IXSO QJnrnfU Ham ^rl^nnl Uibrary CORNELL UNIVERSnV LIBRARY 3 1924 051 674 905 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/cu31924051674905 THE LAW OF TORTS A CONCISE TREATISE ON THE CIVIL LIABILITY AT COMMON LAW AND UNDER MODERN STATUTES FOR ACTIONABLE WRONGS TO PERSON AND PROPERTY FRANCIS M. BURDICK DWIGHT PROFESSOR OK LAW IN COLUMBIA UNIVERSITY SCHOOL OF LAW AUTHOR OF "THE LAW OF SALES," "THE LAW OF PARTNERSHIP," ETC. SECOND EDITION REVISED AND TCNLARGED BANKS & COMPANY ALBANY, N. Y, 1910 Copyright, 1905, By FRANCIS M. BURDICK Copyright, 1908,- By FRANCIS M. BURDICK. OCT 2 ^511 LAW IJBRAM, PREFACE. The present volume is the result of an endeavor to state, with brevity but with accuracy, the legal principles involved in tort litigations of to-day. While neither the history nor the theory of the subject has been ignored, the discussion of those topics has been subordinated to the exposition of established rules of law. No attempt has been made at originality in classification. The first six chapters present a sketch of the history of tort develop- ment in our law; a statement of the gener >1 principles determin- ing, tort liability ; a brief account of tort remedies, and of the manner in which tort liabilities may be discharged. The re- mainder of the volume is devoted to a discussion of the most important classes of torts. The order, in which particular torts have been dealt with, is quite different from that observed by many modern writers. It is not made to depend upon the motive, intent, or state of mind of the wrong-doer, but upon the sort of harm inflicted. Those torts, which are directed principally against the person of the victim, are first considered : then, those which are aimed at his property ; and, lastly, those which are clear invasions of both the personal and the property rights of another. A considerable saving of space has been secured by frequent cross-references. For example, Chapter III, entitled Harms that are not Torts, contains a statement of the principles which excuse or justify acts which are apparently tortious. These principles are not repeated in the chapters, devoted to particular torts, such as Assault and Battery, Trespass and others ; but are referred to iii IV PREFACE. in frequent foot-notes. Still, the moderate dimensions of this book are due not so much to the space-saving device, just men- tioned, as to the deliberate purpose of the writer to prepare a hand-book ; not a series of monographs, nor a collection of com- mentaries, nor a digest of all reported decisions. He has sought to aid his brethren of the profession by stating, as concisely as possible, the rules of law on this subject ; by expounding the reasons for such rules, as these are set forth in judicial decisions ; by noting the conflict of opinion which exists on many points^ and especially, by referring only to those cases which bear directly and helpfully upon the topics to which they are cited. In order to make these citations as useful as possible, recent cases have been preferred to older ones, whenever the discussion of principles and authorities has been equally valuable ; reference has been given not only to the official report, but to unofficial publications in which the case has appeared, and the date of each decision is noted. Columbia Univbrsity, SCHOOi, OF Law, March, igo^. PREFACE TO THE SECOND EDITION. Two chapters have been added to the original text, dealing respect- ively with the Tort Liability of Telegraph and Telephone Companies, and with Injunction as a Tort Remedy. Both of these subjects are, at present, prolific sources of legal and political controversy ; and, it is believed, that the additional chapters will be found useful not only to the practitioner, but to students of law and of political science. The discussion of each topic has been brought down to the present year, and an attempt has been made to set forth not only the latest decisions of the courts, but to show the trend of current legislation thereon. Although the original chapters of this work have not been altered, the text and notes have been subjected to a careful revision for the purpose of correcting typographical and similar errors, which were discovered. Columbia Untversity, School of Law. September, 1908. TABLE OF CONTENTS. INTRODUCTORY CHAPTER. PAGE The Antiquity of Torts: — The Recency of Text Books on Torts 1 Beginning of Modern Theory of Torts 2 * Indefiniteness of the Term 3 Non-Contract Law 3 Thou Shalt Do no Hurt to Thy Neighbor 3 Other Attempts at Simplification 4 Tort may be Negative. — Innkeeper 4 Tort may Violate Right in Personam G Right of guest against Innkeeper G Right of Shipper; 7 Agent as Tort Feasor 8 Torts Springing out of Contract 9 CHAPTER II. NATURE OF A TORT. Its Chief Characteristics 11 Tort is distinguishable from crime 12 Merger of Tort in Felony: In England 12 Same in America 13 The distinction between a tort and a breach of contract 14 Plaintiff's Option to sue in Contract or Tort IG Advantage of Suing In Tort 17 Disadvantage of Suing in Tort 19 Extending the Area of Tort 21 Plaintiff Must Show Breach of Legal Duty 22 False Statements Causing Damage 23 Waiving Tort and Suing in Contract 24 V vi Table of Contents. fAGE Distinction between Quasi-Contract and True Contract 25 Quasi-Delict , 27 Quasi-Tort 28 CHAPTER III. HARM THAT ARE NOT TORTS. 1. HARM MUST BE UNLAWFUL.. .^ 29 Arrest of Innocent Person 29 2. DEFAMATION BY LEGISLATORS 30 3. JUDICIAL OFFICERS' EXEMPTION 30 Judges of Inferior Courts 33 Arbitrators: Military and Naval Courts 34 Quasi-Judicial Officers 35 4. HARMS INFLICTED BY ACTS OP STATE 37 Liability of Government Officials to Fellow Citizens 39 Acts of Military and Naval Officers 42 5. HARMS DONE UNDER THE POLICE POWER 42 Harms Inflicted by Neighboring Land Owners 44 Legalizing Nuisances — Britain 45 In the United States '. . . 