. Kaetel, 81 Wis. 353, 51 N. W. 559; Wagner v. Saline Co. Progi'ess Printing Co., 45 Mo. App. 6. And see Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752. But see Jacksonville Journal Co. v. Beymer, 42 111. App. 443. Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDER. 487 mains intact, that a pecuniary loss must be shown to entitle to a I'emedy." To apply this distinction between a rule of evidence and a rule of right to the entire law of torts would, however, be revolutionary. There is no reason why the general law should be further filled with exceptions. The distinction also ignores the important proposition that where damages are presumed by the law from the invasion of a right (whether called natural, simple, absolute, or by other name), no inquiry is allowed into the character of the actual harm suffered. Then, there is no requirement that such actual harm be sufficient in quantity, temporal in character, or proximate in sequence, so far as mere right to recover (but not extent of recovery) is concerned. This distinction, accordingly, would seem to be untrue or misleading. The fact is that here the law is eminently artificial. It has held that certain classes of words in slander and a different class of words in libel are actionable per se; that is, invade a simple (or absolute) right of reputation. Upon proof of publication of such words, or absence of any defense, the plaintiff must recover at least nominal damages. The law has further held that where words are not within these classes (i. e. slanderous or libelous per se), then they are actionable only on proof of special injury to the complainant. Up- on proof of publication of words not per se defamatory, even in the absence of any defense, the plaintiff cannot recover, unless he shows that he suffered harm which conforms to the standard fixed by the general rules. Louisiana Rule. Louisiana, freed from many of the fetters of the common law, and deriving its inspiration largely from the civil law, well illustrates the natural rule as to defamation of persons. It is provided by its Code '^ that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." "The courts of that state are not bound," said Fenner, J., in Spotorno v. Fourichon,''^ "by the technical distinctions of the common law as to words actionable per se and not actionable per se, and allowing for 71 Townsh. Sland. & L. p. 44, § 56. T2 Article 2315, Civ. Code, 1889. 7 3 40 La. Ann. 423, 4 Soutli. 71. 438 WRONGS AFFECTING BEPUTATION. [Ch. 8 the latter only actual pecuniary damages specially proved." '* If the charges are false, injurious, and made maliciously or mala animo, they combine all the elements essential to support the action." Both damage and injury and the malice may be inferred from the nature and falsity of the words, and from the circumstances under which they were uttered, without the necessity of special proof.'' ^ It was therefore held that, under the social habits and customs and prejudices prevailing in that state, charging a white man with be- Mng a negro was actionable slander^^ The consideration of this confused subject will follow this order: (1) The extent to which damage is of the gist of a cause of action in slander, and the character of such damage; (2) the extent to which damage is of the gist of a cause of action in libel; (3) cases in which damages will be presumed in libel and not in slander. S (f^ SAME— PRESUMPTION IN ACTION FOR SLANDER. 171. The rule in actions for slander is that damages — (a) Will be presumed by law whenever the alleged slanderous matter — (1) Imports a charge of punishable crime; (2) Imputes a contagious or offensive disease; (3) Is calculated to injure the plaintiff in his call- ing; or (4) Tends to the disherison of the plaintiff.^* 7 4 Miller v. Holsteine, 16 La. 627; Feray v. Foote, 12 La. Ann. 894. 'B Note confused use of "injurious." 7 6 Miller v. Holsteine, supra; Daily v. Van Benthuysen, 3 La. Ann. 69; Tresca v. Maddox, 11 La. Ann. 206; Cass v. New Orleans Times, 27 La. Ann. 214. 7 7 Toye V. McMahon, 21 La. Ann. 308; Warner v. Clark, 45 La. Ann. 863, 13 South. 203 (commenting, inter alia, on Dunsee v. Norden, 36 La. Ann. 79). '78 Onslow V. Home, 3 Wils. 177-185 (De Grey, C. J.) followed in Alex- ander V. Jenkins [1892] 1 Q. B. 797; Starkie, Sland. & L. 105; Pig. Torts, 305; Bigelow, Lead. Cas. 99; Fras. Torts, 86. There is another exception In Eng- land, by local custom, as imputing unchastity to a woman in London or Bristol. Shearw. Torts, 30. Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDER. 489 (b) Must be proved in all other cases to have produced to the plaintiflf some special injury, which must be, inter alia, (1) Sufficient in quantity; (2) Pecuniary or temporal; and (3) Proximate. Damages Presumed. Matters which are slanderous per se are also libelous per se. Hence, when the cases of matter libelous per se, but not slanderous per se, have been duly regarded, consideration of matter defamatory per se is completed. Detailed discussion of the four classes of words in which the law presumes damage in slander is therefore postponed until the subject of the defamatory words comes up in logical order. Special Injury — Nominal Damages. The law will apply the maxim, "De minimis non curat lex," to the special injury or damage which a person must allege and prove to entitle him to recover for words not slanderous per se.'° ' Same — Pecuniary Loss. Such damage must be pecuniary or temporal, not merely sentimental. They are allowed "whenever a person is prevented by slander from recovering that which would otherwise be conferred upon him gratu- itously," as the loss of customers by a tradesman.^" But generally loss of consortium vicinorum gives no ground of action.*^ So, if words prevent one from being invited to a friend's house to dinner, they are actionable; ^^ but not if they prevent one's election to a club, and thus prevent dining friends. Chance of election, unlike actual membership, is not of temporal value.^^ T8 Ante, c. 5, "Remedies." 80 Pol. Torts, 300-303; Steele v. Soutbwick, 9 Johns. 214, 1 Am. Lead. Cas. 106; 6 Am. Law Rev. 593; 1 Starkie, Sland. & L. 194-202; Bassil v. Elmore, 65 Bai-b. 627, 48 N. Y. 561; Tettibone v. Simpson, 66 Barb. 492. And see Beach v. Ranney, 2 Hill, 309; Roberts v. Roberts, 5 Best & S. 384, 33 Law J. Q. B. 249; Anonymous, CO N. Y. 262 (charge of self pollution); Woodbury V. Thompson, 3 N. H. 194. 81 Roberts V. Roberts, 5 Best & S. 384, 33 Law J. Q. B. 249. 8 2 Davies v. Salomon, L. R. 7 Q. B. 112; Lynch y. Knight, 9 H. L. Cas. 599. 8 3 Chamberlain v. Boyd, 11 Q. B. Div. 407-416. 490 WRONGS AFFECTING REPUTATION. [Ch. 8 Mere words of common abuse are not actionable witbout proof of special pecuniary damages, and tbe law bas been very generous to a slanderer in its definition of common abuse. Tims, to cbarge pros- titution, or to say of a married woman that she was "a liar and in- famous wretch, and that she had all but been seduced by a notorious libertine," is not actionable without averring and proving loss of temporal advantage." So, to say of a woman that the defendant "looked over the transom light and saw Mrs. P. (the plaintiff) in bed with Capt. D." was not actionable, without proving special damages ; and to allege that by reason of such false statement the plaintiff was damaged in her name and fame is not sufficient to show special damages.*' If, however, reflection on chastity result in preventing a person's marriage, damages may be recovered, but even then only when there has been special pleading.*" The English "Slander of Woman Act" has made words imputing unchastity or adultery slan- derous per se. It has been held that a charge of adultery by a clergyman is not scandalous per se. And a man may with impunity, unless such per- son thereby suffers special injury, call another a "black-leg," " a "gambler," ** a "rogue," ** a "welcher," "" a "low fellow." '^ Same — Proximate or Remote Damages. As in all cases of tort, damages to be recoverable must be proxi- mate not remote. But while the right to reputation was generally regarded as absolute, the courts did not extend the liberality of the rule as to consequences applied in trespass to slander. On the contrary, in the celebrated case of Vicars v. Wilcox,'^ where a per- son spoke disparaging words of another, by reason of whicih the 8 4 Lynch v. Knight, 9 H. L. Gas. 431-448; Weaver v. Ritter, 14 Pa. Co. Ct. R. 486. 8= Pollard V. Lyon, 91 U. S. 225. 86 Davis V. Gardiner, 4 Goke, 16b, pi. 11; Reston v. Pomfreict, Gro. Eliz. 639; 3 Bl. Gomm. 124. 87 Parrat v. Garpenter, Gro. Bliz. 502 (charge of adultery by a clergyman not slanderous); Barnett v. Allen, 27 Law T. 491. 8 8 Forbes v. King, 1 Dowl. P. G. 672. 5 9 Hop wood v. Thorn, 8 G. B. 293-313. 9 Blackman v. Bryant, 27 Law T. (N. S.) 491. «i Lumby v. Allday, 1 Gro. Jac. 301. 92 Vicars v. Wilcocks, 8 East, 1. Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLAKDER. 191 latter was dismissed from service, the damages were held to be re- mote. This holding is manifestly unsound.^^ True to their love for the "reasonably prudent man," the English courts incline to sep- arate a natural and probable, from a remote, consequence, by what such a person would have foreseen as the result of a given conduct. Thus, in Lynch v. Knight,^* in consequence of a charge of levity (but not incontinence), a husband turned his wife out of doors. It was held that no action lay, on the ground that the damage was not the natural result of the slander, but arose from the rashness or idiosyn- crasy of her husband. "The act constituting the special damage must be such as might be expected from a reasonable man who be- lieved the truth of the words according to the intention of the slan- derer." *° A wrongdoer is not bound to anticipate the general probability of wrongdoing by a third person. Therefore he is not bound to fore- see the repetition of a libel, any more than a particular act by this or that individual.*' But one who gives defamatory matter to a reporter is responsible for its publication in a newspaper." "An action may sometimes be maintained for words written for which an action could not be maintained if they were merely spo- ken." °' Libel is regarded in the law as an injury of a "greater and more aggravating nature than slander." The reason for this distinction may, perhaps, most truthfully be found in the histori- 9 3 Lynch v. Knight, 9 H. L. Gas. 577. But see Wallace v. Rodgers, 15G Pa. St. 39.0, 27 Atl. 163. 84 9 H. L. Cas. 577. »5 Pig. Torts, 309. 90 Holmes, J., in Burt v. Advertiser Newspaper Co., 154 JIass. 238-247, 28 N. E. 1, and cases cited; McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N. W. ei71; Hardy v. Williamson, S6 Ga. ."..jI, 12 S. E. 874; Halley v. Gre;;g, 82 Iowa, 622, 48 N. W. 974. 97 State V. Osbom [1895] 54 Kan. 473, 38 Pac. 572; Olay v. People, 80 111. 147; Clifford v. Cochrane, 10 III. App. 570-577; Wilson v. Noonan, 27 Wis. 598; Miller v. Butler, 6 Cush. 71; Queen v. Cooper, 8 Q. B. 533; Adams v. Kelly, 1 Ryan & M. 157; Parkes v. Prescott, L. R. 4 Exch. 160; Field v. Col- son (Ky.) -JO S. W. 264; ante, p. 383, c. 5, "Sp&cial Damages." 98 White v. Nicholls, 3 How. 266; Thorley v. Lord Kerry, 4 Taunt. 3."'i.->, citing C< ai. Dig. "Libel," A, 3, referring to cases in Fltzg. 121-2.')3; Crop v. Tilutv.;' Salk. 226, per Holt, C. J. 492 WRONGS AFFECTING RErUTATION. [Ch. 8 cal development of the law rather than in the nature of the offense."'' It is commonly urged that the difference is justified by the method of publication involved. In libel, the fact that production is one thing and publication another shows premeditation and de- sign, and always, to some extent, affords opportunity for examina tion into the truth of the charge, so that the inference of malice is more certain. Again, the means of pxiblishing libel tends to keep the charge "fresh in imagination, while with slander the words might not dwell in the memory." Written defamation is likely to have a mor6 extended circulation than spoken words. And, finally, the tendency of libel, because of these considerations, to cause a breach of peace is more direct than that of slander.^"" The sound- ness of the reasoning has been often and vigorously questioned. Lord Mansfield, although he refused to repudiate the distinction because of authority, said: "It is curious that they [the judge and counsel who sustained the distinction] have * * * ad- verted to the question whether it tends to produce a breach of peace; but that is wholly irrelevant, and no ground for recovering damages. So it has been argued that writing shows deliberate malignity; but the same answer sufflces, that the action is not upon the ground of malignity but for the damage sustained. So it is argued that a written scandal is more generally diffused than words spoken, but an assertion made in a public place * * * may be much more extensively diffused than a few printed papers dispensed, or a private letter. It is true that a newspaper may be generally read, but that is all casual." ^"^ so Bigelow, Lead. Cas. 99. And see article in 10 Law Quart. Rev. 158, by Mr. Joseph R. Fisher. 100 Pig. Torts, 313; Clement v. Cliivls, 9 Barn. & C. 172; McClurg v. Ross, 5 Bin. (Pa.) 218, 219. 101 Thorley v. Lord Kerry, 4 Taunt. 355, at page 364. And see Deford v. Miller, 3 Pa. St. 103; Colby v. Reynolds, 6 Vt. 489; Archbishop v. Robeson, 5 Bing. 17-21. Ch. 8] DAMAGE AS THE GIST OF LIBEI. AND SLANDER. 493 . )■ SAME— PRESUMPTION IN ACTION FOR LIBEL 173. The rule as to damages in libel is that damages — (a) Will be presum.ed only -when the matter complained of as libelous is in its nature ordinarily cal- culated to — (1) Injure the complainant in his calling; (3) Injure complainant in his social relations; or, (3) To subject him to public scandal, scorn, ridicule, or contempt. (b) Must be proved in all other cases to have produced special loss or injury to the plaintiff con- forming to legal standards. This is the general rule of damages applied to violence of right of reputation. Certain words are defamatory per se. What such words are is determined, not by the use of artificial or historical tests, — the "four-class test," as in slander, — but by a reasonable and natural standard, viz. the inevitable tendency of certain classes of words to do what a man of sound common sense would call damage. Other words, which are not necessarily harmful, may be- come so under the circumstances of a particular case. Then the burden is on the complainant to show what loss to him was con- sequent on their publication. Damuges Presumed. Whenever words are libelous per se, no proof of actual injury is necessary to entitle the plaintiff to recover something. The law presumes that he had suffered some injury by reason of the pub- lication, and the amount of that injury or damage is a question for the jury.^"^ Whenever words are slanderous per se, they are also libelous per se."* 102 Henkle v. Schaub, 94 Mich. 542, 54 N. W. 293; Smith v. Sun Printing & Pub. Ass'n, 5 C. C. A. 91, 55 Fed. 240; Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Newell, Defam. ISl. 103 Bergmann v. Jones, 94 N. Y. 51; 1 Suth. Dam. p. 12; Miles v. Harring- ton, 8 Kan. 425, 430; Ycates v. Reed, 4 Blaclif. 403; Swift v. Dickerman, 31 Conn. 28.j; Mitchell v. Milholland, 106 111. 175; Stewart v. Minnesota Tribune 494 WRONGS AFFECTING EEPUTATION. [f'h. 8 Words Defamato7-y per Se in Libel, but not in Slander. "An action for libel may be sustained for words published wlii(;li tend to bring one into public hatred, contempt, or ridicule,^"* eren though the same words spoken would not have been actionable. And it would seem so apparent that an individual may be brought into hatred, contempt, and ridicule, within the meaning of the law, by professing vicious, degrading, absurd principles,- that it can need no discussion." This was applied to a publication that a per- Co., 40 Minn. 101, 41 N. W. 457; Haney Manuf g Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073. 10* Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332 (under Code Ala. § 2720). "Generally, any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which charges an offense punishable by indictment, or which tends to bring an individual Into public hatred, contempt, or ridicule, or charges an act odious and disgraceful In society. This general definition may be said to include whatever tends to Injiu-e the character of an individual, blackens his reputation, or imputes fraud, dishonesty, or other moral tm-pitude, or reflects shame, or tends to put him without the pale of social intercourse." Clopton, J., in citing Trimble v. Anderson, 79 Ala. 514; Henderson v. Hale, 19 Ala. 154; Dexter v. Spear, 4 JIason, lir., Fed. Cas. No. 3,867; Adams v. Lawson, 94 Am. Dec. 455-460; Solverson v. Peterson (Wis.) 25 N. W. 14; 1 Am. Lead. Cas. 127; 4 Wait, Act. & Def. 282. In an action brought under Code ISSO, § 10()4-, making ac- tionable words which from their usual construction and common acceptance ai'e considered insults, no special damages need be alleged or proved. Mc- Lean V. Warring (Miss.) 13 South. 236. And, generally, In exposing to hatred and ridicule, see Augusta Evening News v. Radford, 91 Ga. 494, 17 S. E. 612; Buckstaff V. Vlall, 84 Wis. 129, 54 N. W. Ill; Winchell v. Argus Co., 69 Hun, 354, 23 N. Y. Supp. 650; Stafford v. Morning Journal Ass'n, 68 Hun, 467, 22 N. Y. Supp. 1008; Patchell v. Jaqua, 6 Ind. A pp. 70, 33 N. E. 132; Hatt v. Evening News Ass'n, 94 Mich. 114, 53 N. W. 952; Allen v. News Pub. Co., 81 Wis. 120, 50 N. W. 1093; Cerveny v. Chicago Daily News Co., 139 111. 34.5, 28 N. B. 092; Stokes v. Stokes, 76 Hun, 314, 28 N. Y. Supp. 165; O'Shaugh- nessy v. Morning .Journal Ass'n, 71 Hun, 47, 24 N. Y. Supp. 609; O'Shaugh- nessy v. New York Recorder Co., 58 Fed. 653; Manget v. O'NIell, 51 Mo. App. 35. See, also, Augusta Evening News v. Radford, 91 Ga. 494, 17 S. B. 612; Buckstaff V. Viall, 84 Wis. 129, 54 N. W. Ill; Patchell v. Jaqua, Ind. App. 70, 33 N. E. 132. An article was published in defendant's paper, setting forth in sensational style that plaintiff was engaged to be married to a young lady; that he had ordered his wedding supper, and hired a minister to perform the ceremony; and that, a few hours before the marriage was to be solercnized, the young lady had eloped with his cousin. It also charged plaintiff -vlth a Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDER. 495 son had failed of election because he was an anarchist '^"° While it is not slanderous per se to call a woman a "bitch," ^"^ or a pros- stitute/"' a publication charging a female of previous good repute and chastity with having traveled with a married man, and with having been turned out of an hotel, and that the revelation has caused a sensation in the community where it transpired, is action- able libel.'"* It is libelous per se to write of a man that "he has turned into an enormous swine who lives on lame horses, and that he will probably remain a swine the rest of his days."' ^"^ To write of one that he is a "sM'indler" is libelous,''" but the words are denial of the engagement, and of any relationship with the person alleged to be his cousin. Held that, if such publication was untrue, it was libelous, as tending to bring ridicule and contempt on plaintiff. Hatt v. Evening News, SM: Mich. 114, 53 N. W. 952. See, also, CeiTeny v. Chicago Daily News Co., 139 111. 345, 28 N. E. 692. 105 Cerveny v. Chicago Daily News Co., 139 111. 345, 28 N. E. B92. Cf. Stew- art V. Pierce (Iowa) 61 N. W. 388. 106 Nealon v. Frisbie, 11 Misc. Rep. 12, 31 N. Y. Supp. 856. Or herm p'lvc- dite, Weatherhead v. Armitage, 2 Lev. 233. But see Malone v. Stewart, 15 Ohio, 319. It is not slanderous per se to say of a man, "He is a bloodsucker, and not worthy to live in the commonwealth, and his child unborn is bound to curse him." Thimmelthorp's Case, Noy, 64. The publication of a letter in which it is said: "You cannot get [plaintiff] down any lower than he is; he is low enough; you can't get him down any lower; you can't spoil a rotten egg,"— is libelous per se, without innuendoes, and no allegation of special dam- age is necessary. Plitzinger v. Dubs, 12 C. C. A. 399, 64 Fed. 696. Ante, p. 490. Words of common abuse not slanderous. 107 In Idaho, the charge that a woman is a "public prostitute" Is not action- able per se; neither adultery, fornication, nor prostitution being punishable as such by statute. Douglas v. Douglas (Idaho) 38 Pac. 934. 108 Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991; McMahon v. Hallock, 48 Hun, 617, 1 N. Y. Supp. 312; Mason v. Strattou, 49 Hun, 606, 1 N. Y. Supp. 511. 10 Solverson v. Peterson, 64 Wis. 198, 25 N. W. 14. So to call a man a "skunk," Massuere v. Dickens, 70 Wis. 83, 35 N. W. 349. To publish, "I found an imp of the devil, in the shape of Jim Price, sitting in tlie mayor's seat; and now, sir, that imp of the devil and cowardly snail, that shrinks back into his shell at the sight of the slightest shadow, had tlie bravery to issue an execution against me," is libelous per se. Price v. 'Whiteley, 5.0 JMo. 439. 110 Anson r. Stuart, 1 Term R. 748; Townsh. Sland. & L. p. 207, notes 3, 4; Smith V. Stewart, 41 Minn. 7, 42 N. W. 505 (inter alia, "Irresponsible, unadul- 496 WRONGS AFFECTING REPUTATION. [Ch. 8 not slanderous per se.^^^ It is libelous per se to refer to one's "intimacy with a well-known young local elocutionist"; but such language would not be slanderous, in the absence of special in- jury."= It has been suggested "= that a charge of having the itch, if written or printed and published, would be actionable, but not if spoken. While slander, injuring a man merely in his social relations, without inflicting pecuniary harm, is not actionable, '^^ it is otherwise as to libel. To say that a man has been blackball- ed, and that he is\ungrateful,"' impecunious,"' insane,"^ or even to charge him WHA unfeeling conduct,^^* is libelous. So to de- scribe him as a hypjcrite,^^" or to accuse Mm in print of lying, is libelous per se.^^" Special Injury in Libel. In libel, as in many other causes of action, one may be able to recover by showing special injury to himself when he would be en- titled to nothing in the absence of such special injury. Thus, in an action for a malicious falsehood, intentionally published in a news- paper about a person's business, — a falsehood not actionable as a personal libel and not defamatory in itself, — evidence that a general terated, first-class humbug and fraud"). But see Williams v. Chicago Herald Co., 46 m. App. 655 ("swindling scheme" not libelous). 111 Savile v. Jardine, 2 H. Bl. 532; Black v. Hunt, 2 L. R. Ir. 10; Broom- field v. Snoke, 12 Mod. 307 (cozening); Chase v. Whitlock, 3 Hill, 139; Odiorne V. Bacon, 6 Cush. 185; Weil v. Altenhqfen, 26 Wis. 70S; Lucas v. Flinn, 35 Iowa, 9. But see Stern v. Katz, 38 Wis. 136; Forrest v. Hanson, 1 Cranch, 83. 112 Collins V. Dispatch Pub. Co., 152 Pa. St. 187, 25 Atl. 546; Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991. Words spoken of a woman, "that she was in the habit of entertaining gentlemen callers at all hours of the night," do not necessarily impute unchastity. Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342. 113 Villers v. Mousley, 2 Wils. 403, 404, by Bathurst and Gould, JJ. 114 Ante, p. 489. 115 Cox V. Lee, L. R. 4 Exch. 284. 110 Eaton v. Johns, 1 Dowl. Pi-. (N. S.) 602. 117 Morgan v. Lingen, 8 Law T. (N. S.) 800. lis Churchill v. Hunt, 2 Barn. & Aid. 685. 118 Jones V. Greeley, 25 Fla. 029, 6 South. 448. 12 Riley V. Lee, 88 Ky. 603, 11 S. W. 713; Prosser v. Callis, 117 Ind. 105, 19 N. E. 735. Ch. 8] DAMAGE AS THE GIST OF LIBEL AND SLANDEI4 497 loss of business has been the direct and natural consequence of such falsehood is admissible, and, if uncontradicted, is sufficient to main- tain the action.^ ^^ Same — Mental Svffering. On the one hand it was held, in Terwilliger v. Wands,^^^ that ill- ness and inability to labor, caused br the effect on the mind of de- famatory words, are not such special damage as will sustain an action for slander, because only injuries affecting the reputation are the subject of the action. The words must, therefore, disparage the character, and this disparagement must be evidenced by some posi- tive loss arising therefrom, directly and legitimately, as a fair and nat- ural result. However, mental anxiety, grief, and loss of society result- ing from libelous publication may be considered in estimating the damage.^^'' Indeed, the mental suffering caused by a false publica- tion is regarded as general damage in cases of libel.^-* And mental suffering is an element of actual damage, although malice be dis- proved. If this were not the rule, "one of the principal elements of damages would be excluded. If a virtuous young woman is en- titled to no consideration for her injured feelings when she has been publicly charged with the grossest immorality, courts might as well deny her a cause of action." ^^^ iziKatclififo v. Evans [1892] 2 Q. B. 524; Daniel r. New York News Pub. Co., 67 Hun, 649, 21 N. Y. Supp. 862; Bradstreet Co. v. Gill, 72 Tex. 117, 9 S. W. 753; Browu v. Dui-ham, 3 Tex. Civ. APP- 244, 22 S. W. 868; Haney JIanuf'g Co. V. Perkins, 78 Mich. 1, 4.3 N. W. 1073; Ante, c. o. "Special Dam- ages." 12 2 Terwilliger v. Wands, 17 N. Y. 54; Allsop v. Allsop, 5 Hurl. & N. 534; Prime v. Eastwood, 45 Iowa, 640. But see Laing v. Nelson, 40 Neb. 2.o2, 5.S N. "W. 846; Biirt v. McBain, 29 Mich. 260; Swift r. Dickerman, 31 Conn. 2S5-, Cliesley T. Thompson, 137 Mass. 136; Rea v. Harrington, 58 Vt. 181, 2 AtL 475; AVflker v. Butler, 15 111. App. 209. 123 Hamilton v. Eno, 81 N. Y. 116; Ward v. Dean, 57 Hun, 585, 10 N. Y. Supp. 421. 121 Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051. 125 Farrand v. Aldricli. 85 Mich. 593, 4S N. W. 628 (per Grant, J., at page .'.93, 85 Mich., and page 629, 48 N. W.). LAW OF TOUTS — 82 498 WRONGS AFFKCTIKG REPUTATION. [Cll. 8 I CONSTRUCTION OF LANGUAGE USED. 173. In order to determine whether a statement is defam- atory — (a) It must be construed as to the ordinary and natural meaning without technical interpretation; if not defamatory in such meaning, — (b) It must be construed with reference to the special meaning, if any, in which it was understood by the persons by and to whom it was published.'* Defamatory language is to be construed in its ordinary and popu- lar sense.^" The test is what the persons to whom it was published would reasonably suppose to have been intended, or did in fact un- derstand, and not what the person publishing the defamation in- tended to charge.^-* The ordinary principles of construction ap- ply. The language, for example, must be construed as a whole. Therefore, a statement that a person is a "forger" is not slander, actionable per se, where such words are coupled with a charge of some specific act, which of itself does not constitute forgery.^^* A publication charging the commission of a crime need not contain the technical statutory language in order to be libelous per se.^^" 126 Capital & Counties Banli v. Henty, 7 App. Cas. 741, 52 Law .1. Q. B. 232; Fraser, Torts, 80. 127 When a publication is defamatory on its face, if plaintiff desires to en- large its scope, and aggravate its meaning, by proof of facts tending in that direction, the facts should be alleged in his pleading, on the same principle which compels such averment when the article, in and of itself, Is nof libel- ous. Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239, 33 N. E. 1038; Id. (Sup.) 18 N. Y. Supp. 930. In an action for libel, charging plaintiff with being as "big a rascal" as one M., evidence is not admissible to show what kind of a rascal defendant charged M. to be, in the absence of any allegation to the effect in the same complaint Cassidy v. Brooklyn Daily Eagle, supra. 12 8 Post Pub. Co. V. Hallam, 8 C. C. A. 201, 59 Fed. 530, affirming 55 Fed. 456. But see Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462. Ante, 13. 471. 120 Barnes v. Crawford, 115 N. C. 76, 20 S. E. 386; Turrill v. Dolloway, 17 Wend. -126; Thomas v. Blasdale, 147 Mass. 438, 18 N. E. 214; Hayes v. Ball, 72 N. Y. 418. 13 World Pub. Co. v. Mullen, 43 Neb. 126, 61 N. W. 108. As to general rule Ch. 8] CONSTRUCTION OF LANGUAGE USED. 499 Words are to be construed in the light of their surroundings. Thus, the natural extravagance of terms used in the heat of passion may be intended and understood to mean much less than their normal import." 1 Although harmless upon their face, if found in bad com- pany, words may, from that circumstance, be determined to have in- jurious meaning. It then becomes a question for the jury, if there is any such evidence of such extrinsic facts to be submitted to them.^^^ Therefore, where an alleged libel consisted in the publica- tion by a mercantile reporting agency, for the information of its subscribers, of a sheet containing, among the names of other busi- ness men, that of the plaintiff, followed by asterisks, with no proof of any meaning attached thereto, except the testimony of the de- fendant's superintendent to the effect that they referred only to a marginal note directing persons desirous of further information con- cerning the persons in connection with whose name they occurred to call at the defendant's office, a verdict was properly directed for the defendant, as the characters were not libelous per se, and were not shown to have any libelous significance as used.^'^ Function of Court and Jury. Where the purport of the publication complained of is plain and unambiguous, the question whether it is a libel, in a civil action, is for the court.^^* Thus, in Morgan v. Halberstadt,"^ the alleged of construction of words imputing a crime, see Smith v. Coe, 22 Minn. 276; West V. Hanrahan, 28 Minn. 385, 10 N. W. 415; Stewart v. Wilson, 23 Minn. 4^9; Schmidt v. Withericli, 29 Minn. 156, 12 N. W. 448; Mallory v. Pioneer Press Co., 34 Minn. .521, 26 N. W. 904. 131 Ritchie V. Stenius, 73 Mich. 563, 41 N. W. 687. Of. Courtney v. Mann- hein (City Ct Brooli.) 14 N. Y. Supp. 929; Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862. 132 Williams v. Smith, 22 Q. B. Dlv. 134; Shepheard v. Whitaker, L. R. ID C. P. 502; Ziei- v. Hofflin, 33 Minn. 66, 21 N. W. 862; Brher v. Dun, 12 Fed. 526-532; Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387. 133 Woodi-ufC V. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354; Benz v. Wieden- hoeft, 83 Wis. 397, 53 N. W. 686. 184 Morgan v. Halberstadt, 9 C. C. A. 147, 60 Fed. 592. 136 9 O. 0. A. 147, 60 Fed. 592; ^'orton v. Livingston, 64 Vt. 473, 24 Atl. 247; Croasdale v. Bright, 6 Houst. (Del.) 52; Savoie v. Scanlan, 43 La. Ann. 967, 9 South. 916. 500 WKONGS AFFECTING REPUTATION. [Ch. S libel charged that an insurance agent was short in his accounts, and that he had "t)oasted of the manner in which he had helped himself to the company's money." It further charged that the agent "had lieen given unlimited opportunities to swindle the policyholders," and stated that its readers were familiar "with the methods and extent to which the agents named have availed themselves of their oppor- tunities." It was held that there was no such ambiguity therein as to make a question for tlie jury. On the other hand, where there is an uncertainty or ambiguity in the defamatory character of the words, the question is ordinarily for the jury, under instructions from the court. Thus, in an action of libel for publishing an article charging a supervisor with receiving unlawful compensation for serv- ices, he admitted receipt of the money, but claimed that he received it for committee work, while the article charged him with receiving it for his services while the board was in session. The defendants claimed that the article charged him with unlawfully receiving it for committee work. The article was ambiguous as to the services for which the extra compensation was charged to have been receiv- ed. It was held that the meaning of the article was for the jury."" But in certain jurisdictions, for example, in Missouri, the jury are the sole judges of the law as well as of facts.^^' SIGNIFICATION OF WORDS. 174. Words may be divided, in this connection, into three classes: (a) Those -which cannot possibly bear a defamatory mean- ing, or innocent Avords; (b) Those that are clearly defamatory on their face, or ■v7ords per se defamatory;'^ 136 Press Pub. Co. v. McDonald, 55 Fed. 264, affirmed 11 C. C. A. 155, 63 Fed. 238; Ewing v. Ainger, 96 ilich. 587, 55 N. W. 996; McAllister v. Detroit Free Press Co., 95 Mich. 164, 54 N. W. 710; Schild v. Legler, 82 Wis. 73, 51 N. W. 1099. 137 Arnold v. Jewett (Mo. Sup.) 28 S. W. 614. But see Mitchell v. Brad- street Co., 116 Mo. 226, 22 S. W. 358. 138 Pratt V. Press Co., 30 Minn. 41-13, 14 N. W. 62. Ch. 8] SIGNIFICATION OF WORDS. 501 (c) Those that are reasonably susceptible of a defama- tory meaning as well as an innocent one, or am- biguous -words. Innocent Words. There are some words which are not of a disparaging nature in the legal sense.^^" Thus, to charge a man with having sued his mother-in-law in a county court imputes lawful and proper con- duct, and is not libelous.^*" So to describe one as a "man Fridaj'"' is not defamatory, "for the man Friday, as we all know, was a re- spectable man, although a black man^' ^*^ It is not libelous to pub- lish of a professional man "that he has moved his office to his house to save expense." ^*^ Very often, however, words apparently in- nocent have a double meaning, — one innocent, another defamatory. In "such cases, the innuendo^*' may be made the basis of an ac- tion by proper pleading. However, some Mords are not only ordi- narily, but necessarily, innocent. Thus, a publication to the ef- fect that one was discharged from the superintendency of an of- fice of the Farmers' Alliance "because of a heavy loss in the busi- ness," and that the books of such office, "^hen balanced, showed a net loss of $2,000," while another office showed a net profit of $5,- 000 on a much smaller business, and that "the showing simply proved" such person "to be a man of small business capacity," can- not be construed, by means of an innuendo, to charge dishonesty in conducting the office.^*^ isgpTaser, Torts, 79. 140 Cox V. Cooper, 12 Wkly. Rep. 75, and see Clay v. Roberts (1863) 9 Jur. (N. S.) 580. So to say that a man owes money does not imply that he can- not pay his debtors. Per Bramwell, B., in Reg. v. Coghlan (1865) 4 Fost. & F. 316. 141 Forbes v. King (1833) 1 Dowl. 072, 2 Law J. (N. S.) Exch. 109. And see Lord Denman, C. .J., in Hoare v. Silverlock (1848) 12 Q. B. 024-631; Hart V. Wall, 2 0. P. Div. 146. 142 Stewart v. Minnesota Tribune Co., 40 Minn. 101, 41 N. W. 457; O'Con- nor V. Sill, 60 Mich. 175, 27 N. W. 13 (criticism of school teacher); Walker V. Hawley, 56 Conn. 559, 16 Atl. 674 (comment how a candidate procured his nomination). 143 Post, p. 510. 144 Gaither v. Advertiser Co. (Ala.) 14 South. 788. A complaint for libel in writing, to an insurance company for which plaintiff was adjuster, and 502 WROiNGS AFFECTING KEPUTATIOiN. [Ch. 8 Words Defamatory per Se — Jinpuflng a Crime. According to the early English law, it was not slanderous to im- pute to another an offense, unless it was indictable, and scanda- lous or infamous."== Therefore, to say that one had "forsworn himself" is not slanderous, because "forsworn" could not, of neces- sity, be held to mean that he had committed perjury."' So, to charge that a person was one of those "who stole deer" imputed a trespass, so that the charge was not, as it must be to be action- able, "in itself scandalous." "^ In many of these cases, however, the point of decision was that the words were not used in such a sense as to impute a crime."' The modern English rule is that a charge of having committed a criminal, and not necessarily an in- dictable, offense is actionable per se."^ Indeed, to say that a person is a "returned convict" is actionable per se; for altl^ough the words import that the punishment has been suffered, the obloquy otherwise publishing a letter reciting: "The insulting remarks offered to our representative, * * * by your adjuster, * * * at his office, in the matter of * * *, warrants us to withhold any new business from your local agent here,'' states no cause of action, though it allege that defendant meant by the letter to impute to plaintiff a lack of business ability and skill, and a want of honesty and integrity in his business, etc., as such meaning cannot be given by innuendo to the words used. Cole v. Neustadter, 22 Or. 191, 29 Pac. 550. A letter by a man to a married woman stating: "I like you, and want to tell you so. If you like me, I want to know it. Let us be friends, and good friends. Answer this,"— conveys no imputation of want of chastity on the part of the lady, and is not libelous. Fields v. Curd (Ky.) 16 S. W. 45:3. 145 Starkie, Sland. & L. 133. 140 Holt V. Scholefield, 6 Term R. 691; Pig. Torts, 305. iiT Ogden V. Turner, 6 Mod. 104. So, to say, "You are a thief; you stole my tree," contemplates a trespass, and is not slanderous per se. Minors v. Leeford, Cro. .Jac. 114; Bull. N. P. 5. 148 See Chase, Lead. Cas. 115. 140 Webb V. Beavan (1883) 11 Q. B. Div. 609, Chase, Lead. Cas. 112; Fraser, Torts, 86. But see Pig. Torts, 305; Simmons v. Mitchell, 6 App. Cas. 156. 150 Denman, C. J., in Fowler v. Dowdney (1838) 2 Moody & R. 119, 120. And see Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921. ('h. 8] SIGNIFICATION OF WORDS. 503 Same — New York Rule In New York the spirit of the earlier English cases was adopted as the test. In Brooker t. Caffin ^" Justice Spencer laid down the following rule: "In case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then they will be ac- tionable in themselves." Hence, while, under the English rule, from a charge of perjury damages will be presumed,^"- in New- York it has been held otherwise.^'^ But the courts of this state have been able to find the charge of removing an ancient landmark both indictable and involving moral turpitude.^^'' This rule has, however, been frequently followed.^^^ Same — General American Rule. The New York rule has been generally criticised and not fol- lowed in many American states.^'^" The test adopted is often a confused one.^^^ Statutes in many jurisdictions have affected this portion of the law, both by definition of crime and of what words are per se defamatory. But, whatever phrase is adopted, the de- famatory words must charge a crime.^^' It has been held not 151 5 Johns. 129. And see Brooks v. Harison, 91 N. Y. 83; Young v. Mil- ler, 3 Hill, 21, Chase, Lead. Cas. 111. But see Widrig y. Dyer, 13 Johns. 108. 102 Jones V. Heme, 2 Wils. 87. 1 53 Alexander v. Alexander, 9 Wend. 141. 164 Young V. Miller, 3 Hill, 21. It was naturally held that "a newspaper stigmatizing a certain house as a 'disorderly house' imputes that the occu- pants are guilty of a misdemeanor, and is actionable, at the suit of one or all of them." McLean v. New York Press Co., 64 Hun, 639, 19 N. Y. Supp. 262. 155 Beck V. Stitzel, 21 Pa. St. 22; State v. Burroughs, 12 N. J. Law, 426, 1 Am. Lead. Cas. 113; Burton v. Burton, 3 G. Greene, 316. And see cases collected in Townsh. Sland. & L. 163. It is libelous per se to say of a per- son that he is a member of a '.'gang" which had entered into a scheme to ob- tain property by improper methods. Hatch v. JNIatthews, 83 Hun, 349, 31 N. Y. Supp. 926. 156 Miller v. Parish, 8 Pick. 383. 15T Cf. Henderickson v. Sullivan, 28 Neb. 329, 44 N. W. 448, with Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N. W. 358, approving it. 158 Cases coUected ui Townsh. Sland. & L. 155, 156. Disturbing religious meeting, Thomas v. Smith, 22 N. Y. 55-89. Bribery, Booker v. State, 100 Ala. 30, 14 South. 561; Edwards v. San Jose Printing & Pub. Soc, 99 Cal. 431, 34'pac. 128; Field v. Colson, 93 Ky. 347, 20 S. W. 264. Perjury, Upton v. ;jU4 wrongs affecting eeputation. [Ch. o iictionable per se to impute intention to commit a crime; "^ but to charge an attempt to commit murder is actionable per se. Thus, while it is actionable to charge another with being a "blackmail- P1.V160 foj. ^]jig jg equivalent to saying that he is guilty of the crime of extortion, it is not actionable to say of another that he "is guilty of concocting a blackmail or extortion scheme," as the words charge merely a plan or purpose to extort money, which is not punishable unless an attempt is made to carry it out.^"^ It is not material that the words impute a crime in another state.^"^ At- Hume, 24 Or. 420, 33 Pac. 810. Poisoning, Republican Pub. Co. v. Miner, 3 Colo. App. 568, 34 Pac. 485. Forgery, Beneway v. Thorp, 77 Mich. 181, 43 X. W. 863. Indecent and criminal liberties, Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624. Arson, Clugston v. Garretson, 103 Cal. 441, 37 Pac. 469; Taylor v. Ellington, 46 La. Ann. 371, 15 South. 499; Davis v. Carey, 141 Pa. St. 314, 21 Atl. G33; World Pub. Co. v. Mullen, 43 Neb. 126, 61 N. W. 108; Geisler v. Brown, 6 Neb. 254. Publication in a newspaper that N. and F. were arrested and lodged in jail to-day on charge of theft is libel per se. Belo V. Fuller, 84 Tex. 450, 19 S. W. 616. "The words 'God damned thief,' applied to a person without explanation or qualification, amount to a charge that the person has been guilty of larceny, and are actionable per se." Gaines V. Belcling, 56 Ark. 100, 19 S. W. 236. Stealing fixtures, St. Martin v. Desnoyer 1 :Miun. 41 (Gil. 25); Halsey v. Stillman, 48 ^^^P- 413; McCauley v. El- rod (Ky.) 27 S. W. 867. Tlieft, Oollyer v. CSl^r, 50 Hun, 422, 3 N. Y. Supp. 310. Embezzlement, Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 South. 332; In re JIacDonald (Wyo.) 33 Pac. 18 (receiving stolen goods) ; Hackett v. Prov- idence Tel. Pub. Co. (R. I.) 29 Atl. 143. Blackmail, Hess v. Sparks, 44 Kan. 465, 24 Pac. 979. The fact that defendant published an article charging plain- tiff with the commission of a felony conclusively establishes a cause of action for actual or compensatory damages. Childers v. Sau Jose Mercury Printing & Pub. Co., 105 Cal. 284, 38 Pac. 903. Adulteiy, Lowe v. Herald Co., 6 Utah, 175, 21 Pac. 991; Guth v. Lubach, 73 Wis. 131, 40 N. W. 681. Murder, Re- publican Pub. Co. V. Miner, 12 Colo. 77, 20 Pac. 345. See, also, Thomas v. Blasdale, 147 Mass. 438, 18 N. E. 214. And, generally, see Stumer v. Pitch- man, 124 111. 250, 15 N. E. 757; Rosewater v. Hoffman, 24 Neb. 222, 38 N. W. 857; Gomez v. Joyce (Super. Ct. N. Y.) 1 N. Y. Supp. 337; Seery v. Viall, 16 R. I. 517, 17 Atl. 552; Beneway v. Thorp, 77 Mich. 181, 43 N. W. 863. 159 McKee v. IngaUs, 5 111. 30; Fanning v. Chace, 17 R. I. 388, 22 Atl. 275. 100 Republican Pub. Co. v. Miner, 12 Colo. 77, 20 Pac. 345. 101 Mitchell v. Sharon, 8 C. C. A. 429, 59 Fed. 980. A complaint charging defendants with a conspiracy to slander plaintiff, but failing to sufiiciently plead the slander as against either, is demurrable, such conspiracy not being in itself a crime. Severinghaus v. Beckman, 9 Ind. App. 388, 36 N. E. 930. 102 Van Rensselaer v. Dole, •! Johns. Cas. 279. Ch. 8] SIGNIFICATION OF WORDS. 505 tributing want of chastity to a woman is more and more regarded as actionable per se.^"'^ Same — Words Injurious to Calling. "Whatever words have a tendency to hurt, or are calculated to prejudice, a man who seeks his livelihood by any trade or business are actionable." ^'* "We think that the rule as to words spoken 1 63 Imputation of fornication actionable, Ransom v. McCurley, 140 111. 634, 31 N. E. 119. Cf. Jaclvsouville Co. v. Beymer, 42 111. App. 443. "Whore" actionable, Mlchelson v. Lavin (Ga.) 20 S. E. 292; Reitan v. Goebel, 33 Minn. 151, 22 N. W. 291; Stroebel v. Whitney, 31 Minn. 384, 18 N. W. 98; Bidwell V. Rademacher (Ind. App.) 38 N. E. 879. An article in a newspaper headed, "Two * * * Teachers Guilty of Horrible Crimes," and importing that plaintiff aided another teacher In taking indecent and criminal liberties with the scholars, is actionable per se. Thibault v. Sessions (Mich.) 59 N. W. 624. Calling a woman a "whore" in the presence of others, who heard it, is action- able per se. Michelson v. Lavin (Ga.) 20 S. B. 292. Words charging a person with having! been arrested for bastardy, and of having paid a sum of money to settle it, are both actionable per se; bastardy not being a crime under the law of New York. Erwin v. Dezell (Sup.) 19 N. Y. Supp. 784. In an action for slander, it appeared that the words charged were not spoken of plaintiff in - regard to his calling, and the complaint did not show what was his calling, and alleged no special damage other than that plaintiff's neighbors and possible customers would have no dealing with him because of the slander, and that actions at law to enforce the payment of debts had been brought against him which would not have been brought but for the slander. Held insufficient to show special damages. Id. Defendants published in their newspaper a charge that plaintiff, when she was the wife of H., was detected by her hus- band in a room at a hotel with one G. ; that they had registered under an as- sumed name as husband and wife; and that H. confronted them when they <-ame out in the morning. Held, if false, sufficient to constitute a libel, and that the demurrer to the complaint was properly overruled. Gray v. Baker (Sup.) 19 N. Y. Supp. 940. And see Davis v. Sladden, 17 Or. 259, 21 Pac. 140. The English statute on the point is [1891] 54-55 Vict. c. 51. 1C4 Bagley, J., in Whittaker v. Bradley, 7 Dowl. & R. 649. And, generally, see Cruikshank v. Gordon, 118 N. Y. 178; Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74; Ganvreau v. Superior Pub. Co., f>2 Wis. 403, 22 N. W. 726; De Pew V. Robinson, 95 Ind. 100; Fitzgerald v. Redfleld, 51 Barb. 484; Lumby V. AUday, 1 Cromp. & J. 301; Arrow Steamship Co. v. Bennett, 73 Hun, 81, 2.". N. y. Supp. 1029; Nettles v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658; Burton V. O'Niell, 6 Tex. Civ. App. 613, 25 S. W. 1013; McKenzie v. Denver Times Pub. Co., 3 Colo. App. 554, 34 Pac. 577. A postal card sent to a bank to a correspondent from whom it had received a draft on "B. Bors. & Co ," a mercantile firm, for collection, reading "B. in hands of notary," while in 506 WRONGS AFFECTING KEPUTATION. [Ch. 8 of a man in his olBce or trade is not necessarily confined to offices and trades of the nature and duties of which the court can take judicial notice. The only limitation of which we are aware is that it does not apply to illegal callings." ^°^ The defendant may, if he can, escape by showing lawful excuse. If he shows no excuse, the law presumes damage.^"" Therefore, the rule is that, as to those callings in which credit is ordinarily essential to their suc- cessful prosecution, language which imputes to one in such call- ing a want of credit or Tesponsibility is actionable per se.^*^ Thus, a false statement that a merchant in the habit of purchas- fact the draft had been paid to the bank, is libelous per se. Continental Nat. Bank v. Bowdre, 92 Tenn. 723, 23 S. W. 131. Defendant, a taxpayer of the village where the parties resided, published concerning plaintiff, an attorney, the following: "Make M. an attorney for the village so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village." Held, that the publication was libelous. Mat- tice V. Wilcox, 71 Hun, 485, 24 N. Y. Supp. 1060; Brown v. Vannaman, 85 Wis. 451, 55 N. W. 183; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724; Lapham v. Noble, 54 Fed. 108. 105 Per Channell, B., in Foulger v. Newcomb, L. R. 2 Bxch. 327-330. But to call a stone mason a ringleader of the nine-hour system is not actionable, since this hardly relates to his calling. Miller v. David [1874] L. R. 9 C. P. 118. 166 Steele v. Southwick, 9 Johns. 214, 1 Am. Lead. Cas. 135; Craft v. Boite, 1 Saund. 241-243, note. 167 Read V. Hudson, 1 Ld. Raym. 610; Davis v. Lewis, 7 Term. R. 17; Dob- son V. Thornistone, 3 Mod. 112; Chapman v. Lamphire, Id. 155; Sewall v. Catlin, 3 Wend. 291; Ostrom v. Calkins, 5 Wend. 263; Mott v. Comstock, 7 Cow. 654; Lewis v. Hawley, 2 Day, 495; Whittington v. Gladwin, 5 Barn. & C. 180; Southam v. Allen, T. Raym. 231; Phillips v. Hoefer, 1 Pa. St. 62; Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266 (diseased meat); Young v. Kuhn, 71 Tex. 645, 9 S. W. 860; Rider v. Rulison, 74 Hun, 239, 26 N. Y. Supp. 234; Simons v. Bumham (Jlich.) 60 N. W. 476; Newell v. How, 31 Minn. 235, 17 N. W. 383. Malicious commercial report, Lowry v. Vedder, 40 Minn. 475, 42 N. W. 542. It has been held that ithis not actionable to say of traders that they had executed a chattel mortgage. Newbold v. Bradstreet, 57 Md. 38. Publishing) one's name in a list of "dead beats and delinquents," for circula- tion among business men, is libelous per se. Nettles v. Somervell, 6 Tex. Civ. App. 613, 25 S. W. 658. A publication that plaintiff's management of an office of the Farmers' Alliance proved him "to be a man of small business capacity" is libelous per se, as reflecting on plaintiff's business capacity. Gaither v. Advertiser Co. (Ala.) 14 South. 788. But in an action by a chair company for Ch. 8] SIGNIFICATION OF WORDS. 507 ing goods on credit was heavily indebted, and had conveyed prop- erty to his wife at half its value, is actionable per se.^^^ Words imputing insanity well illustrate the difference between responsi- bility in libel and «iander. In slander, such words are actionable per se when spoken of one or his trade or occupation, but not otherwise, without proof of special damage; ^"^ but an imputation of insanity by any form of publication A\hich constitutes libel is per se libelous."" One may, with impunity, say of a public of- ficer, after the expiration of his term, what would be slanderous per se while he was in offlce.