46 Taking Private Property 49 Destruction of Property Under the Police Power 50 6. DEFENSE OF SELF AND PROPERTY 51 Inevitable Accident 51 Defense of Family 52 Defense of Property 53 Recaption 54 Reasonable Force 55 Defense Against Animals 56 Accidental Harm: Primitive Rule 57 Modern Doctrine 58 Harm Inflicted by Lunatics 60 Unsatisfactory Reasons 61 7. CONFLICTING RIGHTS 62 Neighboring Land Owners 62 Limits of Land Owner's Privileges 63 Test of Permissible Use of Land 65 Conditional Privilege of Defamation 66 "tABLE OF Contents. VII „ , PAGE Modern Industrial Competition 67 Rival Business gg Mogul Steamship Case 68 Unfair Competition 70 Fraudulent Injury to Business 70 Intimidation of Third Persons 71 Difference of View Accounted for 72 Unlawful Combinations 73 "^S S. ASSENT OF PLAINTIFF 74 Contract Exemption from Tort Liability 74 Invalid in Some Cases i . . 74 Conflicting Views 76 Leave and License by Plaintiff 7C Deception of Plaintiff 77 Volenti Non Fit Injuria 78 Limitations upon Maxim 79 Positive Duty imposed by Law ' 80 Spectators at Unlawful Exhibitions 81 Assumption of Risk as an Absolvent from Statutory Duty ... 83 Assumption of Risk a Term of Servant's Contract 83 Assumption of Risk versus Public Policy 84 Distinguishable from Contributory Negligence 84 S 9. PLAINTIFF A WRONGDOER 85 Not an Outlaw 85 -Tllegality of Conduct as a Bar to Recovery 85 Violation of Sunday Laws 86 Illegal Conduct an Element in the Cause of Action 87 Duty Towards a Law Breaker 88 Illegal Business' outside the Pale of the Law 89 Doctrine Misapplied 89 § 10. REMOTENESS OF DAMAGE. PROXIMATE CAUSE 89 Statement of Rule 89 Line is Sometimes Arbitrary 90 The Opposite View 91 Leaving Remoteness to the Jury 91 Usual Instruction to the Jury 93 I 11. MENTAL ANGUISH; WOUNDED FEELINGS; FRIGHT; NERVOUS SHOCK 94 Mental Anguish not a Cause of Action 94 Mental Anguish Accompanying Actionable Defamation 95 Tolicitlng Sexual Intercourse 9G Worry and Fright Caused by Defendant's Misconduct 96 viii Table of Contexts. TAGS Physical Derangement Caused by Fright 97 Reasons for Denying Remedy 'JS An Arbitrary Test 99 Unsatisfactory Test 99 Law Values Feelings 100 Mental Anguish Caused by Illegal Conduct 101 Punishing the Wrongdoer 102 Mental Anguish Caused by the Negligence of Telegraph Com- panies 102 Texas Doctrine Generally Rejected 104 CHAPTER IV. PARTIES TO TORT ACTIONS. § 1. CORPORATIONS 105 The State May be Plaintiff 105 Political Subdivisions of the State 105 Governmental and Private Functions lOG Counties, Parishes, Townships, School Districts 10'! Quasi-Municipal Corporations 106 Cities, Villages, and Special Incorporated Towns 108 Non-Liability of City 109 Legislative, Judicial and Quasi-Judicial Powers 110 Statutory Liability of Municipal Corporations Ill Liability of Municipality as Property Owner 112 Liability of Municipal Officers and Servants 112 Charitable Corporations 113 , Private Corporations 115 Liability for Slander U g § 2. MEMBERS OF THE FAMILY 117 Married Women 117 Modern Legislation Hg Double Action for Injury to Wife 119 Tort Actions between Husband and Wife 120 Tort Liability of Infants 12i Deceit by Infant 122 False Representations as to Age 123 Liability of Infant for Trover. 2 24 Infant's Liability for Negligence 126 Table of Contents. ix PAGE Parent's Liability for tlie Child's Tort 127 Parent's Right to Sue for Injury to his Child 128 Tort Actions by Child against Parent 129 3. ACTIONS INVOLVING THE RELATION OP MASTER AND SERVANT 130 Terms Used in their Generic Sense 130 The Master's Liability for the Servant's Tort. Its Basis 130 Different Historical Stages of Liability 131 Who is a Servant? 132 Compulsory Pilot 132 Independent Contractors -. 133 Who are Independent Contractors? 133 Determined by the Contract 134 A Servant with Two Masters 136 Temporary Transfer of Service 138 Right of Selecting and Discharging Servant 139 Exceptional Liability of Employer for Torts of Independent Contractor 141 Collateral and Direct ^ egligence 141 Wihat Work is Intrinsic.iUy Dangerous? 143 Incompetent or Unfit Contractor 144 Sub-Contractor's Torts 145 Adoption of Torts done on One's Behalf 145 Evidence of Ratification 146 Scope of Servant's Authority 146 A Question for the Jury 148 Acts not Within the Particular Servant's Course of Employ- ment 149 Acts not Done In the Master's Business 150 Willful, Malicious and Fraudulent Acts of Servant 153 False Imprisonment and Malicious Prosecution by Servant. . . 154 Master's Liability for Torts of Servant, which are not in the Course of His Employment 154 Tort Liability of Master to Servant 156 4. SPECIAL DUTIES OP MASTER TOWARDS SERVANT 157 (1) To Employ Suitable Fellow Servants 157 (2) Duty to Establish and Promulgate Proper Rules 158 Test of Sufl5ciency of Rules 159 For Court or Jury? 159 (3) Duty to Provide a Safe Place to Work IGO Safety of Place Def)endent upon Co-Servants 1fi2 (4) Duty to Furnish Safe Appliances ifiS Table of Coni'exts. PAGE Safety of Appliances and Fellow Servants 165 Keeping Appliances Safe > 166 (5) Duty to "Warn of Danger 167 Court and Jury 168 Assumption of Risk and Contributory Negligence of Servant. 1C9 Servant Remaining after Knowledge of Danger 171 The Risk from Fellow-Servant's Misconduct 172 Reasons for the Rule 174 Not a True Contract Provision 174 Who Are Fellow-Servants? Various Tests 175 Nature and Character of the Negligent Act 176 Superior Servant Test 178 Injuries Due to Negligence of Master and Fellow-Servant. . . . 179 Limitations of the Fellow-Servant Rule 179 There Must be a Common Master 180 The Servants Must be Engaged in a Common Employment.. 181 Different Department Doctrine; Habitual Association 182 The Servant's Liability for his Torts 182 Servant's Liability for Non-Feasance 183 Tort Liability of Servant to Master 18 4 Joint Actions Against Master and Servant 18.5 The Opposite View 186 CHAPTER V. REMEDIES. 1. DEVELOPMENT OF REMEDIES 188 Historical Sketch 188 2. SELF-HELP 189 Defense of Self and Property 189 Forcible Entry and Detainer 189 Forcible Recaption of Chattels 191 Entering Another's Premises to Retake Property 193 Distress as a Form of Self-Help 193 Abatement of Nuisances 194 Risk of Abating 195 3. ACTION FOR DAMAGES IS THE ORDINARY TORT REMEDY. . 196 Damages are of Three Sorts 197 Nominal Damages 19g Table of Contents. xi ordinary or Compensatory Damages , 199 Punitive or Exemplary Damages 199 Against Whom Punitive Damages Allowable? 201 Damages Recoverable from Joint Wrongdoers 202 The Majority View 203 Punitive Damages Against Municipal Corporations 204 Punitive Damages for Conversion of Property 204 Conversion of Property of Fluctuating Value 205 Damages Against Independent but Concurrent Wrongdoers.. 206 Interest as an Element of Damages in Tort Actions 206 Avoidable Damages 208 The Functions of Court and Jury 210 Amount of Damages is Ordinarily for the Jury 210 Damages not to be Split Up 212 4. LOCAL ACTIONS FOR TORT 213 Early Law : Modern Doctrine 213 5. CONFLICT OF LAWS IN TRANSITORY ACTIONS 214 What Actions are Transitory 214 A Tort by Lex Loci and Lex Fori 215 Injury which is not Tortious by the Lex Loci 215 Injury Which is not Tortious by the Lex Fori 216 Defenses Generally Depend Upon the Lex Loci 217 6. INDEMNITY BETWEEN WRONGDOERS 218 If Free from Fault 218 Indemnity to Agent or Servant 218 If not Free from Blame 219 7. CONTRIBUTION BETWEEN WRONGDOERS 219 When Wrongdoing is Intentional 219 Where no Wrongful Intent 219 CHAPTER VI. DISCHARGE OF TORTS. 1. TWO SPECIES OF DISCHARGE 221 By Act of Parties 221 Discharge by Contract 221 Agreement Subsequent to the Tort 222 A Covenant not to Sue 223 Discharge by Waiver 224 xii Table of Contents. FAUE Discbarge by Judgment 224 Judgment Against One of Several Wrongdoers 225 Election by Judgment Creditor 226 The Effect of Satisfying a Judgment for Conversion 227 § 2. DISCHARGE BY OPERATION OF LAW 228 Death of Either Party 228 Legislation in this Country 229 The Dissolution of a Corporation 230 Action for Causing Death 230 Attempt to Substitute the Scotch Rule 231 Common Law Rule Modified by Statute 232 The Statutes Create a New Cause of Action 233 Construction of the Statutes 234 Damages Recoverable 234 Effect of Bankruptcy on Tort Actions 236 Statute of Limitations 237 Exemptions from Statutory Bar 237 Beginning of Statutory Period 238 Conflict of Laws 239 CHAPTER VII. PARTICULAR TORTS. I 1. ORDER OF TREATMENT 240 i 2. FALSE IMPRISONMENT .' . ! 240 Violates the Right of Personal Liberty 240 What Constitutes Arrest 240 Unlawfulness of Imprisonment 242 Justification Under Legal Process 242 Process Under Unconstitutional Statute or Ordinance 243 Arrest Without a Warrant— (a) By Peace Officers 244 (b) Arrest by a Private Person 246 Reasonable and Probable Cause 240 Unreasonable Detention of a Person Arrested 247 Detentions which are not False Imprisonments 248 3. MALICIOUS PROSECUTION 248 The Nature of this Tort 248 The Essential Elements of the Tort 249 Termination in His Favor ,.„ *^^1"=^ '.'.'■'.'.\\\^'.'.'.'.'.'. 251 Probable Cause „__ Table op" Contents. xiii PAGH Success or Failure of Original Prosecution 253 Advice of Counsel as Evidence of Probable Cause 254 Legal Damage 25G Damage to Reputation 257 Damage to Person 257 Damage to Property 258 Damage to Property Consisting in Charges and Expenses 258 American Courts are Divided 260 Compensatory and Punitive Damages 261 4. MALICIOUS ABUSE OF PROCESS 262 Differs from Malicious Prosecution 262 A Peculiar Form of Abuse of Process 263 5. WRONGS KINDRED TO MALICIOUS PROSECUTION 264 Bringing a Suit in another's Name 264 Maintenance 265 CHAPTER VIII. ASSAULT AND BATTERY. § 1. WHAT CONSTITUTES THIS TORT 266 The Right Invaded by an Assault 266 The Right Invaded by Battery 2fi7 Extended Signification of Assault 269 Excusable Assaults 269 Justifiable Assaults 269 Damages 270 Counterclaiming Damages 271 Assault is Distinguishable from Negligence 271 CHAPTER IX. WRONGFUL DISTURBANCE OF FAMILY RELATIONS. 1. THE FAMILY HEAD AND FAMILY RIGHTS 273 By Primitive Law 273 Invasions of Marital Rights 273 Marital Torts Against the Husband 274 Marital Torts Against the Wife 275 xiv Table of Contexts. PAGE Action for Enticing Husband 277 Crim. Con. with Husband 278 Injuries to the Body or Reputation of the Wife 278 i 2. ABDUCTION 279 Torts Against the Parent 279 Ordinary Injuries to Parental Right in Child 280 Injury to Parent by Seduction of Daughter 281 The Same Subject. American Law 282 Damages in Actions for Seduction 283 § 3. TORTS AGAINST THE MASTER 285 Harming or Enticing the Servant 285 Torts Against the Servant by Wrongfully Influencing the Master . . . ., 286 § 4. CONSPIRACY AS A TORT 287 Conspiracy Without Injury 287 Concert or Combination 288 CHAPTER X. DEFAJVLATION. 1. NATURE OF THE TORT 291 The Right Invaded by Defamation 291 Injury to Reputation by Means Other than Defamation 292 Publication 293 Communication Which is not Publication 296 Repetition of Defamation 298 Joint Publication 299 2. LIBEL AND SLA^NDER 300 Two Species of Defamation 300 Definition of Civil Libel 302 Libels Affecting One's Vocation 304 Libel of a Class 304 Province of the Court and the Jury 305 Liberty of Speech and Press 3O6 Language to be Construed in its Ordinary Sense 306 The Office of Innuendo 308 3. SLANDER 3q9 The Peculiarities of Slander 3qq Words Actionable Per Se oaq Table ov Ci^n'tents. xv PAGE Words Imputing Crime 310 Imputing Unchastity ■. 312 Imputing Contagious Diseases 312 Imputation of Unfitness for Office 313 Words Which Prejudice a Person in his Profession or Trade. . 314 Words not Actionable per se, but Causing Special Damage... 