^'^ Words derogatory of professional Injury to name and reputation, the complaint charged that the defendant had said of the plaintiffs with appropriate innuendoes, that they "used" to make the "Young surgical chair," until Young shut them up on account of an indebtedness; that Young never got anything for such indebtedness but a worthless judgment; and that he found them irresponsible, and any bank would say so. It charged the defendant with saying that they had copied an- other chair, and had been beaten on several points, and compelled to pay a royalty. It was held, that the language complained of was not actionable per se. Canton Surgical & Dental Chair Co. v. McLain, 82 Wis. 93, 51 N. W. 1098. And see Irish-American Bank v. Bader (Minn.) 61 N. W. 328. Ids Simons v. Burnham (Mich.) 60 N. W. 476. 160 Anderson, J., in Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, citing Morgan v. Lingien, 8 Law T. (N. S.) 800; Joannes v. Burt, 6 Allen, 236. 170 Moore v. Francis, supra; Morgan v. Lingen, supra; King v. Harvey, 2 Barn. & C. 257; Southwick v. Stevens, 10 Johns. (N. Y.) 443; Perkins v. Mitch- ell, 31 Barb. 461^65. Insanity "not slanderous per se." Joannes v. Burt (1863) 6 Allen, 236. And see Townsh. Sland. & L. § 177; Odger, Sland. & L. 23, 30 Am. Law Reg. 389. But see Mayrant v. Richardson, 1 Nott & McC. (S. C.) 347; Walker v. Ti'ibune Co., 29 Fed. 827 ("crank" not libelous per se). 171 That he "bribed Indians" is innocent, after expiration of tei-m. Foward V. Adams, 7 Wend. 204. While police officer holds office, imputation of bru- tality is libelous per se. O'Shaughnessy v. New York Recorder Co., 58 Fed. 053. And see Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058 (court's commis- sioner) ; Gove v. Blethen, 21 Minn. 80 (justice) ; Larrabee v. Minn(>sota Trib- une Co., 30 Minn. 141, 30 N. W. 402 (oounty attorney). Fraud in election, Edward's v. Snn Jose, P. & P. Co., 99 Cat' 431, 34 Pac. 128; Murphy v. Nel- son, 94 Mich. .5.j4, 54 X. W. 282 (conduct of jusUce of peace). The holder of an office not being an office of profit cannot, in the absence of spec-al damage, maintain an action of slander for words imputing to him misconduct and con- sequent unfitness for the office, unless the imputation relates to his conduct in the office, or unless, if true, it would lead to his removal therefrom. Alex- ander V. Jenkins [1892] 1 Q B. 797. But to charge him with a lie in per- 508 WRONGS AFFECTING REPUTATION. [Ch. 8 character of clergymen/" lawyers,^'' doctors,"* architects,"' actors,^'" and educators"^ are actionable, without allegation or proof of special damage. But, to come within the category, the words complained of must refer to the plaintiff in his business or profession,^'* and not charge conduct on his part which is lawful ind proper."" formance of public duty is actionable. Prosser v. Callis, 117 Ind. 105, 19 N. B. T3o. To charge that plaintiff is an habitual drunkard, and unfit for the oflBce of town councillor, is not actionable, in the absence of special damage. Alex- ander V. Jenkins [1892] 1 Q. B. 797. And see Ratcliffe v. Evans [1892] 2 Q. B. 524. As to charge of drunkenness generally, see Broughton v. McGrew, 39 Fed. 672. "2 Piper v. Woolman, 43 Neb. 280, 61 N. W. 588. As to charge him with drunkenness, Hayner v. Cowden, 27 Ohio St. 292. 173 Greenwood v. Coffey, 26 Neb. 449, 42 N. W. 413; Mattice v. Wilcox, 59 Hun, 620, 13 N. Y. Supp. 330; Clark v. Anderson, 59 Hun, 620, 11 N. Y. Supp. 729. The mere publication of a notice of foreclosure sale under a mortgiage made by plaintiff, an attorney engaged in the real-estate business, farming, and keeping a hotel, which mortgage has been paid, is not libelous per se, as tending to charge him with insolvency or dishonesty, or as affecting his credit. Campbell v. Missouri, K. & T. Ry. Co., 1 Mo. App. 3. 17 4 Seeor v. Harris, 18 Barb. 425; Pratt v. Press Co., supra. Where, in an action for libel and slander for words spoken and printed concerning Ijlaintiff as a physician, the facts stated in the petition show that plaintiff had no authority to practice medicine in this state, he is not entitled to re- cover, and a general demurrer thereto is properly sustained. Hargan v. riu-dy, 93 Ivy. 424, 20 S. W. 432. And, generally, see note to 26 Lawy. Rep. Ann. 325. ITS Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68. 17 6 Williams v. Davenport, 42 Minn. 393, 44 N. W. 311. 177 St. James Military Academy v. Gaiser (Mo. Sup.) 28 S. W. 851. 17 8 A publication that "an enticing article" had recently been sent out by plaintiff, asking subscriptions to a business corporation organized by him, is not prejudicial to plaintiff in his profession of lawyer, as it has no relation to his character or conduct as a lawyer. Keene v. Tribune Ass'n, 76 Hun, 488, 27 N. Y. Supp. 1045. But see Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710; Id., 37 Minn. 277, 34 N. W. 30. That given proceeding was "a dirty Jew trick," Hanaw v. Jackson Patriot Co., 98 Mich. 506, 57 N. W. 734. 179 That a saloon keeper set up a prohibitory law as a defense to a just claim, Homer v. Engielhardt, 117 Mass. 539. And see Ireland v. McGarvish, 1 Sandf. 154. Ch. 8] SIGNIFICATION OF WORDS. 509 Same — Contagious Disease. Words which impute that oue has a contagious disease, which would cause the person to be excluded from society/^" may be ac- tionable per se. But the imputation must be, not as having had, but as haying, such disease (i. e. the continuance of the disorder); because it is only while the person is disordered that he is unfit for society.^*'^ Leprosy and the plague were such diseases j^*^ but smallpox is not.^*^ An imputation of having a venereal disease,^** as gonorrhea,^^^ is actionable per se. Same — M'ords Tending to Disherison. If the words used tend to produce disherison of a person, they are actionable per se, and it is not necessary to allege and prove that in consequence he was in fact disinherited. Thus, in Humph- vys V. Stanfeild ^^^ defendant had said to plaintiff, "Thou art a bastard." Such words were held actionable, without mere; for by reason of these words the plaintiff may be in disgrace with his father and uncle, and they, conceiving a jealousy of him touching the same, may disinherit him; and though they do not, yet the action lies for the damage which may ensue. Ambiguous Words. The court having determined that words are not clearly innocent or per se defamatory,^ *^ it is ordinarily a question of fact whether 180 Golderman v. Stearns, 7 Gi-ay, 181, Chase, Lead. Gas. 116; Williams v. Holdredge, 22 Barb. 396; Hewit v. Mason, 24 How. Prac. 366; Kaucher v. Blinn, 29 Ohio St. 62; Irons v. Field, 9 R. I. 216. And see, Colby v. Rey- nolds, 6 Vt. 489-^94; Kinney v. Hosea, 3 Har. (Del.) 77-79. 181 Carlslake v. Mapledoram (1788) 2 Term R. 473; Smith's Case, Noy, 1.51: Bloodworth v. Gray, 7 Mylne & G. 334; Pilie v. ^'an Woitner, 5 How. Prac. 171. But see Miller's Case, Cro. Jac. 430. Cf. Monks v. Monks, 118 Ind. 238, 20 X. E. 744. 182 Taylor v. Perkins (1607) Cro. Jac. 144; Crittal v. Horner, Hob. 385. 183 Odger, Sland. & L. 64, 65. 184 Golderman y. Stearns, 7 Gray, 181; Upton y. Upton, 51 Hun, 184, 4 N. Y. Supp. 936 (a married woman). 185 Watson V. McCarthy, 2 Kelly, 57. 186 Cro. Car. 469; Pig. Torts, 308. 187 Capital & Counties Bank v. Henty, 7 App. Cas. 741; Mulligan v. Cole, L. R. 10 Q. B. 549; Gray v. Baker, 05 Hun, 620, 19 N. Y. Supp. 940; Jackson- ville Journal Co. v. Beymer, 42 111. App. 443; Mitchell v. Sharon, 51 Fed. 424. 510 WRONGS AFFECTING REPUTATION. [Ch. 8 or not they ^vere used and understood in a defamatory sense.^'^ This ill meaning must be alleged and proved. That is to say, in the language of the pleading, the "innuendo must be laid." ^^° The innuendo is an averment by the plaintiff that words not libelous in their ordinary or obvious meaning! without special application were used with a specified libelous meaning or application.^"" When a 1S8 Bailey v. Publishing Co., 40 Mich. 256 ("Iowa Beecher Business" of plaintiff). And see Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354. Defendant published a dispatch reading: "Missing Millionaire [plaintiff] Lo- cated. * * * [Plaintiff], Southern Ohio manager of the Standard Oil Com- pany until six months ago, when he strangely disappeared, has been located living in luxury" in Canada. Held that, since some of our countrymen who reside in Canada are fugitives from justice, of which courts may take judicial notice, whether the dispatch was libelous was a question for the jury. Mc- Donald V. Press Pub. Co., 55 Fed. 264, a;ffirmed 11 C. C. A. 155, 63 Fed. 238. But see Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856. Whether a publication charging a school with permitting and teaching dancing was justifiable, on the ground that dancing is immoral, is a question for the jury. St. James Military Academy v. Gaiser (Mo. Sup.) 28 S. W. 851. Whether to say of a woman that "she had a bad disease" is equivalent to charging her with having a venereal disease, or imputing to her want of chastity, is for the jury. Upton v. Upton, 51 Hun, 184, 4 N. Y. Supp. 936. Whether a publication in a newspaper, which states that the "county dads come out with the statement," referred to the county auditors, or to another, is a question of fact. Prosser v. Callis, 119 Ind. 105, 19 N. E. 735; Arnott V. Standard Ass'n, 57 Conn. 86, 17 Atl. 361; Hosier v. Stoll, 119 Ind. 244, 20 N. E. 752. 189 As to colloquium. Van Vechten v. Hopkins, 5 Johns. 211; Brettum v. Anthony, 103 Mass. 37; Patterson v. Wilkinson, 55 Me. 42; Sturtevant v. Root, 27 N. H. 69; Stitzell v. Reynolds, 59 Pa. St. 488. A complaint charging that defendant said, concerning plaintiff, "He took and drove off my ducks, and sold them," without a colloquium or innuendo, states no cause of action. Harrison v. Manship, 120 Ind. 43, 22 N. E. 87; Petsch v. Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034; Prendergast v. Same, 40 Minn. 295, 41 N. W. 1036; Vickers v. Stoneman, 73 Mich. 419, 41 N. W. 495; Ayres v. Toul- min, 74 Mich. 44, 41 N. W. 855; Wilcox v. Moon, 61 Vt. 484, 17 Atl. 742; Monks V. Monks, 118 Ind. 238, 20 N. E. 744. 190 Pol. Torts, p. 217; Barham v. Nethei-sal, 4 Coke, 314; Van Vechten v. Hopkins, 5 Johns. 211; Hare & W. Lead. Cas. 138, and note. In an action for slander for saying to an unmarried woman in the presence of others, "You want to come home, and lose another young one, like you did," the com- plaint must allege by way of innuendo that it was intended thereby to charge *^h. 8"] SIGNIFICATION OK WORDS. 511 given tenn as defined by lexicographers is innocent, but as col- loquially used meant adultery, to be basis of recovery in a legal action it must be alleged and proved that it was used in the ac- tionable sense.^°^ An innuendo cannot introduce new matter or enlarge the natural meaning of words, or put upon them a con- struction the^ wi'll not bear. Its office is to define the defamatory meaning which the plaintiff sets upon the words, — to show how they came to have that meaning, and how they relate to the plain- plaintiff with having had illicit sexual intercourse, and that the persons hear- ing the words so understood them. Ccsand v. Lee (Ind. App.) 38 N. E. 1090. So a simple marriage notice is not libelous, but may be made so by proving that the alleged bride was a prostitute. Caldwell v. Raymond, 2 Abb. Prac. 193. A "tax-title shark" is not a phrase actionable per se, but may be made actionable by proper pleading and proof. Stewart v. Minnesota Tribune Co., 41 Minn. 71, 42 N. W. 787. So, a "blind tiger," applied to a building. Schulze V. Jalonick (Tex. Civ. App.) 29 S. W. 193. An issue can never be raised upon the truth of an innuendo. Fry v. Bennett, 5 Sandf. 54; Com. v. Snell- ing, 15 Pick. 321-335; Taylor v. Kneeland, 1 Doug. (Mich.) 67. And see Cooper v. Greely, 1 Denio, 347. In this case Horace Greely wrote of Fenni- more Cooper: "He chooses to send none, but a suit for libel instead. So be it then. Walk in, Mr. Sheriff! There is one comfort to sustain us under this terrible dispensation. Mr. Cooper will have to bring his action to trial somewhere. He will not like to bring it to trial in New York, for we are known here; nor in Otsego, for he is known there." Plaintiff was allowed to show the true libelous meaning of the words by alleging and proving the innuendo. A remark that, if "A. [plaintiff] had not gone away, we should issue warrants for him," is susceptible of the meaning, given it by the in- nuendo, that plaintiff had absconded, and had been guilty of some offense for which he was liable for arrest, and with that meaning is actionable. Ayres v. Toulmin, 74 Mich. 44, 41 N. W. 855. 181 Blakeman v. Blakeman, 31 Minn. 396, 18 N. W. 103. And see Edgar v. McCutchen, 9 Mo. 448; Matts v. Borba (Cal.) 37 Pac. 159 ("valhaca"); Dyer V. Morris, 4 Mo. 134 ("goose hoi-n," i. e. whore house); "Lipprant v. Lipprant, 52 Ind. 273 ("accommodation house"); Emmerson v. Marvel, 55 Ind. 265 ("slipped up on the blind side of her"); Miles v. Van. Horn, 17 Ind. 245 (screwed). So the German phrase, "It comes not out of the air," may be shown to mean embezzlement. Glatz v. Theiu, 47 Minn. 278, 50 N. W. 127. "Wanted E. B. Z., M. D., to pay a drug bill." Zier v. Hofflin, 33 Minn. C6, 21 N. W. 862. Placard on furniture on sidewalk: "Taken back from W., who could not pay for it. Sold at a bargain. Beware of dead beats." Wood- ling V. Knickerbocker, 31 Minn. 268, 17 N. W. 387. 0l2 WRONGS AFFECTING REPUTATION. [Ch. 8 tiff.^«2 When the words are in themselves actionable, it is not necessary to allege the innuendo.^"* MALICE. 175. In an ordinary action for defamation, spoken wrong- fully and intentionally, without just cause or ex- cuse, malice in law is inferred; but when, on ac- count of the cause of publishing, it is prima facie excusable, malice in fact must be proved."* It is traditional that defamation must be false"" and mali- cious.^"" But malice here is used not in the common, colloquial 192 Price V. Conway, 134 Pa. St. 340, 19 Atl. (iST. Words charging plaintiff with having a venereal disease do not sustain an innuendo that plaintifE kept a house of ill fame. The defamatory words set forth in a declaration for slander were: "She keeps a common open house. She is nothing but a whoro anyway." It was held that, without any prefatory averments, these words, taken together, supported an innuendo, that a house of ill fame was meant. Posnett V. Marble, G2 Vt. 481, 20 Atl. 813; Wilcox v. Moon, 63 Vt. 481, 22 Atl. 80; Haines v. Campbell, 74 Md. 158, 21 Atl. 702; Jacobs v. Schmaltz, (J2 Law T. 121; Higglns v. Walkem, 17 Can. Sup. Ct. 225. See, also, Randall v. Evening News Ass'n, 79 Mich. 266, 44 N. W. 783. 19 3 Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119. An innuendo charging that defendant meant, by calling plaintiff a "downright thief," to charge that he was guilty of official corruption and oppression, may be disregarded as surplusage, the words themselves being actionable, and need not be proved by plaintiff. CaUahan v. Ingram (Mo. Sup.) 26 S. W. 1020. And see Turton V. New York Recorder, 3 Misc. Rep. 314, 22 N. Y. Supp. 766; Cole v. Ne\i- stadter, 22 Or. 191, 29 Pac. 550. 194 Bromage \. Prosser, 4 Bam. & C. 247. 195 Falsity, however, is not an essential of the wrong of libel and slander, ac- curately speaking. "To say that showing the truth of the language published.is a defense, and to say that the language must be false, are not identical proposi- tions. * * * The plaintiff is not allowed, in the first instance, nor except to disprove a defense of truth, to give any evidence of the falsity of language published." Townsh. Sland. & L. pp. 59, 60, §§ 73, 388. And see Stewart v. Lovell, 2 Starkie, Cas. 93; Starkie, Sland. & L. p. 3. 196 There is no magic in the word "malice," so far as pleading is concerned; any word of similar import is sufficient. White v. Nichols, 3 How. 266. Thus, "falsely and injuriously" is sufficient. King v. Hoot, 4 Wend. 113-130. And see Weaver v. Hendrick, 30 Mo. 502; Dillard v. Collins, 25 (Jrat. 343; Opdyke Ch. 8] MALICE. 513 sense, and means no more than in other branches of the law."^ "Malice, in its common acceptation, means a wrongful act done in- tentionally, without just or reasonable cause." ^"^ Want of actual intention to vilify is no excuse for a libel. ^"^ Malice Presumed. Where the words are in themselves defamatory, and are uttered without justification, malice is an inference of law.^"" Thus, the law presumes that a publication charging a person with having committed a crime is malicious. ^"^ "It is urged that the motive V. Weed, 8 Abb. Prac. 223. "Wilfully" and "maliciously" are essentially the same. Rounds v. Delaware, L. & W. R. Co., 3 Hun, 829, affirmed (Febraary S, 1876) 64 N. Y. 129; Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3,867. But it would seem that "wrongfully" and "injuriously" are not equivalent to "maliciously." De Medina v. Grove, 10 Jur. 426. But see JlcPlierson v. Daniels, 10 Bar. & C. 263-266; Taylor v. Kneeland, 1 Doug. (Jlich.; 07. 197 Com. V. York, 9 Mete. (Mass.) 93, 104, 105; Gassett v. Gilbert, 6 Gray, 94-97; Abrath v. Northeastern Ry. Co., L. R. 11 App. Cas. 247, 253, 254; White V. Duggan, 140 Mass. 18-20, 2 N. E. 110. 10 8 Bayley, J., in Bromage v. Prosscr, 4 Barn. & C. 247, at page 253; Bige- low. Lead. Cas. 117; Chase, Lead. Cas. 128. And see Lindley, J., in Stuart V. Bell [1891] 2 Q. B. 341-351; Capital & Counties Bank v. Henty, 7 App. Cas. 741-787; Marks v. Baker, 28 Mian. 162-166, 9 N. W. 678. It is proper to in- stnict that the word "malicious" is not to be considered in the same sense as spite or hatred, but as meaning that the person is actuated by improper and indirect motives, other than the mere purpose of protecting the public health or vindicating public justice. Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266. 190 Curtis V. Mussey, 6 Gray, 2G5; Hallam v. Post Pub. Co., 55 Fed. 456; Smith V. Sun Printing & Pub. Ass'n, 5 C. C. A. 91, 55 Fed. 240; Simmons v. Holster, 13 Minn. 249 (Gil. 232); Zuckerman v. Sonnenschein, 02 111. 115; Byrket v. Monohon, 7 Blackf. 83; Pennington v. Meeks, 46 Mo. 217; Mitchell V. Milholland, 106 111. 175; Davis v. Marxhausen (Mich.) 61 N. W. 504; State V. Clyne, 53 Kan. 8, 35 Pac. 789. 200 White V. NichpUs, 3 How. 266, followed Hetherington v. SteiTy, 28 Kan. 429. And see Com. v. McClure, 11 Phila. 469; Smith v. Smith, 26 Hun, 573- 577; Broughton v. McGrew, 39 Fed. 672; By am v. Collins, 111 N. Y. 143, 19 N. E. 75. 201 Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 N. W. 358; Heyler V. New York News Co. (Sup.) 24 N. Y. Supp. 4U9; Colby v. McGee, 48 111. App. 294. In an action for slander, where the words complained of charge plaintiff with stealing defendant's goods, the question of whether the charge was made in good faith and without malice, while defendant was trying to find the thief, is for the jury. Hupfer v. Rosenfeld (Mass.) 38 N. E. 197. ■LAW OF TOUTS— 33 514 WRONGS AFFECTING EEPUTATION. [Ch. 8 of many publications which the law decrees libels may be innocent, and even laudable, and that without the proof of malice, or what is equivalent to malice, the mere act of composing or publishing a libel ought not to be the subject of punishment. This objection only becomes specious from misapprehension of the term 'malice.' Malice, to a legal understanding, implies no other than willfulness. The first inquiry of a civil judicature, if the fact do not speak for itself as a malum in se, is to find out whether it be willfully com- mitted. It searches not into the intention or motive, any further or otherwise than as it is the mark of a voluntary act; and having found it so, it concerns itself no more with a man's design or prin- ciple of action, but punishes without scruple what manifestly to the offender himself was a breach of the command of the legis- lature. The law collects the intention from the act Itself. The act being in itself unlawful (wrongful), an evil intent is inferred, and needs no proof by extrinsic evidence. That mischief which a man does he is supposed to mean, and he is not permitted to put in is- sue a meaning abstracted from the fact. The crime consists in publishing a libel. A criminal intention in the writing is no part of the definition of the crime of libel at common law. 'He who scatters fire brands, arrows, and death [which, if not an accurate, is a very intelligent description of a libel] is ea ratione criminal.' It is not incumbent on the prosecution to prove his intent, and on his part he shall not be heard to say, 'Am. I not in sport?' To de- termine, therefore, the guilt of a civil act, and to inflict punish- ment on the offender, there is no need of knowing his motives. Human laws require no justification in imposing penalties for an act prohibited by the magistrate, in its consequences injurious, and which has indubitable marks of being voluntarily committed." ^''- In Conroy v. Pittsburg Times,^"^ Mitchell, J., speaking of a charge libelous per se, and belonging to the class of qualified privilege, said: "It may be conceded that it belongs to the class of qualified privilege. In such cases it is common to say th&t the plaintiff must prove express malice. I apprehend, however, that the more accurate statement of the law is that in such cases there is no 202 Holt, Lib. bk. 1, c. 3, p. 55, quoted in Townsh. Sland. & L. § 92; De.\ter V. Spear, 4 JIason, ll.j, Fed. Cas. No. 3,867. 2 03 139 Pa. St. 334, 21 Atl. 15J^15U. Cll. 8] MALICE. 515 prima facie presumption of malice from publication. There must be some evidence bej'ond the mere fact of publication, but there is no requirement as to what the form of the evidence shall be. It may be intrinsic, from the style and tone of the article. 'If the com- munication contains expressions which exceed the limit of privi- lege, such expressions are evidence of malice, and the case shall be given to the jury.' ^"^ Or it may be extrinsic, as by proof of actual malice, or that the statement is knowingly false, or that it was made without probable cause, or in any way that clearly and reasonably tends to overcome the prima facie presumption of pro- tection under the privilege. One of such ways is by the counter presumption of innocence. Trobable cause that would justify such publication [charging larceny] would justify a prosecution of the alleged crime.' ^"^ And the reason for it is that the presumption of innocence cannot be overcome by mere rumor, or idle report, or careless or insufficient examination set up as probable cause. So, where the alleged libel charges an indictable offense, the presump- tion of innocence ought ^nd must stand as prima facie evidence of falsity and want of probable cause, and therefore of malice, even in cases of a claim of privilege. A brief consideration of two fundamental principles will be sufficient to sustain this result: First, the immunity of a privileged communication is an excep- tion. The general rule is that nothing but proof of its truth is a defense for a libel. That it was privileged because public, on a proper occasion, from a proper motive, and upon probable cause, is the excepted case, and he who relies on an exception must prove all the facts necessary to bring himself within it. Second, unless his action is founded on a negative averment, a plaintiff is not, in general, obliged to prove a negative; and the inconveniences of a departure from this rule are many. For example, in cases like the present, how is a plaintiff to proceed? Actual or special malice can rarely be proven. In fact it rarely exists. Libelous articles in newspapers seldom spring from any hostility to the indi- vidual, but usually from a ruthless disregard of personal feelings and private rights, in the mad hunt for news and sensation. The only chance of redress for the plaintiff, therefore, is, ordinarily, the 20 4 Neeb v. Hope, 111 Pa. St. 145-154, 2 Atl. 568-572. 20 5 Neeb v. Hope, 111 Pa. St. 145-153, 2 Atl. 5G8-571. 516 WRONGS AFFECTING REPaTATION. [Ch- 8 want of probable cause, — and how is he to prove this? It was held in riitcraft v. Jenks ^"^ that he could not do it by evidence of good character and the consequent improbability of his doing the act charged, and hoAv is he to prove specific facts in the dark, before the facts relied on as probable cause are shown by the defendant? The natural and logical order of proof is for the defendant to show the information on which he relied on probable cause, and for the plaintiff then to meet it in rebuttal. And this is the order that seems to be indicated by Brackenridge, J., in Gray v. Tentland.-" 'The plaintiff may, if he chooses, either in the first instance, with a view to aggravate damages, go on to show express malice, or, after an attempt by, the defendant to show probable cause, he may rebut this by proof of express malice.' It is true that actions like the present are closely assimilated to actions for malicious prosecution, in which the plaintiff must give evidence of want of probable cause. But the later actions are founded on the want of probable cause. It is an essential element of the plaintiff's case, while in an action for libel it is an element not of the plaintiff's case, but of the defendant's claim of privilege." Malice Which must he Proved. Where the occasion of publication is privileged, the onus is on the plaintiff to prove malice in fact.^"^ Thus, where alleged slanderous words impute to one the crime of adultery, and the defendant avers that they were privileged because spoken by him in good faith to members of the family, and as a witness before a church committee, and that the words are true, and it appears from the evidence that the truth or falsity of the words was within his personal knowl- edge, and that they related to matters about which he could not be mistaken, he is not liable if the words were true; but, if they were false, they were not spoken in good faith, and he is liable, not- withstanding the circumstances under which the words were spoken.^ "^ But, "to enable the plaintiff to have the question of 20C 3 Wliart. 158. 207 2 Serg. & R. 23. 208 Strode v. Clement, 19 S. E. 177. 209 Etchlson V. Pergerson, 88 Ga. 620, 15 S. E. 680; Pergerson v. Etehison, Id.; Brett, L. J., in Clark v. Molyueux, 3 Q. B. Div. 237; .Jackson v. Hopper- ton, 12 Wkly. Rep. 913, 10 Law T. (N. S.) 529, 530, per Erie, J.; Taylor v. Ch. 8] MALICE. 517 malice submitted to the juryj^i" it is certainly not necessary that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non- existence of malice; but it is necessary that the evidence should raise the probability of malice and be more consistent with its ex- istence than its nonexistence." °^^ Therefore, in an action for slan- der, where the case is one of qualified privilege, evidence of the falsity of the charge is admissible on the part of the plaintiff, to prove malice, though such evidence is not in itself sufficient for that purpose.^^^ Actual or implied malice, or malice in fact and malice in law, as Mr. Townshend has demonstrated, means, not dif- ferent kinds of malice, but different kinds of proof.-^^ The preserva- tion of the distinction is of doubtful utility. For, "after all, this implied malice is a mere Action. It is an antiquated absurdity. The law is put into a position of self -stultification whenever the judge tells the jury that they are obliged to imply malice, although the evidence shows that there is none in fact." ^^* Actual Malice. Actual malice, while essential to the plaintiff's cause of action where question of privilege is involved, is ordinarily to be consid- ered in connection with, not the right, but the extent of the re- covery.^^'* ''So a libel may be published without any intention to harm a. man, and yet it would be a. libel, because a libel is judged by its natural consequences. That is what makes the thing libel. Hawkins, 16 Q. B. 308, 321, per Lord Campbell; Wright v. Woodgate, 2 Oromp., M. & K. 573-577, per Parke, B. 210 In an action for libel the existence of malice in fact is for the jui-y. Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal. 284, 38 Pac. 903. JIaule, .T., in Somerville v. Hawkins, 10 C. B. 583-588, 15 Jur. 450. 211 Atwill V. Mackintosh, 120 Mass. 177. Cf. .Jenoure v. Delmege [1891]. App. Cas. 73 (where the court did not allow the verdict to stand). 23 2 Laing v. Nelson, 40 Neb. 252, 58 N. W. fU6. 2i3Townsh. Sland. & L. 102, note. And see Selden, J., in Brush y. Prosser,. 11 N. Y. 347-358. 21127 Am. Law Rev. 777. 215 Malice in fact is the same as actual malice, under Connecticut statute. Moore v. Stevenson, 27 Conn. 14; Hotchkiss v. Porter, 30 Conn. 414; Wynne V. Parsons, 57 Conn. 73, 17 Atl. 302. The statement is often made very broadly that plaintiff need never prove malice as a part of his case. Mans- 518 WRONGS AFKECTING REPUTATION. [Ch. 8 If it was done without any actual ill-will, any actual malevolence, the damages would not be as much as if it were done through a mean motive, an actual hatred, personal ill-will, deliberate intent to maliciously injure another man. So the question of malice may always be taken into consideration in determining the amount of damages which should be awarded. On the other hand, some things may be taken into consideration in mitigating damages. If a party who published a libel actually in good faith, doing what he thought was right under the circumstances, acting honestly, — and a libel might be published in that way, — the jury should take that good faith into consideration in mitigating, lessening, or diminish- ing the damages that would be awarded, and in some cases they might consider that such good faith should go far enough to reduce the damages to a mere nominal sum."^^* Hence, evidence as to the existence -^' or absence ^^'^ of evil motive is admissible, under the tteld, C. J., in Hargi'ave v. Le Breton, 4 Burrows, 2423-242.5, repeated by Bayley, J., in Bromage v. Prosser, supra. Mr. Townshend, however (Sland. & L. G9, 404), calls attention to Wilson v. Stephenson, 2 Price 282, as incon- sistent. And see Smith v. Ashley, 11 Mete. (Mass.) 367; Liddle v. Hodges, 2 Bosw. 537-544; DoUoway v. Turrill, 2G ^^'end. 383-396; Cooke, Def. c. 4; I^ester v. Corley, 45 La. Ann. 1(p06, 3 South. 467. 210 Simons v. Bumham (Mich.) 60 N. W. 476^81. Reckless indifference to the rights of others is equivalent to the intentional violation of them, and that for the one, as well as the other, a jury in a case of libel or other tort may give punitive or exemijlary damages. Morning Journal Ass'n v Rutherford, 1 U. S. App. 296, 2 C. C. A. 354, 51 Fed. 513; Gott v. Pulsifer, 122 Mass. 235, 239; Warner v. Press Publishing Co., 132 N. Y. ISl, 30 N. E. 393; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701. Thus, where defendant published an out of town dispatch, which was rendered libelous by an error in transmission, without having the same repeated to insure accuracy, puni- tory damages are justilled on the ground of a wanton disregard of the rights of others, though repeating the dispatch would have involved extra expense and loss of time. Press Pub. Co. v. McDonald, 11 C. C. A. 155, 6.j Fed. 238-245. See, also, Wabash Printing & Pub. Co. v. Crumrine (Ind. Sup.) 21 N. E. 904. 21T Byrd v. Hudson, 113 N. C. 203, 18 S. E. 209; Hintz v. Graupner, 138 111. 158, 27 N. E. 935; Post Pub. Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 530; Bom 21S Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020; Lally v. Emery, 79 Hun, 560, 29 N. Y. Supp. 888; Amott v. Standard Ass'n, 57 Conn. 86, 17 Atl. 361. Ch. 8] MAi.icE. 619 general rules of evidence as to relevancy, competency, and the like.^^* A repetition by a person in a slander suit of a charge laid in the complaint, though not made in the same, or substantially the same, words, is yet admissible in evidence for the purpose of showing V. Rosenow, 84 Wis. 620, 54 N. W. 10S9. By the weight of authority, prior and contemporaneous publications of the same libel, other than that de- clared on, are competent evidence to show malice, whether such other pub- lications may themselves be made the basis of recoveiy in separate suits or not; and the danger of a double recovery for the same publications is to be avoided by a caution from the court that damages are to be allowed only for the article sued on. Van Derveer v. Sutphin, 5 Ohio St. 293; Pearce v. Le- maitre, 5 Man. & G. 700; Chamberlin v. Vance, 51 Gal. 75; Shock v. McChes- ney, 2 Yeates, 473; Gibson v. Gincinnati Enquirer, 2 Flip. 121, Fed. Cas. No. 5,392; Townsh. Sland. & Jj. § 392; Odger, Sland. & L. 272; Newell, Def. 331; LaiTabee v. Minnesota Tribune Co., 30 N. W. 462, 36 Minn. 141; Casey V. Hulgan, 118 Ind. 590, 21 N. E. 322; Beneway v. Thorp, 77 Mich. 181, 43 X. W. 863; Wabash Printing & Pub. Co. v. Crumrine (Ind. Sup.) 21 N. E. 9()4; Halsey v. Stillman, 48 111. App. 413; Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624 (including refusal to retract); Randall v. Evening News Ass"n, 97 Mich. 136, 56 N. W. 361; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 7.j2; McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 103T; Ranson v. McCurley, 140 111. .626, 31 N. E. 119. In New York, other publications of the same or dif- ferent libels by the defendant are not admitted to prove malice, unless suit upon them is barred by limitation, or for some other reason. Frazier v. Me- Closkey, 60 N. Y. 337. But see Enos v. Enos, 135 N. Y. 609, 32 N. E. 123. Evidence as to publication subsequent to commencement of suit seems not to be admissible. Upton v. Hume, 24 Or. 420, 33 Pac. 810; Eccles v. Radam, 75 Hun, 535, 27 N. Y. Supp. 486. As to evidence of intention under statute, see Wynne v. Parsons, 57 Conn. 73, 17 Atl. 362; Arnott v. Standard Ass'n, 57 Conn. 86, 17 Atl. 361. Evidence that defendant, a priest, after action brought against him, mentioned it to his congregation, and said the suit was not against him but fell upon the congregation, 'and ive will see if the church shall destroy the vermin or if the vermin the church," is admissible to ^how malice. Morasse v. Brochu, 151 Mass. 567, 25 N. E. 74. 219 In an action for slander, where the case is one of qualified privilege, evidence of the falsity of the charge is admissible on the part of plaintiff to prove malice, though such evidence is not in itself sufficient for that pur- pose. Laing v. Nelson, 40 Neb. 2.32, 58 N. W. 846. In an action against a rival merchant for libel in attacking plaintiff's credit, a letter written by de- fendant to plaintiff's creditor, threatening to withdraw his patronage If the claim was compromised, Is admissible to show malice. Simons v. Burnham (Mich.) 60 N. W. 476. Thus, as to evidence admissible, it was held: In an action for slander, all the facts and convei-sation leading up to the slander- •"j-O WRONGS AFFECTING EEPUTATION. [Ch. 8 malice in speaking the words charged.^^" In Gribble t. Pioneer- Press Company,"! the defendant, inter alia, called the plaintiff (a member of the bar) a "half imbecile shyster," and subsequently apol- ogized for its mistake in not calling him a "wholly imbecile shyster." It was held that publications before and after the one complained of, and even after suit was brought, were admissible to show actual malice, and thereby to aggravate damage. "The circumstance that other libels are more or less frequent, or more or less remote, * * * merely affects the weight and not the admissibility of the evidence." Attempted justification may be considered as evidence of actual malice.^^^ ^^ DEFENSES. '' 176. Defenses to an action for defamation may be — (a) Statutory, or . (b) Common law. Statutory Defenses. Many statutes have been passed to alter the rule of the common law as to the ability of a person uttering a defamation to escape from liability in tort. The English statute provides that, on apology and paj'ment into the court of a sum of money by way of amends for the injury sustained by the defamation in any public news- ous words are admissible, to show the intention of the person uttering them, and how they were understood by the hearers. Kidd v. Ward (Iowa) 59 N. W. 279. On the other hand: In an action for slander in charging plaintiff with the larceny of property belonging to defendant, the fact that defend- ant was tried and acquitted of the offense is not evidence of malice or want of probable cause. Sibley v. Lay, 44 La. Ann. 936, 11 South. 581. Knowl- edge of circumstances on defendant's part may be a condition of malice. Norton v. Livingston, 64 Vt. 473, 24 Atl. 247; Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. Smith v. Matthews, 9 Misc. Rep. 427, 29 N. Y. Supp. 1058 (no inference of actual malice from neglect to investigate into the truth). 220 Enos V. Enos, 135 N. Y. 607, 32 N. E. 123; Ellis v. Whitehead, 95 Mich. 105, 54 N. W. 752. See, also, McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 1037; Ranson v. McCurley, 140 111. 626, 31 N. E. 119. 221 Gribble v. Pioneer Press Co., 34 Minn. 342, 25 N. W. 710, citing cases at page 344, 34 Minn., and page 710, 25 N. W. Id., 37 Minn. 277, 34 N. W. 30 (on another point). Tindal, J., in Pearson v. Lemaitre, 5 Man. & G. 700-718. 222 Marx y. Press Pub. Co., 134 N. Y. 561, 31 N. E. 918, and cases cited. Ch. 8] DEFENSES. 521 paper or other periodical publication, the defamer has a full de- fense,""^ which may be alternative.^"* The apology must be full and suflacient, printed in suitable type, and conform to the statutory requirements as to time and place of publication.^ ^^ Express malice may, however, be shown by the defendant.^^^ There is a correspond- ing act in Canada,"' and in many of the states of the Union.^^^ SAME— COMMON-LAW DEFENSES. 177. The common-law defenses peculiar to defamation ^^ may operate by way of — (a) Justification, or (b) Mitigation.^" 178. Defamation may be justified by sho-wing either that the charge claimed to be defamatory was — (a) True, or that it w^as (b) Privileged. 179. The truth of the charge is a full justification in a civil action for defamation. 223 6 & 7 Viet. c. 96, § 2; Oliadwick v. Hereapatli, 3 0. B. 885; O'Brien v. Clement, 10 Mees. &,W. 159. 22 i Hawkesley v. Bradshaw, 5 Q. B. Div. 302, 49 Law J. Q. B. 333. 22 6 Lafone v. Smitli, 3 Hurl. & N. 735, 28 Law J. Excb. .33. 226 BaiTett V. Long, 3 H. L. Cas. 395. 227 St. .50 Vict. cc. 22, 23; Ashdown v. Manitoba Free I'ress Co., 20 Can. Sup. Ct. 43; article on "Libel, Act of 1890," 15 Can. Law T. 89. 228 Laws Mich. 1885, p. 354, § 3; Park v. Detroit Free Press Co., 72 Mich. 5G0, 40 N. W. 731; Gen. Laws Minn. 1887, c. 191; Gen. Laws 1889, c. 131; Allen v. Pioneer Press Co., 40 Minn. 117, 41 N. W. 930; Cleiieutson v. Min- nesota Tribune Co., 45 Minn. 303, 47 N. W. 781; Holston v. Boyle, 46 Minn. 432, 40 N. W. 203. 229 The conventional defenses have been discussed in chapter IV. Accord and satisfaction is a good defense to an action for defamation, as in other torts. Lane v. Applegate, 1 Starkie, 97. Thus, if by agreement mutual apologies are made, this may be a valid satisfaction of right of action. Boosey v. "Wood, 34 Law J. Exch. 05. Statute of limitations: A slander once barred cannot be revived by an admission that it had formally been made, and malice cannot be attached to such admission. Vickers v. Stoneman, 73 230 Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680. WRONGS AFFECTING REPUTATION. [Ch. 8 Our law allows a man to speak the truth, though maliciously,"^ without showing good motive or justifiable end. This is the com- mon-law rule generally, but not universally, recognized by constitu- tions and enforced by statutes. Hence, the truth o? a charge claim- ed to be defamatory is a full justification to a civil action."^ The justification must be as broad as the charge. Thus proof of em- bezzlement is not broad enough to sustain the charge of embezzle- ment and attempt to blow open a safe and destroy the books."'' Mich. 419, 41 N. W. 495. Leave and license: In Howland v. George P. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656, Knowlton, J., said: "If the de- fendant Is guilty of no wrong against the plaintiff: except a wrong invited and procured by the plaintiff for the purpose of making it the foundation of an action, it would be most unjust that the procurer of a wrongful act should be permitted to profit by it." And see 1 Ames, Lead. Cas. 422, citing King v. Waring, 5 Esp. 13; Rogers v. Clifton, 3 Bos. & P. 587-592; Weatherston v. Hawkins, 1 Term R. 110-112; Smith v. Wood, 3 Camp. 323; Duke v.^Harmer, 14 Q. B. 185; Palmer v. Hummerston, 1 Cab. & E. 36; Gordon v. Spencer, 2 Blackf. 286; Smith v. Sutton, 13 Mo. 129. And see Coles v. Thompson (Tex. CiT. App.) 27 S. W. 46. 2 31 Bigelow, Lead. Cas. 112, note h; Thorley v. Lord Kerrey, 4 Taunt. 355. 232 Castle V. Houston, 19 Kan. 417, Chase, Lead. Cas. 132; Donaghue v. GafCy, 53 Conn. 43, 2 Atl. 397; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51; Royce v. MaIoney,57 Vt.325; Wilson v. Marks, 18 Fla.32S; Perry v. Porter, 124 Mass. 338; Drake v. State, .53 N. J. Law, 23, 20 Atl. 747; Heilman v. Shanklin, OO Ind. 424; Hathorn v. Congress Spring Co., 44 Hun, 608; Root v. King, 7 Cow. 013,4 Wend. 113; Ellis v. Buzzell, CO Me. 209; MeClaugherty v. Cooper,39 W. Va. 313, 19 S. E. 415 (under Code, e. 158, § 4). And see Chaffln v. Lynch, 83 Va. 106, 1 S. E. 803; Atlanta Journal v. Mayson, 92 Ga. 640, 18 S. E. 1010; Bank v. Bowdre, 92 Tenn. 723, 23 S. W. 131. In Mississippi, under Code 1880, § 1004, truth operates only in mitigation of damages. McLean v. Waring (Miss.) 13 South. 236. In Michigan, notice that justification will be a defense must be given. AVheaton v. Beecher, 79 Mich. 443, 44 N. W. 927. As to Massachusetts statute, see Brown v. Massachusetts Title Ins. Co., 151 Mass. 127, 23 N. E. 733. Mr. Townshend (Sland. & L. 310) has shown that, at common law, tinith was re- garded as a plea in mitigation only, until 1735; that the phrase, "The greater the truth, the greater the libel," has been attributed to both Lord Mansfield and Lord EUenborough; and that the justice and expediency of the present general rule that truth may be an absolute defense is neither universally nov generally conceded. See note 2, p. 308, and Delaware Ins. Co. v. Croasdale, C Houst. 181. Miller v. Brooks, 65 Hun, 624, 20 N. Y. Supp. 359. 23.-; Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N. W. 856. A charge of incest and pregnancy is not justified by proof of incest only. Edwards v. ^'l-- ^2 DEFENSES. 523 The fact that a teacher was of a grossly immoral character, and in the habit of having liquor in the school, is no defense to an action for publishing an article in the newspaper charging such teacher with taking indecent liberties with his scholars."* A general charge cannot be justified by the truth of the charge in a sin;;le in- stance."'' But it is not necessary to prove the truth of all details of the charge. It is enough if defendant show the matter complained of to be substantially true, — that is, to prove the gist of the state- ment, — provided the details which are not justified produce no dif- ferent effect on the mind of the person to whom publication is made than the actual truth would do.^^" Thus, to charge that certain Kansas City Times, 32 Fed. 813. Cf. McNaugliton v. Quay (Mich.) GO N. W. 474 (where the charge was of pei-jury and larceny, and the perjm-y was justi- fied, and a denial made as to the eliarge of larceny). And, generally, see Weaver v. Lloyd, 2 Baru. & C. 678; Bissell v. Cornell, 24 Wend. 354; Toirey V. Field, 10 Vt. 353; Burford v. Wible, 32 Pa. St. 95; Wilson v. Beighler, 4 Iowa, 427. 234 Thibault V. Sessions (Mich.) 59 K. W. 624; McClaugherty v. Cooper, 39 W. Va. 313, 19 S. E. 415 (to justify charge of peijuiT); Becherer v. Stock, 49 111. App. 270. To justify a newspaper article charging a person with both "frequent" acts of adultery and a specific act of the same nature, not only sufficient acts must be proven to justify the general charge, but proof of the specific act must be given also. Miller v. McDonald (Ind. Sup.) 39 N. E. 159. liamphere v. Clark (Sup.) 29 X. Y. Supp. 107 (charge of lewdness); Ifeely v. Jones, Id. 446 (abuse of funds by an attorney); Bishop v. Latimer (1861) 4 Law T. 775 (badly treated client). Cf. Fitch v. Lemmon, 27 U. C. Q. B. 273; Clement v. Lewis (1822) 3 Brod. & B. 297, 7 Moore, 200 (shameful conduct of an attorney). 235Clarkson v. Lawson (1829) 6 Bing. 266-587 (charge that a proctor had been suspended three times not supported by proof of a single suspension); Wakley V. Cooke (1849) 19 Law J. Exch. 91, 4 E.xch. 510 (that plaintiff had been once re- covered against for a libel does not justify defendant in calling him a "libelous journalist"). And see Swann v. Rary, 3 Blackf. 298; Sheehey v. Cokley, 43 Iowa, 183; Burford v. Wible, 32 Pa. St. 95; Kicket v. Stanley, Blackf. 169; Stilwell V. Barter, 19 Wend. 485. But see Alcorn v. Hooker, 7 Blackf. 58. 236 W'illmett V. Harmer (1839) 8 Car. & P. 095; Alexander v. Northeastern Ry. Co., 34 Law J. Q. B. 1.52. Cf. England v. Bourke, 3 Esp. 80; Eraser, Torts, 90. And see Palmer v. Adams, 137 Ind. 72, 36 N. E. ()05 (kidnapping a girl); Nettles V Somervell, 6 Tex. Civ. App. 627, 25 S. W. G58 (publishing plaintiff as a dead beat); Pidler v. Delavan, 20 Wend. 57 (charging plaintiff as a cheat and a swindle). 524 WRONGS AFFECTING REPUTATION. [Ch. 8 persons are "a gang who live by card-sharking" is justified by show- ing that on two different occasions they had cheated at cards."^ On the other liand, a clergyman was charged with saying that "the blood of Christ has nothing more to do with our salvation than the blood of a hog." The proof was that he had denied the divinity of Christ and the doctrine of the atonement, and had asserted the peifeotion of Christ as a man, and the absence of greater virtue in his blood than in that of any other creature. It was held that the charge was not justifled.^^^ In the application of this reasonable princi- ple there has not been entire consistency in the cases. Thus, it was properly held that to charge a woman with being a whore was not sustained by proof of her reputation as a thief.-" But it was also held that the charge was not sustained by proof of bad reputation for chastity.^*" And courts have gone to great length in holding, for example, that the charge of a crime can be justified only by showing identity of the truth with the charge, both as to the object of the crime as well as to the wrong itself.^*- As a matter of fact it would seem that courts have pushed to an extreme the proposition that "there can be no such thing as a half-way justification." ^*^ Hence, 237 Rex v. Labouchere (1880) 14 Cox, Or. Cas. 419. A publication charging that a minister, of strong persuasion, and other means not so reputable, had induced a parishioner, who was believed to be of unsound mind, to turn over to him a large sum for the benefit of a certain college, and that there was general "indignation over this attempt to rob this woman of her property," it was held that the pleading of justification on the ground of truth need not state facts which would constitute an attempt to commit robbery. Waif ord v. Herald Printing & Pub. Co., 133 Ind. 372, 32 N. E. 929. 23 8 Skinner v. Grant, 12 Vt. 456. 230 Smith V. Buchecker, 4 Eawle, 295. And see Nelson v. Musgrave, 10 Mo. 648. -*o Sunman v. Brewin, 52 Ind. 140. 241 Charge of criminal intercourse with one person is not justified by proof of intercourse with another person. Buckner v. Spaulding, 127 Ind. 229', 2rj X. E. 702; AYatters v. Smoot, 11 Ired. 315. As to the place of intercourse, see Smithers v. Harrison, 1 Ld. Raym. 727; Sharpe v. Stephenson, 12 Ired. 348. The rule is the same as to stealing. Gardner v. Self, 15 Mo. 480. Charge of horse stealing is not justified by proof of hog stealing. Dillard v. Collins, 25 Grat. 343. So proof of a crime against nature with a cow is not justification of charge of such crime with a mare. Andrews v. Vanduzer, 11 Johns. 38; Downs V. Hawley, 112 Mass. 237; Shigley v. Snyder, 45 Ind. 541. 2i2 Fero v. Ruscoe. 4 N. Y. 162. €h, 8] DEFK.\>Ks. 525 it is a rule of pleading justification that "you should use the very words alleged to have been uttered." -*^ "Truth should be specially pleaded." ^** General belief in truth of charge is no justification.-*' In an action for libel, where the defendant ha.s pleaded the truth of the publication in justification, and does not request an instruction that the jury may consider whether the justification was pleaded hi good faith, and not wantonly, it is not error for the court to charge that they may consider the plea of justification as evidence of mal-_ ice to enhance the damages.-*® ! 180. Privilege of a communication may be either — (a) Absolute, -when attaching to the position a person holds, or to the document in -which it is contained, and such privilege cannot be avoided, even by proof of actual malice; or (b) Qualified (or conditional), when made -with reference to public interest, or in discharge of a duty, and disattaches -when malice is shoAvn.^'' 2-»^ Restell V. Steward, 1 Cliarl. Cases at Chambers, 89; Dennis v. Johnson, 47 Minn. 50, 41J X. W. 383; Sawyer v. Bennett, 06 Hun, 626, 20 N. Y. Supp, 835; As to proof, see Roberts v. Lamb, 93 Tenn. 343, 27 S. W. 068. 24-4 J' Anson v. Stuart, 1 Term R. 748. 2is Mason v. Mason, 4 N. H. 110. Underwood v. Paries, 2 Strange, 1200; Manning v. Clement, 7 Bing. 362-367; "S'an Ankin v. Westfall, 14 Johns. 