31(i General Damages in Defamation 317 S 4. DEFENSES IN ACTIONS FOR DEFAMATION 319 Classified 319 The truth of the Charge 319 Privileged Communications 320 Functions of the Court and of the Jury 322 Conditional or Qualified Privilege 322 Good Faith Presumed 323 Defamation in the Performance of a Duty 324 The Performance of a Duty to the Public 325 Reports of Public Proceedings 326 Newspaper Reports of F>ublic Meetings 327 Defamation in the Performance of Private Duty 328 Duty Arising from the Family Relation 329 Duty of Mercantile Agencies 329 Vohmteered Statements for the Benefit of Recipient 330 Defamation in Self-Defense 330 Fair Comment 331 Subjects of Fair Comment 331 The Criticism of Public Men 332 What Comment on Personal Conduct is Fair 332 Criticism of Candidates for Public Office 334 Criticism of Litei-ary, Artistic or Commercial Productions and Displays 335 What Comment on Literary and other Displays is Fair? 336 CHAPTER XT. TRESPASS TO PROPERTY. Definition of Trespass 3.r. Trespass to Realty 3.17 Intention of Trespasser 3.1S Mitigation and Aggravation of Damages 339 The Right to Damages for Trespass to Land 3S9 xvi Table of Coxtknts. PAGE Injuries Which are not Trespass . , 340 The Possession of Plaintiff 340 Trespass by Animals 341 Trespasses by Animals Driven Along Highways 343 Duty of Land-Owner to Trespassers 343 Trespass to Chattels 343 Intention to Inflict Harm is not material 344 Possession of Plaintiff 345 Excusable Trespasses 345 Trespass Ab Initio 346 CHAPTER XII. TROVER AND CONVERSION. The Fiction of Finding 347 Subject Matter of Trover 348 Against Whom the Tort May be Committed 348 How Conversion is Committed f. 319 Wrongful Asportation in the Exercise of Dominion 349 Intention to Convert S'Ti Conversion without Physical Taking 350 Goods Obtained By Fraud 351 Excluding the Rightful Owner, or Possessor 352 Nonfeasance, or Negligent Omission 352 Sale of Property, as a Conversion 353 Purchaser is also Liable for Conversion 354 Wrongful Use of Property as a Conversion 355 Conversion of Principal's Property by Agent 356 Asportation or Detention hy a Mere Custodier 357 Conversion by a Finder 35g Conversion by Unlawful Detention 3B0 Unconditional Refusal 360 Qualified Refusal %f,\ Conversion by a Tenant In Common 3f,2 Conversion by Pledgee 3g3 Tender of Converted Goods by Defendant 3g3 Table of Contents. xvii CHAPTER XIII. DECEIT AND KINDRED TORTS. PAGE § 1. DECEIT 365 As a Tort 365 Deceit Defined 365 Statement of Fact 366 Deception by Silence 367 Opinion as Distinguished From Fact 368 Statement as to a Person's Credit 370 Misrepresentatioji of Law 371 Knowledge of the Untruth 372 Other Remedies Available for Negligent Misrepresentation... 374 Intended to Induce Plaintiff 374 Corrupt Motive Unnecessary 376 Inducing Plaintiff to Act 376 Means of Knowledge Immaterial 377 Need Not be Sole Inducement 379 Functions of Court and Jury 379 False Statement by Agent or Servant 379 I 2. SLANDER OP TITLE 380 Nature of the Tort 380 Falsity and Malice 381 Rival Claimants to Property 382 Slander of Title and Damage 383 S 3. UNFAIR COMPETITION 384 The Term is Modern 384 The Nature of This Tort 384 Infringement of Trade-Marks 385 Words, Symbols, and Devices Which are not Trade-Marks.. 388 Deceit is the Basis 388 The Fraudulent Use of a Proper or Corporate Name 389 Imitating Packages and Buildings 391 False and Misleading Trade-Marks 392 Abandonment and Laches 393 xviii Table of Contents. CHAPTER XIV. NUISANCE. PAGE i 1. PRIVATE NUISANCE 395 Definition 395 Legalizing Nuisances 396 Turning Lawful Acts Into Nuisances 397 Nuisances Per Se 398 Lawful and Laudable Business 399 Public Cemeteries 400 Injury to Property , 400 Personal Discomfort 402 Temporary Annoyance 404 Negligence Not Necessary 405 Coming to a Nuisance 406 § 2. PUBLIC NUISANCE 408 Private Action For 408 S 3. PARTIES TO NUISANCE ACTHONS 409 Who may Bring the Action 409 Nuisance to Health 410 Municipal Corporation as Plaintiff 411 Who May be Sued for a Nuisance 411 Liability of Grantee 412 Landlord and Tenant 413 Landowner and Licensee 414 Joint Liability 414 Defendant's . Misconduct not the Sole Cause of Harm 416 i i. REMEDIES FOR NUISANCE 416 Three Classes 416 Action For Damages 417 Relief by Injunction 418 CHAPTER XV. NEGLIGENCE. S 1. NATURE OF THE TORT 42o Negligence is Relative 420 Distinguishable from Intentional Wrongdoing 4'>j Table of CoNTENTt;. xix PAGE Degrees of Negligence 422 Bxttmples of the three degrees 424 § 2. PROVING NEGLIGENCE 425 Burdeu of Proof 425 Presumption, when Contrait is Broken 425 Res Ipsa Loquitur 420 Functions of Court and Jury 428 § 3. CONTRIBUTORY NEGLIGENCE 430 Consequences of 430 Burden of Proof 431 What Amounts to Contributory Negligence 432 The Last Clear Chance 434 Cause of Danger Distinguished from Cause of Harm 435 Careless Conduct Induced by Defendant 436 Attempts to Save Property 438 Forgetf ulness of Danger 438 Assumption of Risk 439 Comparative Negligence 440 Young Children and other Incapables 441 § 4. IMPUTED NEGLIGENCE 442 Master and Servant 442 Carrier and Passenger 442 Parent and Child 443 § 5. LIABILITY OF LAND OWNER OR OCCUPIER; AND OF OTHERS ENGAGED IN EXTRA HAZARDOUS UNDERTAKINGS 445 Doctrine of Rylands v. Fletcher , 445 Rylands v. Fletcher not Generally Approved in America. . . . 447 Liability for Cattle and Nuisances 449 Vicious Animals 449 Care of Fire and Electricity 450 Liability for Explosives 451 Poisons and Other Dangerous Articles 452 Common Carriers, Liverymen, Caterers, etc 454 Liability of Landowners to Lawful Passers-By 455 Liability of Landowner to Invited Persons 455 Liability to Licensees 45G Liability of Trespassers 458 Alluring Infant Trespassers 459 Authorities for the Infant 4fi0 Railroad Company v. Stout 4(>2 Alluring Nuisances 465 XX Table of Contents, PAGE Converting Trespassers into Baited Victims •IBS Hardship for tlie Landowner ^^'^ Reaction from Railroad Company v. Stout 467 Repudiation of Railroad Company v. Stout 469 CHAPTER XVI. TORT LIABILITY OF TELEGRAPH AND TELEPHONE COMPANIES. § 1. THEIR LEGAL STATUS. Is it that of Common Carrier? 472 The Prevailing View 473 Bailees for Hire 474 They are Public Service Corporations 474 § 2. THEIR DUTIES TO THE PUBLIC. To Serve All 476 Must not Discriminate Unfairly 478 Statutory Provisions 479 § 3. THEIR RIGHTS. To Reasonable Compensation 481 To Establish Proper Regulations 482 To Contract for Exemption from Common Law Liability . . . 483 Contracting for Exemption from Gross Negligence 485 § 4. TORT ACTIONS BY SENDER OF TELEGRAM. Sender's Option to Sue In Contract or in Tort 485 § 5. TORT ACTION BY SENDEE OF TELEGRAM. None in England 487 When Sendee is Principal 488 When the Sendee is a Stranger to the Contract for Trans- mission 488 The Prevailing Theory 489 Sendee not Bound by Company's Arrangement with Sender. 490 Delay in Delivering Message 492 Non-Delivery of Message 493 Non-Repetition of Messages 494 § 6. DAMAGES. For Refusal or Failure to serve 495 Nominal Damages 495 Compensatory Damages 495 Tablk ok Contents. .v\t ^ PAGE Damages Recoverable by the Sender 496 Damages recoverable by the Sendee 497 Damages for Injuries to the Feelings 498 CHAPTER XVII. INJUNCTION AS A TORT REMEDY, § 1. PURPOSE AND SCOPE OF THIS CHAPTER. Limited to Tort Actions 500 Modern Application of Established Principles 500 Classification of Tort Injunctions 501 § 2. TO RESTRAIN WASTE. Common Law Remedies Insufficient 502 Requisites for the Injunction 502 § 3. TO RESTRAIN NUISANCES. A Modern Remedy 504 The Principles Upon Which it is Granted 505 Examples of Nuisance Injunctions 506 § 4. TO RESTRAIN TRESPASSES. General Rule 507 When Granted 508 § 5. TO PREVENT OTHER MISCHIEFS. Growth of This Class 510 Not Granted in Purely Political Controversies 510 Nor to Restrain Crimes 511 Nor to Restrain Libel 512 To Restrain Boycotts, Combinations and Conspiracies 514 Injunction on Behalf of the Government 516 § 6. THE OBLIGATION OF INJUNCTIONS. Upon Defendants 517 Persons not Served and not Named 617 TABLE OF CASES. Abbe V. Abbe, 121 Abbott V. Abbott, 120. Abercrombie v. Bradford, 351. Abrahall v. Bubb, 504. Abraham v. Deakin, 154. Abrahams v. Cooper, 262. Abrahams v. Kidney, 284. Abrath v. N. E. Ry.. 115, 251, 299. Achlson V. Miller, 220. Acton V. Blundell, 62, 63. Adams v. Adams, 346. Adams v. Bicknell, 253. Adams v. Chicago, etc., Ry., 47. Adams v. Rivers, 346. Adams v. Waggoner, 77. Adams Ex. Co. v. Harris, 222. Adams Express Co. v. Schofleld, 135. Adams Hotel Co. v. Cobb, 409. Adamson v. Jarvis, 219. Addlcks V. Cristoph, 169. Addington v.- Canfield, 342. Adrlance, Piatt & Co. v. Nat. Har- row Co., 513. Aetna Ins. Co. v. Reed, 377. Adler, D. & Sons v. Thorpe, 367. Afflick V. Bates, 93. Agincourt, The, 157. Agnew T. Johnson, 76. Ahem v. Steele, 414. Ahrens & Ott. Mfg. Co. v. Hoeher, 251, 252. Ainsworth v. Lakin, 208, 448. AleL. etc., Ry. v. Cogglns, 431, 440. Alabama, etc., Ry. v. Kuhn 246. Ala. G. S. Ry. v. Crocker, 467. Alabaster v. Harness, 265. Alalr V. Northern Pac. Ry., 74. Albany Savings Bank v. Burdlck, 378. Albert Dumois, The 197. Albrecht v. Mil. etc., Ry., 223. Albutt V. Gen. Med. Council, 327. Alcorn v. Chic, etc., Ry., 171. Alcorn v. Mitchell, 268. Alderson v. Commissioners, 510. Alderson v. Maddison, 24. Alderson v. Waistell, 54. Aldred's Case, 399. Aldrich v. Boston, etc., Ry., 149. Aldrich v. Press Printing Co., 334, 335. Aldrich v. Tripp, 108. Aldrich v. Wright, 56, 449. Aleppo, The, 208. Alexander v. Jenkins, 309, 314. Alexander v. Penn. Co., 218. Alexander v. Southey, 361. Alexander v. Town of Newcastle, 92. Alexander v. Vicksburg, 109. Alexander v. West. Un. Tel Co., 486, 490, 497. Allan V. State Steamship Co., 135. Allec V. Reece, 34. Allen V. Addington, 376. Allen V. Crofoot, 243, 346. Allen V. Flood. 72, 73, 74, 252, 286, 287, 289. Allen V. Keily, 191. Allen V. Smith Iron Co., 165. XXUl XXIV Table or Cases. Allen V. Sackrider, 7. Allen V. Stephenson, 450. Allen V. Willard, 135. Allend v. Spokane Palls Ry., 179. Alliance Trust Co. v. Nettleton Hardware Co., 339; Allin V. Conn. Ry. Co., 214. AUlsChalmers Co. v. Iron Mould- ers' Union, 516. Allsop V. Allsop, 95, 312. Allison V. Farmers' Bank, 14. Alsever v. Minn., etc., Ry., 156. Alsop V. bidden, 263. Althorf V. Wolfe, 234. Altman v. West. Un. Tel. Co., 485. Alvord V. Davenport, 355. Alwin V. Liesch, 305. Amelang v. Seekamp, 503. American Bank Note Co. v. New York El. Ry., 49. Am. Furniture Co. v. Town of Batesville, 416. American Nat. Bank v. Morey, 18. Am. Nat. Bk. v. Hammond, 380. American Steel & Wire Co. v. Wire Drawers' etc.. Union, 516. American Seliool of Magnetic Heal- ing V. McAnnulty, 512, 513. Am. Wal. Watch Co. v. U. S. Watch Co., 389, 391. Ames V. Union Ry Co.., 285. Amory v. Plyn, 348. Amoskeag Mfg. Co. v. Ooodale, 195. Amy V. Watertown, 238. Anderson v.. Bfck, 248. Anderson v. Chicago, etc., Ry., 407. Anderson v. C. N. Nelson Lumber Co., 83, 169. Anderson v. Erie Co., 165, 167. Anderson v. Friend, 254. Anderson v. Gorrie, 31. Anderson v. State, 54, 191. Andre v. Johnson, 54, 191. Andrew v. Deshler, 382, 383. Andrews v. Chicago, etc., Ry., 93. Andrews v. Jackson, 369. Andrews v. Nott Bawer. 329. Andrews v. Stone, 270. Andrews v. Van Duzer, 319. Andrus v. Howard, 127. Angel V. Jellico Coal Co., 162, 182. Angle V. Chicago, etc, Ry., 67, 71. Ankeny v. Moffet, 220. Angus V. Clifford, 372, 373. Angus V. Radin, 341. Ann Arbor Ry. v. Kinz, 457. Anonymous, Godbolt, 14a. Anonymous, Keil f. 92 pi. 4, 191. Anonymous, Year Book, Ed. 2, 51. Annapolis etc. Ry. v. Baldwin, 449 Anonymous, Year Book, 21 Hy. 7, 52. Anonymous, Year Book, 19 H. 6, 53. Anonymous, Year Book, 9 Ed. 4, 53. Anonymous, Y. B. Ed. IV. f. 34, 195, Anonymous, Y. B., 6 Ed. 58. Anonymous, Y. B. 7 H. IV, 145. Anonymous, Y. B. 11 H. 4, 68. Anonymous, Y. B. H. VII, 244. Anonymous, Y. B. 27 Hy VIII, 310. Anonymous, 67 N. Y., 368. Antcliff V. June, 262, 263. Anthony v. Norton, 283. Antonio Zambrana, The, 157. Apgar V. Woolston, 249, 250, 254. Arbuckle v. Blackburn, 511. Ark. Mid. Ry. v. Canman, 455. Armstrong County v. Clarion Coun- ty, 187, 220. Arnold v. Teel, 378. Arthur v. Oakes, 289, 515. Ash V. Lady Ash, 211. Ash. V. Marlow, 252. Ashby V. White, 198. Ashcraft v. Knoblock, 227. Ascherman v. Philip Best Co., 352. Ashley v. Hart, 165. Ashlock V. Vivell, 123, 125. Atchinson, etc., Ry. v. Bancord, 171. Atch. etc., Ry. v. Calvert. 