2:'.;!; Bisbey v. Shaw, 12 N. Y. 67; Sheahan v. Collins, 20 111. 326; Kay v. Fredrigal, 3 X. Y. 221; Updegrove v. Zummerman, 13 Pa. St. 619; Bodwell v. Swan, 3 Pick. 376. Where the publication charges plaintiff with a crime, the presumption of his innocence is conclusive if defendant does not plead the truth of the charge. Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. 64, 60 X. W. 338. It is no defense in a suit for libel that the party sued had reasonable grounds to believe that the charge made was ti-ue. Such facts, if shown, would not relieve the publisher from liability. Shattuc v. Mc- Arthur, 25 Fed. 133. 246 Marx V. Press Pub. Co. (Sup.) 12 N. Y. Supp. 162, affirmed 134 X. Y. 561, 31 X. E. 918; Lowe v. Herald Co., 6 Utah, 175, 21 Pae. 991. 247 Shearw. Torts, 31. "There are two differences between aualified and absolute privilege." In the case of the latter, it is the occasion which is privileged. When once the nature of the occasion is shown, it follows as a necessary inference that every communication on that occasion is protected. But in the case of the foraier the defendant does not prove privilege until .526 WRONGS AFFECTING KEPUTATION. [*-^h- 8 A hsolute Privilege — Judicial. Upon principles of public policy ^*' already considered,"" "neither party,"" witness,-" couusel,=" judge,-'^ or jury ''* can be put to Ife has shown How the occasion was used. Secondly, even after a ciise of .(ualified privilege has been established, it may be met by the plaintiff prov- ing in reply actual malice on part of defendant. Clerk & L. Torts, 450. And see Lynam v. Gowing, 6 Ir. C. L. 259. • 24 s Royal Aquarium, etc., Soc. v. Parkinson [1892] 1 Q. B. 431. 442, per Lord Esher, Jl. R. And see Fry, L. S., in JIunster v. Lamb, 11 Q. B. Div., at pages 588 -Tnd 607. 240 Ante, p. 121, "Exemption of .Judicial Officers from Liability in Tort." 2 50 Party,— see Hibbard, Spencer, Bartlett & Co. v. Ryan, 46 111. App. 313; Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73; Youree v. Hamilton, 45 La. Ann. 1191, 14 South. 77; Lilley v. Roney, 61 L. J. Q. B. 727. But see Jones V. Forehand, 89 Ga. 520, 16 S. E. 2G2; Allen v. Crofoot, 2 AVend. 515; Bartlett v. Christhilf, 69 ild. 219; Lee v. White, 4 Sneed (Tonn.) Ill; Badgley V. Hedges, 2 N. J. Law, 217. But an agent of a corporation, which is a party to the suit, is not within the privilege. Nissen v. Cramer, 104 N. C. 574, 10 S. E. 670. 2ji Seaman v. Netherclift, 2 C. P. Div. 53 (here an expert witness, when asked about a previous case in which he had given professional evidence, added, gratuitously, "though the jury decided the will was genuine, I be- lieve it was a forgery"). Padmore v. Lawrence, 11 Adol. & E. 380; Kennedy v. Hilliard, 10 Ir. C. L. 195; AVright v. Lothrop, 149 Mass. 385, 21 N. E. 963, collecting cases at page 390, 149 Jlass., and page 963, 21 N. E.; Zuckerman v. Sonnenschein, 62 111. 115 (translating defamatory words for an attorney). And see Terry v. Fellows, 21 La. Ann. 375; McLaughlin v. Charles, 60 Hun, 239, 14 N. Y. Supp. 608; Hunckel v. VoneifE, 09 Md. 179, 14 Atl. 500; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721; Hutchinson v. Lewis, 75 Ind. 55; Liles V. Caster, 42 Ohio St. 631; Cooper v. Phipps, 24 Or. 357, ;;3 Pac. 985; Bald- win V. Hutchinson, 8 Ind. App. 4.54, 35 N. E. 711. 2 52 Counsel, Munster v. Lamb, 11 Q. B. Div. 588; Hodgson v. Scarlett, 1 Barn. & Aid. 244 (inter alia, "this is one of the most profligate things I ever knew done by a professional man. Mr. Hodgson is a fraudulent and wicked attorney"); Hollis v. Meux, 69 Cal. 625, 11 Pac. 248; McLaughlin v. Cowley, 127 Mass. 316; Id., 131 Mass. 70. And see Maulsby v. Reifsnider, 69 Md. 143, 14 Atl. 505; Oliver v. Pate, 43 Ind. 132 (mal. pros.); Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. 12. As to limitation as to relevancy, see Marsh V. Ellsworth, 50 N. Y. 309; Hoar v. AYood, 3 Jletc. 193. 2 53 Judge, Scott v. Stansfleld, L. R. 3 Exch. 220. "Otherwise no man but 21;-* Juror, Rex v. Skinner [1772] Loflit, 55; Dunham v. Powers, 42 Vt. 1; grand juror, Little v. Pomeroy, 7 Ir. C. L. 50; Hector v. Smith, 11 Iowa, 302. Ch. 8] DEFENSES. 527 answer civilly or criminally for words spoken in office." "" The privilege extends to courts of all kinds,^^" except where the matter is coram non judice."^ It includes all pleadings,'^'^ affidavits,^''^ and other legal papers ^'"' involved in judicial proceedings, as well as all communications between members of the bar and their clients. The a beggar or a fool would be a judge." Lord Robertson, in Miller v. Hope, 2 Sliavi', App. Cas. 134. And, generally, see Yates v. Lansing, 5 Johns. 2.S2; Cooke v. Bangs, 31 Fed. 640; Lange v. Benedict, 73 N. Y. 12; Johnston v. Moorman, 80 Va. 131; Vaughn v. Congdon, .j(J Vt. Ill; Randall v. Brigham, 7 Wall. 535. As to distinction between classes of judges, ante, c. 122. Ayles- worth v. St. John, 2.j Hmi, 156 (justice of peace); Evarts v. Kiehl, 102 N. Y. 2915, 6 N. E. 502; Floyd v. Barker [1617] 12 Rep. 24 (judge of superior court); Houlden v. Smith, 19 L. J. Q. B. 70 (judge of inferior court); Royal Aquarium & S. & W. Garden Soc. v. Parkinson [1892] 1 Q. B. 431. 255 Per Lord Mansfield, in Rex v. Skinner, Loftt,' 56. And see Kidder v. Parkhurst, 3 Allen, 393; Munster v. Lamb, 23 Am. Law Reg. 12; Kelly, C. B., in Dawkins v. Lord Rokeby, L. B. 8 Q. B. 255, 203; Beardsley, J., iu Gilbert v. People, 1 Denio, 41-43; Gray, C. J., in Hoar v. Wood, 3 Mete. 193; Henderson v. Broomhead, 4 Hurl. & N. 569; Kendillon v. Maltby, 2 Moody & R. 438; Moore v. Ames, 2 Caines, 170; 1 Hawk. P. G. c. 73, § 8; Lake v. King, 1 Saund. 131; 6 Bac. Abr. 348. 200 Dawkins v. Prince, 1 Q. B. Div. 409 (mUitary courts); Dawkins v. Rokeby, 23 W. R. 93 (military courts); Scott v. Stansfield, L. R. 3 Exch. 220 (county courts); Tbomas v. Ohurton, 2 Best & S. 475 (coroners); Ryalls V. Leader, L. R. 1 Exch. 29<; (bankniptcy registrar); Royal, etc., Soc. v. Park- inson [1892] 1 Q. B. 431 (London courts); Goffin v. Donnelly. Q. B. Div. 307 (to effect that English houses of parliament are for certain purposes courts of judicature); Kane v. Mulvany, 2 Ir. C. L. [1868] 402. And see Rector v. Smith, 11 Iowa, 302 (grand juror). 257 Ante, p. 123; Paris v. Levy, 9 C. B. (X. S.) 342; I,ewis v. Levy, Ek, Bl. & El. .537, 555. 258 Ruolis V. Backer, 6 Heisk. 395 (petition); Runge v. Franklin, 72 Tex. 585, 10 S. W. 721; Gardmal v. ilcWilliams, 4:! La. Ann. 454, 9 South. lOG (peti- tion); Weil V. Israel, 42 La. Ann. 955, 8 South. 826 (answer); and, generally, see Wilson v. Sullivan, 81 Ga. 238, 7 S. E. 274; Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518. 269 Lilley v. Roney [1892] 61 L. J. Q. B. 727; Mui-phy v. Xelson, 94 Mich. 554, .54 N. W. 282. 260 Revis V. Smith, 18 O. B. 126; Wyatt v. Buell, 47 Cal. 624; Hawk v. Evans, 76 Iowa, 593, 598, 41 N. W. 368; Henderson v. Broomhead, 4 Hurl. & N. 569. But cf. Hart v. Baxter, 47 Mich. 198, 10 N. W. 198; Bank v. Strong, 1 App. Cas. 307. Generally, accusations in the course of judicial proceedings are privileged, if made to the proper tribunal; though other- 52S WRONGS AFFECTING REPUTATION. [Ch. 8 privilege avails, although the words written or spoken were written or spoken without any justification or excuse, and from personal ill-Mill and anger against the person defamed.^" "No one is per- mitted to allege that what was rightly done in a judicial proceed- ing was done with malice." ^'^^ "This privilege, however, is not a license which protects every slanderous publication or statement made in course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation; or, at least, it does not protect slanderous publication, clearly irrelevant and im- pertinent, voluntarily made, and which the party making it could not reasonably- have supposed to be relevant." ^^" So, while a wit- ness may even volunteer a statement with impunity,^"* this is not true of what he may have said after leaving, or before entering, the box, nor, it would appear, of malicious and irrelevant interjections of defamatory matter while testifying.^"^ On this principle, a judge wise libelous. Pedley v. Morris, 61 L. J. Q. B. 21; LlUey v. Roney, 61 L. J. Q. B. 727. 261 Per Lopes, J., in Royal Aquarium & S. & W. Garden Soc. v. Parkinson [1892] 1 Q. B. 431^51. 26 2 HoUis V. Meux, 69 Cal.'625, 11 Pac. 248; Warner v. Paine, 2 Sandf. 195, 201; Suydam v. MofCat, 1 Sandf. 458-462; Garr v. Selden, 4 N. Y. 91-94. See, however, Parker, J., in Hill v. Miles, 9 N. H. 14. 263 Andrews, J., in Moore v. Jlanufaeturers' Nat. Bank, 123 N. Y. 420-423, 2.^ N. B. 1048, citing Ring v. AVheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Gilbert v. People, 1 Denlo, 41; Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73; Rice v. Coolidge, 121 Mass. 393; McLaughlin v. Cowley, 127 Mass. 316; Thorn v. Blanchard, 5 Johns. 508; Grover, J., in Marsh v. Ellsworth, 50 N. Y. 309-313. And see White v. Carroll, 42 N. Y. 161; HoUis V. Meux, 69 Cal. 62.">, 11 Pac. 248; Larkin v. Noonan, 19 Wis. 93; Calkins V. Summer, 13 Wis. 215; Sliadden v. McElwee, 86 Tenn. 146, 5 S. W. 602; Jones V. Forehand, 89 Ga. 52, IG S. E. 262; Barnes v. McCrate, 32 Me. 442: Hyde v. McCabe, 100 Mo. 412, 13 S. W. 875; Spaids v. Barrett, 57 111. 289; Smith V. Howard, 28 Iowa, 51; Stewart v. Hall, 83 Ky. 375; Hodgson v. Scarlett, 1 Bam. & Aid. 232; Moore v. Manufacturers' Nat. Bank, 51 Hun, 472, 4 N. Y. Supp. 378. 2 64 Seaman v. Netherclift, 1 C. P. Div. 540. 265 Trotman v. Dunn [1815] 4 Camp. 211. But see Coleridge, J., in Seaman V. Netherclift, 1 C. P. Div. 540, 541. Marsh v. Ellsworth, 50 N. Y. 309, and cases on page 310. This view Mr. Townshend combats with great force of reasoning and with a strong array of authorities. His contrary conclusion has been approved (Hunckel v. VoneifC, 69 Md. 179, 14 Atl. 500), and pro- Ch. 8] DEFENSES. 529 may be liable for words spoken out of olHce.^'"' This rule accords with the analogy of the general exemptions recognized by law.-" Same — Legislative. The exemption of the state for liability for torts -'^^ logically leads to the absolute privilege of legislators to speak freely in the per- formance and within the limits of their legislative functions.-*^" Where, however, the privilege is exceeded, as where defamatory matter is published to the outside world, liability attaches."" And statements made by a person not under oath before a legislative committee may have only a conditional privilege.^ '^ Same — Official Communications. In order that laws may be best executed, there are many com- munications which must pass between the officials of the govern- ment and other persons. The same reasoning as to public policy which exempts from general liability for torts, and from special liability for defamation, grants absolute privilege to such matter.-' - Thus, it is a duty of every citizen to give to his government any in- nounced plausible, but unsound (Shadden v. McElwee, 86 Tenn. 14(J, 5 S. W. 602). 2 6 Paris v. Levy [18C1] 9 C. B. (N. S.) 342. 267 Ante, c. 2. 26 8 Ante, p. 11-4. 203 Bx parte Wason, L. R. 4 Q. B. 573; Bradlaugh v. Gorsett, 12 Q. B. Div. 271-283; Ooffln v. Coffin, 4 Mass. 1. And see Townsh. Sland. & L. §§ 217-219. 270 Stockdale v. Hansard, 7 Oar. & P. 731; Wason v. Walter, L. R. 4 Q. B. 73. A statement made by a member of the city council, during a session thereof, in reference to the official conduct of the superintendent of streets, that he is a "downright thief," is not privileged, if at the time there was no proceeding before the council as to the latter's official conduct. Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. 271 Wright V. Lothrop, 149 Mass. 385, 21 N. E. 963. 272 In Harrison v. Bush (1855) 5 El. & Bl. 344, defendant, an elector, wrote to Lord Palmerston that a local magistrate had been encouraging sedition. It was held that the communication, having been made with the best intention, was privileged, and that the privilege availed as a good defense. Dawkins V. Lord Paulet, L. R. 5 Q. B. 04; Cooke v. Wildes, 5 El. & Bl. 32S-340; Sutton V. Johnstone, 1 Term R. 493. But see Beatson v. Skene, 5 Hurl. & N. 838; Hart V. Gumpach, L. R. 4 P. C. 439; Grant v. Secretai-y, 2 C. P. Div. 445. However, statements in an affidavit presented to a superintendent of schools to prevent granting teacher's license to plaintiff have only a qualified privilege. Wiema.i V. Mabee, 45 Mich. 484, 8 N. W. 71. 530 WRONGS AFFECTING REPUTATIOiV. [Ch. 8 formation he niay have as to the commission of an offense against its laws. Hence, if a citizen consults a state attorney as to whether facts stated constitute a crime, he may claim a double privilege, that subsisting between the bar and the advised and that between the general government and the community.^'' On the same principle, words concerning a city attorney that "he is unfit to hold the ofllce of city attorney; his opinion is too easily warped for money con- siderations," spoken by the mayor to the city council, which has power to remove the attorney, are privileged.^^^ Qualified Privilege. Any communication is privileged when made bona fide about some- thing in which (1) the speaker has an interest or duty; (2) the hearer has a corresponding interest or duty; and (3) the statement is made in protection of that interest or in the performance of that duty."'^ They must be uttered in the honest belief that they are true.^^° Every one owes it as a duty to his fellow man to state 2" Yogel V. Gi-uaz, 110 U. S. 311, 4 Sup. Ct. 12; Worthington v. Scribner, 109 Mass. 487; Dawkius v. Kokeby, 8 Q. B. 255; Harrison v. Bush (1855) 5 El. & Bl. 344 (wbere it was contended tbat the memorial complained of was ad- dressed to wrong official). And see Blagg v. Sturt, 10 Q. B. 899; Pearce v. Brower, 72 Ga. 243; Gray v. Pentland, 2 Serg. & R. 23, 4 Serg. & R. 420; Rainbow v. Benson, 71 Iowa, 301, 32 N. W. 352; Wieman v. Mabee, 45 Mich. 484, 8 N. W. 71; Greenwood v. Cobbey, 26 Neb. 449, 42 N. W. 413; Van Wyck V. Asj)inwall, 17 N. Y. 190; Kent v. Bongartz, 15 R. I. 72, 22 Atl. 1023. 2T-1 Greenwood v. Cobbey, 26 Neb. 449, 42 N. W. 413. 2 ••■'Prof. Ames (1 Cases on Torts) has an'anged the cases with reference to (a) communications in the common interest of maker and receiver, or in interest of maker alone, and (b) communications in interest of recipient. The arrangement by topics followed, while less logical and scientific, would seem to be pj'actically more convenient. Shearw. Torts, 31, and, see, Toogood v. Spyring, 1 Cromp., M. & R. 181. 270 White V. Nicholls, 3 How. 266-2S6; Alabama & V. Ry. Co. v. Brooks. G9 Miss. 168, 13 South. 847; Marks v. Baker, 28 Minn. 162-164, 9 N. W. 678; Quinn v. Scott, 22 Minn. 456; Klinck v. Colby, 4fi N. Y. 427; Hamilton v. Eno, 81 N. Y. 116; Fowles v. Bowen, 30 N. Y. 20. Lopes, J., in PuUmaii V. Hill [18D1] 1 Q. B. 524^530, and Stuart v. Bell [1891] 2 Q. B. 341, 353; Blackburn, J., in Davies v. Snead (1870) L. R. 5 Q. B. 608-611; Shearw. Torts, 31; Briggs v. Garrett, 111 Pa. St. 404, 2 Atl. 513; King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705; Proctor v. Webster, 16 Q. B. Div. 112; Jenoiu-e v. Delmcge [1891] App. Cas. 73; Macdougall v. Knight, 17 Q. B. Div. 636; Har- rison V. Bush, 5 El. & Bl. 344. ^'' ^1 DEFfixSKS. o31 what he knows about a person, when inquiry is made, and every- thing pertinent to the subject of the inquiry which subsequently passes between the parties is also privileged."^ The privilege may extend even to volunteered information." « But the standard of privilege is the standard of law, not of the individual. It depends not on what the individual may have supposed to be his interest or duty, but upon what a judge decides his interest or duty in fact to have been.^'" The effect of the privileged communication of this qualified de- scription is to cast on the plaintiff the burden of sjiowing malice on the defendant's part.^*" This is ordinarily for the jury. If one ex- ceeds the qualified privilege, its protection to him ceases, and the ordinary rules of liability apply. This, also, is usually a question of fact for the jury.^^^ But the court determines what is and what is not privileged.^'^ And judges who have had, from time to time, to deal with questions as to whether the occasion justified the speaking or writing defamatory matter, have all felt great difficulty in defining what kind of social or moral duty, or what amount of interest, will afford a justiflcation.^^^ Savie — Fair Report. Fair reports, as distinguished from comment, are privileged, but the law is not always without doubt either as to whether the privi- 277 Fraser, Torts, 103, citing Grove, J., in Robshaw v. Smitli (1S7S) 38 Law T. (N. S.) 423, 424, and Beatson v. Skene (1S60) 29 Law J. Excli. 430. 278 Sunderlin v. Bradstreet, 46 N. Y. 188-191; AValler v. Locli (1880) 7 Q. B. Div. 619, at page 621 (per Jessel, M. R.). But see Coltman, .T., in Coxliead V. Richards, 2 Man., G. & S. 568-598; Littledale, J., in I'attison v. Jones, 8 Bai-n. & C. 586. 27 9 Clerk & L. Torts, 455, citing Byles, J., in Wliiteley v. Adams, 15 C. B. (N. S.) 392-412. But see Jessel, M. R., in Waller v. Locli, 7 Q. B. Div. 619-621; Laugliton v. Bisliop of Sodor, L. R. 4 P. C. 495-504. 280 .strode v. Clement, 90 Va. 553, 19 S. E. 177. 2 81 Hill V. Durliam House Drainage Co., 79 Hun, ."Joo, 29 N. Y. Supp. 427; Neil v. Fords, 72 Hun, 12, 25 N. Y. Supp. 406; Strode v. Clement, 90 Va. 553, 19 S. E. 177. See, also, Mitchell v. Bradstreet Co., IIG Mo. 226, 22 S. W. 358, 724. 282 ititchie V. Sexton, 64 Law T. (N. S.) 210. See, also. Strode v. Clement, 90 Va. 5.>i, 19 S. E. 177. 288 Erie, J., in Whiteley v. Adams, 15 C. B. (N. S.) 392-414. •'Jo2 WKONGS AFFECTING EEPUTATION. [Cll. S l«'j;e be absolute or qualified, and as to what kind of report is with- in the privilege. The general opinion would seem to be that the privilege of fair report is qualified, not absolute.^** However, by statute, parliamentary papers are absolutely protective.^''^ And the absdlute privilege allowed to parliamentary speeches ^^^ is also ex- tended to faithful reports of them.^" Same — Reports of Judicial Proceedings. "A fair account of what takes place in a court of justice is privi- leged. The reason is that the balance of public benefit from pub- licity is great. It is of great consequence that the public should know what takes place in court, and the proceedings are under the control of the judges. The inconvenience, therefore, arising from the chance of injury to private character, is infinitesimally small as compared with the convenience of publicity." ^'* While this general principle is thus fully recognized, the courts are not in hannony as to what proceedings are within the rule. It is finally decided, it seems, that the privilege extends to ex parte statements made in open court,-^" — certainly where the matter is finally dealt with.^"" The tendency, indeed, has been not to extend the privilege to pre- liminary proceedings, because of the "tendency to pervert the public mind and to disturb the courts of justice." ^°^ But a fair report of a judicial proceeding, at which no witnesses 284 Townsh. Sland. & L. SoG; Pol. Torts, 231; Saunders v. Baxter, 6 Heisk. 2SD St. 3 Vict. c. 0, p. 99. Cf. Code Civ. Proc. N. Y. § 1907. Aud see Salis- bury v. Union & Advertiser Co., 45 Hun, 120. 2se Stockdale v. Hansard, 7 Car. & P. 731. 2 87 Wason V. Walter, L. E. 4 Q. B. 73. 288 Parmiter v. Coupland, G Mees. & W. 105-108; Jobus v. Press Pub. Co. <(Supcr. N. y.) 19 N. Y. Supp. 3; Bissell v. Press Pub. Co., 62 Hun, 551, 17 JSf. Y. Supp. 393. And see Randall v. Hamilton, 45 La. Ann. 1184, 14 South. 73. ^s9 McBee V. Fulton, 47 Md. 403; Salisbury v. Union & Advertiser Co., 45 Hun, 120; Usell v. Hales, 3 C. P. Div. 319; Cui-ry v. Walter, 1 Bos. & P. .52.:.; Lewis v. Levy, El., Bl. & El. 537, 27 Law J. Q. B. 282 (cf. Duncan V. Tliwaites, 3 Barn. & C. 555); Stanley v. Webb, 4 Sandf. 21. 200 Lopes, J., in Usell v. Hales, 3 C. P. Div. 319-329. = 01 Lord EUenborough, in King v. Fisher, 2 Camp. 563-570. And see Charl- ton V. AVatton, 6 Car. & P. 385. Lord Hardwicke, in Baker v. Hart, 2 Atk. 488, 489; Daw v. Eley, L. R. 7 Eq. 49. Therefore, the publication by news- papers of pleadings or other proceedings in civil cases before trial has been t!ll. 8] DEFENSES. .533 are sworn, and which does not result in a final decision, but leads to a further inquiry, has been held to be privileged."^ At the other extreme, the publication of a completed public record (as the pub- lication of the entry of a judgment) is within the privilege.^^^ The privilege does not attach where the publication is made the vehicle for the diffusion of immoral, blasphemous, or disgusting state- ments.^'* Again, if the account published is false or highly colored, or the reporter has added comments, allegations, and opinions of his own, reflecting upon the character or condition of others, then the privilege does not apply.^''* Same — Reports of Public Meetings. The report of public meetings has been held not to be within this privilege.^ ''^ Other authorities, however, have taken the opposite view. Thus, in Davison v. Dttncan,^"^ it was held that the conduct of held not privileged. Park v. Detroit Free Press Co., 72 Mich. 5G0, 40 N. W. 731. 292 Kimber v. Press Ass'n [1893] 1 Q. B. 65. 203 Searles v. Scarlett [1892]' 2 Q. B. 56, discussing Williams v. Smith, 22 Q. B. Div. 134; McNaUy v. Oldham, 16 Ir. C. L. 298; MacdongaU v. Knight, 17 Q. B. Div. 636; Cosgrave v. The Trade Auxiliary Co., 8 Ir. C. L. 349; Jones V. MoGovern. 1 Ir. C. L. 681. 204 Steele v. Brannan, L. R. 7 C. P. 261 (obscene matter). And see Rex v. Carlile, 3 Barn. & Aid. 167 (publication of Paine's Age of Reason as a pai't of a report of a title in which that book had been read to the jury) ; Maule, J., in Hoare v. Silverlock, 9 C. B. 20-22; 1 Starkle, Sland. & L. 263. 20 5Godshalk v. Metzgar (Pa. Sup.) 17 Atl. 215. Thus, the publication of an account of the rendition of a judgment against an hotel keeper, under the heading "Hotel Proprietor Embarrassed," is not privileged. Hayes v. Press Co., 127 Pa. St. 642, 18 Atl. 331; Boogher v. Knapp, 97 Mo. 122, 11 S. W. 45; Salisbury v. Union & Advertiser Co., 45 Hun, 120; McAllister v. De- troit Free Press Co., 76 Mich. 338, 43 N. W. 431. Ball, Torts & Cont. 119; Thomas v. Croswell, 7 Johns. 264; McGregor v. Thwaites, 3 Barn. & C. 24; Stanley v. Webb, 4 Sandf. 21; Edsall v. Brooks, 17 Abb. Prac. 221; Hunt v. Algar, 6 Car. & P. 245. 296 Davison v. Duncan, 7 El. & Bl. 229; Lewis v. Fcv, '> Johns. 1; Hearne V. Stowell, 12 Adol. & E. 719; Popham v. Picliburn, 7 Hurl. & N. 891, 31 Law J. Exch. 133 (vestry meeting) ; Purcell v. Sowler, 2 C. P. Div. 215 (meeting of poor-law guardians). Cf. Boehmer v. Deti-oit Free Press Co., 94 Mich. 7, 53 N. W. 822. 2 07 Davis V. Duncan, L. R. 9 C. P. 396. And cf. Charlton v. "V^'atton, 6 Car. & P. 385. And see Viele v. Gray, 10 Abb. Prac. 1; Smith v. Higgins, 82 Mass. .");;4 WRONGS AFFECTING REPUTATION. [Ch. 8 persons at an election meeting might be made the subject of a fair and bona fide discussion by a writer in a public newspaper, and that unfavorable comments made upon such conduct in course of such discussion were privileged. However, a true and correct narrative of a quasi judicial meeting (as of a medical society, which expelled the plaintiff) is privileged.^"^ Same — Fair Comment and Criticism — Books. Is'o action lies if the defendant can prove that the words com- plained of are a fair and bona fide comment on a matter of public interest.''"' The courts recognize the right of men to criticise matters in public papers or books in which others may be gener- ally interested. "One writer, in exposing the follies and errors of another, may make use of ridicule, however poignant. * » » If the reputation or pecuniary interests of the person ridiculed suffer, it is damnum absque injuria. Where is the liberty of the press, if an action can be maintained on such principles? * * » Who would have bought the works of Sir Eobert Filmer, after he had been refuted by Mr. Locke? But shall it be said that he might have sustained an action for defamation against that great philosopher, who was laboring to enlighten and" ameliorate man- kind?"^'"' Same — Public Men. That the character and capacity of public men is of general in- terest to the community of which the parties to a communication are members is sufficient to confer the privilege. "The modern 251; Bennett v. Barry, 8 Law T. (N. S.) 857; George v. Goddard, 2 Fost. & F. 089; Parsons v. Surgey, 4 Fost. & F. 247. 20S BaiTOws V. Bell, 7 Gray, 301; Allbutt v. General Council of Medical Education & Registration, 23 Q. B. Div. 400. Of. Haight v. Cornell, 15 Conn. 74; Pierce v. Ellis, 6 Ir. C. L. 55. 2 Oil Eraser, Torts, 90. Crompton, J., in Campbell v. Spottiswoode, 3 Best & S. 769. 30 Lord Ellenborougb, in Sir Jobn Carr v. Hood (1808) 1 Camp. 355, note, with reference to a book by plaintifC entitled "A Stranger in Ireland," al- leged to have been libeled by defendant by a book entitled "My Pocket Book, or Hints for a Ryghte Merrie and Conceited Tour." And see Willes, J., in Kenwood v. Harrison, L. R. 7 C. P. 606-61G; Crane v. Waters, 10 Fed. 619; Snyder v. Fulton, 34 Md. 128; O'Conror v. SiU, CO Mich. 175, 27 N. W. 13; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51. Gil. 8] DEFENSES. 535 doctrine, as shown by the cases, * » • appears to be that the public has a right to discuss, in good faith, the public conduct and qualifications of a public man (such as a judge, an ambassador, etc.) with more freedom than they can take with a private matter, or with the private conduct of any one. In such discussions they are not held to prove the exact truth of their statements and the sound- ness of their inferences, provided they are not actuated by express malice, and there is reasonable grounds for their statements or inferences, all of which is for the jui'y." ^"^ Therefore, it was held that the character of the manager of a railroad is open to public discussion and within the rule of privileged communications, when his plans affect many ^interests besides those of the stockholders of the road."""^ A fortiori, comment on the public conduct of a public man may be privileged. Thus, to charge a treasurer with embezzlement of public funds is privileged.^"^ There is, however, a strong inclination on the part of the courts to modify and limit the application of this doctrine, and they have been liberal ini recognizing and construing exceptions to it. The mere publication of news is not privileged.^"* And the cases have gone to great length in holding that in the publication of news, or in criticising men and things, a newspaper has no privilege or immunity not pos- sessed by private individuals.^"' Therefore, to imitate a candi- soi Generally, as to criticism and fair comment, see Am. Law Reg. June, July, and Augrust, 1891. 30 Am. Law Reg. 517. Lowell, C. J., in Crane v. AVaters, 10 Fed. 619-G21; Kelly v. Sherlock, L. R. 1 Q. B. 68G; Kelly v. Tin- ling, Id. 699; Morrison v. Belcher, 3 Fost. & F. 614; Henwood v. Harrison, L. R. 7 C. F. 600; Davis v. Duncan, L. R. 9 C. P. 390; Gott v. Pulsifer, 122 Mass. 235. And see Jackson v. Pittsburgh Times, 152 Pa. St. 406, 25 Atl. 61;?. 302 Crane v. Waters, 10 Fed. 619. 303 Marks v. Baker, 28 Minn. 362, 9 N. W. 078; Id., Ames, Lead. Cas. 512. But see Aldrich v. Press Printing Co., 9 Minn. 133 (Gil. 123); Briggs v. Gar- rett, 111 Pa. St. 401, 2 Atl. 513. And see Express Co. v. Copeland, 64 Tex. 354. 304 Mallory v. Pioneer Press Co., 34 Minn. 521, 20 N. W. 904; Barnes v. Campbell, 59 N. H. 128. 305 "It is nets denied that the right goes to the extent of free and full com- ment and criticism on the official conduct of a public officer, and there are some cases which maintain the doctrine as broadly as claimed. These cases declare that one who offers his sei-vices to the public as an officer thereby surrenders his private character to the public, and is deemed to consent to 536 WRONGS AFFECTING KEPI'TATION. [Ch. 8 date's amusingly gross handwriting, "I don't propose to go into de- bate on tariff difference on wool and quinine and other things; cause I hain't built that way," is not privileged.^"" Fair com- ment or criticism, however, is to be carefully distinguished from at- tacks on personal character, ="" or untrue statements of fact.^"* any imputation, liowever false and defamatorj'-, if made in good faith. We do not think the doctrine either sound or wholesome. In our opinion, a per- son who enters upon a public office, or becomes a candidate for one, no more sui'reuders to the public his private character than he does his private proijerty. Remedy by due course of law for injury to each is secured by the same constitutional guaranty, and the one is no l^s inviolate than the other. To hold otlierwise would, in our judgment, drive reputable men from public position, and till their places with others having no regard for their reputa- tion, and thus defeat the pui-pose of the rule contended foir, and overturn the reason upon which it is sought to sustain it." Williams, J., in Post Pub. Co. V. iloloney, 50 Ohio St. 71, 33 N. E. 921-92G, collecting cases. Smart v. Blanchard, 42 N. H. 137; Sheckell v. Jackson, 10 Gush. 25. It is defamatory to write of a physician's "culpable negligence." Pratt v. Pioneer Press Co., 30 Minn. 41, 14 N. W. 62. Nor would it be otherwise if physician were city health officer. Foster v. Scripps, 39 Mich. 376. The secretary of a cemetery association organized under incorporation law is not a public officer, in such sense as to enable the publisher of a newspaper to claim that an article pub- lished concerning him, and charging him with embezzling the funds of such cemetery association, is a privileged communication, and thus compel such secretary, in an action for libel, to prove express malice. Wilson v. Fitch, 41 Cal. 363, followed in Pokrok Zakadu Pub. Co. v. Ziskovsky, 42 Neb. (U, 60 N. W. 358. See Taft, J., in Post Pub. Co. v. Hallam, 8 C. 0. A. 201, 59 Fed. 530- 540. 3>.o Belknap v. Ball, 83 Mich. 583, 47 N. W. 674. 3 07 Lord Tenterden, C. J., in McLeod v. Wakley, 3 Car. & P. 311-313; Sir John Carr v. Hood, 1 Camp. 355, note; Parmiter v. Coupland, 6 Blees. & W. 108; Campbell v. Spottiswoode, 3 Best & S. 709 (charging disseminator of religious truth among the heathen with imposture et sim.). And see Crane V. Waters, 10 Fed. 619; Hamilton v. Eno, 81 N. Y. 116; Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921; Barr v. Moore, 87 Pa. St. 385; Kinyon V. Palmer, 18 Iowa, 377; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760; Smith V. Burrus, 106 Mo. 94, 16 S. W. 881; Hay v. Reid, 85 Mich. 296, 48 N. W. 507; Cooper v. Stone, 24 AYend. 434; Reade v. Sweetzer, Abb. Prac. (N. S.) 9, note. 30 8 Davis V. Shepstone, 11 App. Cas. 187 (where a report containing false charges of injurious specific acts was published). And see Gott v. Pietsefer, 122 Mass. 235 (Cardiff giant); Walker v. Hawley, 56 Conn. 559, 16 Atl. 074. ■Ch. 8] DEFENSES. " 537 Neither of these is privileged, and the jury determines what is and what is not "fair'' criticism.^"'' In Davis v. Shepstone ^^° the plaintiif, a resident commissioner in Zululand, was charged with having committed an unprovolced and reprehensible assault upon certain Zulu chiefs. It was con- tended by the defendant that this was a fair criticism on public men, that therefore there could be recovery only upon proof of express malice. The lord chancellor's statement of the law, gener- ally approved,^^^ was as follows: "There is no doubt that the public acts of a public man may law- fully be made the subject of fair comment or criticism, not only by 309 Bowen, L. X, in Merivale v. Carson (1887) 20 Q. B. Div. 275 ("the whip hand"). In this case the reasoning of Crompton, J., in Campbell v. Spottis- woode is preferred to that of Willis, J., in Henwood v. Han'ison, L. R. 7 C. P. 606, as being practical rather than academical. Right of comment on public matter denied, Latimer v. Western Morning News Co., 2.5 Law T. (N. S.) 44; Hogan v. Sutton, 16 Wkly. Rep. 127; Wilson v. Fitch, 41 Cal. 30:'.. 310 11 App. Cas. 187. And see Campbell v. Spottiswoode, 3 Fost. & F. 421, 432 (affirmed 3 Best <& S. 769), and Popham v. Pickburn, 7 Hurl. & K. S9L, 898. 311 Burt v. Advertiser Newspaper Co., 154 Mass. 288-242, 28 N. E. 1; Hallam v. Post Pub. Co., 55 Fed. 4.56, affirmed 8 C. C. A. 201, 59 Fed. 530, 541, to the effect that false allegations of fact, charging a candidate for office with disgraceful conduct, are not privileged; and good faith and probable cause constitute no defense. Other American cases approving the same rule are Smith v. Burrus, 106 Mo. 94, 101, 16 S. W. 881; Wheatou v. Beecher, 66 Mich. 307, 33 N. W. 503; Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671; Brewer V. Weakley, 2 Overt 99; Sweeney v. Baker, 13 W. Va. 183; Hamilton v. Eno, 81 N. Y. 126; Rearick v. Wilcox, 81 111. 77; Negley v. Farrow, 60 Md. 1.58, 176; Jones v. Townseud, 21 Fla. 431, 451; Banner Pub. Co. v. State, 16 Lea, 176; Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921; Seely v. Blair, Wright (Ohio) 358; Wilson v. Fitch, 41 Cal. 363-383; Edwards v. So- ciety, 99 Cal. 431, 34 Pac. 128; State v. Schmitt, 49 N. J. Law, 57'J, 586, 9 Atl. 774; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760. It has, however, been held not libelous to say, "I am son-y that the representative from this district had a change of heart. Sometimes a change of heart comes from the pocket." Sillars v. Collier, 151 Mass. 50, 23 N. E. 723. But cf.^Burt v. Advei-tiser Newspaper Co., 154 Mass. 238, 28 N. E. 1. Generally, as to criticism of public men, 13 Law Annual Rev. And see Negley v. Fan-ow, 60 Md. 158; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760; Scripps v. Foster, 41 Mich. 742-746, 3 N. W. 216; Upton v. Hume, 24 Or. 420, 33 Pac. 810; Mattice v. Wilcox, 71 Hun, 485, 24 N. Y. Supp. 1060; Post Pub. Co. v. 538 WRONGS AFFECTING REPUTATION. [Ch. 8 the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to com- ment upon or criticise, even with severity, the acknowledged or ap- proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. In the present case, the appellants, in the passages which were complained of as libel- ous, charged the respondent (as now appears, without foundation) with having been guilty of specific acts of misconduct, and then proceeded, on the assumption that the charges were true, to com- ment upon his proceedings, in language in the highest degree of- fensive and injurious. Not only so, but they themselves vouched for the statements by asserting that, though some doubt had been thrown upon the truth of the story, the closest investigation would prove it to be correct. In their lordships' opinion there is no war- rant for the doctrine that defamatory matter thus published is re- garded by the law as the subject of any privilege." Savie — Public Duty. The right of school officers to give the character of a schoolteacher would seem to be a qualified, not an absolute, privilege; therefore, they are not liable for falsely charging a teacher with cruelty, in- competency, and neglect in the exercise of duty, if they act in good faith,^^^ but criminal liability may attach on proof of actual mal- jgg_3i3 Testimony given before an investigating committee of a board of aldermen has a qualified privilege, even although not in response to questions asked, provided it be pertinent to the investi- gation and apparently within the committee's power.^^* But a Moloney, 50 Ohio St. 71, 33 N. E. 921; Jackson v. Pittsburg Times, 152 Pa. St. 406, 25 Atl. 613; Euckstaff v. Vlall, 84 Wis. 129, 54 N. W. 111. 312 The act of the trustees of a school in collecting evidence in respect to the conduct of the principal, and sending it to the board of education, which alone had power to remove her, is privileged, as being within the line of their public duty; and sending a copy of such charges to the principal, in order that she might answer the charges against her, is not a publication. Galligan v. Kelly (Sup.) 31 N. Y. Supp. 561; Branaman v. Hinkle, 137 Ind. 496, 37 N. E. 546. But see Galligan v. Kelly (Sup.) 31 N. Y. Supp. 561. 813 Vallery v. State, 42 Neb. 123, 60 N. W. 347. 314 Blakeslee v. Carroll, 64 Conn. 223, 29 Atl. 473. And see Howland v. d- 8] DEFENSES. 5o',.) statement made by a member of the city council, during a session thereof, in reference to the ofiQcial conduct of the superintendent of streets, that he is a "downright thief," is not privileged, if at the time there was no proceeding before the council as to the latter's official conduct."" So, while communication to a go^•e^nor con- cerning proper legislation, to influence his action, is prima facie priv- ileged, it is not in fact privileged if it contains defamatory matter which is necessarily published to others, "° — as where a pamphlet is generally circulated."^ Again, "for the sake of public justice, charges and communications which would otherwise be slanderous are protected if made bona fide in the prosecution of an inquiry into a suspected crime." ^^* Same — Religious and Fraternal Organizations. The law encourages the various members of a religious organiza- tion, who are unable to dwell together in unity, peace, and concord, to try to settle their differences without public scandal. Hence communications in trials before church tribunals are privileged. Therefore, the congregation may prefer charges against the clergy- man in accordance with the usage and discipline of the church, with- out civil responsibility.^^" And one church member may, before such tribunal, publicly charge that another had committed adultery with the plaintiff, who did not belong to that church.^ ^^ The same privilege is extended to secret societies.^^^ A vicar's counsel with his curate is privileged.''-'' But a clergyman has no peculiar privi- Flood, 160 Mass. 509, 30 N. E. 482, distinguishing, Inter alia, Spill v. Jlaule, L. R. 4 Exeh. 2.32-237; Cliatfield v. Connerford, 4 Fost. & F. 1008. SIS Callaham v. Ingi-am, 122 Mo. 3o5, 2U S. W. 1020. 310 CofBn V. Coffin, 4 Mass. 1; Rex v. Cieevey, 1 Maule & S. 273. 317 Woods V. Wiman, 122 N. Y. 445, 25 N. B. 919. 318 Coleridge, J., in Padmore v. Lawrence, 11 Adol. & E. 3S0. And see Johnson v. Evans, 3 Esp. 32; Fowler v. Homer, 3 Camp. 294; .Jones v. Thomas, 34 Wkly. Rep. 104; Dale v. Harris, 109 Mass. 193. Cf. Fames v. Whittaker, 123 Mass. 342; Cristman v. Oristman, 36 111. App. 507; Harper V. Hai-per, 10 Bush, 447. 310 Piper V. Woolman, 43 Neb. 280, 61 N. W. 588. 820 Etchison v. Pergerson, 88 Ga. 620, 15 S. E. 680. 321 Shurtleff v. Stevens, 51 Vt. 501; Kirkpatrick v. Eagle Lodge, 20 Ivan. 384. 322 Clark v. Molyneux, 3 Q. B. Div. 237; James v. Boston, 2 Car. & K. l:-8. And see Joannes v. Bennett, 5 Allen, 109; Kerbs v. Oliver, 12 Gray, 239. 540 WRONGS AFFECTING EKPUTATION. [Ch. 8 lege for publishing a slander in a pastoral letter, however grave his sense of duty, or sincere his desire to improve the morals of the community.^^^ In an action for slander in imputing unchastity to a woman, the fact that the slander was spoken to one who had formerly been pastor of a church to which both plaintiff and defend- ant belonged, and in response to inquiries by such former pastor, did not make the speaking a privileged communication.^^* Same — Commerciril Communications. Fair reports of business standing, made up on special request,"^ even if a copy of a libelous article be sent, are not actionable.^^* But if defamatory matter be inserted in the reports of a commercial agency, not in good faith, nor with the honest purpose of truly in- forming the agency of the person's financial standing, but maliciously and to subserve the defendant's own private purposes, then the com- 3 2 1 Gilpin V. Fowler, 9 Exch. 615. But see Laughton v. Bishop, L. R. 4 P. C. 495, holding that a bishop's charge, containing strictures on tlie conduct of a layman who had attacked his character, was privileged. 3 2* Carpenter v. Wllley, 65 Vt. 168, 26 Atl. 488. 32 5 King V. Patterson (1887) 49 N. J. Law, 417, 9 Atl. 705 (see dissenting opinions); Locke v. Bradstreet Co., 22 Fed. 771; PoUasky v. Minchener, 81 Mich. 280, 46 N. W. 5; Trussell v. Scarlett, 18 Fed. 214. A creditor may law- fully inquire into the circumstances of his debtor, and the person inquired of may answer freely; and, if his communication be for the honest purpose of giving the desired information, no action ^-111 lie. Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669. And, generally, see Lowry v. Vedder, 40 Minn. 47."), 42 N. ^Y. 542; Jlontgomery v. Knox, 23 Fla. 595, 3 South. 211; Lynch v. ]'"ebiger, 39 La. Ann. 336, 1 South. 690. Lemay v. Chamberlain. 10 Ont. 638; Todd V. Dun, 12 Ont. 791; King v. Patterson, 49 N. J. Law, 417, 9 AU. 705. As to answer to inquiries, see Story v. Challard, 8 Car. & P. 234; Kine v. Sewell, 3 Mees. & W. 297; Rude v. Nass, 79 Wis. 321, 48 N. W. 555; Posnett v. Mar- ble, 02 Vt. 481, 20 Atl. 813; Howland v. George. P. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656; Zuckerman v. Sonnenschein, 62 111. 115; Van Horn V. Van Horn, 56 N. J. Law, 318, 28 Atl. 669; Brown v. Vannaman, 85 Wis. 451, 55 N. W. 183. 326 Howland v. George F. Blake Manuf'g Co., 156 Mass. 543, 31 N. E. 656. And see cases collected in 30 Cent. Law J., at pages 13 and 14. Taylor v. Hawkins, 16 Q. B. 308; Amann v. Damm, 8 C. B. (N. S.) 597; Force v. War- ren, 15 C. B. (N. S.) 806; Missouri Ry. Co. v. Behee, 2 Tex. Civ. App. 107, 21 S. W. 384; John W. Lovell Co. v. Houghton, 116 N. Y. 520, 22 N. E. 1066; Bacon v. Michigan Cent. R. Co., 66 Mich. 166, 33 N. W. 181; Beeler v. Jack- son, 64 Md. 589, 2 Atl. 916. Ch. 8] DEFENSES. 641 munication is not privileged.^" Indeed, if the report be false and injurious, it is not privileged even if the sheet be sent to subscribers in a cipher, and understood by them onlj,^^^ but without reference to such special interest as the plaintiff as a creditor would have.''^" The privilege of business communications is, however, broader than as to mere commercial reports. It extends to cases where there is a personal interest in the subject-matter to which the communica- tion relates.^'^" It applies where there is imminent danger to the subject-matter to which it relates, for example, to a ship, its cargo, or company.^'^ And, generally, business communications between strangers, although volunteered, are privileged if made in perform- ance of a "duty which may be supposed to exist to give advice faith- fully to those who are in want of it, * * * for the sake of the general convenience of business, though with some disregard of the equally important rule of morality that a man should not speak ill, 'falsely, of his neighbor." ^^^ Same — Privilege of Advertisers. So, with a defamatory advertisement, inserted in a newspaper, if necessary to protect the advertiser's interest, or if advertising was the only way to accomplish his lawful object, the circumstances ex- 327 Lowry V. Vedder, 40 Minn. 475, 42 N. W. 542; Marks v. Baker, 28 Minn. 162-165, 9 N. W. 678; Zier v. Hofflin, 33 Minn. 66, 21 N. W. 862. 328 Sunderlin v. Bradstreet, 46 N. Y. 188. 328 Mitcliell V. Bradstreet Co., 116 Mo. 226, 22 S. W. 3.j8; Goldstein v. Foss, 2 Car. & P. 252; Com. v. Stacey, 1 heg. Gaz. Rep. (Pa.) 114; Pollasky v. Micli- ener, 81 Mich. 280, 46 N. W. 5; Taylor v. Church, 8 N. Y. 452; Ormsby v. Doug- lass. 37 N. Y. 477; Sunderlin v. Bradstreet, 46 N. Y. 188; Kin^ v. Patter- son, 49 N. J. Law, 417, 9 Atl. 705; Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753; Johnson v. Bradstreet, 77 Ga. 172; Erher v. Dun, 12 Fed. 526; Ti-ussell v. Scar- lett, 18 Fed. 214; Locke v. Bradstreet Co., 22 Fed. 771; Kingsbury v. Bradstreet Co., lie N. Y. 217, 22 N. E. 365; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390. But such an agency may publish, generally, the entiy of a judgment against defendant without liability, unless it be a false statement and special dam- age result. Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 365. 3 3oBlaekham v. Pugh, 2 C. B. 611 (auction; charge of bankruptcy); Pig. Torts, 323. 831 Pig. Torts, 324. 332 Coltman, J., in Coxhead v. Richards, 2 C. B. 569-601; Beatson v. Skene, 5 Hurl. & N. 838; Bigelow, Lead. Cas. 174. A letter, written by one of two rival milk sellers, advising a shipper to sell no more milk to the other 542 WUONGS AFFECTING REPUTATION. [Ch. 8 cuse the extensive publication. But, if it was not necessar'y to advertise at all, or if the advertiser's object could have been accom- plished equally ^\ell by an advertisement which did not contain the defamatory words, then the extent given to the announcement is evidence of malice, to go to the jury.^'^ Therefore, in an advertise- ment notifying the public not to harbor or trust the advertiser's wife on his account, defamatory words in regard to the wife are not privileged.'^* Same — Communications in Confidential Relations. A qualified privilege is recognized ^here the relation between two persons is intimate, socially or professionally,''^ or arises from family connections. Thus, a letter from a son-in-law to hiKS* mother-in-law, volunteering advice respecting her proposed mar riage, and containing imputations on her future husband, is privi leged."* Such communications are "fairly warranted by any reasonable occasion or exigency, and when honestly made they are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow compass." "^ Thus, a surety may speak unreservedly of unless he had surety for his goods, was not a privileged communication. Brown v. Vannaman, 85 Wis. 451, 55 N. W. 183. And see Lawless v. Anglo- Egyptian Cotton Co., L. R. 4 Q. B. 2G2; Shurtleft v. Stevens, 51 Vt. 501; Til- linghast v. McLeod, 17 R. I. 208, 21 Atl. 345; Klinck v. Colby, 46 N. Y. 427; .Shurtleff v. Parker, 130 Mass. 293. Of. Cook v. Wildes, 5 El. & Bl. 328, 24 Law J. Q. B. 367. 333 Odgers, Sland. & L. §§ 225, 226. 334 Champlin, J., in Smith v. Smith, 73 Mich. 445, 41 N. W. 499, 500. 335 As between attorney and client, see Wright v. Woodgate, 2 Cromp., M. & R. 573; Davis v. Reeves, 5 Ir. C. L. 79. 336 Todd v. Hawkins, 8 Car. & P. 88, 2 Man. & R. 20. So, between brother and sister. Anon., cited in 2 J. P. Smith (Eng.) 4, and Adams v. Coleridge, 1 Times Law R. 84; charge by mother against son, Cristman v. Cristman, 36 111. App. 567; by one friend to another, as a doctor, Dixon v. Smith, 29 Law J. Exch. 125; or tradesman. Storey v. Challands, 8 Car. & P. 234. 3 37 Cockayne v. Hodgkisson, 5 Car. & P. 543, 545, (gamekeeper selling game), by Parke, J. And see M'Dougall v. Claridge, 1 Camp. 266 (concerning solicitor's personal character). Statements made before a meeting of stock- holders of a railroad company by a member, attributing dninkenness and incapacity to one of the officials, are privileged if made in good faith; and the fact that attorneys of the company, not stockholders, were present at Gtl. 8] DEFENSES. 543 the man for wlioni he is responsible. ='='' And, generally, communi- cations in course of business between employer and employe are privileged."^ However, defamatory words are not privileged be- cause uttered in strictest confidence by one friend to another, nor because they are uttered after the most urgent solicitation, nor be- cause the interview in which they are uttered is obtained at the instance of the person slandered. Therefore, a libelous letter to an unmarried woman concerning her suitor, written by mutual friends to prevent the marriage, is not privileged by previous friendship, nor by a general request made years before.^*" Siiwr — Mnftfer as to Sermnt. The right of the master with reference to a servant who has been in his employ is generally recognized as privileged.'*^ He may refuse to give a letter of recommendation to his servant when the latter leaves without committing slander,'*- and may give his servant a character to his neighbor, who afterwards employed him, v.hich would be otheiwise actionable.'*' He may warn other the meeting, at the request of the president and some of the stockholders, does not talie away the privilege. Broughton v. JIcGrew, 39 Fed. 672. And see Rude v. Nass, 79 Wis. ;^;21. 48 N. W. 555. 338Dunnian v. Bigg, 1 Camp. 209, note. So, to father of person alleged to have been slandered. Hix v. State (Tex. Or. App.J 20 S. ^Y. 550; Davis v. State (Tex. Cr. App.) 22 S. W. 979. To father of child, by Earle, C. J., in Whiteley v. Adams, 33 Law J. C. P. 89-^05. Cf. JIasters v. Burgess, 3 Tlimes Law R. 96; Fowler v. Homer, 3 Camp. 294. 339 Hill V. Dm-ham House Drainage Co. (Sup.) 29 N. Y. Supp. 427. A cir- cular letter, sent out by a firm, stating that a certain person is no longer in their employ, and advising their "friends and customci-s" to give him no recognition on their account, is not a privileged communication. Warner v. Clark, 45 La. Ann. 853, 13 South. 203; Daniel v. New York News Pub. Co., C7 Hun, 649, 21 N. Y. Supp. 802; Wright v. Woodgate, 2 Cromp., M. & R. 573; Scai-11 v. Dixon, 4 Fost. & F. 250; Stace v. Griffith, L. R. 2 P. C. 420; Hume V. Marshall, 42 J. P. 136; Washburn v. Cooke, 3 Denio, 110; Lewis v. Chapman, 16 N. Y. 309. 340 Byam v. Collins, 111 N. Y. 143, 19 N. E. 75; Coles v. Thompson (Tex. Civ. App.) 27 S. W. 46. Cf. Whiteley v. Adams, 15 C. B. (N. S.) 310, 311, 392. 341 White V. Nicholls, 3 How. 2;j0; Pattison v. .Tones, 8 Barn. & C. 578; Child V. Affleck, 9 Barn. & O. 403. 342 CarroU v. Bird, 3 Esp. 201. 343 Fresh v. Cutter, 73 Md. 87, 20 Atl. 774. Cf. Over v. Schiffling, 102 Ind. 191, 26 N. E. 91. 544 WRONGS AFFECTING REPUTATION. [Ch. 8 servants against one whom he has discharged, and may explain his reasons.