444. Atchinson, etc. Ry., v. Henry, 204. 440. Atchison, etc., Ry. v. Lawler, 222. Tablk of Cases. XXV Atchison T. etc., Ry. v. McGinnis, 99. Atchison, etc., Ry. v. Matthews, 426. Atchinson, etc., Ry. v. Tanner, 352. Atchinson Co. v, Watson, 251. Atlanta, etc., Ry. v. Kimberley, 143. Atlanta Xat. Bank v. Davis, 17, 18. Atlanta Oil Mills Co. v. Coffey, 458. Atlantic etc.. Ry. v. Dorsey, 119. At. & Great W. Ry. v. Dunn, 204. Atlantic Transport Co. v. Coneys, 134. Atlas Assurance Co. v. Atlas Insur- ance Co., 513. Atlas, The, 225. Atlee V. Packet Co., 430. Attorney General v. Brighton & Howe Co-Op. S. Assoc., 505. Atfy Gen. v. Cleaver, 418, 505. Att'y Gen. v. Doughty. 419. Att'y Gen. v. Gaslight Co., 396. Atfy Gen. v. Nichol, 418. Att'y Gen v. Steward, 398. Attorney General v. ShefiSeld Gas Consumers' Co., 505. Atwater v. Morning News Co., 291, 319. Atwater v. Sawyer, 5, 7. Atwood V. Chicago, etc., Ry., 136, 137. Auchmuty v. Ham, 206. Audubon v. Shufeldt, 236. Austin V. Cox, 118. Austin V. Vrooman, 32. Augusta Factory v. Barnes, 202. Austin V. Culpepper, 301, 303. AusUn V. White, 313. Austin V. Wilson, 200. Austral. Newspaper Co. v. Bennett, 308. Averill v. Chadwick, 348. Ayer v. Ashmead, 226. Ayer v. Rushton, 386. Ayre v. Craven, 315. Aylesworth v. Curtis, 229. Avers v. Blevins. 366. B. Bacon v. City of Boston, 47, 48. Bacon v. Kimmel, 227. Bacon v. Towns, 252. Baddeley v. Earl of Granville, 83. Bader v. Southern Pac. Ry., 209. Badger v. Batavia, etc., Co., 350, 351. Badger v. Phinney, 124. Bageard v. Consol. T. Co., 435, 441. Bagshaw v. Goward, 346. Bailey v. Bussing, 220. Bailey v. Chic. M. & St. Paul Ry., 340. Bailey v. City of Centerville, 442. Bailey v. Lawrence County, 106. Bailey v. Mayor, 108. Bailey v. R. W. & O. Ry., 166. Bailey v. Schnitzins, 506. Balrd v. Shipman, 184. Baird v. Howard, 352. Baird v. Vaughn, 424. Baker v. Bolton, 232. Baker v. Braslin, 118. Baker v. Carrick, 66. Baker v. Flint & P. M. Ry., 280. Baker v. Kinsey, 149. Baker v. Metropolitan Life, 72. Baker v. Morris, 126. Baker v. Pierce, 307. Baker v. Sanderson, 410. Baldwin v. Barney, 87. Baldwin v. Cole, 360. Baldwin v. Elphlnstone, 296. Baldwin v. Ensign, 449. Baldwin v. Hayden, 54, 191. Baldwin v. U. S. Tel. Co., 486, 497.. Baldwin v. Weed, 243. Ball V. Hanser, 80. Ban V. Hauser, 159. Ball V. Liney, 361, 362. Ball V. Rawles, 256. Ball V. Ray. 403. Ball V. Siegel. 386. Ballard v. Russell, 279. Ballentine v. Webb. 407. Table of Caseh. Ballew V. Alexander, 13. Balliet v. Cassidy, 512. Baltimore Conraol Ry. v. Pierce, 148, 151. Bait. & Ohio Ry. v. Baugh, 164, 177. Baltimore, etc., Ry. v. Boyd, 338, 340. Bait, etc., Ry. v. Blocher, 204. Baltimore & O. Ry. v. Brady, 222. Bait. & Ohio Ry. v. Carr. 210. Baltimore & 0. Ry. v. Cox, 421. Baltimore, etc., Ry. v. Glenn, 279. Bal. & 0. Ry. v. Joy, 230. Bal. & O. Ry. v. Reed, 217, 218. B. & O. Ry. V. Wightman, 454. Baltimore and Ohio S. W. Ry. v. Volgt, 75. Baltimore, etc., Ry. v. McDonnell, 444." Baltimore, etc., Ry. v. Whitacre, 432. Bait. & Ohio Tel. Co. v. Lovejoy, 487. Baltimore & Potomac Ry. v. Fifth Baptist Church, 46. Baltimore & P. Ry. v. Mackay, 167. Bait. Consol. Ry. v. Foreman, 436. Baltimore Ry. v. O'Donnell, 364. Bait. City Pass. Ry. v. Kemp, 496, 497. Bamford v. Turnley, 405, 407. BandHeld v. Bandfield, 120. Bank v. Henty, 305. Bank v. Milvain, 18. Bank of Cal. v. West U. Tel. Co., 153. . Bank of Commerce v. Goos, 18. Bank of Miller v. Richmon, 252. Bank of Palo Alto v. Pac. Postal Tel. Co., 153. Bannister v. Wakeman, 34. Barbee v. Reese, 101. Barfoot v. Reynolds, 52. Barg V. Bonsfield, 134. Barhight v. Tammany, 254, 255. Barholt v. Wright, 77. Barker v. Ringrose, 315. Barling v. West, 244. Barman v. Spencer, 458. Barnard v. Haggis, 121. Barnard v. Poor, 197. Barnes v. Campbell, 327. Barnes v. Keene, 281. Barnes v. Martin, 192. Barnes v. West. Un. Tel. Co., 497. Barnett v. Luther, 197. Barnett v. Weal, 312. Barney v. Hannibal, etc., Ry., 468. Barney Dumping Boat Co. v. New York, 109. Barndt v. Frederick, 377. Barns v. Constantine, 257. Barnum v. Turpening, 343. Barr v. Essex Trades Council, 70, 72. Barrett v. Lake Ont. Co., 453. Barrett v. Southern Pac. Ry., 468. Barrett Chem. Co. v. Stern, 389. Barron v. Mason, 252. Barrows v. Bell, 327. Barrow Steamship Co. v. Kane, 144. Barry v. Barry, 504. Barry v. Crosky, 376. Barstow v. Old Col. Ry., 175. Bartell v. State, 269. Bartle v. Nutt, 220. Bartlett v. City of Columbus, 109. Bartlett v. Wells, 123. Bartram v. Sharon, 108. Barwick v. Eng. Joint Stock Bk., 380. Basebe v. Matthews, 249. Basely v. Clarkson, 338. Bassell v. Elmore, 299, 316. Bassett V. Bassett, 360. Bassett v. Maynard, 347. Batchelder v. Heagan, 451. Bates V. Clark, 41. Bates V. Old Colony Ry., 75. Bates V. Worcester Protection De- partment, 51. Bathrick v. Detroit Post, 292. Baum V. Clause, 319. Table of Cases. xxvu Baxter v. Roberts, 168. Bayley v. Edmunds, 514. Bays V. Hunt, 334. Bayssett v. Hire, 66, 329. Beach v. Brown, 277. Beach v. Hancock, 267. Beach v. Ranney, 316. Beach v. Sterling Iron Co., 396. 399, 415. Beacham t. Portsmouth Bridge, 215. Beaconsfield, The. 348. Beal V. Robson, 256. Beals V. See 61. Beals V. Thompson, 66. Beaudette v. Gagne, 283. Beaulieu v. Finglam, 450. Beaurain v. Sir William Scott, 32. Beberick v. Ebaeh, 145. Beck V. Carter, 455. 