^''* And he may publish with impunity a blacklist of discharged employes, in absence of contrary statute.^*^ The privi- lege allows the master to tell the truth, and even to volunteer what he honestly believes to be the truth, without malice and in the honest belief that he is "discharging a duty to his neighbor, provid- ed his neighbor has employed or is about to employ such servant."" The right of the master, it is insisted, arises, not out of the rela- tionship of master and servant, but out of the general right to com- municate one's belief, in a bona fide desire to protect one's own or another's right.^*' 181. On the same principle that whatever tends to prove malice in defamation aggravates the wrong, and en- titles the plaintiff to exemplary damages,*^ -what- 3 44 Somerville v. Hawkins, 10 O. B. 590, 20 Law J. 0. P. 131, 15 Jur. 450. And see Manby v. Witt, 18 C. B. 5M, 25 Law J. C. P. 294, 2 Jur. (N. S.) 1004; Fowles V. Bowen, 30 N. Y. 20; Dale v. Harris, 109 Mass. 193. 34 5 Missouri Pac. K. Co. v. Behee (Tex. Civ. App.) 21 S. W. 384. And see Missouri Pac. Ry. Co. v. Riclimond, 73 Tex. 568, 11 S. W. 555; Hunt v. Great Nortliern Ry. Co., 2 Q. B. 189; International & G. N. R. Co. v. Greenwood, 2 Tex. Civ. App. 76, 21 S. W. 559. Instructions given by an employer to bis counsel to investigate entries made on bis books by an employs, wbich the employer claims to be false, and to make protest to the employs against them, cannot serve as the foundation of a charge of slander and libel, or ground for an action in damages by the employe against the employer. Levy v. McCan, 44 La. Ann. 528, 10 South. 794. And see Bacon v. Michigan Cent R. Co., 66 Blich. 166, 33 N. W. 181. 346 Fresh v. Cutter, 73 Md. 87, 20 Atl. 744. And see Gardner v. Slade, 13 Adol. & E. (N. S.) 796; Id., 18 Law J. Q. B. 334, 13 Jur. 826; Child v. Affleck, 9 Barn. & C. 403; Dixon v. Parsons, 1 Fost. & F. 24; Fryer v. Kinnersley, 15 C. B. (N. S.) 422^29; King v. Waring, 5 Esp. 14. 347Townsh. Sland. & L. preface, vi. 3 48 An instruction that the jury may add, as punitive damages, such amount as will adequately punish defendant, and will prevent others from doing the same, was insufficient, when plaintiff pleaded and put in evidence facts tend- ing to rebut express malice, as this should hav" been called to the jury's attention. Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. Perhaps as ex- treme an instruction as to exemplai-y damages as has not been made the basis of a reversal occurs in Hayes v. Todd, 34 Fla. 233, 15 South. 752. There ^^'h- S] DEFENSES. 545 ever negatives malice operates to mitigate damages. The jury determines whether given matter is in mit- igation or aggravation of damages. Provocation. I'roTocation may mitigate damage.'^' The law makes allowance for acts committed in the heat of sudden passion by way of mitiga- tion of damages. But if there had been an opportunity for blood to cool, a mere provocation connected with wrong complained of cannot be shown.==° The defense follows the analogy of provoca- the court instructed the jury that "exemplary damages are such as not only compensate the wrong done but also tend to protect all good citizens of the state from like wrongs from the reckless and malicious tongue of such law- less persons as have no regard for the good name of their fellows or for the fair name and virtue of the women of the land, but turn themselves loose, like ravenous wolves, to destroy that which money cannot buy, and that which, when lost, the powers of earth cannot restore." And, further, see Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457; Southcombe v. Armstrong (City Ct. Brook.) 8 N. Y. Supp. 361; Grace v. McArthur, 76 Wis. 641, 45 N. W. 518; Kenyon v. Cameron, 17 R. I. 122, 20 Atl. 233. Punitive damages may be recovered in an action for slander, without proving express malice. Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020. Proof of express malice is necessary to entitle plaintiff to exemplary damages. Republican Pub. Co. V. Conroy (Colo. App.) 38 Pac. 423. In an action for slander, where the con- dition of the accounts between the parties is in dispute, and the record In a suit settling such accounts is admitted in evidence, it is for the jury to say whether the facts disclosed by such record are in. mitigation or in aggravation of damages. MeCauley v. Elrod (KyO 27 S. W. 867. As to excessive damages, see Maesk v. Smith (Sup.) 12 N. Y. Supp. 423; Crate v. Dacora (Sup.) 15 X. Y. Supp. 607; Tillinghast v. McLeod, 17 R. I. 208, 21 Atl. 345; Grace v. McArthur, 76 Wis. 641, 45 N. W. 518; .Jones v. Greeley, 25 Fla. 029, 6 South. 448; Webber v. Vincent (Sup.) 9 N. Y. Supp. 101; Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68; Henderson v. Fox, 83 Ga. 233, 9 S. E. 839. 340 Libels by plaintiff, connected with same subject as libels by defend- ant, may be shown in mitigation. Tai-pley v. Blabey, 2 Bing. N. C. 437. But plaintiff must be connected with such previous defamation. Dressel v. Shippman (Minn.) 58 N. W. 684. But see Townsh. Sland. & L. p. 678, § 410. s 50 Applied to a case where the Minneapolis Tribune contained statements concerning the setting of a broken arm by plaintiff so that it had to be reset. The Globe called this a brutal jest. The Tribune retorted by abusing the plaintiff. Non constat when knowledge of article of Globe came to de- fendant's knowledge. Doubtful knowledge was doubtful provocation, Quin- LAW OF TORTS— 85 54G WKONGS AFFELTLNG REPUTATION. [(-^'l- ^ tion as mitigating damages in assault and battery/" bnt there does not seem to be any doctrine aldn to contributory negligence, whereby the wrong is barred if the person defamed in some manner induced the publication.''^^ Common-Law Retraction. A mere oifer to retract cannot be shown in mitigation of dam- ages, but a retraction published in good faith, even after com- mencement of an action for defamation, may, under some circunj- stances, be proved in mitigation of damages,'^^ but in mitigation only,^^* becaiuse it negatives malice.^'*^ Conversely, evidence that the defamer, subsequent to the publication of the article sued on, has published another containing a letter from the defamed re- questing a retraction, is admissible to show malice.^^* Honest Belief — Rumors, The law recognizes that anything tending to show an honest be- lief in the substance of the publication when made is admissible for the purpose of disproving malice and mitigating damages, though by V. Tribune Co., 38 Minn. 528. 529, 38 N. W. 623. The Tribune states; Globe criticises Tribune; Tribune attacks tbe doctor. A. hits B.; hence B. hits 0. "Cooling time" is short In Qulnby v. Tribune Co., 38 Minn. 529, 38 N. W. 623. The Globe article was day before the latter publication. But, if its retaliatory libelous article had been written on same evening of same day, provocation could have been shown. Stewart v. Tribune Co., 41 Minn. 71, 42 N. W. 787. 351 Ante, p. 444, "Assault and Battery." 3 62 Irvine, C, In Vallery v. State, 42 Neb. 123, 60 N. W. 347, 348, com- mentinig on King v. Waring, 5 Bsp. 15; Weatherston v. Hawkins, 1 Term R. 110; Smith v. Wood, 3 Camp. 323. 353 Turton V. New York Recorder Co., 144 N. Y. 144, 38 N. E. 1009; Davis v. Marxhausen (Mich.) 61 N. W. 504; Storey v. Wallace, 60 111. 51; Newell, Def. p. 907, § 84. But cf. Bolt v. Hauser (Co. Ct.) 10 N. Y. Supp. 397. 3 54 Davis V. Marxhausen (Mich.) 61 N. W. 504. 355 Allen V. Pioneer Press Co., 40 Minn. 117, 41 N. W. 936; Park v. Detroit Free Press Co., 72 Mich. 560, 40 N. W. 731; Turton v. New York Recorder Co., 144 N. Y. 144, 38 N. E. 1009; Id., 3 Misc. Rep. 314, 22 N. Y. Supp. 766. 3 50 In an action against a newspaper for libel, an article, published after the article counted upon, which contained plaintiff's letter requesting a re- traction, and a refusal to retract, is admissible to show malice. Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624. <-!ll- ''^] DEFENSES. 547 it tends to prove the truth of the charge.^''' Accordinglj^, in an action for slander, evidence that the slander was only a repetition of a current report of long standing, by which plaintiff's general reputation has become impaired, is admissible in mitigation of com- pensatory damages.^^^ And where the article contained several distinct libelous charges, a justification as to part of the charge, and not the whole, goes only in mitigation of damages, and does not warrant a verdict for the defendant.^^° Therefore, partial truth may mitigate damages.^"" ]3ut good faith and reasonable be- lief will not prevent recovery of substantial damages.^"^ Cases involving these general principles are constantly arising in con- nection with the defense urged by the defendant that his conduct was justified by rumors concerning the plaintiff. So far as it may affect the culpabilitj' of the defendant, as miti- gating malice, evidence that he knew, believed, and relied on ""- general rumors ^"^ to the effect of the defamatory matter would be entirely proper. Hence, such evidence is often held to be admissi- ble.^** However, from the plaintiff's point of view, the extent of 3 57 Huson v. Dale, 19 Mich. 17-26 (per Cliristiancy, J.). 8 58 Nelson v. Wallace, 48 Mo. App. 193. 350 Hay V. Reid, 85 Mich. 296, 48 N. W. 507. 380 Sawyer v. Bennett (Sup.) 20 N. Y. Supp. 45. 361 Blocker v. Schoff, S:3 Iowa, 205, 48 N. W. 1079; Burt v. Advertiser News- paper Co., 154 Mass. 238, 28 N. E. 1. 30 2 Lan-abee v. Minnesota Tribune Co., 36 Minn. 141-143, 30 N. W. 462; Lothrop V. Adams, 133 Mass. 471. Prior publication in other newspapers, properly repeated and shown, may mitigate, as showing how defendant might reasonably believe them to be true. Hewitt v. Pioneer Press Co., 23 Minn. 178; Upton v. Hume, 24 Or. 420, 33 Pac. 810. And see Frazier v. Mc- Coskey, 60 N. Y. 337, disapproved in Hallam v. Post Pub. Co., 55 Fed. 456; Id., 8 C. C. A. 201, 59 Fed. 530-537. The truth of the charge, though not pleaded, is admissible to disprove malice, and in mitigation of damages, if it was known at the time of publication, but not otherwise. Simons v. Burnham (Mich.) 60 N. W. 476. 363 But facts sufficient to justify belief, if unknown, and not relied on by defendant, are not in mitigation. Quinn v. Scott, 22 Minn. 450. Thus, that after charge of crime plaintiff had reputation of being guilty is not admis- sible. Simmons v. Holster, 13 Minn. 249 (Gil. 232); Marks v. Baker, 28 Minn. 162 9 N. W. 678; Regnier v. Cabot, 2 Oilman, 34. And see 33 Cent. Law J. 379. 304 Van Derveer v. Sutphin, 5 Ohio, 293; Republican PJb. Co. v. Mosman, 5i.S WRONGS AFFECTING RErDTATION. [Ch. 8 his suffering is not measured by defendant's moral shortcoming or persona] righteousness. Hence, such evidence is perhaps as often disallowed.'^o^ If, however, a defendant offers to prove such ru- mors, he cannot object to similar evidence in rebuttal.^"" But pub- lishing defamatory matter as a rumor,*" or giving a specific source as authority, is no longer '"' a defense '"' by way of justification, al- though it may operate to mitigate damages.*^" Plaintiff's Character and Position. When one claims damages on the ground of the disparagement of his character, evidence, in mitigation of damages, may be given, under proper allegation,*" that his character was blemished before the publication of the libel or slander.^^^ Thus, in an action for libel the defendant may prove, in mitigation of damages, that before and at the time of the publication of the libel the plaintiff was gen- erally suspected to be guilty of the crime thereby imputed to him, and that, on account of this suspicion, his relatives and friends had ceased to associate with him.^" Evidence of general bad reputation 15 Colo. 399, 24 Pac. 1051; Hay v. Reid, 85 Mich. 296, 48 N. W. 507; Mor- rison v. Press Pub. Co. (Super. N. Y.) 14 N. Y. Supp. 131-133; Arnold v. Jew- ett (Mo. Sup.) 28 S. W. 614. And see cases collected, pro and con, In Townsh. Sland. & L. p. 678, § 411. 36 5 Scott V. Sampson, 8 Q. B. Div. 491; Edwards v. San Jos6 Print. & Pub. Soc., 99 Cal. 431, 34 Pac. 128; Gray v. Elzroth, 10 Ind. App. 587, 37 N. E. 551. A defendant who has started and circulated a slanderous report about a wo- man cannot prove by others that they had heard the same slander. Blackwell V. Landreth, 90 Va. 748, 19 S. E. 791. 308 Bogk V. Gassert, 149 U. S. 17, 25, 13 Sup. Ct. 738; Ward v. Blake Manuf'g Co., 5 C. C. A. 538, 56 Fed. 437, 441; Elliott, App. Proc. § 628. 367 Republican Pub. Co. y. Miner, 3 Colo. App. 568, 34 Pac. 485; Haskins y. Lumsden, 10 Wis. 309. 368 Northampton's Case, 12 Coke, 384; Davis y. Lewis, 7 Term R. 17; 3Iaitland y. Goldney, 2 East, 426. 360 Lewis y. Walter, 4 Bam. & Aid. 605; De Crespigny y. Wellesley, 5 Bing. 392 (libel) ; Tidman v. Ainslie, 10 Exch. 63 (libel) ; McPherson v. Dan- iels, 10 Barn. & C. 263 (slander); AVatkin y. Hall, L. R. 3 Q. B. 396 (slander). 370 Dole v. Lyon, 10 Johns. 447. 371 Halley v. Gregg, 82 Iowa, 622, 48 N. W. 974; Ward y. Deane (Sup.) 10 N. Y. Supp. 421. 372 Ball, Cas. Torts, p. 122. 373 Earl of Leicester y. Walter, 2 Camp. 251. Cf. Sandford v. Rowley, 93 Mich. 119, 52 N. W*. 1119. Ch. 8] * DEFEKSES. 'A'.) is admissible, in mitigation of damages; and evidence of bad reputa- tion as to that phase of character involved in a case is competent, not to establish any facts in issue, but to explain conduct and to en- able the jury better to weigh the evidence upon doubtful questions of fact bearing on the character of defendant.^'''' Therefore, bad reputation for integrity is admissible in charges of political dis- honesty. "We should be loth to differentiate a want of integrity in political matters from the same failing in business or society." ^^" The plaintiff's general social and personal standing may be shown in evidence as bearing on the question of damages."" And if plaintiff 37* Sage, District Judge, in Hallam v. Post Pub. Co., 55 Fed. 456, dis- cussing Gilchrist v. McKee, 4 Watts, 380; Conroe v. Conroe, 47 Pa. St. 108; Drown v. Allen, 91 Pa. St. 393; Moyer v. Moyer, 49 Pa. St. 210; Duval V. Davy, 32 Ohio St. 004; Sauford v. Rowley, 93 Mich. 119, 02 N. W. 1119. And see Greenl. Ev. § 55. In an action for slander in im- puting to plaintiff official misconduct, to show want of actual malice, de- fendant should have been allowed to prove what others had said to him in regard to plaintiff's official conduct. Callahan v. Ingram (Mo. Sup.) 26 S. W. 1020. Evidence of a general belief and suspicion that plaintiff was guilty of the acts charged in the slanderous words is admissible in mitigation of damages. Gray v. Ellzroth, 10 Ind. App. 587, 37 N. E. 551. It has, however, been held that in an action of libel only the "general" reputation of plaintiff' can be shown in mitigation of damages. Thibault v. Sessions, 101 Mich. 270, 59 N. W. 624; IndianapoUs Journal Newspaper Co. v. Pugh, 6 Ind. App. 310, 33 N. E. 991. 37 5 Taft, J., In Post Pub. Co. v. Hallam. 8 C. C. A. 201, 50 Fed. 530-537. 378 Lamed v. Bufflnton, 3 Mass. 546; Harding v. Brooks, 5 Pick. 244-247; Klumph V. Dunn, 66 Pa. St. 141-147; Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238. As to plaintiff's character, and, generally, increasing dam- age, see Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161; Enos V. Enos (Sup.) 11 N. Y. Supp. 415; Farrand v. Aldi'ich, 85 Mich. 503, 48 N. W. 628; Hintz v. Graupner, 138 111. 158, 27 N. E. 935; Di.\:on v. Allen, 69 Cal. 527, 11 Pac. 179. As to circulation of defendant's newspaper in aggravation of damage, see FaiTand v. Aldrieh, 48 N. W. 028; Patten v. Belo, 79 Tex. 41, 14 S. W. 1037. It is competent in a slander suit to admit proof, as bear- ing on the question of damages, that plaintiff has a family of young children, who would be disgraced by the charge. Enos v. Enos, 135 N. Y. 609, 32 N. E. 123. In a civil action for libel, plaintiff's general social standing may be shown in the evidence in chief, as bearing on the question of damages. Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238. "It is not com- petent to enter into the details of the finances of a defendant in a libel or slander suit. The inquiry should be directed to his financial standing in 5')(l WRONGS AFFECTING REPUTATION. [Gh. 8 alleges her good character and repute, and this is denied by the de- fendant, the plaintiff is not required to rest upon the legal presump- tion as to chastity and virtue,'" but she can properly offer proof un- der such allegation as part of her case.'^* SLANDEB OF TITLE OR PROPERTY. 183. Plaintiff can recover for disparaging ■words published concerning title or property -whenever he shows — (a) That the statement is false; (b) That the statement is malicious in fact; (c) That the statement has caused him proximate and special pecuniary injury.^* The wrong called slander of title is, properly speaking, the basis of an action on the case for special daiaage sustained by reason of the speaking or publication of the slander of the plaintiff's title.'"* No specific name has been applied to cases which rest on the same foundation, but are not the same as slander of title.' *^ Disparage- ment of property is clearly analogous.''^ The old form of action concerns realty only; the new relates to property generally, — ^realty the commiinity. Though he may be possessed of considerable wealth, yet, if this be not generally known in the community, no greater injury can on ihat account be said to flow from the publication of the libel, or the uttea-- ance of the slander. It is his reputed, not his actual, standing, that bears upon the injury." Grant, J., in Farrand v. Aldrich, 85 Mich. 593, 48 N. W. 028-630. 377 Conroy v. Pittsburgh Times, 139 Pa. St. 334, 21 Atl. 154. ■V.8 Stafford v. Jlorning Journal Ass'n, 142 N. Y. 598, 37 N. E. 625, distin- guishing Houghtaling v. Kilderhouse, 1 N. Y. 530; Pratt v. Andrews, 4 N. Y. 493; Young v. Johnson, 123 N. Y. 226, 25 N. E. 303. And see Peters v. Bourneau, 22 111. App. 177. 3-0 Fi-aser, Torts, 116. And see Boyuton v. Shaw Stocking Co., 140 Mass. 219, 15 N. B. 507; Wier v. Allen, 51 N. H. 177; Snow v. Judson, 38 Barb. 210; Kennedy v. Press Co., 41 Hun, 422. 380 Tindal, J., in Malachy v. Soper (1835) 3 Bing. N. C. 371-382. 381 Pig. Torts, 381, 382. 382 Western Counties Manure Co. v. Lawes Manure Co., L. R. 9 Exch. 218. But in Young v. Macrae, 3 Best & S. 264-270, Blackburn, J., says: "My own impression is that where there is a written depreciation of an article, unless it is a slander actionable in itself, no allegation of special damage will <^'ll' ^] SI.ANDER OF TITTLE OR PROPERTY. 551 and personalty, corporeal and incorporeal, — and is brought for a false statement injurious to the owner in his right to profits. It has been insisted that it is of little consequence whether the wrong is slander, or whether it is a statement of any other nature "calculated" to produce special damage.^ ^' However, on consideration of the elements of the wrong, it appears that, as to matters of practice at least, there is material difference, and that the wrongs under con- sideration lie halfway between libel and slander and malicious prosecution; ^** and, in many respects, approach wrongs of fraud.^*^ Fahity of Statement. In wrongs of this description, as in libel and slander, the words ; which constitute the offense must be set out exactly in the complaint or declaration,'^'' and special damages must be circumstantially al- leged.^*" In cases where character is at stake, the presumption is in favor of the party defamed ; but there is no similar presumption in favor of a man's title, or the quality of his merchandise.^'^ Un- less he shows falsehood, he shows no case to go to the jury.^^" make it actionable except in the case of slander of title." Clerli & L. Torts, 493, note a, classes Shepercl v. Wakeman, 1 Sid. 79, as such a case. Disparagement may be actionable as to copyright, patents, and the lilce. Dicks V. Brooks (1880) 15 Ch. Div, 22, 49 Law J. Ch. 812; Thorley's Cattle- Food Co. v. Massam (1880) 14 Ch. Div. 763; Hendriks v. Montagu, 17 Ch. Div. G38, 50 Law J. Ch. 450; Singer Manuf'g Co. v. Loog, 8 App. Cas. 15; Meyrose v. Adams, 12 Mo. App. 329; Andrew v. Deshler. 45 N. J. Law, 107. To inchoate rights under agreement: Benton v. Pratt, 2 Wend. 385; Rice v. Manley, 66 N. Y. 82. To diversion of custom by misrepresentation of rights: Marsh v. Billings, 7 Cush. 322; Bigelow, Lead. Cas. Torts, 59. And see Riding v. Smith, 1 Exch. Div. 91; Clerk & L. Torts, 493. 3S3 Abinger, C. B., In Gutsole v. Mathers, 1 Mees. & W. 495-500 (where de- fendant said that tulips of the plaintiff about to be sold at auction were stolen property). 384 Burtch V. Nickerson, 1 Am. Lead. Cas. 121. 3 80 Pig. Torts, 260, 375. "It is a special variety of deceit, which differs from the ordinary type, in that third persons, not plaintiff himself, are in- duced by defendant's falsehood to act in a manner which caused plaintiff's damage." Pol. Torts, 260. 3 86 Gutsole V. Mathers, 1 Mees. & W. 495; Hill v. Ward, 13 Ala. 310. 387 Bailey v. Dean, 5 Barb. 297-300. 3t8 Burnett v. Tak, 45 Law T. 743. 3 80 Clerk & L. Torts, 494, citing Maule, J., in Pater v. Baker, 3 C. B., at page 869; Steward v. Young, L. R. 5 C. P. 122-127. Cf. Rowe v. Roach, 1 •"i52 WRONGS AFFECTING REPUTATION. [Cll. 8 In this action truth, may be given in evidence under the general issue.^"". Malice. While the authorities are agreed that malice is essential to the plaintiff's case, they are at variance as to whether malice in law is sufficient, or whether there must be malice in fact.^°^ The later opinions require the plaintiff to allege, and, as a necessary part of his case, to prove, that malice in fact existed, — that is, a desire on the defendant's part to injure the plaintiff, or to benefit himself or some third person at the plaintiff's expense.'"^ Certainly, where there is an occasion of privilege, the plaintiff will be nonsuited unless he shows malice in fact.^"^ As in malicious prosecution, so in the cases under consideration, malice and want of probable cause are intimately connected. Want of reasonable cause is only evidence from which the jury may, but is not bound to, infer malice.^"* If what a person did or said was in pursuance of a bona fide claim or color of title which he was honestly asserting, and especially if he Maule & S. 304. In an action for slander of title, where defendant sets up title in himself, the action becomes one to try title, in which the burden of proof is on defendant as in a petitory action. McConnell v. Ory, 46 La. Ann. 564, 15 South. 424. As to requirement that in slander of patents plaintiff must commence proceedings to establish validity of patents, see Rollins v; Hicks, L. R. 13 Eq. 355; Axmann v. Lund, L. R. 15 Eq. 330. 3 Kendall v. Stone, 2 Saudf. 269. 391 In Young v. Macrae, 3 Best & S. 264, it was held not actionable. And see Johnson v. Hitchcock, 15 Johns. 185. In Western Counties Manure Co. V. Lawes Slanure Co., L. R. 9 Exch. 218, false statements as to inferiority of plaintiff's fertiUzer, resulting in loss of customers, were held actionable, with- out proof of malice. And see PauU v. Halferty, 63 Pa. St. 46; Dicks v. Brooks, 15 Ch. Div. 39. In Wren v. Weild, L. R. 4 Q. B. 213, letters to in- fringement of defendant's patents by plaintiff were held actionable only when made mala fide. Steward v. Young, L. R. 5 C. P. 122. And see Gerard v. Dickenson, 4 Coke, 18; Dodge v. Colby, 37 Hun, 515; Walkley v. Bostwick, 49 Mich. 374, 13 N. W. 780; Andrew v. Deshler, 45 N. J. Law, .167. 3 02 Halsey v. Brotherhood, 19 Ch. Div. 391; Hatchard v. Mege, 18 Q. B. Div. 771. 3 03 Pater v. Baker, 3 C. B. 831; Pitt v. Donovan, 1 Maule & S. 639. And see Steward v. Young, L. R. 5 C. P. 122. 304 Pitt V. Donovan, 1 Maule & S. 639; Maule, J., in Pater v. Baker, 3 C. B. mS; Wren v. Weild, L. R, 4 Q. B. 213. Ch. 8] SLANDER OF TITLE OR PROPERTY. 553 was acting under advice of counsel, thiough his title proves not to have been perfect, he will not be liable for slander of title. ^'^ "Whether a party acted maliciously depends upon his own motives, and on the view which the jury entertained of the mind of the party himself; and we cannot try what are the motives and feelings of par- ticular men's minds by referring to the mind of some other person. Therefore, if we refer to a mind that is sensible and reasonable, and which does not judge under the same pressure as the mind of the person in question might do, and make that sensible and reasonable mind the standard by which to judge of the state of the mind of the person who is under that pressure, we shall be referring to an im- proper rule to judge by. The question is, not what judgment a sensible and reasonable man would have formed in this case, but i whether the defendant did or did not entertain the opinion he com- municated." ^"^ Special Drnnages. In order that the plaintiff may recover, he must both allege and show, not merely damage, but special pecuniary damage, as the natural, proximate result of the disparagement.^"^ Therefore, the 39 D Hill V. Ward, 13 Ala. 310; Bailey r. Dean, 5 Baa-b. 297. 3 9 6 Pitt v. Douovan, 1 Maule & S. 639; Ames, Lead. Cas. 030. And see note 1, at page 631, citing Harriss v. Sneeden, 101 N. C. 273, 7 S. E. 801; Ger- ard V. Diclienson, 4 Coke, 18; Lovett v. Waller, 1 RoUe, 409; Smith v. Spooner, 3 Taunt. 246; Green v. Button, 2 Cromp., M. & R. 707; Pater v. Baker, 3 C. B. 831; Watson v. Rej-nolds, 1 Moody & M. 3; Can- v. Duckett, .5 Hurl. & N. 783; Atkins v. Perrin, 3 Fost. & F. 179; Brook v. Rawl, 4 Exeb. 521; Burnett v. Tak, 45 Law T. 743; Steward v. Young, L. R. 5 C. P. 122; Wren V. Weild, L. R. 4 Q. B. 2l:i; Hart v. Wall, L. R. 2 0. P. 14(;; Dicks v. Brooks, 15 Ck. Div. 30; Halsey v. Brotherhood, 19 Ch. Div. 3S9; Boulton V. Shields, 3 U. C. Q. B. 21; Hill v. Ward, 13 Ala. 310; McDaniel v. Baca, 2 Cal. 320; Thompson v. White, 70 Cal. 135, 11 Pac. 564; Reid v. JIcLen- don, 44 Ga. 156; Van Tuyl y. Riner, 3 111. App. 556; Stark v. Chetwood, 5 Kan. 141; Gent v. Lynch, 23 Md. 58; Swan v. Tappan, 5 Cush. lOi: iley- rose v. Adams, 12 Mo. App. 329; Andrew v. Deshler, 45 N. J. Law, 167; Dodge V. Colby, 37 Hun, 515; Hovey v. Rubber Co., 57 N. Y. 119; Kendall v. Stone, 5 N. Y. 14; Cornwell v. Parke, 52 Hun, .596, 5 N. Y. Supp. 905; Id., 123 N. Y. 057, 25 N. E. 955; McElwee v, Blackwell, 94 N. O. 201. 397 Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527; Cheesebro v. Powers, 78 Mich. 472, 44 N. W. 290: Duncan v. Griswold, 92 Ky. 546, 18 S. W. .'!51; v<^wan V. Tappan, 5 Cush. 104-111; Tobias v. Harland, 4 Wend. 537; Collins 554 WKO.NCiS AFFJitTING ItKPUTATlON. [f'h- 8 mere averment that, because of the alleged wrong, the plaintiff was compelled to go out of business is insufficient.^'* So, in Malachy v. Soper, a verbose allegation that mining shares had depreciated in value, and that the plaintiff had been prevented from selling them at a profit, was held insufficient. "The doctrine of the older cases is that the plaintiff ought to aver that by the speaking he could not sell or lease, and that it will not be sufficient to say only that he had an in- tent to sell without alleging a communication for sale." ^'"' But, if one falsely and maliciously claims a lien on wood which another had contracted to sell, whereby the latter is unable to deliver, this is good cause of action for slander of title.*"" However, the damage complained of must be the proximate result of the wrong. There- fore, it has been held, in New York,*"^ that the breach of a contract with a third person for sale of a lot of land was insufficient to make out special damage. V. Whitehead, 34 Fed. 121; Stark v. Ohetwood, 5 Kan. 141; Dooling v. Bud- get Pub. Co., 144 Mass. 258, 10 N. E. 809; Walton v. Perkins, 28 Minn. 413, 10 N. W. 424- :i3s Dudley v. Brlggs, 141 Mass. 582, 6 N. E. 717; Wilson v. Dubois, 3.j Minn. 471, 29 N. W. OS. 399 3 Bing. N. 0. 371 (per Tindal, 0. J.), affirmed in Riding v. Smith, 1 Exch. Div. 91-94 (uer Kelly, C. B.l. 400 Green v. Button, 2 Gromp., M. & R. 707. 401 Kendall v. Stone, 5 N. Y. 14, Chase, Lead. Gas. 149. (However, this case was decided on reasoning of Vicars v. Wilcocks, 8 East, 1, generally regarded as unsound.) And see Brentman v. Note (City Ct. N. Y.) 3 N. Y. Supp. 420. ^"- '"*J MAl.lCJUUS WRONGS IN GENEUAL. CHAPTER IX. MALICIOUS WRONGS. 183. Malicious Wrongs in General. 184. Deceit. 18.J-191. Tlie Wrongful Conduct of Defendant 192-19.3. Conduct of Plaintiff. ' 194. Resulting Damage. 195-196. Malicious Prosecution. 197. The Judicial Proceeding. 198. Termination of Proceeding. 199. Parties to Proceeding. 200. Malice and Want of Probable Cause. 201. Damages. 202. Distinction from False Imprisonment. 203. Malicious Abuse of Process. 204. Malicious Interference with Contract 205-206. Conspiracy. 207. Strikes and Boycotts. MALICIOUS WRONGS IN GENERAL. 183. To do intentionally what is calculated in the ordinary- course of events to damage, and which in fact does damage, another, in that other person's property or trade, is actionable, if done without just cause or excuse.^ The truth of the saying of Dr. Holmes to the effect that the growth of the law is to be found in history and not in science, is nowhere more apparent than in the subject of malicious wrongs. Certain traditional forms of malicious wrongs are clearly recognized. Dis- cussion of such wrongs are found in texts, scattered articles, deci- 1 Bowen, L. J., in Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. 598, [1892] App. Cas. 25, citing Bromage y. Prosser, 4 Barn. & C. 247; Capital, etc., Bank v. Henty, L. R. 7 App. Cas. 74. This statement avoids the common principles, for example, as in 1 Add. c. 1, § 9, p. 36 (40). But every malicious act wrongful in itself in the eyes of the law, if it causes hm-t or damage to another, is a tort, and may be the foundation of an action. An act wrongful 55B MALICIOUS WRONGS. [Ch. 9 sions, and digests. Among these may be mentioned libel and slan- der, slander of title, business, or property, fraud and deceit, mali- cious prosecution, and other malicious abuse in connection with courts of justice. Beyond these conventional forms of wrongs there has been a general tendency to deny the existence of a cause of action for which the law provides sanction. The loose sayings al- ready considered, to the effect that a bad intention cannot make a lawful conduct actionable, and that an unlawful intention cannot make a lawful conduct actionable, have led to a vague impression that these familiar forms of malicious wrongs are the only ones recognized by law, and that unless a given case be brought within them there is no cause of action. This is a radical error. It is true that for libel and slander, deceit, and malicious prosecution ^ the common law provided a specific form of action and a definite remedy; but under the actions on the case, even at common law wherever there was a wrong conforming to the legal standard, the remedy was provided, in large measure at least. Classification of Malicious Wrongs. The ordinary classification of malicious wrongs is based on the historical development of the law adjective. The classification of Mr. Pollock " does not seem to be entirely logical, in that it fails to give to libel and slander a proper place among malicious wrongs, in its dissociation of malicious procedure and of slander of title. His classification, perhaps the current one, has regard to the object of the -nrong; that is to say, he bases the classification upon the right which is violated. But the very fact that there is the most inter- minable confusion as to the nature of rights would necessarily make such a classification unsatisfactory. Mr. Junes,* as has been seen, rearranged the entire law of torts, in itself producing damage js naturally actionable. Generally, see ante, p. 8G; Clerk & L. Torts, 16; Green v. Button, 2 Cromp., M. & K. 707; Cattle v. Stockton Waterworks Co., L. K. 10 Q. B. 43. An interesting article on the right to so maliciously exercise one's legal rights as to cause damage to others, and the remedy therefor, 58 J. P. 814. 2 Bigelow, Lead. Cas. 207-210; historical portion of note to Hutching v. Hutchins, 7 HiU, 104. 3 Pol. Torts (Webb's Ed.) p. 7; and ante, p. 108. * Innes, Torts, introduction. Ch. 9] MAr.Tcious wrongs in general. 557 with reference to the instrumentalities by which the harm complained of was caused. A specific application of this idea to malicious wrongs might materially clarify the subject. In libel and slan- der, the instrument of harm is the means of publication. In mali- cious prosecution, malicious abuse of process, et sim., a court of jus- tice is the means by which the harm is inflicted. In deceit, the in- strument of harm is the false and damaging suggestion or suppres- sion of the truth. Beyond these conventional lines, the instrument of wrong may be concerted action between a number of persons, when the wrong is called a "boycott" or "conspiracy." ^ It may be one's influence on the conduct of third persons." It may be the use of one's own property ^ or one's own official position. It may be a tort to a third person.** This category may be indefinitely extended, and, however arranged, will be added to by the courts from time to time as new wrongs arise from the increasing complexity of society and the ingenuity of human error and selfishness. For present purposes, however, it is convenient, and will avoid stretching the cases into an order not contemplated, and introdu- cing a nomenclature not used by the courts in deciding cases, to fol- low Mr. Pollock, and use the current names of the wrongs considered. s Post, p. G41. 8 Prof. Ames (1 Lead. Cas. Torts, 8) divides tlie malicious injm-y to the plaintiff by influencing the conduct of a third person thus: Section 1, by inducing or aiding a third person to commit a breach of Icsal duty to the l^laintifC: (a) The duty of a servant to his master; (b) the duty of a wife to her husband; (c) tbe duty of a contractor; (d) the duty of an individual not to commit a tort. Section 2, by influencing a third person who owes no legal duty to the plaintiff: (a) By slander of title and disparagement of goods; (b) by fraud; (c) by force or threats; (d) by maintenance. This ad- mirable order has met with warm approval. 7 Chesley v. King, 74 Me. 164. And see Ames, Lead. Cas. Torts, 744^750, note 1, citing Stevens v. Kelley, 78 Me. 44r)-4.j2, 6 Atl. 808; Roath v. Dris- coU, 20 Conn. 533; Greenleaf v. Francis, 18 Pick. (Mass.) Ill; Trustees v. Youmans, 45 N. Y. 362; Wheatley v. Baugh, 25 Pa. St. 528. And see Frazier V. Brown, 12 Ohio St. 2&4; Chasemore v. Richards, 7 H. L. Cas. 349-888; Smith V. Kenrick, 7 O. B. 515. As to bursting an oil well, see 30 Am. Law Reg. (N. S.) 237-251. And see Phelps v. Nowlen, 72 N. Y. 39. 8 Midland Ins. Co. v. Smith, L. R. 6 Q. B. Div. 561; Ames, Lead. Cas. Torts, 719. 558 MAi.iuroLis wuoM.is. [Ch. '•> The I'adical changes thus avoided will also leave other poi'tions of the law of torts in its conventional arrangement. DECEIT. 184. Whether or not deceit is actionable depends upon the legal aspect of — (a) The wrongful conduct of defendanti (b) The conduct of plaintiff caused thereby. (c) The damage resulting therefrom. Writs of deceit were very ancient. A variety of forms are given in the register." Deceit, being older than case, was for a time dis- tinct from it." Indeed, it was the model for the new writs evolved under the statute of Westminster II. But case encroached upon it. In consequence, it "lost its individuality. The name is still retained ; but for a century or more that has been used to indicate the nature of the subject-matter rather than any peculiar form of action. De- ceit has been fused with the younger and more vigorous action of trespass on the case, or, rather, has become one of its species." ^' Since the general repeal of the various peculiar forms of action, the name continues to descinbe a particular form of wrong, or, more accurately, the means by which a particular wrong is done.^^ Deceit affords a good illustration of the overlapping of various branches of the system of jurisprudence as administered in English speaking countries. The law as to deceit is immediately related to contracts, and is especially involved in sales.^^ The tort may be 9 Ante, p. 16, e. 1. 10 3 Reeve, Hist. England (Finl. Ed.) p. 600. 11 Blgelow, Lead. Cas. 20 et seq., note to Pasley v. Freeman. And see 2 Esp. N. P. 623. By Isaac Espinasse, "deceit" is also spelled "disceit,'"— e. g. at page 821. 12 Innes, Torts, preface. 13 Therefore, Cornfoot v. Fowke, 6 ilees. & W. 858, which involved an - • action on the contract, is generally referred to in discussions on deceit. Blge- low, Lead. Cas. 21. As to election to rescind contract, see New Brunswick, etc., Co. V. Conyheare, 9 H. L. Cas. 711. As to rescission and restitution in integrum, see Western Bank v. Addle, L. R. 1 Scotch App. 145. Legal Companion (India), review of the Tagore Law Lectures for 1894, by Sir Frederick Pollock, on the "Law of Fraud, Mesrepresentation, and Mistake in British India" (issue of December, 18&4). Ch. 9] DKCEIT. 559 merged in the contract." Tlie person induced to enter into a con- tract by deceit may rescind and sue for damages." It is by no means an easy matter to determine whether a given cause of action is on the contract or in tort.^" The action of assumpsit was, as has been seen, originally an action on the case, and still retains traces of its ex delicto origin. Hence, wherever there is a contract of warranty, the buyer has always had the right to waive the contract and sue in tort.^^ And, generally, money obtained by deceit is re- coverable in assumpsit.^^ The term "misrepresentation," as used in the law of contract, is sometimes given a totally different signifi- cation from that assigned to it in the law of torts. Thus, it is de- 1^ Burns v. Dockray, 156 Mass. 135, 30 N. B. 551; Union, etc., Co. v. Scheidler, 130 Ind. 214, 29 X. E. 1071. 1 ii Tlius, persons induced by fraud of agent may rescind and sue agent for damages in the amount paid for insui'ance, althougli tlie policy had run for six months. Hedden v. Griffin. 136 Mass. 229. So, when action was brought in November on insurance note, and in August prior liuowledge of fraud came to insm'ed, the latter cannot rescind in November, after suit was brought. Plympton v. Dunn, 148 Mass. 523, 20 N. E. ISO. ISA complaint alleged that plaintifl', relying on the fraudulent representa- tions of defendants that one of them had a good tax title to land, and that the former owner died lea-sing no minor heirs, was induced to purchase the land, and take a quitclaim deed, and pay therefor $500; that he had also paid a judgment for costs and damages in a suit by which the minor heirs oC the former owner recovered land, — and for the amount of such a judgment, to- gether with the expenses of the suit, and the purchase money, he demanded judgment. Held an action for damages for fraud alleged, and not to rescind the conti'act of sale. McConuell v. Hughes, S3 Wis. 25, 53 N. W. 149. And see Clark, .T., in Hexter v. Bast, 125 Ta. St. 52, 17 Atl. 252, 253; Mahtu-in v. Harding, 28 N. H. 12S. iTBlanton v. Wall, 4 Jones, Law (N. C.) 532; McLeod v. Tutt, 1 How. (Miss.) 288; Osgood v. Lewis, 2 Har. & G. (Md.) 495; Hillman v. Wilcox, 30 Me. 170; House v. Fort, 4 Blackf. (Ind.) 293; Trice v. Cockran, 8 Grat. (Va.) 442; Lassiter v. Ward, 11 Ired. Law (N. C.) 443; Vanleer v. Earle, 20 Pa St. 277; Carter v. Glass, 44 Mich. 1.54, 6 N. W. 200; Hopkins v. O'Neil, IG Mich. 403, 9 N. W. -148; Booth v. Northrop, 27 Conn. 325; Huston v. Plato, 3 Colo. 402; Lindsay v. Mulqueen, 26 Hun, 485. The best practice is to join account for deceit with account in tort, alleging a simple breach of warrant3^ Schuchardt v. Aliens, 1 Wall. (U. S.) 359; Hummiston v. Smith, 22 Conn. 10. Cf. Bartholomew v. Bushnell, 20 Conn. 271; Beeman v. Buck, 3 Vt 53; West v. Emery, 17 Vt. 583; Vail v. Strong, 10 Vt. 457. 18 1 Esp. 21. But assumpsit will not lie on a fraudulent transaction. Id. 93. ■"'''0 MALICIOUS WRONGS. [Ch. 9 fined to be an innocent misrepresentation or nondisclosure of facts, as distinguished from fraud and warranties. Such misrepresenta- tions hare no effect on a contract, except in the case of contract sajd to be uberrimae fidei, in which, from their nature or from par- ticular circumstances, one party must rely on the other for his knowl- edge of facts and the other is bound to the utmost good faith, as in insurance contracts and the like.^" The term will, however, be used in its more general and popular sense, in which it is essentially iden- tified with fraud. An action of deceit results in the award of damages, this is the distinctive remedy in tort.* On the other hand, in equity, a false statement may be sufficient ground for refusing specific perform- ance,^" or for setting a contract aside; ^^ or equity may reform a fraudulent contract and then specifically enforce the contract as re- formed. ^^ ' SAME— THE WRONGFUL CONDUCT OF DEFENDANT. 185. The wrongfulness of defendant's conduct depends, upon — (a) His mental attitude, and (b) His consequent act or omission. 186. Defendant's mental attitude is the gist of the -wrong. The wrong, for which at common law trespass lay, did not depend, so far as the fact of liability is concerned, upon the mental attitude of the wrongdoer; although willfulness at the one extreme or mis- 19 Clark, Cont. 308-310. "The practical test of fraud, as opposed to mis- representations, is that fraud gives rise to an action ex delicto, while inno- cent misrepresentation does not. Fraud, besides being a vitiating element in contract, is a tort or wrong apart from the contract, and may be treated as such by beginning an action of deceit. Misrepresentation in exceptional cases may invalidate a contract, but will not support an action of deceit." * But see ante, c. 1. note 50. 2 Lamare v. Dixon, L. R. 6 H. L. 414. 21 GrofC V. Rohrer, 35 Md. 327; Traill v. Baring, 4 De Gex, J. & S. 318; Cowley V. Smyth, 46 N. J. Law, 380; Florida v. Morrison, 44 Mo. App. 529; Keating v. Price, 58 Md. 532. But see Tone v. Wilson, 81 lU. 529. 22 Bisp. Eq. § 468. Ch. 9J DECEIT. 561 take at the other might affect the extent of the recovery. Deceit, on the other hand, rests primarily upon the mental attitude. It de- pends distinctly upon moral shortcoming. Ordinarily, there is not only voluntary conduct; there is also voluntary injury. There is not, however, harmony in the decisions as to how far mere negligence can be the basis of deceit. The law of deceit has to deal with the legal aspects of the moral question. The standard of legal fraud is practically the same as of moral fraud.^^ The presumption of in- nocence applies, and the burden is on defendant to show moral or legal wrong.^* 187. False representations do not amount to a fraud at law unless they be made -with, a fraudulent intent. The intent to deceive may be sho-wn in either of three -ways: (a) That the party knew his statements to be false; (b) That, having no knowledge of their truth or falsity, he did not believe them to be true; or (c) That, having no knowledge of their truth or falsity, he yet represented them to be true of his own knowledge.^ 23 Pig. Torts, 269; Clark, Cont. 340. The saying of Bramwell, L. J., in Weil' V. Bell, 3 Exch. Div. 238-243, is famous: "I am of opinion that, to make a man liable for fraud, moral fraud must be proved against him. I do not understand legal fraud. To my mind it has no more- meaning] than legal heat or legal cold, legal light or legal shade. There never can be a weW- founded complaint of legal fraud, or of anything else, except where sonjc duty is shown and correlative light, and some violation of that duty and right. And when these exist, it is much better that they should be stated and acted on, than that recourse should be had to a phrase illogical and unmeaning, with, the consequent uncertainty." 2 4 Childs V. Merrill, 66 Vt. 302, 29 Atl. 532. 2 6 Mitchell, J., in Humphrey v. Merriam, 32 Minn. 197, 198, 20 N. W. 138: "In the first there would be a knowingly false assertion as to the fact; in the second, as to his belief; and in the third, as to his knowledge of the fact. And in each case the intent to deceive would be a necessaiy inference. But in each case the intent to deceive must exist and must be proved." And see Id., 40 Blinn. 413, 49 N. W. 199. LAW OF TOUTS — 36 662 MALICIOUS WRONGS. [t'h. 9 The fourts are generally agreed that no action can be maintained for a naked lie without intent to deceive.'"" "It is settled law that, independently of duty, no action will lie for a misrepresentation, unless the party making it knows it to be untrue, and makes it with a fraudulent intention to induce another to act on the faith of it, and to alter his position to his damage." " The intent required is to harm the plaintiff, — that is, to induce him to pursue the conduct complained of." It is not essential that it should be for the defend- ant's benefit. Thus, a person making misrepresentations as to the title of lands may be liable to the purchasei*, though he has no di- rect interest in the transaction, and receives none of the considera- tion.'" The difSculty, however, arises in determining when the law will find intent. The intent may be actual, when the case is clear, or it may be implied, usually by the jury.'" The courts are not in harmony on the subject. 2 6 "The unti-utli of a representation made to a party on some future occasion and for a different purpose cannot be relied on as a ground for rescinding a contract or for maintaining an action for deceit." Bamett v. Barnett, 83 Va. 504, 2 S. B. 733. And see Buschman v. Codd, 52 Md. 202; Humphrey V. Merriam, 32 Minn. 197, 20 N. W. 138; Beacli v. Tuclc, 57 Hun, 588, 10 N. Y. Supp. 884; Carter v. Harden, 78 Me. 528, 7 Atl. 392. A pleading eount- ingi on fraudulent representations, which avers no more than that they were untrue, without charging that they were knowingly or fraudulently made, is bad. Fenwick v. Bowling, 50 Mo. App. 516. 27 Park, B., in Thom v. Bigland, 8 Exch. 731. And see Murray v. Man, 2 Exch. 538; Bohn v. Kemble, 7 0. B. (N. S.) 260. And see Bell, J., in Mahm-in v. Harding, 28 N. H. 128. Of. Angell v. Loomis, 97 Mich. 5, 55 N. W. 1008. Unless complaint alleges that representations are fraudulent, it does not state a cause of action in deceit. Hoist v. Stewart, 154 Mass. 445, 28 N. E. 574, distinguishing Litchfield v. Hutchinson, 117 Mass. 195. 2 8 Tapp V. Lee, 3 Bos. & P. 367; Thom v. Bigland, 8 Exch. 725-731; Watson v. Poulson, 15 Jur. 1111; Polhill v. Walter, 3 Barn. & Adol. 123. 2 Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798. 30 In an action for deceit in the exchange of real estate, a declaration al- leging that defendant knowingly made false representations of material facts, by which plaintiff was induced to make the exchange, is sufficient, since the jury may infer fraudulent intent. Brady v. Finn, 162 Mass. 260, 38 N. E. 506. . Ch. 9] DECEIT. 563 Fiike Statement with Knowledge. The clearest case of liability for deceit arises where a person, knowing a statement to be false, and intending to deceive, is guilty of a misrepresentation. Under such circumstances, his liability is without doubt.^^ For "'sciens' without 'fraudulenter' would be sufficient to support the action." "- But an honest statement of what one believes to be the facts, without misrepresentation of the source or extent of his information, cannot be made the basis of recovery.^' False Statement without Knowledge or Belief in Truth. Where a false statement is made without knowledge, and with an actual intent to wrong another, the liability is clear. "If a man hav- ing no knowledge whatever of the subject takes upon himself to represent a certain state of facts to exist, he does so at his peril ; and if it be done either with a view to secure some benefit to Mmself or to deceive a third person, he is in law guilty of fraud, for^jhe takes upon himself to warrant his own belief of the truth of that wihieh he so asserts." ^* The belief of a party, to be an excuse foi^a false 31 Marsh v. Falker, 40 N. Y. 562; Stitt v. Little, 63 N. Y. -127;* Avery V. Chapman, 62 Iowa, 144, 17 N. W. 454; Simms v. Eiland, 57 ilisl 83; Holdom V. Ayer, 110 111. 448; Graham v. Hollingier, 46 Pa. St. 55; Iluber V. Wilson, 23 Pa. St. 178; Tucker v. White, 125 Mass. 344; Plartford Ins. Co. V. Matthews, 102 Mass. 221; Terrell v. Bennett, 18 Ga. 404; Crown v. Brown, 30 Vt. 707; Zabriskie v. Smith, 13 N. Y. 322; Sollund v. Johnson, 27 Minn. 455, 8 N. W. 271; Schwabacker v. Riddle, 99 111. 343; Farmers' Stock-Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. 978; Wachsmuth v. Mar- tini, 45 111. App. 244; Dickson v. Renter's Tel. Co., 3 C. P. Div. 1; Johnston v. Bent, 93 Ala. 160, 9 South. 581; Williams v. McFadden; 23 Fla. 143, 1 South. 618; Buschman v. Codd, 52 Md. 202. 32 Per Butler, J., in Pasley v. Freeman, 3 Term R. ."il, at page 60. And see Foster y. Charles, 6 Bing. 390; Polhill v. A^'alter, 3 Barn. & Adol. 114. See, too, per Lord Cames, Peek v. Gurney, L. R. 6 H. L. 377-409. 33 Kerr, Fraud & M. 54, 55, et seq.; Chaudelor v. Lopus, 1 Smith, Lead. Cas. 299; Haycraft v. Creasy, 2 East, 92; Stone v. Benny, 4 Mete. CSiass.) 101; Marsh v. Falker, 40 N. Y. 562: Chester v. Com stock. Id. 57ri; Jlyer v. Amidon, 45 N. Y. 169; Oberlander v. Spiess, Id. 175. 34 Maule, J.. Evans v. Edmonds, 13 C. B. 777-780; Pawson v. Watson, Cowp. 785-788. Per Lord Mansfield, Haycroft v. Creasy, 2 East, 92-103. Per Lord Kenyon, Behn v. Burness, 3 Best & S. 751, 32 Law J. Q. B. 204; 5(i-lr MALICIOUS WRONGS. [Ch. 9 representation, must be "a belief in the representation as made. The scienter will therefore be suificiently established by showing that the assertion was made as of the defendant's own knowledge, and not as mere matter of opinion, with regard to facts of which he was aware Ilamlin v. Abell, 120 JIo. ISS, 25 S. W. 516. Where a wife, in the presence of her husbautl, makes representations concerning the condition and value of land which her husband owns, and is about to exchange or sell to another person, and at the same time informs such person that she has never seen the land, and that she makes the statement from what her husband had told her of it, and she had no interest in the land, and is not benefited by the change or sale, she is not liable for damages for such representations, thougli they are false, in the absence of proof that she knew of their falsity. Stev- ens V. Allen, 51 Kan. 144, 32 Pac. 922. But see Scroggin v. V/ood, 87 Iowa, 497, 54 N. AV. 437. "If persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they asserted that which they knew to be untrue." Per Lord Cairns, in Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 04-79; Fisher v. Mellen, 103 Mass. 503; Cole v. Cas- sidy, 138 JIass. 437; Bristol v. Braidwood, 28 Mich. 191; Walsh v. Morse, 80 Mo. .^!)8; Cabot v. Christie, 42 Vt. 121; Bo-sver v. Fenn, 90 Pa. St. 359; Leavitt V. Sizer, 35 Neb. 80, 52 N. W. 832. A representation by one who knew noth- ing about the stock, and relied on defendant's statements wholly, "who as- sumed to know its value, whether he did or not," may be actionable fraud. Lawton v. Kittridge, 30 N. H. 500. And see Ormsby v. Budd, 72 Iowa, 80, 33 N. W. 457. "Positive assertion of knowledge is not required. If a man makes an untnie representation as of his own knowledge, not knowing whether it be true or false, it is a fraud. The falsehood is intentional. And an unqualified affirmation amounts to an affirmation. as of one's own knowl- edge. Stone V. Denny, 4 Bletc. (Blass.) 151; Wild4|A]''^De Cou, 18 Minn.- 470 (Gil. 421). The fraud is as great as if the party ^aB^ his statement to be untrue. It is, in law, a willful falsehood for a man to asstert, as of his own knowledge, a matter of which he has no knowledge. KermFraud & M. 54. It is immaterial whether such statements were made InnMently or know- ingly. It is as fraudulent to affirm the existence of a fact Bout which one is in entire ignorance as it is to affirm what is false, knowu^^^o be so." Bullitt V. Farrar, 42 Minn. 8, 43 N. W. 5G0; Martin v. Hill, 4^H|te37, 43 N. W. 337; Montreal iliiver Lumber Co. v. Mihills, 80 Wis. 540, 5^^^. 507; Leavitt v. Sizer, Sr, Neb. 80, 52 N. W. 832; Totten v. Burhans, 91 Mich. 495, 51 N. W. 1119; Phelps v. Smith, 110 Ind. 387, 17 N. E. 602; Bartholomew v. Pierson, 112 Ind. 430, 14 N. E. 249; Stix v. Sadler, 109 Ind. 254, 9 N. B. 905; Indianapolis, P. & C. Ky. Co. r. Bush, 101 Ind. 582; Pittsburgh, C. & St. L. Ry. Co. V. Spencer, 08 Ind. 18G; Dixon v. Duke, 85 Ind. 434; Slauter v. Fa- ^'1'- 9] DECEIT. 5B5' that he had no such knowledge." " Although the party making the representation may have had no knowledge of its falsity, yet he will be equally responsible if he had no belief in its truth, and made it "not caring whether it was true or false." ^^ False Statement without Knowledge, but with Negligence. Where, however, there is neither knowledge of falsity nor actual intention to deceive, but a misrepresentation in fact, on which an- other acts to his damage, the courts of England and of this country are not in entire harmony with each other, nor with themselves, as to the rule of liability. Thei'e may be both negligence in making the statement and negligence as to the information on which the statement is based. ''■' vorite, 107 Ind. 291, 4 N. E. 880; Furnas v. Friday, 102 Ind. 129, 1 N. E. 20G; West V. Wright, 98 Ind. 3.35; Roller v. Blair, 96 Ind. 203; Betlaell v. Betliell, 92 Ind. 318; Brooks v. Riding, 46 Ind. 15; Krewson v. Cloud, 45 lud. 27.^,; Bootier v. Goldsborough, 44 Ind. 490; Frenzel v. Jliller, 37 Ind. 1; Fisher v. Mellen, 103 Mass. 503; Brownlie v. Campbell, 5 App. Cas. 925; Slim v. Croucher, 1 De Gex, F. & J. 518; BuUis v. Noble, 36 Iowa, 618; Raley v. Williams, 73 Mo. 310; Oregon Ry. Co. v. Oregon Ry. & Nav. Co., 10 Sawy. 464, 22 Fed. 245; Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537; Cox v. Highley, 100 Pa. St. 249. In an action for falsely representing to plaintiff that the forged indorsement of a check paid by the latter was genuine, defendant is not liable if he acted in good faith, and it need not appear that he had ade- quate reason for his belief. Xiamberton v. Dunham, 165 Pa. St. 129, 30 Atl. 716. 3 5 Per Steele, J., in Cabot v. Christie, 42 Vt. 121, 126-127, citing Taylor v. Ashton, 11 Mees. & W. 418; Hammatt v. Emerson, 27 Me. 308-326; Bennett V. Judson, 21 N. Y. 238; Stone v. Denny, 4 Jletc. (Mass.) 151; Hazard v. Ir- win, 18 Pick. (Mass.) 95. 30 Pea- Smitli. X, in JolifCe v. Baker, 11 Q. B. Div. 255-275; Haycraft v. Creasy, 2 East, 02. Per Lawrence, J., in Rex v. JIawbey, 6 Term R. G19-G37. 3 7 The question for liability for negligence may arise in connection witli. the subject of misrepresentation in two AAnys: The negligence may come in at two different stages: (1) In the formation of the belief which the repre- sentation expresses; as where the defendant knows that he is representing the existence of certain facts, and believes his representations to be true, but has been guilty of carelessness in not sufficiently examining the ground of his belief, a reasonable examination of which would have disclosed the real state of things. (2) In the expression of the belief, or, in other words, in the act of making the representation, as where the defendant, knowing that cer- 566 MALICIOUS WRONGS. L'^h. 9 Same — English Rule. The main current of English authorities is to the effect that an action for damages for deceit cannot be maintained, except upon proof that the statement made was false in fact and fraudulent in intent; in other words, actual knowledge of the falsity, or actual fraud, is essential, and mere negligence in not acquiring such knowl- edge or in expressing belief will not suffice, =" and an action of deceit will not lie in respect of a negligent, as distinguished from a fraud- ulent, misrepresentation.^^ The leading case on the subject is Derry V. Peek,'"' where it was held that the directors of a company were not liable to persons who had bought shares on the faith of a pros- tain facts do not exist, forgets that his language or conduct will be reason- ably construed as a representation of the existence of such facts, the negli- gence consisting in the making of a deceptive statement which he has no intention of making at all. 38 Smith, J., in JolifCe v. Baker, 11 Q. B. Div. 274; Dickson v. Renter's Tel. Co., 3 C. P. Div. 5, per Bramwell, L. J.; Taylor v. Ashton, 11 Mees. & W. 418; "Wilde v. Gibson, 1 H. L. Gas. 605-633, per Lord Campbell. 3 Angus V. Clifford [1801] 2 Oh. 445. Defendants, directors of a mining company, in a prospectus stated that certain reports of experts as to the value of the company's property had been prepared "for the directors." Plaintiff took shares on the faith of this statement. The report in question had been made by the instruction and in the interest of the vendors of the mine, and not of the directors. It was held that, as it appeared that the di- rectors had used the statement carelessly, and not with intent to deceive, aa action of deceit would not lie (63 Law T. [N. S.] G84, and 39 Wkly. Eep. 252, reversed). Angus v. Clifford, supra. "The gist of the action is fraud in the defendants, and damage to the plaintilf. Fraud means an intention to deceive. If there was no such intention, if the party honestly stated his opinion, believing at the time that he stated the truth, he is not liable in this form of action, although the representation turned out to be entirely untrue." Lord v. Goddard, 13 How. 198. Guilty knowledge and intent to deceive were essential to plalntitf's recovery. Graham v. Hollinger, 46 Pa. St. 55. And see Collins v. Evans, 5 Q. B. 820-826; Behn v. Kemble, 7 C. B. (N. S.) 260; Thom v. Bigland, 8 Bxch. 725; Childers v. Wooler, 2 El. & El. 287. But see Fuller v. Wilson, 3 Q. B. 58, 1009. With respect to dispute between courts of queen's bench and exchequer, see Fuller v. Wilson, 3 Q. B. 58; Evans v. Collins, 5 Q. B. 820; Ormrod v. Huth, 14 Mees. & W. 651. And cf. Taylor v. Ashton, 11 Mees. & W. 401; Shrewsbury v. Blount, 2 Man. & G. 475; Western Bank v. Addie, L. R. 1 H. L. Sc. 145-162. *o L. R. 14 App. Cas. 337-374, 61 Law T. (N. S.) 265, 58 Law J. Ch. (N. S.) Ch. 9] DECEIT. 567 pectus. This prospectus represented that the company had power to operate tramways by steam. The representation proved to be false in fact. It was held that the mere negligence in making the statement was not the basis for an action for deceit, notwithstand- ing its falsity, although it may afford evidence of fraud. Lord Her- schell said : "I think the authorities establish the following proposi- tions: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of that he states. To prevent a false statement from being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground; for one who knowingly alleges that which is false has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immate- rial. It matters not that there was no intention to cheat or injure the person to whom the statement was made." The conclusion reached was that, while there was a moral duty imposed on those who put before the public a prospectus to induce others to embark their money in a commercial enterprise, to be vigilant to see that it contained such representations only as are in strict accordance with facts, a special intervention of legislature would be required to con- vert this moral duty into a legal duty." The rule adopted by the 864. Cf. Cotton, L. J., in same case, 37 Ch. Div. 541-568, 59 Law T. (N. S.) 78. "AVlieve a man makes a false statement to induce anotlier to act upon it, without reasonable ground to suppose it to be true, and without taking care to ascertain whether it is true, he is civilly liable as much as a person who commits what is usually called fraud, and tells an untruth knowing it to be an untruth. Sir J. Hannen, at page 578, 37 Ch. Diy. Cf. Weir v. Bell, 3 Bxch. Div. 243; Dickson v. Renter's Tel. Co., 3 C. P. Div. 6. 41 Lord Herschell, J., in Derry v. Peek, L. R. 14 App. Cas. 337; Clerk & L. Torts, 412-631. An article on liability for false representations where no in- tention to deceive was shown, but where negligence only on the part of the person making them was proven. Justice of the Peace. Republished in 28 Ir. Law T. 33. 5(i8 MALICIOUS WRONGS. [Cll. 9 house of lords, in Derry v. Peek, however, has been generally criti- cised both in England " and America.*^ The American Rule. In Illinois, Chief Justice Craig, in Schwabacker v. Riddle,** said: "We are aware of no authority which will sanction a recovery in an action for deceit, unless a false representation has been made knowingly with intent to deceive." In Massachusetts, the rule is that there can be no recovery unless the representations were known *2 Clerk & L. Torts, Append., to the effect that it is doubtful whether this rule is consistent with Burrowes v. Lock, 10 Ves. 470, and Slim v. Croucher, 1 De Gex, F. & J. 518; and that the rule of this case will not be extended be- yond the point to which authority compels its application, and that such cases of implied representations will be referred to as anomalous exceptions to the general rule. London Law J. July 6, 1890. "The extension attempted, from giving the effect of fraud to statements made in reckless ignorance of the truth or falsehood, to mistaken statements honestly made, ignores the element of intention in fraud. A mistaken statement honestly made may give a ground for the rescission of a contract, but not for affixing to the whole contract the ill savor of fraud. Upon the rescission of a contract, the rights of the parties can be adjusted, but fraud cuts down everything, and exposes those guilty of it to the stringent and, if successful, degrading remedy by an action of deceit. Commercial morality is better forwarded by following a level standard, than by setting up the unattainable in everyday life, and calling things by names which would be scouted by the social opin- ion of honorable business men." 43 "The faith of investors in corporate securities has received many shocks from many directions, but it is not easy to imagine any quiet blow more likely to be more general and severe in its results than will be given by the distinct understanding on the part of the business world that specific state- ments signed by the directors, in a prospectus issued to induce investment, do not mean that the directors have even reasonable ground to believe what they sign to be true. Investors are to understand that, if they come to grief by, relying on such prospectuses, they have no redress by showing that the statements were false, that the directors might have known their falsity by proper attention, nor even by showing that the directors had no reasonable ground to believe their statements to be true." Mr. Austin Abbott, in the Daily Register. And see 23 Am. Law Rev. 1007. 4*90 111. 343-348; Wachsmuth v. Martini, 45 111. App. 244; Knight v Gaultney, 23 111. App. 376; Ward v. Luneen, 25 111. App. 164; Antle v. Sex- ton, 137 111. 410, 27 N. B. 691. But see Case v. Ayers, 65 111. 142; Angus v. ClifCord [1891] 2 Oh. 449; Da Lee v. Blackburn, 11 Kan. 190. Ch. 9] DECEIT. 569 by the defendant to be false, and were made with intent to deceive,*^ or were made as of the defendant's own knowledge, when he did not know them to be true." The federal courts of the United States have recognized that a positive statement as of the defend- ant's own knowledge, recklessly made without knowledge of its truth, is actionable if false, and it need not be alleged that the rep- resentation was fraudulently made with intention to induce the plaintiff to act.*'' The general spirit of American decisions accords with this rule.** *6 Nowlan v. Cain, 3 Allen (Mass.) 263; Brown v. Rice, 26 Grat. 467; Hull T. Fields, 76 Va. 607; Peek v. Derry (1887) 37 Ch. Dlv. B41, overruled in Derry v. Peek (1889) 14 App. Cas. 337. *6 Knowlton, ,T., in Nasli v. Ti'ust Co., 159 Mass. 437^40, 34 N.' E. 625. In this case Deny v. Peek, 14 App. Cas. 337, was cited with approval. And see Chatham Furnace Co.' v. MofEatt, 147 Mass. 403, 18 N. E. 168; Burns v. ©ock- ray, 156 Mass. 135, 30 N. E. 551. However, in Goodwin v. Trust Co., 152 Mass. 189-202, 25 N. E. 100, it was said that the Massachusetts rule is not "precisely that declared by the house of lords in Derry v. Peek." Cf. rule in Litchfield v. Hutchinson, 117 Mass. 195. As to the latter part of the rule, see, also. Fanners' Stock-Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac. 978. i^ Cooper v. Schlesinger, 111 TJ. S. 148-155, 4 Sup. Ct. 360. And see Barnes V. Union Pac. Ky. Co., 4 C. C. A. 199, 54 Fed. 87; Lynch v. Mercantile Tl-ust Co., 18 Fed. 486. "To hold a person liable as for a fraud in making a representa- tion, the jury must be satisfled that he did not actually believe the facts to be as represented, or that he had no reasonable ground for supposing them as rep- resented." Thayer, J., in Glaspie v. Keator, 5 C. C. A. 474, 56 Fed. 203-210, citing Humphrey v. Jlerriam, 32 Minn. 197, 20 N. W. 138; Savage v. Stevens, 126 Mass. 207; Bennett v. Judson, 21 N. Y. 238: Buford v. Caldwell, 3 Mo. 477^80; Barnes v. Railway Co., 4 C. C. A. 199, 54 Fed. 87. "The party sell- ing pi-operty must be pi-esumed to know whether the representation which he makes of it is true or false. If be knows it to be false, that is fraud of the most positive kind ; but if he does not know it, then it can only be from gross negligence. And in contemplation of a court of equity, representations founded on mistake, resulting from such negligence, is fraud. 6 Ves. 180, 189; Jeremy, 385, 386. The purchaser confides in it, upon the assumption that the owner knows his own property, and truly represents it; and, as well argued in the ease in Cranch (McFarren v. Taylor, 3 Cranch, 281), it is im- material to the purchaser whether tlie misrepresentation proceeded from mis- tflke or fraud. The injury to him is the same, whatever may have been the motives of the seller." Smith v. Richards, 13 Pet 38. And see Jewett v. is See note 48 on following page. 570 MALICIOUS WRONGS. [tih. 9 188. The false representation may be — (a) Expressed, or (b) Implied. Express Misrepresentation. The simplest case of deceit is that of express statements by one person to another, false in themselves, made knowingly, with in- Carter, 132 Mass. 335; Cole v. Cassldy, 138 Mass. 437; Masson v. Bovet, 1 Denio (N. Y.) G9-73; Loekbridge v. Foster, 4 Scam. (111.) 569; Joice v. Tay- lor, U Gill & J. (Md.) 54^58; McFerran v. Taylor, 3 Crancli (U. S.) 270; Doggett V. Emerson, 3 Story, 700-732, 733, Fed. Oas. No. 3,960; Burrowes v. Ijock, 10 Ves. 470-475; Ayre's Case, 25 Beav. 513; Seais v. Hicklin, 13 Colo. 143, 21 Pac. 1022; Haight v. Hayt, 19 N. Y. 464; Stevens v. Allen, 51 Kan. 144. 32 Pac. 922; Antle v. Sexton, 137 111. 410, 27 N. E. 691. 48 It has been held in Wi-sconsin that it is immaterial whether the misrep- resentations were made willfully or not. Cotzhausen v. Simmons, 47 Wis. 103, 1 N. W. 473. And see Davis v. Nuzum, 72 Wis. 439, 40 N. W. 497; JIc- Kennon v. VoUmar, 75 Wis. 82, 43 N. W. 800. This general doctrine is ap- proved in Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507, iu which the court say: "Undoubtedly, it is a question upon which courts are not all in harnaony, not even with themselves." In Burke v. Railroad Co., 83 Wis. 410, 53 N. W. 602, the auditor of a railroad company represented to plaintiff that the shortage of a certain station agent was a certain amount, and that, on the payment of th.at sum, the agent would be retained by the company. On the strength of such representation plaintiff advanced the money to replace the shortage. The agent's shortage was afterwards found to be double the amount represented, and he was discharged by the com- pany; and it was held that plaintiff was entitled to recover the money paid on the false representation, though the auditor believed it to be true at the time he made it. In Ross v. Hobson (Ind. Sup.) 26 N. E. 775, it was held that a person who has made representations charged to be false cannot show in de- fense that he was not informesT in regard to the matters represented. And see Kirkpatrick v. Reeves, 121 Ind. 280, 22 N. B. 139. In Hexter v. Bast, 125 Pa. St. 52, 17 Atl. 252, Judge Clark held that, as a genei-al rule, the state- ment must be both false and fraudulent, but that the fiaud may consist in representing that one knows that of which he is in fact consciously ignorant. And in Griswold v. Gebbie, 126 Fa. St. 353, 17 Atl. 673, Judge Mitchell held that a reckless assertion of a material matter shown to be false, made in en- tire ignorance, throws on the defendant the burden of showing his belief in the truth of the representation. In Michigan, the rule seems to be settled that it is immaterial whether a false representation is made innocently or fraudulently, if by its means the plaintiff is injui-ed. Holcomb v. Noble, 69 Mich. 396, 37 N. W. 497. Accordingly, in an action to recover the amount Ch. 9] DECEIT. 571 tent to deceive, in reliance on which the latter acts to his dam- age.*" Thus, in Barley v. Walford,^" "the plaintiff sent to the de- fendant some samples of printed handkerchiefs with a view to ob- taining orders from him. The defendant told him that the design he had printed was a registered one, and that the owner of it was going to proceed against him for an injunction. The plaintiff, in consequence, was put to considerable expense in proceeding to Lon- don to make inquiries. The statement was false. Another ele- ment of damage was that the defendant, having delayed the plain- tiff's manufacture, made use of the design himself, and obtained the command of the market which the plaintiff would otherwise have had for his wares. There was an averment that the defend- ant knew the statement was false, and that he knowingly and willfully uttered it; and the court held that the plaintiff had stated a good cause of action. Here the statement ^\as made ex- paid foi- a contract appointing plaintiff general agent in certain counties, be- cause of misrepresentations, evidence as to whether defendant intended any fraud is admissible, and the result to plaintiff is the same whether defendant acted in good or bad faith. Angell v. Loomis, 97 Mich. 5, 55 N. W. 1008. False representations by one selling out his business, whether innocently or fraudulently made, that certain accounts included in the sale of his interest were collectible, entitle the purchaser to damages. Totten v. Burhans, 91 Mich. 495, 51 N. W. 1119. The Minnesota rule as to deceit is stated in Bus- terud V. Farrington, 36 Minn. 320, 31 N. W. 300: "An action for deceit lies against one who makes a false representation of a material fact susceptible of knowledge, knowing it to be false, or as of his own knowledge, when he does not know whether it is true or false, with Intention to induce the per- son to whom it is made, in reliance upon it, to do or refrain from doing some- thing to his pecuniary hurt, when such person, acting with reasonable pru- dence, is thereby deceived and induced to so do, or refrain, to his damage." Bullitt V. Farrai-, 42 Minn. 8, 43 N. "W. 5G6; Kiefer v. Rogers, 19 Minn. 32-36 (Gil. 14). And, generally, see Litchfield v. Hutchinson, 117 Jlass. 195-198; Hazard v. Irwin, 18 Pick. (Mass.) 96; Savage v. Stevens, 126 Mass. 207; Frost V. Angler, 127 Mass. 212. 48 McGibbons v. Wilder, 78 Iowa, 531, 43 N. W. 520. BO 9 Q. B. Div. 197. A seller's false statement that the stock he is offering has always paid a certain rate of dividends is a positive statement of a mate- rial fact, which may be actionable in deceit. Handy v. Waldron (R. I.) 29 Atl. 143. See, also, McClellan v. Scott, 24 Wis. 81; Griffin v. Fanler, 32 Minn. 474, 21 N. W. 553; Ciuess v. Fessler, 39 Gal. 336; Chrysler v. Cana- dny, 90 n! Y. 272; Eaton v. Winnie, 20 Mich. 165, 166. Post, note 16. 572 MALICIOUS WRONGS. [Ch. 9 pressly to the plaintiff." " Among the principal questions which arise in this connection is the construction of the words of the mis- representation. The proper construction is not necessarily the literal one. "If a person makes a representation of that which is true, if he intend that the party to whom the representation is made should not believe it to be true, that is a false representa- tion." ^^ Moreover, an express statement may involve an actiona- ble concealment. "Suppose you state a thing partially, you make as false a statement as if you misstated it altogether. Every word may be true, but if you leave out something which qualifies it, you may make a false statement. For instance, if, pretending to set out the report of a surveyor, you set out two passages in his report, and leave out a third passage which qualifies them, that is an actual misstatement." °' But the alleged misrepresentation re- ceives a fair construction under the usual rules, and will not be strained beyond the fair purport of the words. Therefore, the mere recommendation by a person interested in the construction of a railroad, that a proposition for construction be accepted, is not a representation on which an action for deceit can be maintained by a bank which cashes a draft for the contractors, drawn by them on the construction company, which made a contract with them.^* And courts, if there is sufficient evidence of misrepresentation, in- cline to submit the import of the statement for determination by the jury.^'^ The test of express misrepresentation is not what the defendant in his own mind intended, but what any one might rea- sonably suppose to be the meaning of the words used.^^ In order 51 Pig. Torts, 255. And see Stewart v. Steams. C3 X. H. 00. 5 2 Per Alderson, B., in Moens v. HeywortH, 10 Mees. & W. 147-158. 5 3 Per James, L. J., in Arkwright v. Newbold, 17 Ch. Div. 301, 318. On the other hand, where a retail merchant malses an untrue statement of his iif- faii's to a mercantile agency, and the latter transmits to a wholesale firm a statement still more favorable to the retail dealer, and the wholesaler sells to the retailer, and is unable to collect from him, the latter is not liable for deceit, since the credit was given on a statement which was different from the one published by him. Wachsmuth v. Martini, 154 111. 515, 39 N. E. 129. 5 4 Kelly V. Gould, 141 N. X. 506, 36 N. E. 320 (64 Hun, G39, 19 N. Y. Supp. 349. affirmed). 5 5 Powers V. Fowler, 157 Mass. 318, 32 N. E. 160. 6 li Cotton, L. J., in Ai-kwright v. Newbold, 17 Ch. Div. 301-:?22. And se^' C'h. 9] DECEIT. 573 to establish a case of false representation, it is not necessary that things which are false shall have been stated as if they were true, but where the representation of that which is true creates an obvious impression -fthich is false, as to one who seeks to profit by the misrepresentation he has thus produced, it is a case of false representation/^ Implied Misrepresentation. Representations may be implied from conduct. "If one conducts himself in a particular way, with the object of fraudulently in- ducing another to believe in the existence of a certain state of things, and to act upon the basis of its existence, and damage re- sulted therefrom to the party misled, he who misled him will be just as liable as if he had misrepresented the facts in express terms. * * * Thus, the representation of safety may be implied from the issue of chattels for use, frpm the loan or gift of a dangerous chattel, or it may be implied from the defendant's forgetting what construction will be put on his conduct." Thus, leaving gates open at a level crossing "amounts to a statement and a notice to the public that the line at that time is safe for crossing." ^* So, where an owner of premises invites others to come thereon, it l)eing rea- sonable for the persons invited to infer from such invitation an in- tention on the part of the owner to represent that, so far as he knows, there is no hidden source of danger on the premises, the invitation will amount to a representation to that effect; and if the premises are in fact unsafe, by reason of a secret defect, ex- isting to the owner's knowledge, and damage results from their un- safe condition, the owner will be liable, none the less because, not having the point present to his mind, he did not intend his invita- tion to be so construed." No doubt, in practice, the claim in such Lindley, J., in Smith v. Chadwick, 20 Cli. Div. 27-79, as to line of distinction between negligence and fraud on other points; Lord Blackburn in Smith v. Chadwick, 20 Ch. Div. 79. And, generally, see Thom v. Bigland, 8 Exch. 725. 57 Lomerson v. Johnston, 47 N. J. Eq. 312, 20 Atl. CT.j. 58 Lord Cairns, in North-Eastern R. Co. v. Wanless. L. R. 7 H. L. 12-1.t; Farrant v. Barnes, 11 C. B. (N. S.) 553. And see post, p. 881, "Negligence"; "Case with Reference to Custom." 5 Fry, L. J., in Cuunington v. Great Northern Ry. Co., 49 Law T. (N. S.) 392-394. 674 MALICIOUS WRONGS. [Ch. J> cases is never framed in deceit, but is simply charged as negli- gence, but the omission in which the negligence consists, and which lies at the bottom of the liability, is nothing else than a misrepre- sentation of safety, whereby the plaintiff has been induced to act to his own damage. But, though the practice is otherwise, there seems to be no valid reason why actions of this nature should not be framed in deceit. It was probably a recognition of the close con- nection between the action of deceit and the action for negligently inducing another to act to his damage, which induced Willes, J., to say, with reference to the liability of the owner of dangerous premises towards a bare licensee, that "to create a cause of action, something like fraud ipust be shown"; "" and gave rise to the ex- pression, which is frequently to be met, that the licensor is liable only where the condition of the premises was in the nature of a "trap." «i In effect, it often occurs that the suit by the servant against the master for failing to perform the duty of the master to the servant, — as with respect to exercising reasonable care to furnish safe in- strumentality, place, and fellow servants, — is essentially upon de- ceit, rather than -for negligence in its conventional sense; or, per- haps, it is more accurate to say that here negligence and deceit coincide. The master represents to the servant that he has per- formed his duty in these respects. The servant has a right to rely upon such representation, whether made in fact or implied by law. Especially is it true that, where the servant, his suspicions being arou«ed by appearances, complains to the master of the danger of place, instrumentality, or fellow servant, and the master allays the servant's fears by assurances of safety, as a matter of superior knowledge, or promises to remedy the defect, and fails to do so, if these representations are false in fact, and the servant's own con- duct in failing to discover such defects or imperfections as he could be reasonably held to find out, then he is entitled to recover for consequent damages. And if the master has exercised good faith, e-'-'en then, although he exposed his servant to danger, there can be 6 Gauti-et v. Egerton, L. R. 2 0. P. 371-375. 61 Clerk & L. Torts, 402, citing Bolela v. Smith, 7 Hui'l. & N. 736, per Wilde, B.; Gautret v. Egerton, L. R. 2 0. P. 371-374, per Willes, J.; Corby V. Hill, 4 C. B. (N. S.) 556. Ch. 9] DECKiT. 575 no recoreiy. Ordinarily, however, the law on this point is worlced out through the phraseology of negligence. Hence, this portion of the law will be considered under that subject. 189. A false representation may consist in either or both — (a) The assertion of a falsehood, or (b) The suppression of the truth. When a falsehood has been asserted, deceit is manifestly made out. But conduct may fall far short of the assertion of a false- hood, and still be actionable as fraudulent. Thus, fraud may be perpetrated by encouraging and taking advantage of a delusion known to exist in the minds of others."" A misrepresentation does not consist in words alone, but may grow out of the act of concealment of a material fact."* Thus, it was held that deceit lay where the vendor of a house, knowing of a de- fect in a wall, plastered it up and papered it over."^ 6 3 Busch v. Wilcox, 82 Mich. 315, 46 N. W. 940. 64 Chisholm v. Gadsden, 1 Strob. (S. C.) 220; Lobdell v. Baker, 1 Mete. (Mass.) 193. And see Txyon v. Whitmarsh, 1 Mete. (Mass.) 1; Boyd's Ex'rs V. Browne, 6 Pa. St 310; Decker v. Hardin, 5 N. J. Law, 579; Bokee v. Walker, 14 Pa. St. 139; Rlieem v. Nan.ijatuck "Wheel Co., 33 Pa. St. 358; Miller V. Cui'tiss (Super. N. Y.) 15 N. Y. Supp. 140. Whtie a subscription for cor- porate stock is obtained by tlie representation that a prominent business man has subscribed for a large amount, and the fact that he paid nothing for his stock is concealed, such concealment makes the representation fraudulent. Coles V. Kennedy, 81 Iowa, 360, 46 N. W. 1088. Where, during negotiations for the sale of land, defendant, the owner, assures plaintiff that the title is good, and conceals from her the report that his grantor was insane at the time he parted with the land, and plaintiff on his representations pm-chased the land, which is afterwards recovered from her by the guardian of the de- fendant's gi-antor, who has been adjudged insane, such representations and concealments are fraudulent. Bums v. Dockray, 156 Mass. 135, 30 N. E. 551; Firestone v. Werner, 1 Ind. App. 293, 27 N. E. 623. 6 5 Cited In Pickering v. Dawson (1813) 4 Taunt. 779; Schneider v. Heath (1813) 3 Camp. 506: "If I sell a horse which has lost an eye, no action lies; but otherwise if I sell him with a counterfeit eye." Southerne v. Howe, 2 Kolle, 5. And see HiU v. Gray, 1 Starkie, 434. 576 MALICIOUS WRONGS. [Cli- 9 Suppression of truth, where there is a duty to spealc, is as much a legal wrong as a positive falsehood.^* Therefore children who permit a third person to purchase land of their father in the be- lief that he is mentally competent, and without any knowledge or information to the contrary, are estopped from asserting his in- competency , in a suit brought by them, as his heirs, to set aside 66 AUen V. Addington, 7 Wend. 9; Anon. (1876) 67 N.-Y. 598; Hotclikiss v. Third Nat. Bank, 127 N. Y. 329, 27 N. E. 1050; Stewait v. Wyoming Cattle Ranch Co., 128 U. S. 383, Sup. Ct. 101. "As to whether there is a duty to speak, on pain of being guilty of fraud by reason of silence," Peckham, .F., said, in Rothmiller v. Stein (N. Y. App.) 38 N. E. 718, "certain rules, have been laid down by the court, which differ somewhat in their breadth and scope with the different and varying circumstances under which they ai'e to be applied. The contract of marine or life insurance has been held to re- quire the exhibition of the very highest good faith on the part of the person desiring insurance, and he has been held liable for the concealment of any material facts known to him to exist, although such concealment was not fraudulent. On the other hand, in the case of a contract of guaranty, it has been held that the concealment of a fact, in order to vitiate the contract, must be fraudulent,— that is, concealed with a fraudulent purpose, with the intent to deceive. North British Ins. Co. v. Lloyd, 10 Exch. 523; Kidney v. Stoddard, 7 Mete. (Mass.) 252. In regai'd to sales of goods, the common law has adopted a rule which is not so strict as in the above classes of contracts. The great maxim, 'caveat emptor,' is by this law applied in a variety of cases, and, unless there be some misrepresentation or artifice to disguise the thing sold, or some warranty as to its character or quality, the vendee is bound by the sale, notwithstanding the existence of intrinsic defects and vices, known to the vendor and unknown to the vendee, materially affecting its value. 1 Story, Eq. Jur. (10th Ed.) §§ 212, 212a. This is the rule in re- gard to those who deal at arm's length with ea.ch other, and between whom there is no condition of special confidence or fiducial relationship existing In regard to the necessity of giving information which has not been asked, the rule differs somewhat at law and in equity, and while the lower courts would permit no recovery of damages against a vendor because of mere con- cealments of facts under certain circumstances, yet, if the vendee refuses to complete the contract because of the concealment of a material fact on the part of the other, equity would refuse to compel him so to do, because equity only compels the specific performance of a contract which is fair and open, and in regard to which all material matters known to each have been communicated to the other. Id. § 206. And the rule of caveat emptor, even in regard to the sale of chattels, is applied with certain restrictions, and is not permitted to obtain in a case where it 4s plain it was the duty of the vendor to acquaint the vendee with a material fact known to the former and Ch. 9] DECEIT. 677 the deed on that ground.^^ Suppression of truth may, moreover, become actionable. Therefore concealment, by the owner of a busi- ness enterprise, of a decline in its profits between the date of his agreement to sell and the signing of the contract of sale, is action- able when the purchaser has no opportunity to discover the de- cline, and has agreed to buy on the faith of representntions as to the prior rate of profit, having told the seller that he would not buy if there had been a decline."* If, however, there be no duty to disclose, failure to tell the truth is not actionable fraud."^ Thus deceit does not lie for leasing a house required for immediate occu- pation without disclosing that it is in a ruinous condition.^" 190. An action for fraud or deceit does not lie •where the representation complained of consists merely in — (a) An expression of opinion; (b) A representation of law; (c) A promise or representation as to future events. Expression of Opinion. Statements which purport to be mere opinion, as distinguished from statements of facts, cannot be made the foundation of recov- unknown to the latter. It has been held that it is the duty of one who is .abo\it to sell a flock of sheep to Inform the intending purchaser of the fact, if it be known to the vendor, of the existence of a highly contagious disease among the sheep to be sold, and that it is fraudulent suppression of a mate- rial fact if it is knowingly concealed." 6 7 Angiell V. Loomis, 97 Mich. 5, 55 N. W. 1008. And see Kidney v. Stod- dard, 7 Mete. (Mass.) 252. But see Cooley, Torts, 123. 8 8 Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368. And see French v. Vining, 102 Mass. 132. Cf. Wellington v. Downer Kerosene Oil Co., 194 Mass. 64. And see Crowell v. Jackson, 53 N. J. Law, 656, 23 Atl. 426; Burns v. Dockray, 156 Mass. 135, 30 N. E. 551; Coles v. Kennedy, 81 Iowa, 360, 46 N. W. 1088. A purchase of stock from a stockholder at a low price, by an officer of the corporation, is not fraudulent because such officei has knowledge in his offi- cial capacity of favorable sales of other stock, which enhanced the value of the stock generally, and of which fact the seller was Ignorant. Crowell v. Jackson, 53 N. J. Law, 656, 23 Atl. 426. OS See Lord Cairns, in Peek v. Gurney, L. R. 6 H. L. 377. 7 Keates v. Lord Cadogan (1851) 10 C. B. 591. Cf. Smith v. Marrable (1843) 11 Mees. & W. 5; Wilson v. Finch-Hatton (1877) 2 Exch. Div. 336; Sheldon LAW OF TORTS— 37 678 MALICIOUS WRONGS. [Ch. 9 ery." "The misrepresentation must relate to alleged facts, or to the condition of things as then existent. * * * It must be as to matters of fact substantially affecting his (the aggrieved party's) interest, not as to matters of opinion, judgment, probability, or ex- pectation. An assertion respecting them is not an assertion as to any existent fact. The opinion may be erroneous; the judgment may be unsound ; the expected contingency may never happen ; the expectation may fail."'" Thus, the phrase "worth so much" is a mere expression of an opinion; ''^ but to say that defendant "gave so much for" specified property has been held to represent a fact.''* So, to represent what dividends certain stock would pay in the V. Davidson, 85 Wis. 138/55 N. W. 161. Cf. Franklin v. Brown, 118 N. Y. 110, 23 N. E. 126. So, if defendant sell diseased pigs, under agreement that they should be taken "with all faults," no action lies for failure to disclose condi- tion. Ward V. Hobbs (1878) L. R. 4 App. Cas. 14. 71 Derry v. Peek, L. R. 14 App. Cas. 337; La Lievre v. Gould [1893] 1 Q. B. 491; Buschman v. Codd, 52 Md. 202; Holbrook v.' Connor, 60 Me. 578; Aetna Ins. Co. V. Reed, 33 Ohio St. 283; Jenne v. Gilbert, 26 Neb. 457, 42 N. W. 415 Fulton V. Hood, 34 Pa. St. 365; Haven v. Meal, 43 Minn. 315, 45 N. W. 612 Dornn v. Eaton, 40 Minn. 35, 41 N. W. 244; Rawson v. Harger, 48 Iowa, 269 Tuck V. Downing, 76 111. 71; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161 Crown V. Carriger, 66 Ala. 590; Belcher v. Ccstello, 122 Mass. 189; Nash v. Minnesota Title Ins. & Trust Co., 159 Mass. 437, 34 N. E. 625, and cases cited at page 440, 159 Mass., and page 625, 34 N. E.; Gordon v. Butler, 105 V. S. 553; Southern Development Go. v. Silva, 125 U. S. 249, 8 Sup. Ct. 881; Saw- yer V. Prickett, 19 Wall. 14G; Benton v. Ward, 47 Fed. 253; Id., 59 Fed. 411; Scrogin v. Wood, 87 Iowa, 497, 54 N. W. 437 (that a stallion would not pro- duce son-el colts). Cf. Peak v. Frost, 162 Mass. 298, 38 N. E. 518. '2 Appleton, C. J., in Long v. Woodman, 58 Me. 49, citing Pedrick v. Porter, 5 Allen, 324, to the effect that an action of tort for deceit in the sale of prop- erty does not lie for malicious and fraudulent representation concerning profits that may be made in the future. Hazard v. Irwin, 18 Pick. (Mass.) 95. 7 3 Harvey v. Young (1602) 1 Yel. 21. 7 4 Lindsay Petroleum Co. v. Hurd (1874) L. R. 5 P. 0. 243. And see Conlan V. Roemer, 52 N. J. Law, 53, 18 Atl. &5S; Smith v. Carlson, 36 Minn. 220, 30 N. W. 761; Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63; Page v. Parker, 43 N. H. 363. But see Hemmer v. Cooper, 8 Allen, 334;, Ekins V. Tresham, 1 Lev. 102; Dobell v. Stevens, 3 Barn. & C. 623; Cooper V. Loveriug, 106 Mass. 79; Holbrook v. Connor, 60 Me. 578. But see dissent- ing opinion of Dickerson, J., Bishop v. Small, 63 Me. 12. And see cases col- lected in Cooley, Torts (2d Ed.) 56. Where a stock of merchandise in a retail store was marked in both letters and figures, and the price Indicated by the Ch. 9] DECEIT. 579 future is to express an opinion,''^ but. to represent that stock had paid a specified rate of dividend at prior times is to state a fact.'" The reason, apparently, is that "if any one relies on mere opinion, instead of ascertaining facts, it is his own folly." '''' However, in some cases an opinion is regarded as substantially a fact, for the misrepresentation of which an action for deceit will lie. Thus, a misrepresentation that "the parties were good" creates liability in deceit on the part of persons making such statement, if they, are not parties to the contract.'^ Indeed, perhaps the true view of the law is that an expression of an opinion not honestly entertained, and intended to be acted upon, cannot, in many cases, be regard- ed otherwise than as a fraud.''* The fact that an opinion is a state of the mind is no insuperable objection. "The state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what is the state of a man's mind at a particular time; but, if it can be ascertained, it is as much letters was known only to the seller, representations as to what the private marks indicated are not representations as to value, nor expressions of opinion. Elerick v. Reid, 54 Kan. 579, 38 Pac. 814. 7 5 Robertson v. Pai-ks, 76 Md. 118, 24 Atl. 411; Totten v. Burhans, 91 Mich. 495, 51 N. W. 1119. 76 Handy v. Waldron (R. I.) 29 Atl. 143. And, generally, see Crane v. Elder, 48 Kan. 259, 20 Pac. 151; Childs v. Merrill, 63 Vt. 463, 22 Atl. 626; Winston V. Young, 47 Minn. 88, 49 N. W. -121; ante, note 50. 7 7 Sieveking v. Litzler, 31 Ind. 13. 78 Pasley v. Freeman, 3 Term R. 51; Robbins v. Barton, 50 Kan. 120, 31 Pac. 686; Blecher v. Costello, 122 Mass. 189; Kinkier v. Jurica, 84 Tex. 116, 19 S. W. 359; Medbury v. Watson, 6 Mete. (Mass.) 246; Pilcher v. Levino (Sup.) 30 N. Y. Supp. 314; Busterad v. FaiTington, 36 Minn. 320, 31 N. W. 360. And see Marsh v. Falker, 40 N. Y. 562; Percival v. Harres, 142 Pa. St. 369, 21 Atl. 87C; Dotly v. Campbell, 1 How. Prac. (N. S.) 101; Lyons v. Briggs, 14 R. I. 222; Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Jude v. Woodburn, 27 Vt.'415; Hubbell v. Meigs, 50 N. Y. 480^89; Hickey v. Morrell, 102 N. Y. 454-463, 7 X. E. 321. But see Nevada Bank v. Portland Nat. Bank, 59 Fed. 338 disapproving Hopkins v. Cooper, 28 Ga. 392, and Glover v. Townshend, 30 Ga. 92. 70 Willes, J., in Anderson v. Pacific Ins. Co., L. R. 7 C. P. 65, 69. But see Lord Cairns, in Peek v. Guemey, L. R. 6 H. L. 377; Hickey v. Morrell, 102 N. y. 454, 7 N. E. 321 (fireproof warehouse). Estimate of timber is a matter of fact, not of opinion. Chase v. Boughton, 93 Micli. 285, 54 N. W. 44, Grant, J., dissenting. And see Glaspie v. Keator, 5 C. C. A. 474, 56 Fed. 203. Rep- 580 MALICIOUS WRONGS. [Cll- 9 a fact as anything else." '" Therefore, it is an actionable misrep- resentation for directors issuing a prospectus inviting subscriptions to represent that funds really to be used to pay pressing debts are intended to be used in extending the business operations."^ The proper view of these cases is that there is an exception as between Aiendor and vendee.^^ Exaggerated praise is not actionable.^^ Hence, statements as to value,** and "those vague commendations of wares which manifestly are open to difference of opinion, which do not imply untrue assertions concerning matters of direct ob- servation, and as to which it has always been understood the world over that such statements are to be distrusted," are not action- able.*' But where land is given by the owner in trade with a person located far away from such land, who accepts it as describ- ed by the owner, without examining it, such person may recover for intentional misrepresentations made by the owner as to the con- dition and value of the land.*" An action for damages for false resentations that a corporation is "prosperous," "well organized," "doing a large business," and the like have been held to be actionable, if fraudulently made as statements of fact and not of mere opinion. Nevada Bank v. Port- :and Xat. Bank, 59 Fed. ?38. See. als". Heriin v. Institute (Minn.) 64 N. W. 158. so Bowen, L. J., in Edgington v. Fitzmaurice, 29 Ch. Div. 459. 81 Edglngton v. Fitzmaurice, supra. And see Jorden v. Money, 5 H. L. Cas. 185. 82 Clerk & L. Torts, 393. S3 Columbia Electric Co. v. Dixon, 46 Minn. 463, 49 N. W. 244 (value of as- sets and patents of electric company are largely matters of opinion). In other words, a certain amount of "putfing" is allowed. Directors v. Kisch, L. R. 2 H. L. 99. 84 Shanks v. Whitney, 6C Vt. 405, 29 Atl. 367. Of. Baum v. Holton, 4 Colo. App. 406, 36 Pac. 154. 85 Holmes, J., in Demming v. Darling, 148 Mass. 504, 505, 20 N. E. 107; Teague v. Irwin, 127 Mass. 217; Harvey v. Young, Yel. 21a; 1 Benj. Sales, c. 2. See Bicknall v. Waterman, 5 R. I. 43; Gordon v. Parmelee, 2 Allen (Mass.) 214; Mooney v. Miller, 102 Mass. 217; Cooper v. Lovering, 106 Mass. 77; Bishop v. Small, 63 Me. 12; Bro-roi v. Leach, 107 Mass. 367; 8 Am. & Eng. Enc. Law, p. 809, and cases cited in notes 7 and 8. See, also, Story, Sales (2d Ed.) §§ 3G0, 361; Nash v. Trust Co., 159 Mass. 437, 34 N. E. 625; Chandelor v. Lopus, 1 Smith, Lead. Cas. 294, and note on pages 320, 321. The law as to a warranty of value is well stated by Campbell, J., in Picard v. McCormack, 11 Mich. 73. 86 Stevens v. Allen, 51 Kan. 144, 32 Pac. 922; Henderson v. Henshall, 4 C. Gh. 9] DECEIT. 581 representations as to title, made in the sale of lands, may be main- tained, though the deed contained no covenants.*^ The doctrine of caveat emptor is not apijlicaltle in an action for damages for inducing the plaintiff, by false representations, to take an assign- ment of a lease executed by one who had no title to the land.''' Representations of Law, A misrepresentation of law is not considered as amounting to fraud, because, as it is generally said, all persons are presumed to know the law; and it might perhaps be added that such a state- ment would rather be the e^tpression of an opinion than the asser- tion of a fact.^° Therefore the representations by the agent of a corporation that its stock is not assessable beyond a certain per C. A. 3.57, 54 Fed.* 320; Griffing v. Diller, 66 Hun, 633, 21 N. Y. Supp. 407. "Whenever a sale is made of a property not present, but at a remote dis- tance, which the seller knew that the purchaser has never seen, but which he buys upon the representation of the seller, relying on its truth, then the representation in effect amounts to a wairanty, at least that the seller will make good the representation." Smith v. Richards, 13 Pet. (U. S.) 20; Harris v. McMurray, 23 Ind. 9; McCullen v. Scott, 24 Wis. 84; Bolds v. Woods, 9 Ind. 657. 36 N. E. 933. 8T Barnes v. Union Pac. Ky. Co., 4 C. C. A. 199, 54 Fed. 87; Saguin v. Sied- entopf, 88 Iowa, 723, 54 N. W. 430. 8 8 Cheney v. Powell, 88 Ga. 629, 15 S. E. 750; Williamson v. Woten, 132 Ind. 202, 31 N. E. 791; Speed v. HoUingsworth, 54 Kan. 436, 38 Pac. 496; Fargo Gas & Coke Co. v. Fargo Gas & Electric Co. (N. D.) 59 N. W. 1066; Brady v. Finn, 162 Mass. 2G0, 38 N. E. 506; Bloomer v. Gray, 10 Ind. App. 326, 37 N. E. 819; Davis v. Jenkins, 46 Kan. 19, 26 Pac. 459. so 2 Pom. Eq. Jur. 877. And see Bank of U. S. v. Daniel, 12 Pet. 32. "A representation of what the law will and will not permit to be done is one on which the party to whom it is made has no right to rely, and, if he does so, it is his own folly, and he cannot ask the law to relieve him from the con- sequences. The tnith or falsehood of such a representation can be tested by ordinary vigilance and attention. It is an opinion in regard to the law, and is always understood as such." Fish v. Oleland, 33 111. 238. And see Aetna Ins. Co. v. Beed, 33 Ohio St. 283; Townsend v. Co^Yles, 31 Ala. 428; Leham v. Shackleford, 50 Ala. 437; The Belfast v. Boon, 41 Ala. 50; Mayhew v. Phoenix Ins. Co., 23 Mich. 105; Clem v. Newcastle & D. R. Co., 9 Ind. 488; Burt v. Bowles, 69 Ind. 1; Thompson v. Phcenix Ins Co., 75 Me. 55; Gormely v. Gymnastic Ass'n of South Side, 55 Wis. 350, 13 N. W. 242; Jaggar v. Winslow, 30 Minn. 263, 15 N. W. 242; People v. San Francisco, 27 Cal. 655; Lexow v. Julian, 21 Hun, 577; Starr v. Bennett, 5 Hill, 303; Lewis V. Jones, 4 Barn. & C. 506; 2 Aust. Jur. 172; Kerr, Fraud & M. 397. As to 5S2 MALICIOUS WRONGS. [Ch. 9 . cent, of its value constitutes no defense to an action, against holders of the stock, to enforce payment of the entire amount subscribed, where he has failed to use due diligence to ascertain the truth or falsity of such representations."" The line of distinction, however, between a statement of a fact and a statement of law, is often in- distinct. "There is not a single fact connectied with personal status that does not more or less involve a question of law. * * * It is not less a fact because that fact involves some knowledge or rela- tion of law." *^ Ignorance of the law signifies ignorance of the laws of one's own country."