457. Beck V. Ry., etc.. Union, 286, 513. Becke v. Mo. Pac. Ry., 443. Becker v. Farwell, 219. Beckwith v. Philby, 29, 245, 246. Beddall v. Maitland, 190. Beddow v. Beddow, 510, 513. Bedford v. Bagshaw, 375. Bedford v. U. S., 49. Bedtkey v. Bedtkey, 319. Bee Pub. Co. v. Shields, 303. Beede v. Lamprey, 204. Beedy v. Reding, 127. Beers v. Arkansas, 39. Begley v. Comm., 246. Behre v. National Cash Reg. Co., 117. Beidman v. Atlantic City Ry., 49. Beinhorn v. Grlswold, 342, 343. Beiser v. Scripps, McRae Pub. Co. 327. Bekkeland v. Lyons, 254. Belding v. Johnson, 156. Belief on taine, etc., Ry. v. Snyder, 445. Belknap v. Ball, 308, 334. Belknap v. Schild, 41. Bellamy v. Burch, 314. Bell V. Hausley, 77. Belleville Stone Co. v. Mooney, 162. Bellinger v. New York Central Ry., 48. Belt V. Laws, 291. Benedick v. Westover, 295. Benedick v. Potts, 427. Bennett v. Bennett, 277. Bennett v. City of Marion, 204. Bennett v. McLaughlin, 125. Bennett ^. Ry. Co.. 456. Bennett v. Whitney, 113. Benoit v. Troy, etc. Ry., 450. Benson Mining Co. v. Alta., etc., Co.. 205. Bentley v. Fisch Lumber Co., 93. Bercich v. Marye, 183, 354. Berdell v. Parkhurst, 121. Berea Stone Co. v. Kraft. 178. Berg V. Great Nor. Ry., 438. Berg V. Parsons, 140, 144. Berger v. Minn. Gaslight Co., 447. Bergeron v. Peyton. 242. Bergman v. Hendrickson, 148, 152. Berkner v. Dennenberg, 201. Bernardiston v. Soame, 36. Bernina, The, 443. Bethlehem Iron Co. v. Weiss, 163. Betser v. Betser, 277. Berer v. Brown, 34. Bickle V. Chrisman, 237. Bigaonette v. Paulet, 275. Bigby V. United States, 15, 16, 26 39, 105. Bigelow V. Reed, 87. Bigelow Co. V. Heintze, 364. Biggs V. Barry, 367. Biggs V. State, 52. Beiling v. Evans, 397. Billings V. Breing, 6. Billings V. Fairbanks, 328. Binford v. Johnson, 93, 452. Bingham v. Lipman, 202. Birch v. Benton, 311. Bird V. Holbrook, 79, 88. 461. Bird v. Jones, 241. Birkett v. West Un. Tel Co., 486. xxvm Table of Cases. Birmingham Electric Co. v. Allen, 83. Birmingham Ry. v. Allen, 172. Birmingham Ry. v. Baird, 155. Birmingham Min. Ry. v. Tenn. Co., 205. Birmingham Water Works Co. v. Hubbard, 452. Birney v. New York & Western Tel. Co. 474, 482. Bish V. Beatty, 370. Bishop V. Banks, 402. Bishop V. Montague, 347. Bishop V. Ranney, 266. Bishop V. Small, 369. Bishop V. St. Paul City Ry., 92. Bishop V. Weber, 454. Bishop of London v. Web, 504. Bissell Chilled Plow Works v. T. M. Bissell Plow Co., 384, 391, 393. Bixby V Dunlop, 200, 285. Bixby V. Parsons, 185. Black V. Buckingham, 249, 255. Black V. Christchurch Finance Co., 143. felack V. City of Ltwiston, 87. Black V. Finance Co., 140. Black V. Linn, 36. Blackham v. Pugh, 66. Blackman v. Simpson, 225. Blacknall v. Rowland, 378. Blackwell v. Dibrell, 393. Blackwell v. Wright, 387. Blackwell M. & B. Co. v. West. Un. Tel. Co., 473, 492, 494. Blades v. Hlggs, 54, 191. Blair v. Erie Ry., 181. Blair v. Struck, 50. Blake v. Barnard, 267. Blake v. Ferris, 143. Blake v. Maine C. Ry., 177. Blake v. Smith, 300, 302, 305, 312. V. Fakenham, 286. Blakeney v. Pegus, 487. Blankenship v. Berry, 361. Blann v. Crocheron, 225, 226. Bleudorn v. Missouri Pac. Ry., 44. Bliss V. Johnson, 54, 191, 192. Blodgett V. Stone, 198. Blofield V. Payne, 385. Blood V. Erie Dime Co., 363. Blood-Balm Co. v. Cooper, 453. Bloodworth v. Gray, 313. Bloom V. Crescioni, 297. Bloom V. State, 55. Blount V. Mitchell, 193. Blumb V. City of Kansas, 134, 143. Blunt V. Aiken, 412. Bly V. Edison Electric Light Co., 410, 417. Board, etc. v. Dailey, 106. Board of Aldermen v. Norman, 397. Boardman v. Gore, 13. Boardman v. Sill, 361. Bobb V. Bosworth, 54, 191. Bodie V. Charleston, etc., Ry., 179, Boddy V. Henry, 373. Boeger v. Langenberg, 254, 258. Boerum v. Taylor, 213. Boetcher v. Staples, 200. Bogan V. Carolina Ry., 435. Bogey V. Shute, 503. Boham v. Port Jervis Gas Light Co., 47, 406, 408. , Bohn V. Chicago, etc., Ry., 166. Bohn Mfg. Co. v. Brickson, 168. Bohn Manufacturing Co. v. Hollis, 74. Boise City v. Boise City Rapid Transit Co. 44. Bolles Wooden Ware Co. v. United States, 205. Bdlsa Land Co. v. Burdick, 509. Bolton V. Vellines, 201. Bonaparte v. Wiseman, 143. Bond V. Chapin, 264, 265. Bonnard v. Parryman, 514. Bonner v. West. Un. Tel. 492. Bonoml v. Backhouse, 29. Bonthron v. Phoenix Light Co., 234. Boobier v. Boobier, 350. Boody V. Keating, 14. Boogher v. Knapp, 326. Boomer v. Wilbur, 135, 141. Table of Cases. XXIX Boor V. Lowry, 229. Boorman v. Brown, 10, 17, 25, 486! Boosey v. Wood, 223. Booth V. Arnold, 314. Booth V. Hanley, 245. Booth V. People, 44. Booth V. R. W. & O. Ry., 65, 401, 404. Booth & Bro. (Alfred W.) v. Burgess, 515. Bormann v. City of Milwaukee, 440. Bornmann v. Star Co., 304. Borough of Stamford v. Stamford Horse Railroad, 515. Burroughs v. Bayne, 360. Boseh V. Burlington, etc., Ry., 92. Bost V. Mingesu, 56. Boston V. Worthington, 218. Boston, etc., Ry. v. McDuffy, 175. Boston & M. Ry. v. Brackett, 218. Boston & M. Ry. v. Sargeant, 218, 420. Boston & Worcester Ry. v. Dana, 13. Boswell V. Barnhoot, 174. Bosworth V. Inhabitants of Swan- sey, 86. Bosworth V. Rogers, 181. Botterill v. Whytehead, 316. Bottoms V. Seaboard, etc., Ry., 445 Bourreseau v. Journal Co., 306. Boutwell V. Marr, 72. Bowden v. Bailes, 312. Bowden v. Edison Elec. Co., 401. Bowden v. Lewis, 195. Bowditch V. Boston, 44. Bower v. Peate, 140, 141. Bowers v. Horen, 56. Bowington v. Parry, 364. Bowlin V. Nye, 353. Bowman v. Brown, 192. Bowyer v. West. Un. Tel. 498. Box V. Jubb, 446. Boxins V. Goblet Freres, 329. Boyce v. Brockway, 354. Boyd's Executors v. Browne, 371, 376. Boyer v. Barr, 200. Boyer v. Bolender, 220, Boylan v. Huguet, 205. Boyle V. Columbian etc., Co., 180. Boyleston v. Kerr, 245. . Boynton v. Remington, 335. Boysen v. Thorn, 67. Boulter v. Clark BuUer's N. P., 77. Bovee v. Town of Danville, 101. Bowers v. Miss., etc., Co., 417. Boyce v. Cal. Stage Co., 425. Bozeman v. Shaw, 251. Brackett v. Griswold, 378. Bradford Glycerine Co. v. St. Mary's Woolen Co., 405. Bradlaugh v. Newdegate, 265. Bradley v. Brigham, 223. Bradley v. Methwyn, 301. Bradley v. Norton, 387. Bradley v. Obeare, 352. Bradley Livery Co. v. Snook, 8, 17. Bradstreet