^ Ignorance of the laws of a foreign govern- ment is ignorance of fact.*^ Therefore an immigrant just arrived, meeting an old citizen, who professes familiarity with the law of land titles of the country, may successfully complain of a misrepre- sentation as to the title of land."* Promise. A malicious representation or concealment must be of an existent fact.*"* A representation or assurance in relation to a future event rescission of contract for misrepresentation of law, see Upton v. Ti-ibilcock, 91 U. S. 45. »o Upton V. Tribllcock, 91 U. S. 45 (this leading case has oeen, cited with approval more than 30 times in various federal reports). «i Jessel, M. R., in Eaglesfield v. Londonderry (1876) L. R. 4 Ch. Div. 693- 703. And see West London Com. Bank v. liitson, 13 Q. B. Div. 360. So, misrepresentation to a depositor that the directors and stockholders of a bank are personally liable may be actionable. Westervelt v. Demarest, 46 N. J. Law, 37; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161. »2 Storrs V. Barker, 6 Johns. Ch. 166-169. S3 Haven v. Foster, 9 Pick. (Mass.) 112-130. 94 Morland v. Atchinson, 19 Tex. 303. Cf. Abbott v. Treat, 78 Me. 121-126, 3 Atl. 44. And see Cheney v. Powell, 88 Ga. 629, 15 S. E. 750. 9s Representations as to the harvest which a given land would raise cannot be regarded as fraudulent. Holton v. Noble, 83 Cal. 7, 23 Pac. 58. And see Morey v. Miller, 102 Mass. 217. Nor a vendor's assurance that a dam would always continue to furnish a full amount of power in the future, where the vendee had equal opportunity for estimate. Morrison v. Koch, 32 Wis. 254; Patterson v. Wright, 64 Wis. 289-291, 25 N. W. 10. Promises as to what a quartz mill wiU pay are not actionable. Pedrick v. Porter, 5 Allen (Mass.) 324. While representations as to past business are material and actionable, it is in general otherwise as to future profits. Markel v. Moudy, 11 Neb. 213, 7 N. W. 853. And see (Dom. v. Mechanics' Ins. Co., 120 Mass. 496. Cf. Pru- Ch. 9] DECEIT. 583 iss not, in the criminal law, a false pretense."^ On tke same princi- ple, an actionable misrepresentation must relate to a present or past state of facts, and an action of deceit does not lie for failure on the part of a promisor to perform a promise made by him to do some- thing in the future, which he does not intend to do, and subsequently refuses to do, although the promisee has so altered his position, in reliance on such promise, that he is thereby damaged.®' Therefore, where a vendee of goods promises to give a good and sufficient bond to reconvey,"' or to indorse the note of another if the vendor would dential Assur. Co. v. Aetna Life Ins. Co., 23 Fed. -iSS; Hale v. Continental IJfe Ins. Co., 12 Fed. 359. But see Rohrschneidgr v. Knickerbocker Life Ins. Co., 7« N. Y. 216; Miller v. Barber, 66 N. Y. 558; United States Ins. Co. v. Wright, 33 Oliio St. 533. Proposed plans were relied on in tbe purchase of land on which houses were to be built, and it was held that the representations were as to the future, and therefore not binding. Squire v. Campbell, 1 Mylne & C. 459; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313; Knowlton v. Keenan, 146 Mass. 86, 15 N. B. 127; Saunders v. McClintock, 46 Mo. App. 216; Gage V. Lewis, 68 111. 604; Lawrence v. Gayetty, 78 Cal. 126, 20 Pac. 382; Haenni v. Bleisch, 146 111. 262, 34 N. E. 153; Gray v. Manufacturing Co., 127 111. 187, 19 N. E. 874; Williams v. Kerr, 152 Pa. St. 560, 25 Atl. 618; Moore v. Cross (Tex. Civ. App.) 26 S. W. 122. SB State v. Magee, 11 Ind. 154. And see Ranney v. People, 22 N. Y. 413. 07 Fenwick v. Grimes, 5 Cranch, C. C. 439, P^ed. Cas. No. 4,733; Robertson v. Parks, 76 Md. 118, 24 Atl. 411; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; Bigelow, Frauds, 11, 12. This is a part of the general proposition that repre- sentations having reference merely to the future constitute no ground of ac- tion or defense. Saunders v. McClintock, 46 Mo. App. 216; Robertson v. Parks, 76 Md. 118, 24 Atl. 411. 9 8 Long V. Woodman, 58 Me. 49. So if vendor promises to pay off incum- brances, and that his wife should join in a deed. Burt v. Bowles, 69 Ind. 1-6. "I have always understood it to have been decided in Jorden v. Money, 5 H. L. Cas. 185, that the doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged to be at the time actually in existence, and not to promises de futuro, which, if binding at all, must be binding as contracts." Madson v. Alderson, 8 App. Cas. 467-173. In .Jorden v. Money, 5 H. L. Cas. 185 (and see 6 H. L. Cas. 380, 10 H. L. Cas. 677), a father who could have set aside a deed to L. for want of consideration did not do so because L. agreed that she would never sue the father's son, about to be married, on certain bonds. Accordingly, the father allowed the conveyance to stand, and died. The misrepresentation was held not to be of existing facts, but of intention, and therefore of no legal efCeet. And see Insurance Co. v. Mowry, 96 U. S. 544; Insuianee Co. v. Bggleston, Id. 572-578; Allen v. Rundle, 584 MALICIOUS WRONGS. [Ch. 9 sell him the goods,°° or to deliver possession of premises at a future day/"" the vendor cannot recover upon the vendee's failure to per- form his promise, notwithstanding his damage, and the vendee's fraudulent intention.^"^ 50 Conn. 9; Jackson v. Allen, 120 Mass. 64, 79; Langdon v. Doud, 10 AKen (Mass.) 433. 8» Gallager v. Brunei, G Cow. 346. A representation by defendant that plain- tifE could have possession of a certain building on property leased to plaintiff on a certain date, several months after the making of such representation, is not actionable, though such event did not occur, in that it relates to a future, or not to a past or present event. Sheldon v. Davidson (Wis.) 55 N. W. 161. And see Robertson v. Parks, 76 Md. 118, 24 Atl. 411. So where a retiring officer promises to pay an overdraft which he induced his successor to charge to himself. State v. Prather, 44 Ind. 287. 100 Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161. And see Morrison v. Koch, 32 Wis. 254, where it was held not to be an actionable misrepresentation that a certain dam would always in the future continue to furnish the full amount of power conveyed. 101 And see Gage v. Lewis, 68 HI. 604; Hazlett v. Bm'ge, 22 Iowa, 535; Lexow V. Julian, 21 Hun (N. Y.) 577; Starry v. Korab, 65 Iowa, 267, 21 N. W. 600; Farrar v. Bridges, 3 Humph. (Tenn.) 566; Welz v. Rhodius, 87 Ind. 1; Sievek- ing V. Litzler, 31 Ind. 13; Shropshire v. Kennedy, 84 Ind. Ill; Fenwick v. Grimes, 5 Craneh, C. C. 439, Fed. Cas. No. 4,733; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313. "The law gives a different effect to a representation of ex- isting facts from that given to a representation of facts to come into existence. To make a false representation the subject of indictment or action, two things must coincide: A statement likely to impose on one of ordinary prudence and caution, and that it should be a statement of existing facts. The law also gives a different effect to those promissory statements based on general knowl- edge, information, and judgment, and those representations which, from knowledge peculiarily his own, a party may certainly know will prove true or false." Sawyer v. Prickett, 19 Wall. (U. S.) 146-160. "Promissory statements may be made in terms which imply that a certain condition of things exists at the time, and formed the basis of a promised future condition of things. When they are of this description, if they are intentionally false, they are fraudu- lent, and form the basis of the right of rescission; but otherwise fraud cannot be predicated of promises not performed for the purpose of avoiding a con- tract. Like untruthful expressions of expectation or opinion, even though meant to deceive, they are not fraudulent in legal definition, because they are not misrepresentations of existing facts." Applied to a prospectus, Banque V. Brown, 34 Fed. 192. And see New Brunswick Ry. v. Conybeare, 9 H. L. Cas. 711. But see Goodwin v. Home, 60 N. H. 485; Turnipseed v. Hudson, 50 Miss. 429. Ch. 9] DECEIT. 585 191. In an action for deceit, it is immaterial whether the false representation was made to the plaintiff, or to some other person,'"^ provided there was an inten- tion, express or implied, of inducing the plaintiff to act w^ith respect — Ca) To himself, without reference to other specific per- sons; (b) To other specific persons; (c) To the person making the statement.'"' In the commonest case of false representation, the expression or suppression of the truth is made directly to the plaintiff, in person. But "every man must be held liable for the consequences of a false representation made by him to another, upon which a third person acts and by so acting is injured or damnified, provided it appears that such false representation was made with the intent that it should be acted upon by such third person in the manner that occa- sions the injury or loss. But, to bring it within the principle, the injury, I apprehend, must be the immediate, and not the remote, consequence of the representation thus made." ^°* This will ap- pear fully in consideration of the cases (immediately following) as to the person whom the defendant's misrepresentation has induced to act. Inducing Acts on the Plaintiff"'s Behalf. The law has recognized a distinction between a representation made by a vendor of property, and one made by an apparently dis- interested third party. In the former case, there may be liability; in the latter, not.^"" But the law recognizes that the natural effect of fraudulent representation is not necessarily confined within so narrow a scope. The statement need not be made to the injured party. Thus, if one sell a gun, representing that it was safe, and the vendee's son is injured by its explosion, he can recover damages 102 When made to plaintiff's agent, they are made to plaintiff. Culliford V. Gadd (Super. N. Y.) 17 N. Y. Supp. 451, 18 N. Y. Supp. 208. 103 Pig. Torts, 254. 104 Barry v. Croskey, 2 Johns. «& H. 1. 10 5 Medbury v, Watson, 6 Mete. (Mass.) 246. 586 MALICIOUS WRONGS. {.^h. 9 therefor."' And, even where there is nothing of danger involved, there may be liability to third persons because of fraudulent repre- sentations. Thus, if a letter containing false representations as to facts in connection with property (as mortgage bonds to be sold), and not merely with reference to matters of opinion, induce not merely the person to whom it is addressed, but also other persons to whom it was shown, to invest, such representations are actionable.^"^ But such liability would not extend to those who afterwards bought of such purchasers, since the letter was not intended to aid the first purchasers in selling to others.^"* The principle seems to be that a representation, whatever be its nature, cannot be supposed to continue forever, but that there is a reasonable time within which the plaintiff must act upon it, and a reasonable limitation to be placed upon the successive classes of persons who act upon it, so as to be able to rely upon the fraud."' Advertisements made to the public generally, as a false statement in a time-table as to the running of trains,^^" or to certain classes 10 Langridge v. Levy, 2 Mees. & W. 519, 4 Mees. & W. 337. And see Bodger y. Nicholls, 28 Law T. (N. S.) 441; Ward v. Hobbs. 4 App. Cas. 13. In George v. Skivington, L. R. 5 Exch. 1, the wife of a vendee was injured by using a bottle of hair wash. Baron Cleasby said: "Substitute the word 'neg- ligence' for 'fraud,' and the analogy of Langridge v. Levy and this case is complete." This seems to practically overrule Longmeid v. HoUiday, 6 Exch. 761. And see MuUett v. Mason, L. R. 1 C. P. 559, where damages were re- covered which were caused by spreading of a contagious disease through an animal sold. Cf. Hill v. Balls, 2 Hurl. & N. 298; 27 Law J. Exch. 45, with State V. Fox (Md.) 29 Atl. 60, as to damages consequent on sale of a glan- dered horse. Merguire v. O'Donnell, 103 Cal. 50, 36 Pac. 1033. And see Ran- dall V. Roper, 27 Law J. Q. B. 266, EL, Bl. & El. 84; Dingle v. Hare, 7 C. B. (N. S.) 145, 29 Law J. C. P. 143; CoUen v. Wright; 7 El. & Bl. 301, 26 Law J. 6 N. W. 774; Id., 100 Mich. 162, 58 N. W. 651; Walker v. Anglo- American Mortg. & Trust Co., 72 Hun, 334, 25 N. Y. Supp. 432; Hoist v. Stewart, 161 Mass. 516, 37 N. E. 755 (frequency of arrival and departure of trains). Ch. 9] DECEIT. 59.J decoit in misrepresenting the manner in which a right of way over the premises had been used."^ Perhaps as definite a test of the materiality of a misrepresentation as can be generally stated is this: A statement is always material when the person to whom it is made would not have acted as he did, had he not believed and re- lied on it.^" Conduct of Plaintiff as a Bar to Relief. There are many circumstances under which no complaint can be heard from a person charging deceit. Between joint tort feasors in deceit, there is no cause of action for contribution after judgment rendered against one or more of them. Nor can one of such persons sue the other directly.^ ^^ Moreover, the law is inclined to apply broadly the equitable principle in pais to fraudulent misrepresenta- tions.^ ^° The commonest form of conduct which will prevent re- covery in deceit may, with some latitude of meaning, be conven- iently called contributory negligence. Contrihutory Negligence. No man can recover for harm he has inflicted on himself. If his own negligence has been the cause of his damage, he cannot re- cover for it. But, in order that negligence should exist, it is neces- sary that he should have been guilty of failure to exercise care, un- der such circumstances as placed on him the duty of exercising dili- gence. The law recognizes, in many circumstances, the right of one man to rely upon the statements of another. Hence, it is not often such negligence to be credulous, or to fail to use such means of ascertaining the truth as may easily be at hand, as will prevent recovery. There is, indeed, a strong inclination on the part of courts to hold, without any qualification, that a person guilty of a fraudu- 153 Palmer v. Bell, 85 Me. 352, 27 Atl. 250; Winston v. Young, 52 Minn. 1, 53 N. W. 1015. 164 McAleer v. Horsey, 35 Md. 439; Powers v. Fowler, 157 Mass. 318, 32 N. E. 166; Hoist v. Stewart, 161 Mass. 516, 37 N. E. 755; Reid v. Cowdu- roy, 79 Iowa, 169, 44 N. W. 351. 15= Ante, p. 209, "Joint Tort Feasors." A fraudulent transaction in which both parties have knowingly participated will not support a judgment for plaintiff, nor a judgiment for affirmative relief for defendant. Buchtella v. Stepanek, 53 Kan. 373, 36 Pac. 749. 158 Ellis V. Newbrough (N. M.) 27 Pac. 490. 596 MAI.li'IDUS WRONGS. [Ch. 9 lent misrepi^esentation cannot escape the effects of his fault on the ground of the injured party's negligence.^" "The doctrine is well settled, as a rule, that a party guilty of fraudulent conduct shall not be allowed to cry 'Negligence,' as against his own deliberate fraud." "s A man may act ujjon the positive representation of a fact, al- though means of obtaining correct knowledge were immediately at hand, and open to him.^''* Thus, where the seller of a boat falsely represented that there were no claims against it, knowing the rep- resentations to be false, it was no defense to an action for the deceit that the buyer could have ascertained the fact by a search of the records, but failed to do so.^°° On the same principle, representa- 157 Alfred Shrimpton & Sons v. Pbllbrick, 53 Minn. 366, 5.5 N. W. 551; Stew- art V. Stearns, 63 N. H. 99; Dambmann v. Schulting, 75 N. Y. 55; Oottrill v. ICrum, 100 Mo. 397, 13 S. W. 753; David v. Park, 103 Mass. 501; Mead v. Bunn, 32 N. Y. 275; Warder, Biishnell & Glessner Co. v. Whitish, 77 Wis. 430, 46 X. W. 540; Eaton v. Winnie, 20 Mich. 156; Kendall v. Wilson, 41 Vt. 567; Pierce v. Wilson, 34 Ala. 596; Hale v. Philbriclr, 42 Iowa, 81; Sutton v. Mor- gan, 27 Atl. 894; Hicks v. Stevens, 121 111. 186, 11 N. E. 241; Endsley v. Johns, 120 111. 469, 12 N. E. 247; Linington v. Strong, 107 111. 295; Ladd v. Pigott, 114 HI. 647, 2 N. B. 503; Oswald v. McGehee, 28 Miss. 340; McOlel- lan V. Scott, 24 Wis. 81; Walsh v. Hall, 66 N. 0. 233; Chamberlin v. EMiller, 59 Vt. 247, 9 Atl. 832; Bedding v. Wright, 49 Minn. 322, 51 N. W. 1056; Por- ter V. Fletcher, 25 Minn. 493; Gammill v. Johnson. 47 Ark. 335, 1 S. W. 610; Erickson v. Fisher, 51 Minn. 300, 53 N. W. 638. 158 Linington v. Strong, 107 111. 295; Lord Chelmsford, in Directors v. Kisch, L. R. 2 H. L. 99-120; Stewart v. Stearns, 03 N. H. 99. And see Damb- mann V. Schulting, 75 N. Y. 55; Burroughs v. Pacific Guano Co., 81 Ala. 255, 1 South. 212; Brooks v. Matthews, 78 Ga. 739, 3 S. E. 027; Taylor v. Fleck- enstein, 30 Fed. 90; Keller v. Orr, 106 Ind. 406, 7 N. E. 195; Wallace v. Chi- cago, St. P., M. & O. Ry. Co., 07 Iowa, 547, 25 N. W. 772; Bowers v. Thomas, C2 AVis. 480, 22 N. W. 710; First Nat. Bank v. Deal, 55 Mich. 592, 22 N. W. 53; McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818; Smith v. Smith, 134 N. Y. 62, 31 N. E. 258; Rider v. Kelso, 53 Iowa, 367, 5 N. W. 509; Baker v. Lever, C7 N. Y. 304; Jackson v. CoUins, 39 Mich. 557; Ledbetter v. Davis, 121 Ind. 119, 22 N. E. 744; Hanscom v. DruUard, 79 Cal. 234, 21 Pac. 736; Lewis v. Jewell, 151 Mass. 345, 24 N. E. 52; Clark v. Ralls (Iowa) 24 N. W. 567; Ken- ner v. Hai-ding, 85 111. 264. 169 Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432. 16 Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Wheeler v. Baars, 33 Pla. 696, 15 South. 584. And see Davis v. Jenkins, 46 Kan. 19, 26 Pac. 459; Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798. See, on this, Kiefef ■». Rogi- Ch. 9] DECEIT. 597 tions as to the value of stock or profits of a business may be action- able, although the plaintiff could have ascertained their falsity by examination of books open to him.^"^ He need not have an expert verify the statements, although he is entitled to do so.^"^ One who has induced an agent to purchase a railroad bond by representing that it was an "A No. 1" bond, and that the railroad was good se- curity therefor, is not liable in an action for fraudulent representa- tions, where he was known by the agent to stand in the position of a seller, and the market price of the bond was easily ascertaina- bla^^s "Every contracting party has an absolute "right to rely on the express statement of an existing fact, the truth of Avhich is known to the opposite party and unknown to him, as the basis of a mutual engagement; and he is under no obligation to investigate and verify statements, to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged his faith." ^^* The law is not blind to the fact that communilies are composed of individuals of varying degrees of intelligence and ca- ers, 19 Minn. 32 (Gil. 14); Porter v. Fletcher, 25 Minn. 493; Griffin v. Farrier, 32 Minn. 474, 21 N. W. 553; Reynolds v. Franklin, 39 Minn. 34, 38 N. W. 63G; Erickson v.'Bennet, 39 Minn. 320, 40 N. W. 157. Deceit may lie although the deed to land contains no covenants. Barnes v. Union Pac. Ry. Co., 4 C. C. A. 199, 54 Fed. 87. Cf. Saguiiin v. Siedentopf (Iowa) 54 X. W. 430. leiBlacknall v. Rowland, 108 N. C. 554, 13 S. E. 191; Redding v. Wright, 49 Minn. 322, 51 N. "W. 1056. And see Taylor v. Saurman, 110 Pa. St 3, 1 Atl. 40; Dobell v. Stevens (1825) 3 Barn. & 0. 623; Baily v. Men-ell, 3 Bulst. 9."). So misrepresentation as to frequency of running of trains may be ac- tionable, despite access to time tables on plaintiff's part. Hoist v. Stewart, 161 Mass. 516, 37 N. B. 755. So, with reference to statements as to the char- acter of land which plaintiff could, but in fact did not, inspect Brady v. Finn, 162 Mass. 260, 38 N. E. 506; Henderson v. Henshall, 4 C. C. A. 357, 54 Fed. 320; Stevens v. Allen, 51 Kan. 144, 32 Pac. 922. But see Armstrong V. White (Ind. App.) 34 N. E. 847. 162 Blaeknall v. Rowland, 108 N. C. 554, 13 S. E. 191. 163 Denning v. Darling, 148 Mass. 504, 20 N. E. 107. 164 Porter, J., in Mead v. Bunn, 32 N. Y. 27.5-280. And see Cottrill v. Krum, 100 Mo. 397, 13 S. W. 753; Eaton v. Winnie, 20 Mich. 156: Duff v. Williams, 85 Pa. St 490; Bird v. Kleiner, 41 Wis. 134; Pomeroy v. Benton, 57 Mo. 531; Wharf v. Roberts, 88 111. 426; Stewart v. Stearns, 63 N. H. 99; McCibbons v. Wilder, 78 Iowa, 531, 43 N. W. 520; Faribault' v. Safer, 13 Miun. 223 (Gil. 210); Kiefer v. Rogers, 19 Minn. 32 (Gil. 14); Burr v. Willson, 22 598 MALICIOUS WRONGS. [Ch. 9 pacity.^" "It is as much actionable fraud willfully to deceive a credulous person with an improbable falsehood as it is to deceive a cautious, sagacious person with a plausible one. The law draws no line between the two falsehoods." ^"^ However, the law recognizes that if one's own failure to exercise the precaution a reasonable man would take under the circum- stance's has caused the damage to himself, he cannot recover; but the law does not proceed on the theory of the merits of the plain- tiff, or the demerits of the defendant.^*^ Therefore, under extra- Minn. 206; Porter v. Fletcher, 25 Minn. 493; Olson v. Orton, 28 Minn. 36, 8 N. W. 878; Maxfleld v. Schwartz, 45 Minn. 150, 47 N. W. 448. But see Bigelow, Frauds (Ed. 1888) 522. Cf. page 523, etc., Kerr, Fraud & M. 80. "Men in business transactions of this kind are authorized to trust one an- other, and not act as though those with whom they deal are untruthful and dishonest. When, therefore, one having peculiar knowledge of a sub- ject makes representations touching it to another having) no knowledge thereof, which operate as an inducement to him to enter into a contract with the maker of the i-epresentations, involving such subject, he may rely upon such representations, and is not required to make inquiry or investigation as to their truth." Clark v. Ralls (Iowa) 24 N. W. 567: 166 Mitchell, C. X, in Ingalls v. Miller, 121 Ind. 188-191, 22 N. E. 995, quot- ing McKee V. State, 111 Ind. 378, 12 N. E. 510: "The design of the law is to protect the weak and credulous from the wiles and stratagems of the art- ful and cunning, as well as those whose vigilance and sagacity enable them to protect themselves." 166 Barndt v. Frederick, 78 Wis. 1, 47 N. W; 6; Pearl v. Walter, 80 Mich. 317, 45 N. W. 181; Leland v. Goodfellow, 84 Mich. 357, 47 N. W. 591; Red- ding V. Wright, 49 Minn. 322, 51 N. W. 1056. In an action for damages against the administratrix of one who fi-audulently induced plaintiff to ex- change land for certain other property, evidence that at the time of the ex- change plaintiff was of a weak mind is competent in order to show a suscep- tibilitj- to intestate's representations. Bloomer v. Gray, 10 Ind. App. 326, 37 N. E. 819. 167 See Bigelow, Frauds (Ed. 1888) 523; Walsh v. Hall, 66 N. C. 233; Oottrill V. Krum, 100 Mo. 397, 13 S. W. 753. Especially in all cases where actual fraud is not made out, but the imputation rests upon conjecture, where the seal of death has closed the lips of those whose character Is involved, and lapse of time has impaired the recollection of transactions, and obscured their details, the welfare of society demands the rigid enforcement of the rule of diligence. Fuller, 0.- J., in Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418. Even in cases wliere the misrepresentations are in reference to material facts affecting the value of property, and not merely expressions Ch. 9] DECEIT. 599 ordinary circumstances, false representations respecting title, in- ducing the making of a conveyance, may entitle the grantor to a remedy for deceit.^''^ A grantor who executes a deed to real estate, trusting to the assurance of the grantee that it would convey noth- ing, cannot recover for the alleged fraudulent representations, es- pecially if the means of information are equally open to both par- ties, and the grantor consults his attorney with reference to the deed.^'" Misrepresentations may be so extravagant that no reason- ably prudent man would have believed in or relied on them. Such of opinion or .iudgment, the law holds that the person to whom such repre- sentations are made has no right to rely upon them if the facts are within his observation, or if hs has equal means of knowing the truth, or by the us% of reasonable diligence might have ascertained it, and is not induced to forego further inquu-y which he otherwise would have made. Foster, J., In Palmer v. Bell, 85 Me. 352, 27 Atl. 250, 251; Gordon v. Parmelee, 2 Allen (Mass.) 212-214; Savage v. Stevens, 126 Mass. 207-208; Rhoda v. Annis, 75 Me. 17-27; Brown v. Leach, 107 Mass. 364; Parker v. Moulton, 114 Mass. 99; Veasey v. Doton, 3 Allen (Mass.) 380; Bradbury v. Haines, 60 N. H. 12;i- 124. "The common law affords to eveiT one reasonable protection against fraud in dealing, but it does not go the romantic length of giving indemnity against the consequences of indolence and folly, or a cai'eless indifference to the ordinary and accessible means of information." 2 Kent, Comm. (13th Ed.j 485. In a proceeding to enforce specific performance of a written con- tract, a plea of fraud, even if it involved a want of prudence in relying on fraudulent representations on the part of the party resisting such perform- ance, may l">e relied on as a defense, as showing that the contract was not valid. AUltman v. Olson, 34 Minn. 450, 26 N. W. 451; Frohreieh v. Gammon, 28 Minn. 470, 11 N. W. 88; Miller v. Sawbridge, 29 Minn. 442, 13 N. W. 671; Albany City Sav. Inst. v. Burdick, 87 N. Y. 40; Linington v. Strong, 107 111. 295; Gardner v. Trenary, 65 Iowa, 646, 22 N. W. 912; Thoroughgood's Case, 2 Coke, 9; Stanley v. McGauran, L. R. 11 Ir. 314; Redgrave v. Hurd, 20 Ch. Div. 1, 13; Pol. Cont. 401 et seq., and cases cited; Bigelow, Frauds, 523- 525. Maxfield v. Schwartz, 45 Minn. 429, 47 N. W. 448. It has, however, been held that laches which may prevent a purchaser from rescinding the contract of sale for fraud will not prevent her from maintaining an action for damages sustained by the fraudulent misrepresentation, where such ac- tion is not barred by any statute of limitation. Griffin v. Diller, 66 Hun, 033, 21 N. Y. Supp. 407. 108 But see Robins v. Hope, 57 Cal. 493. 169 Cobb V. Wright, 43 Minn. 83, 44 N. W. 662; Slaughter v. Gerson, 13 Wall. 379; Brown v. I^ach, 107 Mass. 304; Parker v. Moulton, 114 Mass. 99; Aetna Ins. Co. v. Reed, 33 Ohio St. 283; MoiTill v. Madden, 35 Minn. 49:^,, 29 N. W. 193. GOO MALICIOUS WRONGS. [Oh. 9 will not sustain an action for deceit. But this, as in other cases of due care/'" the jury ordinarily should determine.^' ^ The conduct of the party charged with fraud, in preventing in- vestigation, and generally in throwing the complainant off his guard, may serve to justify what would otherwise be, on the com- plainant's part, the want of ordinary care.^'^ Whereas, the efforts of one person to have another pursue his own investigation are cal- culated to raise a strong presumption of good faith.^'^ SAME— RESULTING DAMAGE. 194. Fraud without damage, or damage -without fraud, "Will not form the basis of an action, but -where both concur an action •will lie.''* "Fraud does not consist in mere intention, but in intention carried out by hurtful acts. It consists of conduct that operates prejudi- cially to the rights of others, and is so intended." "'^ In other words, the plaintiff must show, not only that he was deceived by the defend- ant's fraud, without such negligence or other fault on his part as will bar his right to recover, and that he relied on the defendant's wrongful act, but also that he acted, or refrained from acting, in consequence, whereby damages resulted to him.^'^ There is no cause of action without actual damage. Damage is the gist of the action.^" The 17 Post, p. 816, "Negligence." iTi BarncU v. Frederick, 78 Wis. 1, 47 N. W. 6. 172 Scliwabacker v. Riddle, 99 111. 343; Schumaker v. Mather (Sup.) 14 N. Y. Supp. 411; White v. Mowbray (Sup.) 3 N. Y. Supp. 225 (misrepreseiitatlons as to apparent unsoundness of a horse). 17 3 Woolerislagle v. Runals, 76 Mich. 545, 43 N. W. 454. Cf. Hanscom v. Drullard. 79 Cal. 234, 21 Pac. 736. 17* Cook, J., in Baily v. Merrell, 3 Bulst. 95. 17 5 Williams, J., in Williams v. Davis, 69 Pa. St. 21-28. 178 Upton V. Levy, 39 Neb. 331, 58 N. W. 95; Dawe v. Morris, 149 Mass. 191, 21 N. E. 313; Busterud v. Farrington, 36 Minn. 320, 31 N. W. 360; Stet- son V. Riggs, 37 Neb. 797, 56 N. W. 628; First Nat. Bank v. North (S. D.) 51 N. W. 90. 17 7 Lord Blackburn, in Smith v. Chadwick, 9 App. Oas. 197; Doran v. Eaton, 40 Minn. 35, 41 N. W. 244; Alden v. Wright, 47 Minn. 225, 49 N. W. 767; Newell v. Chapman, 74 Hun, 111, 26 N. Y. Supp. 361; Melville v. Gary (Md.) 24 Atl. 604. Ch. 9] DECEIT. 601 cause of action accrues, not on tlie completion of the defendant's fraud, and the plaintiff's conduct in deceived reliance thereon, but upon the happening of the damage subsequent to and consequent thereon.^'* Therefore, in order to recover from the vendor of a note for fraudulent representations as to the solvency of the maker, it is necessary to show that the indorser thereon is insolvent, in order to prove damages.^'° The damages which are made the basis of recovery must conform to the legal standard. Inasmuch as the law does not presume dam- age, the damages which are proved must be substantial. M®re nom- inal damages are not sufficient."" Damages which are too vague and speculative in their nature do not satisfy the requirements of the law. Thus, the profits which the purchaser of a business enter- prise would have made out of the transfer thereof to a corporation to be organized for the purpose of taking it are too uncertain to be recoverable by the purchaser in an action for fraudulent represen- tation, inducing the purchase, although a syndicate had promised to underwrite the capital of the corporation, thereby, in effect, prom- ising to subscribe all the capital not contributed by others, but had not entered into any definite or obligatory contract with the pur- chaser.^*^ So damage to business reputation because of loss of money and large creditors, consequent upon a bad bargain induced by the defendant's fraud, cannot be recovered.^*^ Thus, if the de- 178 An action to recover damages for alleged false representations as to the value of certain bonds, whereby plaintiff was induced to purchase them, cannot be maintained until the maturity of the bonds, as no damages can be shown until then. Currier v. Poor (Sup.) 32 N. Y. Supp. 74. 17 Hamlin v. Abell, 120 Mo. 188, 25 S. W. 516; Bradford v. Neill, 40 Minu. 347, 49 N. W. 193. Cf. Ohilds v. Men-ill, 63 Vt. 4C3, 22 Atl. 620.- It was held in Tyson v. Kanney (Wis.) 61 N. W. 563, that where a husband contracts to exchange his own property for laud, and afterwards informs his wife of the contract, and directs that the land be conveyed to her, she cannot main- tain an action against the grantor for false representations as to the char- acter of the land. It is doubtful if this decision can be harmonized Avith in- surance eases where the policy is issued to one person, and the misrepre- sentation made to another, who paid the premium. 180 Van Velsor v. Seeberger, 35 111. App. 598. 181 Loewer v. Harris, 6 C. 0. A. 394, 57 Fed. 308. And, generally, see Davis V. Davis, 84 Mich. 324, 47 N. W. 555.. 182 Totten V. Burhans, 91 Mich. 495, 51 N. W. 1119. 602 MALICIOUS WKONGS. [Ch. 9 fendant, by false representations, induces a third person to reroke a will favorable to the plaintiff, and to execute another will depriv- ing such plaintiff of substantial benefits, no action lies. "The pos- sibility of injury is too shadowy and evanescent to be dealt with by courts of law."^*^ Remote harm does not complete the cause of action.^** Damages for fraud are governed by ordinary principles. The general rule is compensation."'' Exemplary damages may be awarded under appropriate circumstances.^** The rule as to gen- ei'al and special damages is applied."^ MALICIOUS PROSECOTION. 195. Malicious prosecution is a ■wrong to person, estate, or reputation, based upon a previous judicial proceed- ing. 1S3 Hutchins v. Hutchins, 7 Hill, 104; Randall r. Hazelton, 12 Allen (Mass.) 412. 18* Hemmwell v. Drixbury. 185 The measure of damages for falsely representing the existence of a claim for damages in favor of a lot sold is the value of the claim. Shanks v. Whit- ney, G6 Vt. 405, 29 Atl. 367; Fixen v. Blake, 47 Minn. 540, 50 N. W. 612; Ellis V. Barlow (Tex. Civ. App.) 26 S. W. 90S; Wallace v. Hallowell (Minn.) 58 N. W. 292; Newell v. Chapman, 74 Hun, 111, 20 N. Y. Supp. 361; Tate v. Watts, 42 III. App. 103; Thomas v. Dickinson, 67 Hun, 350, 22 N. y. Stipp. 260; Lare v. Westmoreland Specialty Co., 155 Pa. St. 33, 25 Atl. 812; McHose v. Earnshaw, 5 C. C. A. 210, 55 Fed. 584; Stickney v. Jourdan (Minn.) 49 X. W. 980; High v. BeiTet (Pa. Sup.) 20 Atl. 1004; Atwater v. Whiteman, 41 Fed. 427, followed in Glaspell V. Northern Pac. K. Co., 43 Fed. 900 (under Code Dak. § 1967); Red- ding V. Godwin, 44 Minn. 355, 46 N. W. 563. 186 Whenever fraud, malice, gross negligence, or oppression mingle in the controversy, the law allows the jui-y to give exemplary damages. Cady v. Case, 45 Kan. 733, 26 Pac. 448. 187 In an action for false representations made to a purchaser of a business enterprise, the charges of the accountants employed by him to examine the books, and the fees of solicitors employed to organize a corporation to take over the business, must be specially alleged. Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368. In an action for deceit in selling plaintiff glandered horses, spe- cial ySamages are recoverable for medical treatment of the horses, and for the value of the stable which plaintiff had to burn to prevent contagion. Mer- guire V. O'Donnell, 103 Cal. 50, 36 Pac. 1033. Ch. 9] MALICIOUS PROSECUTION. 603 196. To sustain an action for malicious prosecution, there must be a concurrence of the follo\5ring elements: (a) The commencement of a civil or criminal judicial proceeding. (b) Its termination in favor of the plaintiff in malicious prosecution, except -where his success vtras fraudu- lent. (c) The plaintiff in malicious prosecution must have been the defendant in the original proceeding, and the defendant in malicious prosecution must have been the prosecutor or plaintiff, or cause of the original proceeding. (d) The absence of any reasonable or probable cause for such proceeding. (e) The proceeding must have been actuated by malice. (f) It must have resulted in damage, conforming to the legal standards, to plaintiff in malicious prosecu- tion. Actions on the case were early brought for malicious prosecu- tions.^'* And, when this wrong was committed by several persons, there was an action on the case, ''in the nature of an action of con- spiracy," against them.^*° The averment of conspiracy, however, came to be rejected as surplusage.^'"' The wrong now called "con- spiracy" has, of course, no special relation to false imprisonment or 188 Daw V. Swiane, 1 Sid. 424; Skinner v. Gvinton, 1 Saund. 228; Atwood y. Mongei-, Style, 378. 180 Phillips V. Jansen, 2 Esp. C24; Lord Chief Justice Holt, in Savile v. Rob- erts, 1 Ld. Raym. 374; Price v. Crofts, T. Raym. 180; St. 33 Edw. I., "Con- spiratoribus," Fitzh. Nat. Brev. p. 1, subd. 14, D. Thus it was held in Mills V. Mills, Cro. Car. 239, Saur. Abr. p. 62, pi. 3: "And this being in fact an action for malicious prosecution, with this difference, that an action for a malicious prosecution may be brought against one only, but an action on the case in the nature of a conspiracy must be against more than one, or against one, charging that he, together with J. S. or others, had conspired to inflict thfe plaintiff, or charge him with a crime, the grounds of the action therefor are the same." 100 Muriel v. Tracey, 6 Mod. 169. In Bigelow, Cas. Torts, p. 190, a learned and extended discussion will be found. CO I MALICIOUS WRONGS. [Ch 9 malicious prosecution."^ Malicious prosecution was not a tres- pass/"^ but gave rise to an action on the case, in which damage was the gist of the action. It is convenient to postpone the dis- tinction between it and false imprisonment and malicious abuse of process. It is, as has been seen, regarded as defamatory publication through courts of justice. The burden of proof is on the plaintiff to show that each of the essential elements of the wrong exist. '•°* The defendant's case, therefore, is a negative one. Thus, justifica- tion and matter mitigating damage are denials of the plaintiff's case,"* and do not operate by way of confession and avoidance. This will be made clear by a separate consideration of the constitu- ent elements as enumerated. SAME— THE JUDICIAL PROCEEDING. 197. To constitute malicious prosecution, there must have been an original judicial proceeding. The tendency of the American courts is to recognize as a basis for malicious prosecution either a civil or criminal original proceeding even though there may have been no interference -with the person or property. The original proceeding must have been judicial. If it is extra- judicial, the remedy is trespass.^^'* Therefore, where a man is ar- rested on perfect legal process, though maliciously, without proba- ble cause, and is acquitted, he cannot sue in trespass, for false im- i»i Post, p. 637. "- 102 "In no case has he wlio instituted a grounclless proceecling been held lia- ble as a trespasser." Lovier v. Gilpin, 6 Dana (Ky.) 321-328; Daniels v. Feild- ing, 16 Mees. & W. 200; Barber v. Rollinson, 1 Cromp. & M. 330; Gassier v. Fales, 139 Mass. 461, 1 N. B. 922. Et vide Legallee v. Blaisdell, 134 Mass. 473; Sheldon v. Carpenter, 4 N. Y. 579; De Medina v. Grove, 10 Q. B. 152-170. ID 3 2 Greenl. Ev. § 449; Barton v. Kavanaugh, 12 La. Ann. 332; Mitchell v. Jenkins, 5 Barn. & Adol. 588; Whalley v. Pepper, 7 Car. & P. 506; Walker v. Cruikshank, 2 Hill, 297; Melvin v. Chancy (Tex. Civ. App.) 28 S. W. 241; Barber v. Scott (Iowa) 60 N. W. 497; Welsh v. Cheek (N. C.) 20 S. E. 460. Want of probable cause and malice, Womack v. Fudlkar, 47 La. Ann. 33, IG South. 645. 10 4 2 Greenl. Ev. § 457. 195 Ftirpin v. Remy, 3 Blackf. 210; .Johnstone v. Sutton, 1 Term R. 510. Ch. 9] MALICIOUS PHosr-xuTiox. 605 prisonment, but for malicious prosecution.^"" There is not a una- nimity of opinion in applying this requirement.^^' Malicious prosecu- tion, it seems, -nill not lie where the court has no jurisdiction of the subject-matter.^''^ But it is suflQcient if the plaintiff was actually brought before the court, although there may have been an insuffi- cient complaint, defect of process, or want of jurisdiction in the magistrate.^'''' It is both affirmed and denied that, where the com- plaint in the original proceeding does not set out an offense in the law, the plaintiff can recover in false imprisonment only, and not in malicious prosecution.^"" So dismissal by a magistrate on hearing, or his decision that a warrant is void on its face, has been held to entitle to trespass, not case.^"^ What Judicial Proceedings are Sufficient. The authorities are not agreed as to what judicial proceedings are sufficient as a basis for an action of malicious prosecution. In England, "malicious prosecution" has been defined as "the mali- cious institution against another of criminal, bankruptcy, or liquida- tion proceedings, without reasonable and probable cause." ^°^ On the other hand, Mr. Stephens ""^ distinguishes as wrongs more or 186 Murphy v. Martin, 58 Wis. 276, 16 N. W. 603; King v. Johnston, 81 Wis. 579, 51 N. W. 1011; Gelzenleuchter v. Nlemeyer, 64 Wis. 321, 25 N. W. 442; Boaz V. Tate, 43 Ind. 60; Colter v. Lower, 35 Ind. 285. Et vide ante, p. 418. note 7. As to false imprisonment under such circumstances, see Carratt v. -Morley, 1 Q. B. 18; West v. Smallwood, 3 Mees. & W. 418; Atwood v. Monger, Style, 378. 167 Post, p. 630, "Malicious Prosecution and False Imprisonment" 19S Bixby v. Brundige, 2 Gray, 129; Whiting v. Johnson, 6 Gray, 246; Painter V. Ives, 4 Neb. 122. Et vide Marshall v. Betner, 17 Ala. 832. But see, contra. Wood V. Sutor, 70 Tex. 343, 8 S. W. 51; Id., 76 Tex. 403, 13 S. W. 321; Stone v. Stevens, 12 Conn. 219. 10 9 Gibbs V. Ames, 119 Mass. 60-66. Compare Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; Stocking v. Howard, 73 Mo. 25. 200 Compare Finn v. Frink, 84 Me. 261, 24 Atl. 851, and Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101, with Krause v. Spiegel, 94 Cal. 370, 29 Pac. 707; Ki-amer v. Lott, 50 Pa. St. 495; Schattgen v. Holnback, 149 111. 646, 36 N. E. 969. 201 Maher v. Ashmead, 30 Pa. St. 344; Baird v. Householder, 32 Pa. St. 168. Compare Stewart v. Thompson, 51 Pa. St. 158. 20 2 Eraser. Torts, 121. 20 3 Steph. Mai. Pros. *p. 19, c. 3. 606 MALICIOUS WROKGS. [Ch. 9 less closely analogouM to malicious pi'osecution, malicious ar- rest,""* bringing or conspiring to bring a civil action vexatious- ]y 205 maliciously taking proceedings in bankruptcy,""" maliciously presenting a petition for the winding up of a company,""' malicious- ly obtaining a search warrant for goods,"" ^ maliciously obtaining a search warrant under Criminal Law Amendment Act 1885,""° and maliciously exhibiting articles of the peace."^" However, it neither accords with modern ideas of pleading and practice, nor of primary rights, to direct much attention to the minute distinction between malicious prosecution and allied wrongs. Indeed, even the lines of demarkation between malicious prosecution, malicious abuse of process, and false imprisonment arc none too distinct."^^ Malicious prosecution applies, clearly, where the original pro- ceeding was criminal in its nature. Very comiflonly, the action is brought where the original proceeding was a malicious arrest."^" 204 Steph. JIal. Pros. *p. 19, o. 3, citing Scheibel v. Fairbaim [1799] 1 Bos. & P. 388; Gibson v. Cliaters [1800] 2 Bos. & P. 129; Page v. Wiple [1803] 3 East, 314; Jennings v. Florence [1857] 2 C. B. (N. S.) 4C7; Gilding v. Eyre [1862] 10 C. B. (N. S.) 592; Churchill v. Siggers [1854] 3 El. & Bl. 929. And cee Bank of British North America v. Strong [1876] 1 App. Gas. 307. 20 5 Cotterell v. Jones [1851] 11 C. B. 713; Attwood v. Monger [1653] Style, 378, per Roll, C. J.; Castrique v. Behrens [18S1] 3 El. & El. 720; Redway v. McAndrew [1873] L. R. 9 Q. B. 74; Quartz Hill Consol. G. Min. Co. v. Byre, 11 Q. B. Dlv. 674, and [1883] 52 Law J. Q. B. 488. 206 Brown v. Chapman, 1 W. Bl. 427; Farly v. Danks [18.55] 4 El. & Bl. 493; Cotton v. James, 1 Barn. & Adol. 128; Whitworth v. Hall, 2 Barn. & Adol. 695; Johnson v. Emerson [1871] L. R. 6 Exch. 329; Quartz HiU Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 674, and [1883] 52 Law J. Q. B. 488. 207 Quartz Hill Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 674, and [1883] 52 Law J. Q. B. 488. 201 Leigh V. Webb [1800] 3 Esp. 104; Elsee v. Smith [1822] 1 Dowl. & R. 28; Wyatt V. White, 5 Hurl. & N. 371, and [1860] 29 Law J. Exch. 193. And see Cooper V. Booth, 3 Esp. 144. 209 Hope V. Evered, 17 Q. B. Div. 338, and [1886] 55 Law J. M. Cas. 146. 210 Steward v. Gromett [1859] 7 C. B. (N. S.) 191; Rex v. Doherty [1810] 13 East, 171; Drummond v. Pigou [1835] 2 Bang. N. O. 114; Turner v. Turner [1818] Gow, 20. - 1 1 Post, p. 630. 212 Everett v. Henderson, 146 Mass. 89, 14 N. E. 932; Lauzon v. Charroux (R. I.) 28 AU. 975; Potter v. Gjertsen, 37 Minn. 386, 34 N. W. 746. In the ^^ll- 9] MALICIOUS PROSECUTION. 607 Preferring a bill before a grand jury is a sufficient prosecution to support an action, whether the grand jury jBind a true bill or not."* With respect to the malicious institutions of civil suits, the au- thorities are not entirely agreed as to what cases are within the rule.""^* The general tendency of the American courts would seem to be that, wherever the other elements of malicious prosecution are present, it is immaterial whether the original proceedings be civil or criminal. The broad ground is taken that the prosecution of a civil action, maliciously and without proper cause, terminating favorably to the defendant, produces an injury, for which recovery of damages lies, although there has been no interference with the per- son or property. An action has been held to lie for forcible entry and unlawful detainer,^^"* for the malicious issuance of an injunc- tion, ^^^ for malicious attachment,^^' or garnishment,^^* so, for same action malicious prosecution may be united with assault and battery. Peterson v. Toner, 80 Mich. 350, 45 N. W. 346. 213 Taylor's Case [1620] Palm. 44; Jones v. Gwynn, 10 Mod. 148; Chambers V. Robinson, 2 Strange, 691; Whiteford v. Henthorn, 10 Ind. App. 97, 37 N. E. 419 (where a teacher arrested a school trustee to test his right to appoint another person and test her rights under contract). It is sufficient if the in- dictment contains one count which is malicious and without reasonable and proper cause. Reed v. Taylor, 4 Taunt. 616; Delisser v. Towne, 1 Q. B. 333; Boaler v. Holder, 51 J. P. 277. 214 Cooley, Torts, *p. 187; Pol. Torts, 265. And see Bowen, L. J., in Quartz Hill Consol. G. Min. Co. v. Eyre, 11 Q. B. Div. 674^90; Fivaz v. Nichols, 2 C. B. 501; Magnay v. Burt, 5 Q. B. 381. But see CottereU v. Jones, 11 C. B. 713; Atwood v. Monger, Style, 378; Castrique v. Behrens, 3 El. & El. 720; Redway v. IMcAndrew, L. R. 9 Q. B. 74. See Potts v. Imlay, 4 N. J. Law, 377, commenting on early English eases. 215 Pope v. Pollock, 46 Ohio St. 367, 21 N. E. 356; Thompson v. Gatlin, 7 C. C. A. 351, 58 Fed. 534. But see Mayer v. Walter, G4 Pa. St. 283, collecting cases. Cf. Slater v. Kimbro, 91 Ga. 217, 18 S. E. 296. 216 Kohlsaat v. Crate, 144 111. 14, 32 N. E. 481; Newark Coal Co. v. Upson, 40 Ohio St. 17; Mark v. Hyatt, 61 Hun, 325, 15 N. Y. Supp. 885; Manlove v. Vick, 55 Miss. 567. 21T Zinn V. Rice, 154 Mass. 1, 27 N. E. 772; Tomlinson v. Warner, 9 Ohio, 104; Beyersdorf v. Sump, 39 Slinn. 495, 41 N. W. 101; Hayden v. Shed, 11 Mass. 500; Nelson v. Danielson, 82 111. 545; Maskell v. Barker, 99 Cal. 642, 34 Pac. 340. 218 Schumann v. Torbett, 86 Ga. 25, 12 S. E. 185. Bankruptcy: Chapman V. Pickersgill, 2 TS'ils. 145; Farley v. Danks, 4 El. & Bl. 493. Et vide Quartz 608 MALICIOUS ^\■Ro^'GS. [Ch. 9 malicious issuance of a search warrant for goods charged to haA'^e been stolen,^^' but not, it would seem, for ejectment, ^^^ or an unau- thorized action in the name of another.^^^ But as to this there is much dispute as to principle, and almost equal division of au- thorities. On the one hand, it is urged that the defendant is ade- quately compensated for the damages he sustains by the costs al- lowed him; that, if such suits are allowed, yexatious litigation will be encouraged (especially since a corresponding right of action should accrue against one who defends without probable cause and with malice), whereby parties would be unfairly subjected to sub- sequent suits for bringing or defending actions of law.-^^ To this it seems a complete answer to say that the English costs Hill Consol. G. Min. Co. v. Eyre, 11 Q. B. Dlv. 674, Newark Coal Co. v. Up- son, 40 Ohio St. 17; Smith v. Bnrrus, 100 Mo. 94, 16 S. W. 881; Butchers' Union Slaughter-House & Live Stock Lanrting Co. v. Crescent City Live Stock Landing & Slaughter-House Co., 37 La. Ann. 874. But compare McNamee v. Minke, 49 Md. 122, and Krause v. Spiegel, 94 Cal. 370, 29 Pac. 707. The law- ful vise of process, neither arresting the person nor seizlngi the goods, may not he hasis of action. Bberly v. Rupp, 90 Pa. St. 259. 210 Carey v. Sheets, 67 Ind. 375; Id., 60 Ind. 17; Boeger v. Langenberg, 97 Mo. 390, 11 S. W. 223; Whitson v. May, 71 Ind. 264; Miller v. Brown, 3 Mo. 127; Olson v. Tvete, 46 Minn. 225, 48 N. W. 914. Furthei', as to what is suffi- cient prosecution, see Dubois v. Keats, 11 Adol. & J£. 329; Fitzjohn v. Mack- inder, 9 C. B. (N. S.) 505; Eagar v. Dyott, 5 Car. & P. 5. 220 Muldoon V. Rickey, 103 Pa. St. 110. Et vide Norcrcss v. Otis Bros. & Co., 152 Pa. St. 481, 25 Atl. 575; Gonzales v. Cobliuer, 68 Cal. 151, 8 Pac C97; Brown v. Cape Girardeau, 90 Bio. 377. 2 21 Bond V. Chapin, 8 Mete. (Mass.) 31. 2 22 Savill V. Roberts, 1 Ld. Raym. 374; Purton v. Honnor, 1 Bos. & P. 205; Cotterell v. Jones, 11 C. B. 713; Quartz HUl Consol. G. Min. Co. v. Byre, 11 Q. B. Div. 674; Ray v. Law, Pet. C. C. 207, Fed. Gas. Ko. 11,592; Mitchell v. South Western R. Co., 75 Ga. 398; Smith v. Hintrager, 67 Iowa, 109, 24 N. W. 744; Cade v. Yocum, 8 La. Ann. 477; McNamee v. Minke, 49 Md. 122 (see Clements v. Odorless Excavating Apparatus Co., 67 Md. 461, 10 Atl. 442, and 13 Atl. 632); Woodmansie v. Logan, 1 N. J. Law, 93; Potts v. Imlay, 4 N. J. Law, 330; State v. Meyer, 40 N. J. Law, 252; Kramer v. Stock, 10 Watts (Pa.) 115; Mayer v. Walter, 64 Pa. St. 283; Muldoon v. Rickey, 103 Pa. St. 110; Emerson v. Cochran, 111 Pa. St. 619, 4 Atl. 498; Smith v. Adams, 27 Tex. 28; Johnson v. King, 64 Tex. 226; 1 Swift, Dig. 492; Wetmore v. Mellin- ger, 64 Iowa, 741, 18 N. W. 870; Eberly v. Rupp, 90 Pa. St. 259; Lucy v. Met- ropolitan Life Ins. Co., 31 Wkly. Law Bui. 22; Hlbbard v. Ryan, 46 111. App. 313. Ch. 9] MALICIOUS PROSECUTION. 609 afford a much broader compensation than is afforded by the nar- row limits within which costs are taxed in this country; ^^^ that the burden of proof on the litigant is a sufficient deterrent from unjustifiable suits for malicious prosecution, so far as the plaintiff in the original proceeding is concerned; and that the argument as to the corresponding right of action against a defend- ant improperly imposing a defense fails to distinguish between the position of the parties in the action of law, it being the plaintiff that sets the law in motion, while the defendant merely stands on his legal right.^-* If, however, the defendant should, in a counter- claim, demand an affirmative judgment against the plaintiff, the soundness of this latter reasoning might be questioned. The high- ly artificial character of the restriction as to requirement of inter- ference of persons or seizure of property to make out a case of mali- 223 Indeed, before the statute entitling defendant to costs in such action ex- isted, they had a remedy at common law. Co. Litt. 161a; 3 Lev. 210; 2 Wils. 305, 379; 4 Mod. 13.- See review of authorities by Church, J., in Whipple v. Fuller, 11 Conn. 582. 221 McPherson v. Runyon, 41 Minn. 525, 43 N. W. 392, and eases cited; Smith V. Burrus, 106 Mo. 94, 16 S. W. 881; Brounstein v. Sahlein, 65 Hun, 365, 20 N. Y. Supp. 217; Green v. Cochran, 43 Iowa, 544; O'Neill v. Johnson, 53 Minn. 439, 55 N. W. 601; 21 Am. Law Reg. (N. S.) 281; Eastin v. Bank of Stockton, 66 Cal. 123, 4 Pac. 1106; Berson v. Ewing, 84 Cal. 89, 23 Pac. 1112; Hoyt v. Macon, 2 Colo. 113; Whipple v. Fuller, 11 Conn. 582; Wall v. Toomey, 52 Conn. 35; Payne v. Donegan, 9 111. App. 566; McCardle v. McGinley, 86 Ind. 538; Burnap v. 'Albert, Taney, 244, Fed. Cas. No. 2,170; Marbourg v. Smith, 11 Kan. 554; Cox v. Taylor, 10 B. Mon. (Ky.) 17; Woods v. Finnell. 13 Bush (Ky.) 628; Allen v. Codman, 139 Mass. 130, 29 N. E. 537; Brown v. City of Cape Girardeau, 90 Mo. 377, 2 S. W. 302; Pangbum v. Bull, 1 Wend. 345; Dempsey v. Lepp, 52 How. Prac. 11; Smith v. Smith, 56 How. I'rac. 310; Willard v. Holmes, Booth & Haydens, 2 Misc. Rep. 303, 21 N. Y. Supp. 998; Pope v. Pollock, 46 Ohio St 367, 21 N. E. 356; Closson v. Staples, 42 Vt. 209; Watson v. Freeman, Hob. 205; Chapman v. Pickersgill, 2 Wils. 145. In 1779 an action was brought in an ecclesiastical court for malicious prosecu- tion of plaintiff for incest. No objection was raised to the nature of the pros- ecution, although a demurrer to the declaration was sustained on other grounds. Fisher v. Biistow, 1 Doug. 215. So Bailey, J., said (Elsee v. Smith, 2 Chit. 304) : "If a party falsely, maliciously, and without probable cause, put the law in motion, that is properly a subject of an action on the case." See articles of Mr. Lawson (21 Am. Law Reg. [N. S.] 281). I,A^^■ OF TOKTS— S9 CIO MALICIOUS WRONGS. [Ch. 9 cious prosecution is shown by the absence of any correspondins i'L'- quirements in actions for malicious abuse of process.^^* SAME— TERMINATION OE PROCEEDING. 198. To maintain an action for malicious prosecution, the plaintiff must sho-w that the original proceeding terminated in his favor, if, from its nature, it ■was capable of such termination; and such termination must have been final, so that it cannot be review^ed. Success of Plaintiff. The original proceeding complained of as the basis for an action of malicious prosecution must have terminated in favor of the plain- tiff.^^" The action of malicious prosecution must not be brought be- fore the first proceeding is determined, because until then it cannot appear that the first cause was unjust."' "For maliciously prose- cuting a good cause of action in the manner provided by law, * * * there is no remedy, because there is no wrong." ^^^ If the original proceeding has not terminated in the plaintiff's favor, all questions as to malice, want of proper cause, and the like, are im- 225 2 Saund. PI. & Ev. 651; Ludington v. Peck, 2 Conn. 700; Swift v. Cbam- lici-laln, 3 Conn. 537: Watson v. Watson. 9 Conn. 141; 2 Selw. N. P. 1051. 22S O'Brien v. Barry, lOCi Mass. 300; Basebe v. Matthews, L. E. 2 C. P. 684; Continental Const. & Imp. Co. v. Vinal, 48 Hun, 620, 1 N. Y. Supp. 200. As to surtlcienfy of allegation as to termination of original proceeding, see Horn V. Sims, 92 Ga. 421, 17 S. E. 670. And compare Tisdale v. Kingman, 34 S. C. 326, 13 S. E. r,i7, with Sneeden v. Harris, 109 N. C. 349, 13 S. E. 920; Arundel V. Tregono, Yelv. 116; Fisher v. Bristow, 1 Doug. 215; Morgan v. Hughes, 2 Term R. 225; Whltworth v. Hall, 2 Barn. & Adol. 695; Castrique V. Behrens, 3 El. & El. 709. For a sufficient allegation of terminations ^of pj-Dceedings, see Horn v. Sims, 92 Ga. 421, 17 S. E. 670. Compare Tisdale T. ICingman, 34 S. C. 320, 13 S. E. 547, with Sneeden v. Harris, ,109 N. C. 349, 13 S. E. 920. 227 Bull. N. P. 12; Hamilburgh v. Shephard, 119 Mass. 30; O'Brien v. Barry, 106 Mass. 300; Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728; Lowe v. Wart- man, 47 N. J. Law, 413, 1 Atl. 489; West v. Hayes, 104 Ind. 251, 3 N. E. 932; 14 Am. & Bng. Enc. Law, 28, 42, collecting cases. ' 228 Per Field, .T., In Johnson v. Reed, 136 Mass. 421-423. And see Macey v. Childress, 2 Tenn. Ch. 442; Lauzon v. Charroux (R. I.) 28 Atl. 975. Ch. 9] MALICIOUS PROSECUTION. 611 material.^^' Where, however, the proceedings are ex parte, and the plaintiff had no opportunity of being heard, there is an exception to the rule =^" requiring success of tlie plaintiff in the original proceed- ing. Conviction is as unfavorable to the plaintiff's case as ac quittal is favorable.^^^ Discharge without judgment or verdict in a civil suit is sufficient.^^^ But acquittal or conviction or discharge or favorable verdict are not the only alternatives. Abandonment may be a termination sufficiently favorable to the plaintiff.^^' It would seem — although there is doubt on the point ^^* — that the en- try of a nolle prosequi by the prosecuting officer is a sufficient dis- charge.^^ ^ Discharge by a magistrate on preliminary examination, if found by the jury to be absolute, a\ ill entitle the plaintiff to re- 2 2!)1Iergenratliei- v. Spielman (Md.) 22 Atl. 1106. But see Foetmau v. Rot- tier, 8 Ohio St. 548. 230 Steward v. Gromett, 7 C. B. (N. S.) 191. Et vide Bnsebe v. Mattliews, L. R. 2 C. P. G&i; Rex v. Doherty, 13 East, 171. Oompaie Hyde v. Greuch, G2 Md. 577; Zinn v. Bice, 154 Mass. 1, 27 N. E. 772, collecting cases; Parker V. Huntington, 2 Gray, 125. 231 Post, p. 018. 232 Zinn V. Rice, 154 Mass. 1, 27 N. E. 772; Rossiter v. Minnesota Bradner- Smith Paper Co., 37 Minn. 296, 33 N. W. 855; Newark Coal Co. v. Upson, 40 Ohio St. 17. 233 Cardival v. Smitli, 109 Mass. 158, Oliase, Lead. Cas. 102; Leever v. Hamill, 57 Ind. 423; Swensgaard v. Davis, 33 Minn. 368, 23 N. AV. 543; Pixley V. Reed, 26 Minn. 80, 1 N. W. 800; Rossiter v. Minnesota Bradner- Smith Paper Co., 37 JXinn. 290, 33 N. W. 855. But see Williams v. Taylor, 6 Bing. 183. 234 Brown v. Randall, 30 Conn. 56; Hays v. Blizzard, 30 Ind. 457; Oliap- man v. Woods, 6 Blackf. 504; Stanton v. Hart, 27 Mich. 539; Wood worth V. Mills, 61 Wis. 44, 20 N. W. 728; Kennedy v. HoUaday, 25 Mo. App. 503; Bell V. Matthews, 37 Kan. 680, 16 Pac. 97; Hatch v. Cohen, 84 N. C. 602; Clegg V. AVaterbury, 88 Ind. 21. 235 Bell V. Mattliews, 37 Kan. 680, 16 Pac. 97; iloulton v. Bceclier, 1 Abb. N. C. 193, Chase, Lead. Cas. 103; Bacon v. Towne, 4 Cush. 217; Par- ker V. Farley, 10 Cush. 279; Brown v. Lakeman, 12 Cush. 482; Cardival v. Smith, 109 ilass. I.j8. Nol pros, not enough without order of discharge by court, Langford v. Boston & A. R. Co., 144 ilass. 431, 11 N. E. G07. But see Graves v. Dawson, 133 Mass. 419. But see same case, 130 Mass. 78, where discharge after binding over and before indictment on motion of district attorney, followed by nol pros., held sufficient. Et vide Thompson v. Price (Mich.) 59 N. W. 253. 612 MALICIOUS WRONGS. [Ch. 9 cover. '"^ But where a judge, on construing statement of facts, is- sues a warrant for the violation of a particular statute, but subse- quently discharges the prisoner on a change of opinion as to the law, there is no ground for an action for malicious prosecution.^^^ A compromise of the first cause of action is not, in general, suffi- cient,^^* nor is an indictment quashed for insufflciency in law.^'" But voluntary discontinuance of prosecution will not raise a pre- sumption of malice against, nor put on, the defendant in a suit for malicious prosecution, the burden of showing probable cause.^*" SAME— PARTIES TO PBOCEEDITiTG. 199. Th^ plaintiff in malicious prosecution must have been the defendant or accused in the original proceeding. The defendant in malicious prosecution must have been actually instrumental in putting process of law into force, directly or indirectly. The plaintiff in malicious prosecution must have been a defend- ant in the original proceeding. Therefore a third person, not a party to a proceeding by a judgment creditor to attach lands as the property of the judgment debtor, by which a cloud was cast on the title of such third person, cannot maintain an action against the creditor for malicious prosecution.^*^ 236 Robbins v. Eobblns. 133 N. Y. 597, 30 N. E. 977; Mentel v. Hippely (Pa. Sup.) 30 A. 1021; Bigelow v. Sickles, SO Wis. 98, 49 N. W. 106; Dreyfus v. Aul. 29 Neb. 191, 45 N. W. 282. Cf. Ross v. Hixou, 46 Kan. 550, 26 Pac. 955; Tucker v. Cannon, 28 Neb. 196, 44 N. W. 440. Dismissal of a war- rant by a justice with the consent of the party prosecuting is a sufficient determination of the proceeding to authorize an action for malicious prose- cution. Welch v. Cheek (N. C.) 20 S. E. 460. 23 7 Armstrong v. Vicksburg, S. & P. R. Co. (La.) 16 South. 468. 23 8 Gallagher v. Stoddard, 47 Him, 101; Mayer v. Walter, 64 Pa. St. 283; Emery v. Ginnan, 24 111. App. 65; Rosenberg v. Hart, 33 111. App. 262; Mc- Cormick v. Sisson, 7 Cow. 715; Hammilburgh v. Shephard, 119 Mass. 30. 23 9 McKensie v. Missouri Pac. Ry. Co., 24 ilo. App. 392. 240 But discharge by court on failure of grand jui-y to indict is. Joiner v. Ocean S. S. Co. (Ga.) 12 S. E. 361; Darnell v. Sallee, 7 lud. App. 581, 34 N. E. 1020. 241 Duncan v. Griswold, IS S. W. 354. Ch. 9] MALICIOUS PROSECUTION. 613 As to parties defendant, the general principles already consid- ered apply. There may be direct liability.^" To attach such lia- bility it is not necessary that the defendant should subscribe to the complaint on which the arrest was made. But merely a complain- ing witness is not responsible for process issued by a court on his testimony.^*^ The test is, was defendant actively instrumental in putting the law into force.^** An attorney is not liable in an action for malicious prosecution, unless, in conducting the litigation com- plained of, he knew there was no cause of action, and knew also that his client was acting solely from illegal or malicious motives; and in forming his opinion upon these matters he has a right to act upon such information as his client imparts, and is not bound to in- form himself elsewhere.^*^ The liability may attach indirectly. Thus, the master, within limits already discussed, is held liable for 242 Chapman v. Dodd, 10 Minn. 350 (Gil. 277). As against a corporation, Kent V. Courage, 55 J. P. 264. As to joint tort feasors, see Jones v. Jenkins, 3 Wash. St. 17, 27 Pae. 1022; Rosenberg) v. Hart, 33 111. App. 262. Attorney and client, Peck v. Chouteau, 91 Mo. 138, 3 S. W. 57T; Sneeden v. Harris, 109 N. C. 349, 13 S. E. 920; Stansbury y. Fogle, 37 Md. 369; Clements v. Ohrly, 2 Car. & K. 686; Beyersdorf v. Sump, 39 Minn. 495, 41 N. W. 101. As to partners. Cole V. Curtis, 16 ilinn. 182 (Gil. 161). 2*3 Willmerton v. Sample, 42 111. App. 254; Hahn v. Schmidt, 64 Cal. 284, 30 Pac. 818; White v. Shradski, 36 Mo. App. 635; Wasserman v. Louisville & N. B. Co., 28 Fed. 802. As to an officer serving a warrant, see Lueck v. Heisler, 87 Wis. 644, 58 N. W. 110. 244 Danby v. Beardsley, 43 Law T. 603, per Justice Lobey. This is the only definition explicitly suggested. Stephens, Mai. Pros. 5. Bt vide Vennum v. Huston, 38 Neb. 293, 56 N. W. 970; Han-is v. Warre, L. R. 4 C. P. 125; Davis. V. Noake, 6 Maule & S. 29; Cohen v. Morgan, 6 Dowl. & R. 8. Where defend- ant furnished an inspector with facts on which he filed an information against plaintiff charging a distinct ofEense, defendant cannot escape liability for ma- licious prosecution on the ground that the prosecution was instituted through mistaken judgment on the part of the inspector (Newman v. Davis, 58 lowa^ 449, 10 N. W. 852, distinguished). Holden v. Merritt (Iowa) 61 N. W. 390. Leigh V. Webb, 3 J5sp. 164; Elsie v. Smith, 1 Dowl. & R. 97; Clarke v. Postan, 6 Car. & P. 423; Jones v. Nichols, 3 Moore & P. 12; Dawson v. Vansan- dau, 11 Wkly. Rep. 516; Eitzjohn v. Maekinder, 9 0. B. (N. S.) 505; Clements V. Ohrly, 2 Car. & K. 686; Brown v. Chadsey, 39 Barb. 253; Pierce v. Thomp- son, 6 Pick. (Mass.) 193; Bicknell v. Dorion, 16 Pick. (Mass.) 478. 2 4= Peck T. Chouteau. 91 Mo. 138, 3 S. W. 577. 614 MALICIOUS WRONGS. [Ch. 9 the acts of his servants.^" An officer, in executing a warrant of arrest in a criminal proceeding, does not, however, act as the agent of the person upon whose complaint the proceeding was instituted, and such person is not liable for the acts of the officer unauthorized by the warrant or by such person, and the declarations of the officer are not admissible to bind such persons.^^' The ordinary rules as to exemption from liability apply. Therefore a grand juror ^** or a justice of the peace "" is not liable in such an action. The plaintiff's consent may bar his right of action. Thus, an ac- tion for malicious prosecution of a judgment will not lie where the debtor submitted to the attachment and paid the debt.^**" SAME— MALICE AND WANT OP PROBABLE CAUSE. 200. "Want of probable cause and malice must concur to sustain an action for malicious prosecution. Malice. "Malice," as here used, is not necessarily synonymous with "anger," "wrath," or "vindictiveness." Any such ill feeling may constitute 246 Flora V. Russell (Ind. Sup.) 37 N. E. 593. Thus, an insurance company may be held liable for the acts of its superintendent in aiTesting plaintiff for larceny. Lyenberger v. Paul, 40 111. App. 516; Humphrey v. Prudential Ins. Co., 62 Hun, 618, 16 N. Y. Supp. 480. But the principal is not liable for the in- dependent prosecution by his agent. Springfield Engine & Threshing Co. v. Green, 25 111. App. IOC. And evidence that the defendant in an action for ma- licious prosecution employed a person to search for property he had lost, and to take all legal steps necessary for its recovery, and that such person charged plaintiff with larceny of the property, and caused his arrest, does not sustain a verdict for plaintiff. Murrey v. Kelso (Wash.) 38 Pac. 879. Agent of cor- poration making complaint on advise of company's attorney is not liable. .Jordan v. Alabama G. S. K. Co., 81 Ala. 220, 8 South, 191. Company is not lia- ble for its watchman's independently causing arrest. Govaski v. Downey, 100 Mich. 429, 59 N. W. 107. 2*7 Heisan v. Mott, 42 Minn. 49, 43 N. W. 691; Bartlett v. Hawley, 38 Minn. 308-312, 37 N. W. 580; Zebley v. Storey, 12 Atl. 569. 218 Sidener v. Russell, 34 111. App. 446; Thornton v. Marshall, 92 Ga. 548, 17 S. E. 926. 24 9 Vennum v. Huston, 38 Neb. 293, 56 N. W. 970. 2 60 Hibbard v. Ryan, 46 111. App. 313. Ch. 9] MALICIOUS PEOSECI'TION. 615 iiialice.-^^ But it may be no more than the opposite of bona fides. Any prosecution carried on knowingly, Avantonly, or obstinately, or merely for the vexation of the person prosecuted, is malicious.^ ^^ Every improper or sinister motive constitutes malice, in this sense." "^ Thus, where reputable citizens are wantonly and illegally aTrested and incarcerated in a jail on false charges of grave crimes, and thereafter the prosecutor confesses that his only purpose was to procure immunity from prosecution of his brother for the same of- fense, the prosecution is malicious and without probable cause.^" The plaintiff is not required to prove "express malice," in the popular sense.^''^ The test is, was the defendant actuated by any indirect motive, in preferring the charge or commencing the action against the plaintiff.^'*" Malice may be express, or it may be implied from 2 51 Evidence of a statement by defendant that if plaintiff did not act peacea- bly, and behave himself, he would "put him behind the bars," is admissible to show malice. Holden v. Merritt (Iowa) 61 N. W. 3"J0; Strattou v. Loclihart, 1 Ind. App. 380, 27 N. B. 715; Thurston v. Wright, 77 Mich. 96, 43 N. W. 860; Fari-ar v. Brackett, 86 Ga. 463, 12 S. E. 686; Byford v. Glrton (Iowa) 57 N. W. 588. Zeal in prosecution may be evidence of malice. Mark v. Hastings (Ala.) 13 South. 297. Appearance before a grand Jury upon subpcena is prima facie not malicious. Smith v. McDaniel, 5 Ind. App. 581, 32 N. B. 798. Offer to arbitrate or compromise before attaching is evidence of negative malice. Ijewis V. Taylor (Tex. Civ. App.) 24 S. W. 92. In an action for the malicious prosecution of a writ of attachment, evidence that defendant was informed by a derk of plaintiff of his business and financial affairs, and of his efforts to borrow money and dispose of his property, is admissible, as tending to rebut malice and show probable cause. Le Clear v. Perkins (Mich.) 61 N. W. 357. A publication that an "enticing article" had recently been sent out by plaintiff, asking subscriptions to a business corporation oi-ganized by him, is not preju- dicial to plaintiff in his profession of lawyer, as it has no relation to his char- acter or conduct as a lawyer. Keene v. Ti-ibune Ass'n of New York, 76 Hun, 4iiS, 27 N. y. Supp. 1045; Burton v. O'Niell, 6 Tex. Civ. App. 613, 25 S. W. 1013. 2B2 Kerr v. Workman, Add. (Pa.) 270. 2 53 Tindal, C. J., in Stockley v. Hornidge, 8 Car. & P. 16. 2 54 Pace V. Aubrey, 43 La. Ann. 1052, 10 South. 381. Et vide Chicago, B. & Q. E. Co. V. Kriski, 30 Neb. 215, 46 N. W. 520; Smith v. Burrus, 106 Mo. 04, 16 S. W. 881. 2S5 PuUen V. Glidden, 66 Me. 202; Lunsford v. Dietrich, 93 Ala. 565, 9 South. 308; Musgrove v. Newell, 1 Mees. & W. 582; Sutton v. Johnstone, 1 Brown, Pari. Cas. 76; Judson v. Reardon, 16 Minn. 431 (Gil. 387). 266 Hicks V. Faulkner, 8 Q. B. Div. 107; Brown v. Hawkes [1891] 2 Q. B. 718. Et vide Mitchell v. Jenkins, 5 Barn. & Adol. 588; Garrett v. Manneihmer, 24 616 MALICIOUS WROKGS. [Ch. 9 ^\ant of probable cause,"' but it does not follow as a necessary inference.^^^ Probable Cause. "Probable cause, in criminal cases, is Ssuch conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken for public motives." ="" In Hicks v. Faulkner,2»o reasonable cause is divided into four parts, viz. : (1) An honest be- lief of the accuser in the guilt of the accused. (2) Such belief must be based on an honest conviction of the circumstances which •lead the accuser to that conclusion. (3) Such secondly mentioned belief must be based upon such reasonable grounds as would lead any fairly cautious man in the defendant's situation so to believe. (4) The circumstances so believed and relied on by the accuser must be such as to amount to reasonable ground for belief in the guilt of the accused.^" Probable cause, in civil actions, is such reasons, supported by facts and circumstances, as will warrant a cautious, reasonable, and prudent man in the honest belief that his action, and the means taken in prosecution of it, are legal, just, and proper.^"^ Thus, for ex- ample, where the plaintiff and his companions, having been dis- charged by the defendant, tore paper from the walls in their room in the defendant's house, and set fire to it, leaving matches and smouldering papers on the floor, these are circumstances constitut- ing reasonable and probable cause to justify prosecution for arson.^'^ Minn. 193. "Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is malicious." Stevens v. Mid- land Counties Ry. Co., 10 Exch. 352; Coleman v. Allen, 79 Ga. 637. 25T Smith V. Burrus, IOC Mo. 94, 16 S. W. 881. 258 Cartwright v. Elliott, 45 111. App. 458. 2B9 If plaintiff was innocent of the crime, but defendant had reasonable ground for suspicion, supported by circumstances strong enough in them- selves to waxrant a cautious man in the belief that he was guilty the jury should find for the defendants. Hurlbut v. Boaz, 4 Tex. Civ. App. 373, 23 S. W. 446. 280 8 Q. B. Div. 167. 171, 172. 2 61 The importance of this decision was, however, greatly diminished by Abrath v. North-Eastern Ry. Co., L. R. 11 App. Cas. 247; Stoph. Mai. Pros. 69, 70. 2 62 Benton v. St. Paul, M. & M. Ry. Co., 33 Minn. 189, 22 N. W. 300. 263 Nachtman v. Hammer, 1D5 Pa. St. 200, 26 Atl. 311. Unexplained re- Ch. 9] MALICIOUS PROSECUTION. 617 Where the defendant had the plaintiff arrested for maliciously injur- ing water pipes, though he knew that what plaintiff did was done under order of the park commissioner, this was held sufficient ta submit to the jury the question, and to justify the finding of want of probable cause.-''* But where the plaintiff was employed to col- lect the accounts of a corporation which had agreed to pay certain of his debts, and, the company failing to pay such debts, the plaintiff notified it that he had collected certain money for it, which he would turn over as soon as it paid said debts, which amounted to as much as the sum collected, it was held that these facts showed no prob- able cause for charging the plaintiff with embezzlement.^"'' The absence of a probable cause may also be inferred from the institution of a criminal suit for the sole purpose of collecting a debt.^^" cent possessioD of stolen property may .iustify arrest for larceny. Thomp- son V. Richardson, 96 Ala. 488, 11 South. 728; Ferguson v. Arnow, 142 N. Y. 580, 37 N. E. 62C; Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93. Jones v. Jones, 71 Cal. 89, 11 Pac. 817; Brown v. Master (Ala.) IG South. 4-1:3. In embezzlement, see Kankin v. Crane (Mich.) 61 N. W. 1007; Tucker v. Cannon, 32 Neb. 444, 49 N. W. 435. In perjury, see Dawson v. Schloss, 93 Cal. 194, 29 Pac. 31. And, .generally, see Molloy v. Long Island Ry. Co., 59 Hun,. 424, 13 N. Y. Supp. 382; Mell v. Barner, 135 Pa. 151, 19 Atl. 940; Allen v. Codman, 139 Mass. 130, 29 N. E. 537; Sheahan v. National S. S. Co. (Sup.) 20 N. Y. Supp. 740; Witliau v. Thomas, 06 Hun, G32, 21 N. Y. Supp. 170; Wrench v. Samenfeld (Sup.) 19 N. Y. Supp. 948; Willard v. Holmes, Booth & Haydens (Com. PI. N. Y.) 21 N. Y. Supp. 998. reversed in 142 N. Y. 492, 37 N. E. 480; Sprague v. Gibson, 63 Hun, 626, 17 N. Y. Supp. 685; Central Ry. Co. V. Brewer, 78 Md. 394, 28 Atl. 615; Richard v. Boland, 5 Misc. Rep. 552, 26 N. Y. Supp. 57; Thomas v. Smith, 51 Mo. App. 605. 264 Wass V. Stephens (Sup.) 6 N. Y. Supp. 131; Id., 128 N. Y. 123, 28 N. E. 21. Et vide Hooper v. Vernon, 74 Md. 136, 21 Atl. 556. 26 5 Brooks V. Bradford (Colo. App.) 36 Pac. 303. Et vide Mahaffey v. Byers, 151 Pa. St. 92, 25 Atl. 93; Hazzard v. Flury, 120 N. Y. 223, 24 N. E. 194, Willard v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480, overruling (Cora. PI. N. Y.) 21 N. Y. Supp. 998; Bandell v. May (Sup.) 15 N. Y. Supp. 273;. Horn V. Sims, 92 Ga. 421, 17 S. E. 670. The mere fact that plaintiff had in his possession a ring, which defendant believed to be one stolen from him, is not sufBcient to constitute a probable cause for plaintiff's arrest. Jonasen v. Kennedy, 39 Neb. 313, 58 N. W. 122. Further, see Brooks v. Bradford, 4 Colo. App. 410, 30 Pac. 303; Darnell v. Sallee, 7 Ind. App. 581, 34 N. E. 1020; Flora V. Russell (Ind. Sup.) 37 N. E. 593. 266 Kimball v. Bates, 50 Me. 308; Paddock v. Watts, 116 Ind. 146, 18 N. B. 518; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. Et vide Toomey v. Dela- ware. L. & W. R. Co. (Super. N. Y.) 21 N. Y. Supp. 448; Neufeld v. Rode- C18 SIALlCrOUS WKO.NGS. [Ch. 9 Inference from Conviction, Acquittal, or Dismissal. Conviction of the crime charged is, in general, evidence of prob- able cause. But the authorities are not agreed as to whether such evidence is final. On the one hand, it is contended that, in the ab- sence of fraud procuring conviction,^"^ a conviction by a trial court is conclusive against the plaintiff,-"* although followed by acquittal on appeal.^"" On the other hand, it is insisted that proof of convic- tion is only such evidence as is sufficient to establish probable cause if not overcome.^'" * Conviction does not, however, negative mal- ice."i minski, 144 111. S3, 32 N. E. 913. But the fact that the defendants in an action for malicious prosecution offered to refrain from prosecuting the plain- tiff if he would repay the money he had misappropriated is not sufficient to show a want of probable cause for the prosecution. Rankin v. Crane (Mich.) 61 N. W. 1C07. 267 Payson v. Casewell, 22 Me. 212. Compare Lawrence v. Cleary, 88 Wis. 473, 60 N. W. 793; Morton v. Toung, 55 Me. 24. 2»s Crescent City Live-Stock Landing & Slaughterhouse Co. v. Butchers' TJnion Slaughterhouse & Live-Stock Landing Co., 121 XJ. S. 140, 7 Sup. Ct. 472; Oppenheimea- v. Manhattan Ry. Co., 63 Hun, 633, 18 N. Y. Supp. 411; Parker v. Huntington, 7 Gray, 36; Cloon v. Gerry, 13 Gray, 201; Boogher v. Hough, 99 Mo. 184, 12 S. W. 524; Parker v. Farley, 10 Cush. (Mass.) 279; Adams v. Bicknell, 126 Ind. 211, 25 N. E. 804, and eases therein cited; Whit- ney V. Peckham, 15 Mass. 243; Phillips v. Village of Kalamazoo, 53 Mich. 33, 18 N. W. 547; Smith v. Macdonald, 3 Esp. 7; 14 Am. & Eng. Enc. Law, 06; 2 Greenl. Ev. § 457. 289 Adams v. Bicknell, 126 Ind. 210, 25 N. E. 804; Reynolds v. Kennedy, 1 Wils. 232. Compare Mellor v. Baddeley, 2 Cromp. & M. 675; Basebe v. .Matthews, L. R. 2 C. P. 684.- But see Boaler v. Holder, 51 J. P. 277; Marks V. Townsend, 97 N. Y. 590. As to the inference of probable cause from con- viction, or even indictment, when a new trial may be subseauently granted, see AVhitney v. Peckham, 15 Mass. 243. See Bacon v. Towue, 4 Cush. 217; Cloon V. Gerry, 13 Gray (Mass.) 201; Hil. Torts, 457; Cooley, Torts (2d Ed.) 214; ante, p. 611, note 239. As to inference from dismissal of complaint, Wheeler v. Hanson, 161 Mass. 370, 37 N. E. 382. The voluntary discontinu- ance of a civil suit is not prima facie evidence that it was maliciously insti- tuted. Smith V. Burrus, 106 Mo. 94, 16 S. W. 881. Cf. Ross v. Hixon, 46 Kan. 550, 26 Pac. 955; Bigelow v. Sickles, 80 Wis. 98, 49 N. W. 106; Funk v. Amor, 7 Ohio Cir. Ct. R. 419. 27 MofCatt V. Fisher, 47 Iowa, 473; Arnold v. Moses, 48 Iowa, 694. See, also, Olson v. Neal, 63 Iowa, 214, 18 N. W. 863; Bowman v. Brown, 52 Iowa, 437, 3 N. W. 609; Barber v. Scott (Iowa) 60 N. W. 497; Knight v. International 2 71 Lewton v. Hower.(Fla.) 16 South. 616. Ch. 9] MALICIOUS PROSECDTION. 619 Similarly, acquittal is prima facie evidence for the plaintiff; but this may have been shown to have been obtained by fraud, as by breach of verbal stipulation for continuance.^''^ Acquittal may be proved without producing a copy of the records, but may be so proved, and in cases of felony the record must be produced.^'' The voluntary dismissal of an action is not an admission of want of probable cause.^'* Effect of Honest Belief. Probable cause naturally depends upon the good faith and honest and reasonable belief of the defendant.^'^ "And although the facts Icnown make out a prima facie case of guilt, yet if the circumstances are all consistent with the innocence of the party, and the prosecu- tor knows the accused is not guilty, or does not believe him to be guilty, he cannot have reasonable cause for the prosecution." ''''^ This is to be determined by a consideration of all the circumstances of the case which had happened at the time of commencing the orig- inal proceeding. Thus, proof that the plaintiff had waived the pre- liminary examination on the criminal charge, and had been indicted, and that the jury had disagreed, furnishes evidence of probable cause. But, if the defendant had full knowledge of all the material charge, he is liable, though he did not appear before the grand & G. N.' Ey. Co., 9 C. C. A. 376, 61 Fed. 87. A judgment of conviction in a criminal court is conclusive only between the parties, — i. e. tlie state and tlie defendant, — but is no estoppel as between the defendant &nd strangers to the record. Johnson v. Girdwood (Com. PI. N. Y.) 28 N. Y. Supp. 151. A judgment of conviction on a plea of guilty may be avoided collaterally by proof that the plea was induced by the fraud, duress, and conspiracy of the person seeking to avail of it. Johnson v. Girdwood, supra. 272 Leyenberger v. Paul, 40 111. App. 516. Compare Stevens v. Metropoli- tan Ins. Co., 21 N. Y. Supp. 1024; Sutton v. McConnell, 46 Wis. 200, 50 N. W. 414. The fact that a plaintiff in an action for malicious prosecution was dis- charged upon his examination is not conclusive evidence of a want of prob- able cause for the prosecution. Rankin v. Crane (Mich.) 61 N. W. 1007. 273 Morrison v. Kelly, 1 W. Bl. 384; Reg. v. Brangan, 1 Leach, Club Cas. 27. 274 Asevado v. Orr, 100 Cal. 293, 34 Pac. 77. 27 s Bai-ton V. Kavanaugh, 12 La. Ann. 332. 276 -VYoodworUi v. Mills, 61 Wis. 44, 20 N. W. 728; Pagan v. Knox, 1 Abb. N. C. 246; Griffin v. Chubb, 58 Am. Dec. 85; Prough v. Entriken, 11 Pa. St. 81; Sharpe v. Johnston, 76 JIo. 660; Roy v. Goings, 112 111. 656; Bi-ewer v. Jacobs, 22 Fed. 217; Ravenga v. ilacjcintosh, 2 Barn. & C. 6:»;!-6!>S. -|, 29 N. W. 69. But deprivation of society of wife is competent. KillebreAv v. Carlisle. 97 Ala. 535, 12 South. 167; Strang v. Whitehead, 12 ^Vena. 64; Mitchell V. Da vies, 51 Minn. 168, 53 N. A"\'. 363; Dornell v. Jones, 15 Ala. 490; Stanfleld v. Phillips, 78 Pa. St. 73; Miles v. Weston, 60 111. .361; Home v. Sul- livan, 83 111. 30; Thompson v. Lnmley, 7 Daly (N. Y.) 74; Zeigler v. Powell, 54 Ind. 173. 32S State V. Andrews, 39 W. Va. :',o, 19 S. E. 385; Bradley v. Borin, 53 Kan. 628, 36 Pac. 977. But cf. Zinn v. Rice (Mass.) 37 N. E. 747. 320 Slater v. Kimbo, 91 Ga. 217, 18 S. E. 296. 630 MALICIOUS WROAGS. [Ch. y SAME— DISTINCTION FROM FALSE IMPBISONMENT. 202. Malicious prosecution and false imprisonment are two different causes of action, composed of differ- ent elements. They are not incompatible, how- ever, but may arise out of the same state of facts, and be the basis of the same action. False imprisonment is a radically diiferent wrong from malicious prosecution.'*^'' Eecovery of damages in an action for false impris- onment is no bar to an action for malicious prosecution.'*^^ False imprisonment is a direct injury to the freedom of the person, and, at common law, was an action of trespass. Malicious prosecution may be entirely independent of personal interference, and always gives rise to an action on the case.^'*^ The very statement of the facts in the case' of false imprisonment shows the acts involved to be illegal.^'*^ The ground of malicious prosecution is the procuring to be done what upon its face is, or may be, a legal act, from malicious motives, and without probable cause.'*^* That there should have been an original legal proceeding of some kind, and that the plain- tiff should have succeeded in it, is an essential element peculiar to malicious prosecution.^^^ The coincidence of malice and want of prob- able cause is also peculiar to malicious prosecution. Malice is never -30 Brown v. Cliadsey, 39 Barb. 253. 331 Guest V. Warren, 23 Law J. Exch. 121; ante, p. 323, note 116, "Judgment as a Bar." 332 Ante, p. 604, "Trespass under Malicious Prosecution"; Brown y. Cliad- sey, 39 Barb. 253. 333 Imprisonment caused by a malicious prosecution is not false unless without legal process or extrajudicial. Nebenzalal v. Townsend, 61 How. Prac. ^',50; Mui-pby v. Martin, 58 Wis. 276, 16 N. W. 603; Colter v. Lower, 35 Ind. 285; 7 Am. & Eng. Enc. Law, 6C3, 664, and cases cited; Turpin v. Remy, 3 Blaekf. 210; Mitchell v. State, 12 Ark. 50, and cases cited; 1 Chit. PI. § 133. 334 Johnstone v. Sutton, 1 Term. R. 510; Nebenzahl v. Townsend. 61 How. Pvac. 356. Where an arrest is made for the purpose of enforcing the pay- ment of a debt, malicious prosecution, and not false imprisonment, is the proper remedy. Mullen v. Brown, 138 Mass. 114; Herzog v. Graham, 9 Lea (Tenn.) 152; Woodward v. Washburn, 3 Denio, 369. 335 Everett v. Henderson, 146 Mass. 89, 14 N. E. 932. t^h- 9J MALICIOUS PROSECUTION. t>31 properly an essential element of false imprisonment; ^^^ and proba- ble cause, only when there has been an arrest without warrant, and then as matter of the defendant's, and not of the plaintiff's, case. Accordingly, advice of an attorney is no defense to false imprison- ment; warrant of arrest, in perfect form, is not to malicious prose- cution. On the other hand there is no incompatibility between the two causes of action.^" The same state of facts may constitute both false imprisonment and malicious prosecution, as where, on an affi- davit falsely charging perjury, the arrest and incarceration in jail of the accused is a malicious prosecution. If the affidavit is made without probable cause, his incarceration thereunder in jail is false imprisonment-^^"^ The two causes of action arising out of the same state of facts may be united in the same pleading, and the plaintiff may recover under either.'^^ And it has been held that a complaint for either cause of action may be converted into the other by amend- ment.'' *° Under a declaration for the one cause of action, however, no recovery can be had for the other.'*^ In Johnson v. Girdwood,'*^ Judge Pryor said: "If the plaintiff's characterization of his action as for false arrest and imprisonment be correct, the complaint can- not stand a moment. * * * Under our system of procedure, a plaintiff's right of recovery depends, not upon the name he gives his action, or the classification to which he subjects it, but upon wheth- 33 6 Carey v. Sheets, 60 Ind. 17; Coller v. Lower, 35 Ind. 285; ante, p. 430; Johnson v. Bouton, 35 Neb. 898, 53 N. W. 90.1; Hobbs v. Ray (R. I.) 25 Atl. 69i; Comer v. Knowles, 17 Kan. 43G. 337 14 Am. & Eng. Ene. Law, 17, note 1, citing cases. 83 8 Weil v. Israel, 42 La. Ann. 955, 8 South. 820. Compare with Sloan v. Schomaker, 136 Fa. St. 382, 20 Atl. 525; Lueck v. Heisler, 87 Wis. G44, 58 N. W. 1101. 33 9 Bradner v. Faulkner, 93 N. Y. 515; Marks v. Townsend, 97 N. Y. 590; Anderson v. How, 116 N. Y. 3.36, 22 N. B. 695; Ban- v. Shaw. 10 Hun, 580; King V. Ward, 77 111. 603. The plaintiff has, however, been required to elect between tlieni. Nebenzahl v. Townsund. Gl How. Prac. 35:!. 340 Spice v. Steim-uck, 14 Ohio, 213; Painter v. Ives, 4 Neb. 122; Truesdell V. Combs, 33 Ohio St. 18G; Steel v. Williams, 18 Ind. 161, 341 Hobbs V. Ray (R. I.) 25 Atl. 694; Herzog v. Graham, 9 Lea (Tenn.) 152; Brown v. Chadsey, 39 Barb. 2.53; King v. .Johnston, 81 Wis. 578, 51 N. W. 1011. Compare Bauer v. Clay, 8 Kan. 580; Wagstaffl v. Sehippel, 27 Kan. 450. 342 28 N. Y. Supp. 151, 152. 632 MALICIOUS WRONGS. IS'h. 9 t'r, on the facts exhibited, he is entitled to any legal redress. With US, all suits are special actions on the case, and if the facts show a right to relief the plaintiff will not be turned out of court because of a technical error in scientific nomenclature." * MALICIOUS ABUSE OF PROCESS. SOS. An action for damages'^' lies for the malicious abuse of lawful process, civil or criminal, even if such process has been issued for a just cause, and is valid in form, and the proceeding thereon was jus- tified and proper in its inception, but injury arises in consequence of abuse in subsequent proceedings. The leading case on this subject is Grainger v. Hill,^** where the defendant was held liable, not for putting process of arrest in force, but for abusing it for an object not within its scope. The officer arrested the owner of a Yessel on civil process, and used such pro- cess to compel the defendant to give up his ship's register.^ *^ Dam- ages were recovered, not for maliciously putting the process in foi-ce, but for maliciously abusing it; leading the person arrested to do some collateral thing, which he could not lawfully be compelled CO do.^*" A common form of abuse of process is excessive attach- 3*3 As to mandamus to "prevent successful use of information obtained by nbiise of process, see ante, p. 351, "Remedies." See, also, Kosentbal v. Cir- cuit Judge, '.18 Mich. 208, 07 N. W. 112. 34*4 Bing. N. 0. 212; Twilley v. Perkins, 77 Md. 252, 26 Atl. 286. Further, as to abuse of criminal process: Page v. Gushing, 38 Me. 523; Jenings v. Florence, 2 C. B. (N. S.) 467; Smith v. Weeks, 60 Wis. 94, 18 N. W. 778; Baldwin v. Weed, 17 Wend. 224; Carleton v. Taylor, 50 Vt. 220; Mayer v. Walter, 64 Pa. St. 283. As to abuse of capias to collect fees: Small v. Ban- field (N. H.) 20 Atl. 284. 345 Barnett v. Reed, 51 Pa. St. liX). Excessive attachment: Moody v. Deutsch, 85 Mo. 237; Savage v. Brewer, 16 Pick. (Mass.) 453. So, an oflicer may become a trespasser ab initio by staying too long In a store where he has attached goods. Rowley v. Rice, 11 Mete. (Mass.) 337; Williams v. Pow- ell, 101 Mass. 467; Davis v. Stone, 120 Mass. 228. Et vide Cutter v. Howe, 122 Mass. 541; Malcom v. Spoor, 12 Mete. (Mass.) 279; Esty v. Wilmnt, 15 Gray (Mass.) 168. 846 Page V. Gushing, 38 Me. 523; Johnson v. Reed, 136 Mass. 421; Holle.y Ch. 9] MALICIOUS ABUSE OF PROCESS. 63;> ment.^*^ "But the mere giving of notice by a third person to a debt- or not to pay the creditor the amount due him under a contract is neither the use nor abuse of legal process; and no action can be maintained by the creditor against the person giving the notice, for the delay in the payment, and the expense of the lawsuit which he was compelled to bring against the debtor, in consequence of such notice, though it may have been given maliciously and vexatious- ly." ^**, ' The authorities are not agreed as to what constitutes the essen- tial elements of this action. Seizure of property is not an essential of the action. ^^^ Such a definition would fail to distinguish be- tween malicious abuse of process and malicious prosecution, and seems to depend on the distinction that the action is case, and not trespass.^^" Another view, and perhaps one more in harmony with the modern spirit of the law of torts, is to distinguish maliciousj- v. Mix, 3 Wend. 350. Abuse of process is its perversion. Sharswood, C. J., in Mayer v. Walter, 64 Pa. St. 283. One wlio, after placing a valid writ of restitution in the bands of an officer, voluntarily assists in removing the property, is liable for such injury to the property as amounts to an abuse of process. Murraj'- v. Mace (Neb.) 59 N. W. 387. So, a sheriff who, under a writ, exposes to inclement weather the daughter and household goods of an unsuccessful defendant in a suit to try title to land, to gratify malice of a successful plaintiff, is liable, and the plaintiff also, if he ratify or authorize such conduct. Casey v. Hanrick, 69 Tex. 405, 6 S. W. 405; Rogers v> Brewster, 5 Johns. 125. 3^7 Zinn V. Rice, 37 X. E. 747. And, further, as to vs'rongful attachment, see- Woessner v. Wells (Tex. Civ. App.) 28 S. W. 247; Imperial Roller Milling Co. V. First Nat. Bank of Cleburne (Tex. Civ. App.) 27 S. W. 49; Sti-auss v. Dun- don, Id. 503. 3 48 Norcross v. Otis, 152 Pa. St. 481, 25 Atl. 575; Potts v. Imlay, 4 N. J.. Law, 377. 349 Therefore, a mere notice by a sti-anger to a debtor not to pay a creditor,, in consequence of which the creditor is compelled to sue to recover his money, is not sufficient to support an action for damages. In such a case, the only loss is the delay in payment, which is compensated by interest. Norcross v. Otis 152 Pa. St. 481, 25 Atl. 575. However, though claimant was not de- prived of the goods levied on, nor hindered in selling them in the regular eeurse of business, he is entitled to damages for any injurj' to his credit- Birch V. Conro^-, 161 Pa. St. 118, 28 Atl. 1009. •ISO Where the act is an immediate wrong against all forms of law, trespass- is the remedy. Where the process is legal, but used in an oppressive man- 634 MALICIOUS WRONGS. [Ch. 9 abuse of process from malicious prosecution in at least two respects: First, in that want of probable cause is not an essential element,'" and, second, that it is not essential that the original proceeding shall have terminated.'" It differs from false imprisonment in that, inter alia, a warrant valid on its face is no defense, and it is entirely inconsistent with extrajudicial proceedings.' °' The process abused, moreover, may be either civil or criminal.'^* It has, how- ever, been held that an action for false imprisonment may lie for misuse or abuse of legal process after it has issued.' ^° MALICIOUS INTERFERENCE WITH CONTRACT. 204. Actions to recover damages for malicious interfer- ence with contract have been generally recognized in England, and sometimes in America. Four things are necessary to sustain the action: (a) A contract. (b) Knowledge of the contract on the part of defendant. (c) Malice on the part of defendant. (d) Damage suffered by plaintiff. iier, the remedy is case. Kennedy v. Barnett, 64 Pa. St. 141, commenting on Sommer v. Wilt, 4 Serg. & R. (Pa.) 19; Barnett v. Eeed, 51 Pa. St. 190; Kra- mer Y. Lott, 50 Pa. St. 495. 351 Hazard v. Harding, 63 How. Prac. 326. Compare Juchter v. Boehm, 07 Ga. 5.34; Cnisselle v. Pugh, 71 Ga. 744. 352 Bebinger v. Sweet, 1 Abb. N. C. 263; Driggs v. Bm-ton, 44 Vt. 124; Mayer V. Walter, 64 Pa. St. 283; Ziun v. Rice, 154 Mass. 1, 27 N. E. 772; AntclifE v. .Tuue, 81 Micb. 477, 45 N. W. 1019; Emeiy v. Ginnan, 24 111. App. 65; 2 Greenl. Ev. § 452. 353 King v. Johnston, 81 Wis. 578, 51 N. W. 1011. But see Holley v. JNIlx, 3 Wend. 350; Wood v. Graves, 144 Mass. 365, 11 N. E. 567; State v. Jungllng, 116 Mo. 102, 22 S. W. 688. 354 Tbus, it may lie for a wrongful levy: Birch v. Conrow, 161 Pa. St. 118, 28 Atl. 1009; Fanner v. Crosby, 43 Minn. 459, 45 N. W. 886; Sommer v. Wilt, 4 Serg. & R. 19; Cburcbill v. Siggers, 3 El. & Bl. 929. For excessive attach- ment: Savage v. Brewer, 16 Pick. 4.">:j; Moody v. Deutsch, 85 Mo. 237. Etvide HoUingsworth v. Atkius, 46 La. Ann. 515, 15 South. 77; State v. Andrews, 39 W. Va. 35, 19 S. E. 385; B. C. Evans Co. v. Reeves, Tex. Civ. App. 254, 26 S. W. 219. = 5 5 Wood V. Graves, 144 Mass. 305; Orowell v. Gleason, 10 Me. 325; Fran- ^h. 9] MAI.KJIOUS INTEEFEEENC'E WITH CONTRACT. 635 In England. In the celebrated case, Lumley v. Gye,''^" the plaintiff, the manager of a theater, had contracted with an opera singer to perform for him exclusively during the term of her engagement. The defend- ant, knowing this, and maliciously intending to injure the plaintiff as a manager, while the agreement was in force, and before the ex- piration of the term, enticed and procured the singer to wrongfully refuse to execute the contract. The majority of the court regarded the case as in strict analogy to the ordinary case of master and servant, as one of pure tort, and as resting on natural principles of tort, in that whoever maliciously procures the violation of another's right, whether involving a contract or not, ought to be made to in- demnify. Coleridge, J., dissenting, however, urged that actions un- der the statute of laborers were confined to menial servants, that only the parties to the contract should be allowed to recover under it, and that the damages claimed in this case were objectionable as remote. The rule established in this case has been subsequently followed in England.''^' It is not material whether the contract maliciously interfered with is between a master and servant or not. If the interference is used for the purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, the conduct is malicious.^^* In America. In Walker v. Cronin,^'"' the English rule was followed. "Every- one," it was said, "has the right to enjoy the fruits and advantages Cisco V. State, 24 N. J. Law, 30; Sleight v. Leavenwortli, 5 Duer, 122; Lange v. Benedict, 73 N. Y. 12. 3 58 2 El. & Bl. 21C; Green v. Button, 2 Cromp., M. & R. 707; Cattle v. Stock- ton "\Vatorwoi-ks Co., L. R. 10 Q. B. 453; 1 Intercollegiate Law J. 102; article by William L. Hodge, 28 Am. Law Rev. 47, 80; article by A. L. Tidd, 40 Cent. Law J. 86. 857 Bowen v. Hall, 6 Q. B. Div. 335; 20 Am. Law Rev. 578; Tenipleton v. Russell, 1 Q. B. Div. 715. And see note 350; Com. Dig. "Action on Case," A; Cattle v. Stockton Water Works Co., L. R. 10 Q. B. 453, 458; Ames, Cas. Torts, G12, note 2; Add. Torts, 37. S68 Temperton v. Russell [1893] 4 Reports, 37G. SB9 107 Mass. 555, approved in Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 816. And see Sherry v. Perkins, 147 Mass. 212, 17 N. E. r',07. 636 MALICIOUS WRONGS. [Ch . 9 of his own enterprise, industry, skill, and credit. He has no right to be protected against competition; but he has a right to be free from malicious and wanton interference, disturbance, and annoy- ance. If the disturbance or loss comes as a result of competition, or the exercise of like rights by others, it is damnum absque injuria; ' * * but if it comes merely from wanton or malicious acts of others, without the justification of competition, or the service of any interest or lawful purpose, it stands on a different footing," and the wrongdoer is liable. Lumley t. Gye has been followed in a number of other cases,^^" and by the supreme court of the United States in Angle V. Chicago, St. P., M. & O. Ky. Co.'«^ On the other hand, the numerical weight of authority would seem to be against recognition of such a moral wrong as the basis of a judicial action.^^^ Thus, in a case similar to Lumley v. Gye, the defendant induced Mary An- derson to break her contract with her manager, the plaintiff. The court held that the action could not be maintained, because it was not the policy of the law to restrict competition, whether concern- ing property or personal services; that the only occasion for more stringent regulation of the latter is in purely domestic relations; and that ordinarily the employer should look only to the person em- ployed, when there was a breach of the contract, just as the seller must look to the buyer, and the creditor to the debtor, in default of payment. ^"^ 360 .Tones v. Stanly, 76 N. C. 355; Bixby v. Dunlap, 56 N. H. 456; Jones v. Blocker, 4:i Ga. 331; Salter v. Howard, 43 Ga. 601; Benton v. Pratt, 2 "Wend. 3S5; Rice v. Manley, 66 N. Y. 82; Dickson v. Dickson, 33 La. Ann. 1261; Upton V. Tail, 6 Johns. 181; Barr v. Essex Trades Council (N. J. Ch.; Dec. 24, 1894) 30 Atl. SSI, reviewing cases; Lally v. Cantwell, 30 Mo. App. 524. 3 61 14 S. Ct. 240; 7 Harv. Law Rev. 428 (Jan. 13, 1894). It was said in Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57: "An action cannot in general be maintained for inducing a third person to break his contract with plaintiff; for o-ae party to the contract may have his remedy by suing on it,"— approving Cooley, Torts, 497. 36 2 Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57; Boyson v. Thorn, 98 Cal. 578, 33 Pac. 492. Malicious interference with contract, 32 Cent. Law J. 2T3 And see 2 Harv. Law Rev. 19. And see dissenting opinion, Haskias v. Royster. 70 N. C. 601. 363 Bourlier v. Macauley, 91 Ky. 135, 15 S. W. 60. Ch. 9] CONSPIRACY. 637 CONSPIRACY. 205. A conspiracy is an agreement or engagement of per- sons to co-operate in accomplishing some unla\Fful purpose, or some purpose which may not be un- lawful, by unlawful means.^ The conspirators are liable for conduct pursuant to such agreement to inflict injury. The injury done, and not the con- spiracy, is the gist of the action. 206. The charge of conspiracy may be of use — (a) To create a liability in cases of tort actionable only w^hen committed by tw^o or more; (b) To enable the defendant to apply principles of liabil- ity of joint tort feasors to conspirators; (c) To enlarge the scope of evidence admissible; (d) To aggravate damages; and (e) To entitle to an injunction. "Conspiracy" naturally refers to some agreement for joint action. At common law, it was the name of a writ. That writ did not take its appellation from the wrong it was designed to remedy. On the contrary, the wrong to which it issued was malicious prosecution; but it issued only when persons, by agreement, united in concerted malicious prosecution.^"^ The practice is supposed to have its origin in the phraseology of 21 Edw. I.^^' Because-of confusion as to this old writ, and of civil with criminal conspiracy, there is much uncertainty in the meaning given to, and the use made of, the term. Indeed, the term is now commonly applied to unlawful combina- tions of workmen to raise their wages, or otherwise improve their condition. ^"^ 3 64 state V. Mayberry, 48 Me. 218. 305Bigi9low, Lead. Cas. 214. 308 Bigelow, J., in Parker v. Huntington, 2 Gray (Mass.) 124. And see Van Syckel, J., in Van Horn v. Van Horn (N. J. Err. & App.) 28 Atl. 669. 367 Toml. Law Diet. tit. "Conspiracy." And see post, p. 041. 638 MALICIOUS WRONGS. [tlh. 9 Injury the Gist of the Action. ~ A civil conspiracy is an unlawful combination or agreement be- tween two or more persons to do an act unlawful in itself, or a lawful act by unlawful means.""' But, as has been shown, mere agreement to do wrong is not actionable. There must be some overt act conse- quent upon such agreement, to give the plaintiff a standing in a court of law, although it may be otherwise in equity. The liability is dam- ages for doing, not for conspiring.'"'''' The charge of conspiracy does not change the nature of the act. jThe true test of liability, in cases of conspiracy, is whether or not there is conduct in pur- suance of a conspiracy, and injury — not merely damage — resulting from such conduct. The general nature of the wrong is the ma- licious interference with certain general rights recognized and pro- tected by the law.""* There may be an agency, and also a con- 368 King V. .Tones, 4 Barn. & Adol. 345; O'Connell v. Reg., 11 Clark & P. 110; Breiteuberger v. Schmidt, 38 111. App. 168; Reg. v. Parnell, 14 Cox, Cr. Cas. 508; Angle v. Chicago, St. V., M. & O. R. Co., 151 U. S. 1, 14 Sup. Ct. 240. The definition of a conspiracy given in the text is the current and con- ventional one. It has been observed with much force, however, that "what a conspiracy is no one knows. Its definition is always question begging, and the only intelligible meaning of it seems to be that there is an indefinite class of offenses which become conspiracies because several combine in the execu- tion, and so render opposition, by an individual more difficult." 8 Harv. Law Rev. 228; Mr. Justice Harlan, in Arthur v. Oakes, 68 Fed. 310. And see Lord Esher, in Temperton v. Russell [1893] 1 Q. B. 715. 309 Boston V. Simmons, 150 Mass. 461, 23 N. E. 210; Sweeny v. Torrence, 11 Pa. Co. Ct. R. 407. 3 7oHutchins v. Hutchins, 7 Hill (N. Y.) 104; Bigelow, Lead. Cas. 207. Et vide Place v. Minster, 65 N. Y. 89; Burd. Lead. Cas. 2.59; Robertson v. Parks, 76 Md. 118, 24 Atl. 411; Austin v. Barrows, 41 Conn. 287; Vei^planck v. Van Buren, 76 N. Y. 247; Findlay v. McAllister, 113 XJ. S. 104, 5 Sup. Ct. 401; Parker v. Huntingdon, 2 Gray (Mass.) 124; Payne v. Western Ry. Co., 13 Lea (Tenn.) 507; Kimball v. Harman, 34 Md. 407; Allen v. Fenton, 24 How. 407; Bush V. Spragiue, 51 Mich. 41, 16 N. W. 222; Garing v. Fraser, 76 Me. 37; Herron v. Hughes, 25 Cal. 556; Cook v. Churchman, 104 Ind. 141-149, 3 N. E. 759; Wildee v. McKee, 111 Pa. St. 335, 2 AtL 108; Engstrom v. Sherburne, 137 Mass. 153; Savile v. Roberts, 1 Ld. Raym. 374; Cotterell v. Jones, 11 C. B. 713; Castrique v. Behrens, 30 Law J. Q. B. 163; Walsham v. Stainton, 33 Law J. Eq. 68; Skinner v. Gunton, 1 W. Saund. 229; Turner v. Turner, Gow, 20. A complaint charging defendant with a conspiracy to slander plain- Ch. 9] co.NspiiiAcY. 639 spiracy to defraud, between the same persons, and relating to the same transaction.^'^ Use of Charge of Conspiracy. It is often loosely said that the allegation of conspiracy in an action on tort is immaterial and surplusage, and that the fact of conspiracy became actionable only when the act would be a ground of suit if done by a single person."^ This is far from being liter- ally true. While in an action against two or more persons, in the nature of a conspiracy, if the tort be actionable whether committed by one or more, recoA'ery may be had against but one, but, if the tort be actionable only when committed under an unlawful con- spiracy of two or more, rt'covery may not be had unless the un- lawful conspiracy be established. Thus, judgment confessed by a father in favor of a son cannot be held fi'audulent, as to creditors of the father, without collusion and combination between the two to hinder, delay, and defraud such creditors."^ The charge of conspiracy is further of use as enabling the plaintiff to recover against all conspirators as joint tort feasors, or, if he fail to prove a concerted design, he may still recover damages against such a.s are shown to be guilty of the tort without such an agreement.^'* Mere silent approval of an unlawful act does not, however, render tiff, but failing- to sufficiently plead slander as against either, is demurrable. Severiiighaus v. Beckman, 9 Ind. App. 388, 36 N. B. 930. 371 Wolfe v. rugh, 101 Ind. 293. 3T2 Boston V. Simmons, 150 Mass. 4G1, 23 N. E. 210; Kimball v. Harman, 34 Md. 407; Cooley, Torts, 12."i. 373 Collins V. Cronin, 117 Pa. St. 35, 11 Atl. 8G9; Laverty v. Vanarsdale, 0.-> Pa. St. 507; Rundell v. Kalbfns, 125 Pa. St. 12.3, 17 Atl. 238; Id., 134 Pa. St. 102, 19 Atl. 492; Burton v. Fulton, 49 Pa. St. 151; Xewall v. .Jenkins, 26 Pa. St. 159; Wellington v. Small, 3 Cusb. (Mass.) 145; Leavitt v. Gusbee, 5 Cal. 152; Johnson v. Davis, 7 Tex. 173; Gregory v. Duke of Brunswick, 6 Man. & G. .205. 374 Van Horn v. Van Horn, supra; Skinner v. Gunton, 1 Saund. 228 et seq.; Parker v. Huntington, 2 Gray (Mass.) 124; Boston v. Simmons, 150 Mass. 4C1, 23 N. E. 210; Eason v. Westbrook, 2 Murph. (N. 0.) 329; Laverty v. Vanai-sdale, 65 Pa. St. 507-509; Garing v. Eraser, 76 Me. 37-11; Breedlove v. Bundy, 96 Ind. 319; Buffalo Lubricating Oil Co. v. Standard Oil Co., 42 Hun, 153; Brinkley v. Piatt, 40 Md. 529; Kelt v. Wyman, 67 Hun, 337, 22 N. Y. Supp. 1331; Grilling v. Dilfer, 66 Hun, 633, 21 N. Y. Supp. 407. 640 MALICIOUS WROXGS. L^h. 9 one liable as a conspirator; "'^ nor does presence as a spectator; "" nor membership in an association to prosecute, unless the member sought to be charged intentionally aided in the prosecution.^-'' But actual participation need not be proved."^ While conspiracy thus may increase the person's liability for a given wrong, it may also serve to aggravate the wrong done, and thus tend to increase the measure of the recovery.^^" The charge of conspiracy correspondingly increases the range of evidence admissible against the defendants. Thus, when a prima facie case is established, showing the existence of an actionable conspiracy, declarations, acts, or omissions of any of the conspira- tors touching the original or concerted plan (but not before or aft- erwards), and with reference to the common object, are evidence against each and every one of them. This is true, although such declarations, acts, or omissions be not made or performed in the presence of more than one of such conspirators.^*" The charge of conspiracy may be further of use as entitl^p^g its object to an injunction even before there has been any overt act under the unlawful agreement. The issuance of the injunction will be governed by the common equitable principles. A com- bination to boycott a newspaper may be enjoined.^ *^ sTSBrannock v. Bouldin, 4 Ired. (N. C.) 61; Johnson v. Davis, 7 Tex. 173. 3 76 Blue v. Christ, 4 111. App. 351. 37 7 Johnson v. Miller, 63 Iowa, 529, 17 N. W. 34; Id., 82 Iowa, 693, 47 N. ■W. 903, and 48 N. W. 1081. 37 8 Page v. Parlser, 43 N. H. 363-367; Tappan v. Powers, 2 Hall (N. Y.) 277; liivevmore v. Herschell, 3 Pick. 33; Bredin v. Bredin, 3 Pa. St. 81. 37 9 Cooley, Torts, 125; Robinson v. Parks, 76 Md. 118, 24 Atl. 411; Lee v. Kendall, 56 Hun, 610, 11 N. Y. Supp. 131; Kimball v. Harman, 34 Md. 407. 380 Brinkley v. Piatt, 40 Md. 529; Williams v. Dickenson, 28 Fla. 90, 9 South. 847; Allen v. Kirk, 81 Iowa, 659, 47 N. W. 906; Taylor Co. v. Standley, 79 Iowa, 669, 44 N. W. 911; Work v. McCoy, 87 Iowa, 217, 54 N. W. 140; Kil- Tjurn v. Rice, 151 Mass. 442, 24 N. E. 403; Percival v. Harres, 142 Pa. St. 369, 21 Atl. 876; Gaunce v. Backhouse, 37 Pa. St. 350; Brackett v. Griswald, 69 Hun, 617, 13 N. Y. Supp. 192; St. Paul Distilling Co. v. Pratt, 45 Minn. 215, 47 N. W. 789; Rollins v. Board of Com'rs, 15 Colo. 103, 25 Pac. 319; Strout V. Packard, 76 Me. 148. Letters written by one conspirator to another during alleged conspiracy are admissible. ZeUerbach v. Allenbergi, 99 Cal. o7, 33 Pac. 786. But see Blum v. Jones, 86 Tex. 492, 25 S. W. 694. 381 Casey v. Cincinnati Tj'pographical Union No. 3, 45 Fed. 135; Rogers t-'h. 9] CONSPIRACY. 641 SAME— STRIKES AND BOYCOTTS. 207. The essential elements of strikes and boycotts action- able as torts are — (a) A combination of persons to do harm to another; (b) Malicious intent; and (c) Damage to complainant. The Combination. It is constantly and loosely said that, what one person may law- fully do singly, two or more may lawfully agree to do, and actually do, jointly.''*^ This can by no means be accepted at the present time as unqualifiedly true. Leaving technical reasoning and author- ity out of view for a moment, it is evident, from ordinary considera- tions, that the sum of a number of similar actions may result in a gen- eral effect, the elements of which are not apparent in isolated action. The sepbr^Bbn of a single animal is not a stampede. A single deser- tion is %ot * panic. A single servant may leave his employment without suggesting the paralysis of a general "tie up." One member of a crew might, without wrong, leave a train, on the main traveled road, although it would be a criminal outrage for the entire train crew to abandon the train at the same point. There is, however, abundance of legal authority and reasoning against so artificial a conclusion. In the criminal law, it is entirely clear that "an agreement to effect an injury or wrong to another by two or more persons consti- tutes an offense, because the wrong to be effected by a combination V. Evarts (Sup.) 17 N. Y. Supp. 204; Mogul S. S. Co. v. M'Gregor, 15 Q. B. Div. 476; St. Paul Distilling Co. v. Pratt, 45 ilinn. 215, 47 N. W. 789; Alleu v. Kirk, 81 Iowa, 658, 47 N. W. 906. 382 "What one man may lawfully do singly, two or more may lawfully agree to do jointly. The number who unite to do the act cannot change its char- acter from lawful to unlawful. The gist of a private action for the wrongful act of many is, not the combination or conspiracy, but the damage done or threatened to the plaintiff by the acts of the defendants. If the act be un- lawful, the combination of many to commit it may aggravate the injury, but cannot change the character of the act." Per Jlitchell, J., in Bohn Manuf'g Co. V. HoUis, 54 Minn. 223-234, 55 N. W. 1119. LAW OF TOKTS— 41 642 MAMcioi's WRONGS. [Ch. 9 assumes a formidable character. When done by one alone, it is but a civil injury, but it assumes a formidable or aggravated char- acter when it is to be effected by tlie powers of combination." ^*^ In Com. V. Carlisle,^** (1821) where employers combined to depress the wages of their employes by artificial means. Chief Justice Gib- son, "that judge of 'great and enduring reputation,'" '^'^ said: "There is, between the different parts of the body politic, a reciprocity of action on each other, which, like the action of antagonizing muscles in the natural body, not only prescribes to each its appropriate state and condition, but regulates the motion of the whole. The effort of an individual to disturb this equilibrium can never be percepti- ble, nor carry the operation of his interest, or that of ajiy other in- dividual, beyond the limit of fair competition. ButI the increase of power by combination of means being in geometrical proportion to the number concerned, an association may be able to give it im- pulse, not only oppressive to individuals, but mischievous to the public at large; and it is the employment of an engine so powerful and dangerous that gives criminality to an act that would be per- fectly innocent, at least in a legal view, when done by an individual." This distinction is recognized in civil cases as the basis of liability in tort, and as resting on sound reasoning, although caution should be exercised not to carry the doctrine beyond the limits necessary for protection of individuals.^*^ This view of the law has received indorsement in the recent strike cases. As a matter of fact, the questions of law which they involve 3 83 Rex V. Seward, 1 Adol. & B. 706. Cf. Reg. v. Peck, 9 Adol. & E. 680; Reg. Y. Parnell, 14 Cox, Cr. Gas. 50S-514; Queen v. Kenrick, 5 Q. B. 49; Com. V. Hunt, 4 Mete. (Mass.) 111-121; State v. Stewart, 59 Vt 273-286, 9 Atl. 559; State v. Glidden, 55 Conn. 46-78, 8 Atl. 890. 3 84 Brightly, N. P. (PS^%-41, Append.; Callan y. Wilscn, 127 U. S. 540- o.')0, 8 Sup. Ct. 1301" Ejarmers' Loan & Trust Co. v. Northern Pac. R. Co., 60 Fed. so:!; Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190. 380 See Jenkins, J., in Farmers" Loan & Trust Co. v. Northern Pac. R. Co., 00 Fed. 803-81.-). 380 Bowen, L. .T., in Mogul Steamship Co. v. McGregor, 23 Q. B. Div. 598, at page 016. In house of lords ([1892] App. Cas. 25, at page 38) Lord Hals- bury said: ^ "I do not deny that there are many things which might be per- fectly lawfully done by an individual, which, when done by a number of per- sons, become unlawful." \ ^h. 9] CONSPIRACY. 643 had immediate reference to injunction, ratlier than to damages, but the underlying principles enunciated control liability in tort.^^^ It is insisted that "any man (unless under contract obligation, or employment charging him with a public duty) has a right to refuse to work for or deal with any man, or class of men, as he sees fit; and this right, which one man may exercise singly, any number may agree to exercise jointly." =^^ Indeed, the common-law right of la- borers to combine and use peaceful means to advance their interests, and, more specifically, the price of labor, has been generally broad- ened by statute.'^^ Where such a statute extends the common-law rights as to combinations of labor, the courts recognize correspond- ing changes in the rights of employers to combine to resist employes. Therefore, where employes enter into a lawful combination to con- trol, by artificial means, the supply of labor, preparatory to a de- mand for an advance in wages, a cOnibrfiation of employers to resist such artificial advance is lawful, since it is not made to lower the price of labor, as regulated by supply and demand.^"" However, the right of employes to leave their employment whenever they choose is far from being absolute.^"^ In Farmers' Loan & Trust Co. v. 387 "There would seem to be no good reason why, in some cases at least, the third person injured should not have a remedy also, theoretical but practically useless, against the striker, not for breach of contract, but for a tort committed in that breach by the misfeasance or nonfeasance of duty." Ardemus Stewart, Esq., on the legal side of the strike question, 1 Am. Law Reg. & Kev. 609-614. And see Temperton v. Russell [1893] 4 Reports, 376, at page 386, per Lord Justice A. L. Smith; Farmers' Loan & Trust Co. v. Noi-th- ern Pac. R. Co., 60 Fed. 815; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 746. 3 88 Pardee, J., in Re Higgins, 27 Fed. 443; Beatty, J., in Coeur d'Alene Consolidated & Min. Co. v. Miners' Union, 51 Fed. 260; Carew v. Ruther- ford, 106 Mass. 1; Bowen v. Matheson, 14 Allen (Mass.) 499; Snow v. ■\^'heGlor, 113 Mass. 179; Walker v. Cronin, 107 Mass. 555; Payne v. Western & A. li. Co., 13 Lea (Tenn.) 507; Cooley, Torts, 278; Hilton v. Bckersley, 6 El. & Bl. 47. And see Sir William Earl's treatise on the Law Relating to Ti-aders' Unions, at page 13. 389 As in Mayer v. Journeymen Stone-Cutters' Ass'n, 47 N. J. Eq. 519, 20 Atl. 492. And see Perkins v. Rogg, 28 Wkly. Law Bui. 32. 3 00 Cote V. Murphy, 159 Pa. St. 420, 28 Atl. 190. And see Buchanan v. Barnes (Pa. Sup.) 28 Atl. 195; Buchanan v. Kerr, 159 Pa. St. 433, 28 Atl. 193. 3 01 "Rights are not absolute, but are relative. Rights grow out of duty, and are limited by duty. One has not tlie right ai'biti'arily to quit service 644 MALICIOUS WRONGS. , [Ch. 9 Northern Pac. Ry. Co.,^°^ Judge Jenkins lield that a strike was nec- essarily illegal. In Arthur v. Oakes/'^ however, Mr. Justice Har- lan said : "We are not prepared, in the absence of evidence, to hold, as a matter of law, that a combination among employes, having for its object their orderly withdrawal, in large numbers or in a body, from the service of their employer, on account simply of a reduction in without regai-d to the necessities of that service. His right of abandonment is limited by the assumption of that service, and the conditions and exigen- cies attaching thereto. It would be monstrous if a surgeon, upon demand and refusal of larger compensation, could lawfully abandon an operation partially performed, leaving his knife in the bleeding body of his patient. It would be monstroiLS if a body of surgeons, in aid of such demand, could lawfully combine and conspire to withhold their services. * * * It woiild be intol- erable if counsel were permitted to demand larger compensation, and to en- force his demand by immediate abandonment of his duty in the midst of a trial. It would be monstrous if the bar of a court could combine and con- spire in aid of such extortion by one of its members, and refuse their service. I talie it that in such case, if the judge of the court had proper appreciation of the duties and functions of his office, that coiurt, for a time, wotild be with- out a bar, and the jail would be filled witli lawyers. It cannot be conceded that an individual has the legal right to abandon service whenever he may please. His right to leave is dependent upon duty, and liis duty is dictated and measured by the exigency of the occasion." Jenliins, J., in Farmers' Loan & Trust Co. v. Northern Pac. R. Co., GO Fed. 803, 812. 392 He defined a strike to be (at page 821) "a combined effort among workmen to compel the master to the concession of a certain demand, by pi-eventing the conduct of his business until compliance with the demand. The concerted ces- sation of work is but one of, and the least effective of, the means to the end; the intimidation of others from engaging in the service, the interference with, and the disabling and destruction of, property, and resort to actual force and violence, when requisite to the accomplishment of the end, being the other, and more effective, means employed. It is idle to talk of a peaceable strike. None such ever occurred. The suggestion is impeachment of intelligence. From first to last, * * * force and turbulence, violence and outrage, arson and murder, have been associated with the strike as its natural and inevi- table concomitants. No strike can be effective without compulsion and force. That compulsion can come only through intimidation. A strike without vio- lence would equal the representation of the tragedy of Hamlet with the part of Hamlet omitted. The moment that violence becomes an essential part of a scheme, or a necessary means of effecting the purpose of a combination, that moment the combination, otherwise lawful, becomes illegal. AH com- 393 03 Fed. 310-327, citing Farrer v. Close, L. R. 4 Q. B. 602-012. ^i^- 9] CONSPIRACY. 645 their wages, is not a strike, within the meaning of the word as com- monly used. Such a withdrawal, although amounting to a strike, ■ is not either illegal or criminal." It was held in this case, however, that "an intent upon the part of a single person to injure the rights of others, or of the public, is not in itself a wrong of which the law will take cognizance, unless some injurious act be done in execution of the unlawful intent; but a combination of two or more persons, with a power to do an injury they would not possess as individuals acting singly, has always been recognized as in itself wrongful and illegal." ralicious Intent. There are many loose sayings to the effect that the malicious mo- tive makes a bad case worse, but they cannot make that wrong which, in its own essence, is lawful."'* This unqualified statement is not true, as applied universally to the law of torts,^°^ nor is it true as applied to the matter under consideration. Malicious injury to the business of another has long been held to give a right of ac- tion to the injured party."'*] Judge Taft. in. his celebrated opinion binations to interfere with perfect freedom in tlie proper management and control of one's lawful business, to dictate the terms upon which such busi- ness shall be conducted, by means of threats or by interference with property or traffic or with the lawful employment of others, are within the condemna- tion of the law. It has well been said that the wit of man could not devise a legal strilio, because compulsion is the leading idea of it. A strilce is es- sentially a conspiracy to extort by violence, the means employed to effect the end being not only the cessation of labor by the conspirators, but the nec- essary prevention of labor by those who are willing to assume their places, and, as a last resort, and in many instances an essential element of success, the disabling and destruction of the property of the master, and so, by in- ■ timidation, and by the compulsion of force, to accomplish the end designed." 3 04 Jenliins v. Fowler, 24 Pa. St. 308; Hey wood v. Tillson, 75 Me. 225; Mor- ris V. Tuthill, 72 N. Y. 575; Mnhan v. Brown, 13 Wend. 261; Phelps v. Nowlen, 72 N. Y. 39; Bohn Manuf'g Co. v. Hillis (supra). 3 5 Ante, pp. 55, 56. 3 9 Garret v. Taylor, Cro. Jac. 567; Keeble v. Hickeringill, 11 East, 57-1; Gunter v. Astor, 4 Moore, 12, 10 E. C. L. 357; Lumley v. Gye, 2 El. & Bl. 210; Gii'sory V. Duke of Brunswick, 6 JNIadd. & G. 205; Young v. Hichens, G Q. B. 606; Temperton v. Russell [1893] 1 Q. B. 715; Carew v. Rutherford, 106 Mass. 1; Walker v. Oronin, 107 Mass. 555; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, affirmed 28 Atl. 669; Lucke v. Assembly (JNId ) 26 Atl. 64G , I MALICIOUS WRONGS. [Ch. 9 in Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co.,"' said: "Ordinarily, when such a combination of persons does not use vio- lence, actual or threatened, to accomplish their purpose, it is diffi- cult to point out with clearness the illegal means or end which makes the combination an unlawful conspiracy; for it is generally lawful for the combiners to withdraw their intercourse and its bene- fits from any person, and to announce their intention of doing so, and it is equally lawful for the others, of their own motion, to do that which the combiners seek to compel them to do. Such com- binations are said to be unlawful conspiracies, though the acts in themselves, and considered singly, are innocentj when the acts are done with malice, i. e. with the intention to injure another without lawful excuse." Indeed, the gravamen of the wrong in cases of this kind is malice.^ ''^ This renders necessary, in cases of this kind, ^an inquiry as to the intent of the defendants, to ascertain if the case falls within the class in which it is held that malicious motive may make an act, which would not be wrongful without malice, wrongful when done with malice.^'^ "Malice," as here employed, of course, signifies, not colloquial, but technical, malice. "Malice'/ means the purpose of injuring the plaintiff, or benefiting the de- fendant at the expense of the plaintiff.*"" ^ Damage to Complainant. While a combination to injure others may be the basis for pre- ventive relief in a court of equity, the wrong is not a complete tort 505; Cm-ran v. Galen (Sup.) 22 N. Y. Supp. 826; Bradley v. Pierson, 148 Pa. St. 502, 2i Atl. 65; Ryan v. Brewing Co. (Sup.) 13 N. Y. Supp. 660; Moores V. Union, 23 Wkly. Cin. Law Bull. 48, 7 Ry. & Corp. I>aw J. 108; Delz v. Winfree (Tex. Sup.) 16 S. W. Ill; Olive v. Van Patten (Tex. Civ. App.) 2.5 S. W. 428; Jackson v. Stanfleld (Ind. Sup.) 36 N. E. 345; Raili-oad Co. v. Greenwood (Tex. Civ. App.) 21 S. W. 559; Chipley v. Atldnson, 23 Fla. 206, 1 South. 943; Haskins v. Royster, 70 N. C. 601; Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475, note; Mapstrick v. Ramge, 9 Neb. 390, 2 N. W. 739. 3 07 54 Fed. 730-738, and authorities cited. And see Mogul S. S. Co. v. Mc- Gregor, supra. 3 OS Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, Chase, Lead. Cas. 109. 390 Barr v. Essex Trades Council (N. J. Ch.) 30 Atl. 881. 400 Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, per Scudder, J.; Temperton v. Russell, 4 Reports, 376. Ch. 9] CONSPIRACY. 617 until damage has been suffered. But mere damage alone is not necessarily sufficient. In Mogul Steamship Co. v. McGregor,*"^ on appeal, Bowen, L. J.,*''^ considered the proposition "that an action will lie if a man maliciousjjy and wrongfully acts so as to injure an- other in that other's trade." "Obscurity," he said, "resides in the language used to state this proposition. The terms 'maliciously,' 'wrong-fully,' and 'injure' are words all of which have accurate mean- ings, well known to the law, but which also have a popular and less precise signification, into which it is necessary to see that the argu- ment does not imperceptibly slide. An intent to 'injure,' in strict- ness, means more than an intent to harm. It connotes an intent to do wrongful harm. 'Maliciously,' in like manner, means and im- plies an intention to do an act vhich is wrongful, to the detriment of another. The term 'wrongful' imports, in its turn, the infringe- ment of some right. The ambiguous proposition * * * there- fore leaves unsolved the question of what, as between the plaintiffs and defendants, are the rights of trade. * * * The plaintiffs had a right to be protected against certain kind of conduct, and we have to consider what conduct would pass this legal line or bound- ary. Now, intendonally to do that which is calculated, in the ordinary course of events, to damage, and which does in fact dam- age, another, in that other person's property or trade, is actionable, if done without just cause or excuse. Such intentional action, when done without just cause or excuse, is what the law calls a 'malicious *oi This case, as reported in L. R. 15 Q. B. 476^82, was regarded by Lord Coleridge, 0. J., as involving a boycott. A temporary injunction was, how- ever, refused, because irreparable damage was not shown. 10 2 23 Q. B. Div. 598, at pages 612, 613. And see dissenting opinion of Lord Esher, at page 601. This great case was finally appealed and decided. [1892] App. Oas. 2.5, affirming the decision of the court of appeal. More spe- cifically that since the acts of dPlendant were done with the lawful object of protection and extending their trade, and incieasing their profits, and since they had not employed any unlawful means, the plaintiff had no cause of action. For further report see 61 Law J. Q. B. 295; 66 Law T. 1; 40 AVlily. Kep. 337. See, also, Wallier v. Cronin, 107 Mass. 555; Hey wood v. Tillson, 75 Me. 225. 648 MALICIOUS WE0NG3. [Ch. 9 Principles Applied. At the one extreme, the exercise of equal rights affords a full justi- fication to the charge of an actionable conspiracy of this kind. In Mogul Steamship Co. v. McGregor,*"^ the defendants, shipowners, formed an association to maintain a monopoly of homeward tea trade, whereby they allowed purchasers of tea shipped exclusively in their vessels a rebate on freights. The plaintiffs, rival shipown- ers, suffered damage because they were excluded from the benefits of the association. The right to recover was denied because the de- fendants were pushing their lawful trade by lawful means. Com- petition afforded a full justification. The motive of the defendant was business gain, without actual malice to the plaintiff.*"* No un- lawful means were employed.*"'' At the other extreme, a boycott must, consistently with these cases, be regarded as an actionable wrong. Lawful competi- tion in business may damage another without creating a wrong, but trades unions are not ordinarily competitors of the persons against whom a boycott is directed. There is no rivalry in business. The purpose of the boycott is, by a combination of many, to cause loss to one person by coercing others, against their will, to suspend or dis- continue Sealing or patronage because of his refusal to comply with demands of the boycotters.*"^ This is a totally different thing from that competition which is the life of trade. It was accordingly held in Barr v. Essex Trades Counsel *'" that the boycott of a newspaper, which included threatening circulars, designed to procure discontinu- 403 23 Q. B. Div. 598. *oi Coleridge, C. J., in L. R. 21 Q. B. Div. 544, at page 552. 4»5 So, wholesale butchers, to protect each other from dishonest and in- solvent customers, and otherwise naturally to assist each other, may agree that each, on the request of the other, will refuse to sell merchandise to any butchpr indebted to them both, and such butcher cannot recover for consequent injui-y to his business. Delz v. Winfree, 6 Tex. Civ. App. 11, 25 S. W. 50. Of. Dueber Watch-Case JIauuf g Co. v. E. Howard Watch Co. (Sup.) 24 N. y. Supp. G47. 400 Definitions of boycott, 2 Am. & Eng. Enc. Law, 512, quoting Com. v. Shelton, 11 Va. Law J. 324. A history and definition of the word, with nu- merous authorities, as to the rights of employers and employes, and the civil liability of those establishing a boycott, by D. H. Pingrey, 38 Cent. Law .L 427. 40 7 30 Atl. 8S4. Cll. 9] CONSPIRACY. 649 ance of advertisements and decrease of circulation, is an actionable wrong. Boycotts, indeed, have been almost universally regarded as illegal conspiracies, and therefore as actionable vi^rongs.*"* Between these extremes, the authorities are not in accord. In Bohn Manufg Co. v. Hillis ^"^ it was held that a voluntary associa- tion of retail dealers could agree not to deal with any manufac- turer or wholesale dealer who would sell direct to consumers, and, in accordance with such agreement, notify all members whenever any wholesale dealer or manufacturer made any such sale, without committing an actionable wrong, or creating a basis for the issu- ance of an injunction. Here the conduct of the retailers' associa- tion may have been justified by the exercise of equal rights. It was an effectual check on dangerous competition. Moreover, in this case, ■408 Old Dominion S. S. Co. v. McKenna, 30 Fed. 48, 24 Blatclif. 214. See 21 Am. Law Rev. .509, 704; Ban- v. Essex Trades Council (N. J. Ch.) 30 Atl. 881; Carew v. Rutherford, 106 Mass. 1; State v. Glidden, 55 Conn. 46, 8 Atl. 890; State v. Stewart, 59 Vt. 273, 9 Atl. 559; Casey v. Typographical Union, 45 Fed. 135; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 730, 738; Thomas v. Cincinnati Ry. Co., 62 Fed. 803, commenting, inter alia, on U. S. V. Workingmen's Ass'n, 54 Fed. 994; U. S. v. Patterson, 55 Fed. 605. •i0 9 Bohn Manufg Co. v. Hollis, 54 Minn. 223, 55 X. ^y. 1119, citing, inter alia, Bowen v. Matheson, 14 Allen (Mass.) 499; Parker v. Huntington, 2 Gray (Mass.) 124; Wellington v. Small, 3 Cush. (Mass.) 145; Payne v. Western & A. R. Co., 13 Lea (Tenn.) 507; and Mogul S. S. Co. v. McGregor, supra. The con- clusion reached may be in harmony with this last case, but certainly not the V process by which it is arrived at. \"It will therefore be perceived that the mo- tive for combining, or, what is the^ame thing, the nature of the object to be attained as a consequence of the lawful act, is, in this class of cases, the dis- criminating circumstance. Whei'e the act is lawful for an individual, it can be the subject of a conspiracy when done in concert only where there is a direct intention that injury shall result from it, or where the object is to benefit the conspirators to the prejudice of the public, or the oppres- sion of individuals, and where such prejudice or oppression is the natural and necessary consequence."\ Gibson, J., in Com. v. Carlisle, Brightly, N. ^ P. (Pa.) 30. And see State v. -Buchanan, 5 Har. & J. 317; State v. De Witt, 2 Hill (S. C.) 282; State v. Norton, 23 N. J. Law, 33; State v. Donaldson, 32 N. .J. Law, 151; State v. Burnham, 15 N. H. 396; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Smith v. People, 25 111. 17; State v. Stewart, 59 Vt. 273, 9 Atl. 559; In re Higgins, 27 Fed. 443; Coeur d'Alene Consolidated & Min. Co. v. Miners' Union, 51 Fed. 260; D. S. V. Workingmen's Amalgamated Council, 54 Fed. 994. 650 MALICIOUS WRONGS. [Ch. 9 as in the cases in which the right of men to quit the employment of their master is recognized, there was simply the exercise jointly of the right any man has to deal with those he chooses, and to quit working whenever he chooses, in the absence of such particular cir- cumstances; as, for example, where there is an attempt to influence the conduct of persons outside of the association. In Delz v. Win- free *^° the court recognized as correct the proposition that a person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reaso^, or is the result of whim, caprice, prejudice, or malice, and there is no law which forces a man to part with his title to his property, but added: "The privilege here asserted must be limited to the in- dividual action of the party who asserts the right. It is not equally true that one person may from such motive influence another per- son to do the same thing." ~; Accordingly, while it was held that no ■^action for conspiracy would lie for refusal on the part of several dealers in cattle to sell to the complainant (a nonpaying customer), yet such action would lie if they induced another dealer, who like- wise refused to sell to him. And in Temperton v. Russell *^^ it was distinctlj^ held that a combination by two or more persons to induce others not to deal with, or to enter into contract with, a particular individual, is actionable, if done for the purpose of injuring that ^lo SO Tex. 400, 16 S. W. 111. In the same case it was subsequently dis- tinctly held (6 Tex. Civ. App. 11, 25 S. W. 50) that wholesale butchers, to protect each other from dishonest and insolvent customers, and otherwise naturally to assist each othei', may a^-ee that each, on the request of the other, will refuse to sell merchandise to any butcher indebted to them both, and such butcher cannot recover for coni^equent injury to his business. This docti-iiie was followed in Olive v. Van Patten (Tex. Civ. App.) 25 S. W. 42S. There it was held that a petition alleging that defendants (wholesale lumber dealers) formed an association agreeing not to sell to others than dealea's; that, because of refusal by plaintifl! (another dealer) to join such association, they had maliciously distributed circulars asking that patronage be with- drawn from plaintiff till he agreed not to sell to others than dealers, thereby influencing others not to deal with i>laintifC, to his injury,— states a good cause of action. And see Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. CO'J, 12 N. E. S25; Bradley v. Pierson, 148 Pa. St. 502, 24 Atl. 65; KeUy v. Chicago, il. & St. P. Ry. Co. (Iowa) 61 N. W. 957. Of. Murray v. McGarigle, OU Wis. 483, 34 N. W. 522. Ill [1808] 4 Reports, 376. Ch. 9] CONSPIRACY. 651 individual, provided he is thereby injured. ' The courts, however, re- gard as actionable wrong any attempt to secure a monopoly of busi- ness by coercion or intimidation by combinations^ From this point of view, Bohn Manuf'g Co. v. Hollis has been criticised as in conflict with approved authority, and as being bad as a precedent.*^^ In Van Horn v. Van Horn the line is a much finer one, and all the reasoning of the court, though not necessarily their conclusion, can hardly be reconciled with authority, or be found consistent. Here the declaration charged that the defendants conspired to injure the plaintiff in her business of selling fancy goods, which she carried on in her own name, and that, by false and malicious statements con- cerning her personal and business character, they induced and per- suaded one who had supplied her with goods to remove the stock so supplied, and to refuse to deliver what he had expected to let her have, leaving her without any stock to sell, or customers to sell to. It was held by the supreme court of New Jersey that an action lay for a combination or conspiracy by fraudulent and malicious acts to drive a trader out of business resulting in damages,*" and that this was not an action of slander,*^* and on appeal to the court of last resort *^^ these views were sustained. It was held that "the rule to be deduced from these cases, and the one which has the most ample support, is that while a trader may lawfully engage in the sharpest competition with those in a like business, by holding 412 Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, and 37 N. E. 14. Here "The Retail Lumber Dealers' Association of Indiana" by its by-laws gave ao active member a claim against a wholesaler for selling to a person not a "regular dealer"' in such jnember's community, provided for a hearing of the claim by a committee, and requii'ed members to refuse to patronize a wholesaler who ignored the committee's decision. Plaintiff, who was not a '■regular dealer," underbid defendant on a contract, but wholesalers refused to sell to him, and he was obliged to abandon the contract, because defend- ant, an active member of the association, had previously enforced a claim against a wholesaler who had sold to plaintiff, and expressed an intention of continuing to enforce such claims. Held, that defendant was liable for the amount which plaintiff lost by abandoning his contract, and would be perpetually enjoined from making a claim under the by-laws of the assotia- tinn against any person who sold to plaintiff. ■ 413 52 X. J. Law, 284, 20 Atl. 485. 414 .-,.-, X. J. Lnw, 514, 21 At!. 10(i9. 41 D (X. J. EiT. & App.) 28 AU. 609. • 652 MALICIOUS WRONGS. [Ch. 9 out extraordinary inducements, by representing his own wares to be better and cheaper than those of others, yet when he oversteps that line, and commits an act with the malicious intent of inflicting injury upon his rival's business, his conduct is illegal, and if dam- age results from it the injured party is entitled to redress." ^Pe gorn6ooft ^eriee. c649a This series is to comprise elementary treatises on all the principal subjects of the law. The books are made on the same general plan, in which certain special and original features are made prominent. These are: 1. A brief analytical presentation of the principles and rules of the subject. This part is distinguished typographically by being printed in large black type, and these black-letter paragraphs, running through the book, constitute a complete, though concise, synopsis of ,the law of the subject. 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WEST PUBLISHING CO., St. Paul, Minn. (8) iZ^ ^omiJoott Series.) ^pe ^dw of €on^rac^^^ Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering Its defl- nitioQ, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER n. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, cbaracter, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER in. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and tbeir characteristics. CHAPTER IV. REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by- executor, promise to answer for another, agreements in consideration of marriage and in relation to land, and agreements not to be performed within a year, sufBciency of memo- randum, etc. CHAPTER V. 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THE PRODUCTION OP THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VII. MATERIALITY IN PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNIT Y IN PLEADING : Cov- ering the rules in general, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc. Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and authoiv ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, etc. Chapter XII. MISCELLANEOUS RULES: Covering con- formance to process, alleging damages and production of suit, urder of pleading, defense, plea In abatement, dilatory pleas, etc. APPENDIX: Forms. This book embodies such of the rules and principles o£ Cpmmon-Law Pleading as are still recognized and applied in this country. A knowledge of the common-law system is of advantage, if indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (5) (g gan^Boog of Comtxtutiotiaf Ban) B TABLE OF CONTENTS. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the meaning of "Constitutional" and "Unconstitutional; " written and unwrit- ten constitutions, bills of riglits, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc. Chapter III. ESTABLISHMENT AND AMENDMENT OP CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tion and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OP CONSTITUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OP GOVERN- MENT : Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Consiaering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning and'military power, and treaty-making power; vacancy in offlcej the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn oor- gress, execute the laws, etc. Chapter VTI. ITEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VTII. THE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution: Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial procfeediugs, etc. Chapter X. REPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE POWER IN THE STATES. - Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc. Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc. Chapter XVI. THE RIGHT OP EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc. I Chapter XVII. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc. Chapter XVIII. CIVIL RIGHTS, AND THEIR PROTECTION BT THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc. Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, etc. Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto laws, habeas corpus, etc. Chapter XXI. LAWS IMPAIRING THE OBLIGATION OP CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature to contract, remedies on contracts, etc. Chapter XXH. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etc 1 VOL.. 646 PAGES. $3.75. DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. (61 (t0e gomfiooft Series.) ^ ^ani>6ooft of Q5g (Uormftn S^^if* TABLE OF CONTENTS. Chapter I. [nature and definition of equity. Cbapter H* PRINCIPLES DEFINING AND LIMITING JU- RISDICTION : Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter III. [THE MAXIMS OF EQUITY: Definition and classification of maxims; the enabling and re- strictive maxims. Chapter IV. THE DOCTRINES OF EQUITY: Considering estoppel, election, satisfaction, performance, I and conversion. Chapter V. THE DOCTRINES OF EQUITY (Continued): Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. IpE DOCTRINES OF EQUITY (Continued) : Considering penalties and forfeitures, liqui- dated damages. Chapter VII. ^GROUNDS FOR EQUITABLE RELIEF: Con- ! sidering accident, mistake, fraud, etc. Chapter VIII. PROPERTY IN EQUITY— TRUSTS: Covering definition, hisljoyy, and classification of trusts, charitable trusts,, duties and liabilities of trus- tees, remedies of cestui que trust, etc. Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMENTS. Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition add settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (Continued): Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIII. EQUITABLE REMEDIES (Continued) : Cov- ering injunctions, and (Jonsideriug their juris- dictional principles, classes of cases where remedy may be used, etc. Chapter XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interpleader, receivers, etc. I VOL., 474 PAGES, $375. DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (7) (^^ ^otniooft ^ert'eg.) (^ 5anb6ooft of (guf^or of a "l^ftniifiooft of Cnminftf &ai»," fin^ a. "gftnl>6ooft of Confrftcfe." TABLE OF CONTENTS. Chapter I. JURISDICTION: Covering courts of criminal ju- risdiction and venue. CbapteT II. APPREHENSION OP PERSONS AND PROP- ERTY : Covering arrest in general, vrarrants, extradition, searches and seizures of property, and taking property from prisoner. Chapter III. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT: Covering rigbt to release on bail, habeas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OF ACCUSATION: Covering the indict- ment and presentment, information, coroner's . inquisition, time of prosecution, and nolle prosequi, etc. Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of oflense and descrip- tion of defendant. Chapter VI. PLEADING— THE ACCUSATION (Continued): Covering alles-ation of intent, knowledge, etc. ; technical terms; second or third offense; set- ting forth writings; description of property and persons ; ownership. Chapter VII. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIII. PLEADINCJ— THE ACCUSATION (Continued): Covering indictments on statutes. ' Chapter IX. PLEADING— THE ACCUSATION (Continued): Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc. Chapter X. PLEADING AND PROOF: Covering variance and conviction of minor and higher oSense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Covering time and place of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIII. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts in issue, motive, res gesLae, other crimes, declarations, confess sions, character, burden of proof, witnesses; etc. Chapter XV. HABEAS CORPUS. I VOL. 658 PACES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. [^ 35otn6oofe ^etieel ♦ ♦ ♦oCv* ♦ ♦ 5ant»6ooft of t^t ^m of ^afee Author of " Tiffany on Death by Wrongful Act" TABLE OF CONTENTS. Cbapter I. ORMATION OF THE CONTRACT: Covering the capacity of parties, who may sell, the thing sold, mutual assent, form, and price. Chapter II. 'ORMATION OF THE CONTRACT (Continued) : Covering the statute of frauds. Chapter III. SOT OF THE CONTRACT IN PASSING FHE PROPERTY: Covering sales of specific jBhattels, — unconditional sales, conditional sales, "■^le on trial or approval, and sale or return. Chapter IV. FFECT OP THE CONTRACT IN PASSING THE PROPERTY (Continued) : Covering sales of chattels not specific, appropriation of property to the contract, reservation of right of disposal, etc. Chapter V. IrSTAKE, FAILURE OF CONSIDERATION, llND FRAUD : Showing the effect of mistake, (failure of consideration, and fraud generally, frauds on creditors, the delivery necessary as against creditors and purchasers, etc. Chapter VT. ILLEGALITY : Covering sales prohibited by the common law, by public policy, and by statute; the effect of illegality, and the conflict of laws. Chapter VII. CONDITIONS AND WARRANTIES: Covering conditions and warranties generally. Chapter VIII. PERFORMANCE: Covering fully delivery, the buyer's right of examination, acceptance, and payment. Chapter IX. RIGHTS OF UNPAID SELLER AGAINST THE GOODS: Covering the seller's lien, stoppage in transitu, and the right of resale. Chapter X. ACTION FOR BREACH OF THE CONTRACT: Covering the various remedies of the seller and of the buyer. i Volume. 356 Pages. $3.75, Delivered. jiVEST PUBLISHING CO., 5t. Paul, Minn. (8) ( gomfiooft ^itUe.) (g ganbBooR of ^nf^tttat ..*•■«,.■ i^%i af Bait)^ Advocate, (g^ £aj)^* (Bbtvin 5* &2mn, ^^^&/^. TABLE OF CONTENTS. INTRODUCTION. Covering the deflnition, source, and nature of In- ternational Law. Chapter I. PERSONS IN INTERNATIONAL LAW: Cov- ering states, their loss of identity, various unions of states, de facto states, belligerency and recog- nition thereof, and eg.uality of states. Cbapter II. THE COMMENCEMENT OF STATES— FUNDA- MENTAL RIGHTS AND DUTIES: Covering the commencement and recognition of new states, effect of change of sovereignty, the fun- damental rights and duties of states, eto. Chapter III. TERRITORIAL PROPERTY OF A STATE: Covering modes of acquiring property, boun- daries, territorial waters, etc. Chapter IV. TERRITORIAL JURISDICTION: Covering ex- territoriality, sovereigns and diplomatic agents and their immunities, vessels, right of asylum, alienage, responsibility for mob violence, extra- dition, jurisdiction beyond state limits, etc Chapter V. JURISDICTION ON THE HIGH SEAS AND UNOCCUPIED PLACES: Covering nature of jurisdiction, jurisdiction over merchant ships, piracy, privateers, letters of marque, slave trade, eto. Chapter VI. THE AGENTS OF A STATE IN INTERNA- TIONAL RELATIONS: Covering public diplo- matic agents and consuls, and matters relating to them. Chapter VII. INTERVENTION : Covering the subject gener- ally. Chapter VIII. NATIONALITY: Covering citizenship, allegi- ance, expatriation, naturalization, etc. Chapter IX. TREATIES: Covering the subject generally. Chapter X. AMICABLE SETTLEMENT OF DISPUTES: CoY-ering mediation, arbitration, retorsion, re- prisals, embargo, pacific blockade, etc. . Chapter XI. INTERNATIONAL RELATIONS IN "WAR: Covering the subject of war generally, includ- ing the kinds, causes, and objects of war. Chapter XH. EFFECTS OP "WAR— AS TO PERSONS: Cov- ering the relations of enemies, noncombatants, privateers, prisoners of war, and the subjects of ransom, parole, etc. Chapter XIII. EFFECTS OF WAR — AS TO PROPERTY: Covering contributions, requisitions, foraging, booty, ransom, and other questions in regard to property. ^ Chapter XIV. POSTLIMINIUM: The right and Its limitations defined and explained. Chapter XV. MILITARY OCCUPATION: Covering the defi- nition, extent, and effect of ocpupatlon, and the duties of an occupant. Chapter X'Vl. MEANS OP CARRYING ON HOSTILITIES: Covering the instruments and means of war, spies, etc. Chapter X'VII. ENEMY CHARACTER: Covering enemies gen- erally, domicile, houses of trade, property and transfer thereof, eto. Chapter X"VIII. NON-HOSTILE RELATIONS: Covering com-^ mercia belli, flags of truce, passports, safe-con- ' ducts, truces or armistices, cartels, etc. Chapter XIX. TERMINATION OP WAR: Covering the meth- ods of termination, uti possidetis, treaties of i peace, conquest, etc. ', Chapter XX. OP NEUTRALITY IN GENERAL: Neutrality^i defined and explained. Chapter XXI. THE LAW OF NEUTRALITY BETWEEN BEI, LIGERENT AND NEUTRAL STATES: Co ering the rights, duties, and liabilities of neutr states. Chapter XXII. CONTRABAND : Covering the subject generally. " Chapter XXIII. f BLOCKADE : Covering the subject generally. '' Chapter XXIV. I SEARCH, AND RIGHT OP AN| VISIT AND GARY: Covering those subjects generally. APPENDIX. e Giving in full, as in no other single work, the In- ( struotions for the Government of Armies of the United States in the Field (Lieber) : Papers Car-' ried, or that Ought to be Carried, by Vessels in Evidence of their Nationality; The Declaration k of Paris; The Declaration of St. Petersburg; i The Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Ar- mies in the Field ; The Laws of War on Landjjt (Recommended for Adoption by the Institute oiv International Law at Oxford, Sept. 9, 1880) ; and The Brussels Conference. ( 1 VOLUME. 500 PAGES. S3.75. DELIVERED. WEST PUBLISHING CO., St. Pauu Minn. (10) Endoi-seoti by the pi'oFessoi'S- [torton on QSiffs dnb QtfcteB. Students in the law of negotiable paper are recommended to use this volume in connection with their text-mooks as a means of review. The two hundred and seven general propositions or sjummaries of the law, in heavy-faced type, scattered through the volume, are far fcreferable for this purpose to any of the so-called abridgements or quiz books. —of6.) (Itedrfg Q^edbg: ^^iprtKXn on