v. Gill, 329. Bradt v. New Nonpareil Co., 281, 302. Bradt v. Towsley, 93. Brady v. Chicago, etc., Ry., 136, 160. Brady v. Stiltner, 247. Bragdon v. Perkins-Campbell Co., 453. Braley v. Powers, 369. Branaman v. Hinkle, 325. Brand v. Hinchman, 261. Brandreth v. Lance, 513. Brannock v. Elmore, 144. Brant v. Gallup, 208. Braun v. Craven, 97, 99. Bray v. Callihan, 315. Brayton v. Fall River, 408, 409. Brazil Block Co. v. Young, 168. Breen v. Goddard, 55. Breese v. U. S. Tel. Co., 484. Brendle v. Spencer, 455. Brennan v. Merchant & Co., 148. Bretherton v. Wood, 10. Brewer v. Chase, 297. Brewer v. Dew, 293. Brewer v. New York, etc., Ry., 222. Brewer v. Weakley, 335. Brewster v. Silliman, 364. XXX Table of Cases. Bridger v. Ashville Ry., 217. Bridges v. North London Ry. Co., 23. Briggs V. Evans, 283. Briggs V. Garrett, 323, 334. Briggs V. Haycock, 360. Bright V. West. Un. Tel. Co., 493. Brightman v. Inhabitants of Bris- tol, 196. Brill V. Flagler, 56, 196. Brimberry v. Savannah, etc., Ry., 415. Brinkley Car Works v. Cooper, 460, 469. Brinsmead v. Harrison 226. Brison v. Dougherty, 227. Bristol V. Bupt, 351. Bristor v. Burr, 191. Bristow V. Eastman, 126. Britenbach v. Trowbridge, 56. British South Africa Co. v. Com- panhia de Mocambique, 214. Britton v. Ferrin, 356. Brock v. Stimson, 247. Brockett v. Fair Haven & W. Ry., 432. Broder v. Saillard, 410. Brodie v. Rutledge, 31. Brooke v. Tradesman's Nat. Bk., 18. Brooker v. Coffin, 310, 311. Brooks V. Mangan, 244. Brooks V. Olmstead, 346. Broome v. N. N. etc. Co., 341. Brostrom v. Lauppe, 45. Brotherton v. Manhat. Beach Co., 456. Brough V. Dennison, 306. Broughton v. Jackson, 247. Brown v. Atlanta, 111. Brown v. Boorman, 486. Brown v. Brown, 277. Brown v. Campbell Co., 354. Brown v. Carpenter, 196. Brown v. Cayuga, etc., Ry. Co., 47. Brown v. Chicago, etc., Ry., 90, 233, 234. Brown v. Chic. M. & St. P. Ry., 497. Brown V. City of Webster City, 145. 146. Brown v. Collins, 58, 448. Brown v. DeGrofE, 195. Brown v. Dunham, 122. Brown v. Engineering Co., 138. Brown v. Giles, 342. Brown v. Kendall, 58, 59. Brown v. Levy, 157, 172. Brown v. Manter, 337, 340. Brown v. Master, 262. Brown v. Murdock, 42. Brown v. Perkins, 196. Brown v. Prov. Tel. Co., 326. Brown v. Randall, 250. Brown V. Smith, 317. Brown v. Swineford, 201. Brown v. Tribune Assoc, 309. Brown v. Ware, 345. Brown v. Winona Ry., 177. Brown ^- Wotton, 226. Brown Chem. Co. v. Meyer, 387. Browne v. Freeman, 393. Browne v. Hawkins, 310. Browning v. Comm., 302, 312, 331. Browning v. Rittenhouse, 241. Brownlle v. Campbell, 367. Bruce v. Cin. Ry., 211. Bruch V. Carter, 346. Brundage v. Mellon, 380. Brunsden v. Humphrey, 212. Bruske v. Neugent, 96. Bryant v. Jackson, 60, 308. Bryant v. Kinyon, 236. Bryant v. Rich, 155. Bryant v. town of Randolph, 107. Bryant v. Western Un. Tel. Co., 477. Bryce v. Southern Ry., 184. Brzezinski v. Tierny, 270. Buch V. Amory Mfg. Co., 459. Buchanan v. West Jersey Ry., 99. Buck V. Hersey, 311. Buck V. New Jersey Zinc Co., 167. Bucki & Son, Co. v. Atlantic Lum- ber Co., 263. Buckingham v. Elliott, 195. Takle of Cases. XXXI Buckley v. Gutta Percha Co., 169. Buckman v. Great Nor. Ry., 98. Buckner v. Spaulding, 319. Buckstaff V. Hicks, 320, 327. 334. Buford V. Houtz, 341. Buisson V. Huard, 67, 330. Bulkley v. Dolbeare, 340, 345. Bull V. CoUon, 346. BuUard v. Mulligan, 90. Bullock V. Babcock, 59, 268. Bump V. Betts, 250. Bundy v. Maginess, 200, 201, 271. Bungenstock t. Nishnabotna Drain- ing Dist, 471. Burbank y. Horn, 295. Burditt V. Hunt, 183, 357. Burgess v. Denison Paper Co., 223. Burgett V. Burgett, 256. Burk V. Foster, 454. Burke v. Bell, 245. Burke v. Chic. etc.. Ry., 441. Burke v. Smith, 45. Burkett v. Griffith, 381, 383. Burks V. Hubbard, 205. Burlington v. Schwartzman, 411. Burnard v. Haggis, 125. Bums V. Bos. El. Ry., 439. Bums V. Erben, 245, 246, 247. Bums V. Pethcal, 167. Burnside v. Twitchell, 350. Buroughs V. Tradesman's Nat Bk., 18. Burrill v. Augusta, 109. Burrill v. Stevens, 366. Burroughs t. Bayne, 347. Burroughs v. Housatonic Ry., 451. Burrows v. Rhodes, 219. Burt V. Advertiser Co., 200, 235. Burt ▼. McBain, 118. Burt V. Tucker, 387, 393. Burton v. Galveston, etc., 139, Bnsch V. Wilcox, 153, 380. Bush V. Western, 505. Bushel V. Miller, 349. Bnshnell v. Robinson, 407. Busklrk v. King, 504. Bussian v. Mil., etc., Ry.. 223. Butchers' Union Co., v. Crescent City, 44. BuUer y. McCtellan, 157. Butler V. W. U. T. Co., 103, 498. Butman v. Newton, 107. Butner v. \V. U. T. Co., 104. Btttterick v. Lowell, 109. Butterick Pub. Co. v. Typographical Union No. 6, 513. Button V. Heyward, 306. Buxton V. Hughes, 348. Byam v. Collins, 324, 325, 329. Byne v. Moore, 258 Byrne v. Boadie, 427. Byrne v. Eastmans Co., 165. Byrne v. N. Y. C. Ry.. 457. Byrne \. Stout, 352. Byrne v. Wilson, 206. Byrnes v. City of Cohoes, 337. C. Cadell v. Black, 231. Cadwell v. Parrell, 268. Cahill V. Eastman, 406, 448. Cahlll y. Murphy, 201. Cain V. Syracuse, 110. Caldwell v. Bennett, 252. Caldwell v. bacra, 185. Caldwell v. Story, 66, 331. Calif. Nav and Imp. Co., In re, 197, 235. California Reduc. Co. v. Sanitary Reduc. Co., 43. Calkins v. Sumner, 322, Callahan v. Gilman, 409, 505. Callahan y. Ingram, 201, 320. Callan v. Bull. 162. Calvin v. Holbrook, 184. Cameron v. Kenyon-Cornell Co., 405. Cameron v. Nystrom, 137. 180. Cameron v. Oberlin, 143. Camp y. Martin. 309. Camp V. West. Un. Tel. Co., 483, 485. Camp & Bros. v. Hall, 177. Campbell v. Boyd, 457. Table ok Cases. Campbell v. Irwin, 312. Campbell v. Portland Sugar Co., 187. Campbell v. Providence, 151. Campbell v. Seaman, 399, 400, 407, 505. Campbell v. Sherman, 244. Campbell v. Spotteswoode, 331. Campbell v. Stakes, 125, 357. Can. Pac. Ry. v. Robinson, 231. Canal Co. v. Clark, 386. Candee v. N. Y. & H. Ry., 222. Candiffi v. Louisville, 147. Canning v. Inhabitants of Williams- town, 100. Cannon v. Overstreet, 338. Canton Cotton Warehouse Co. v. Pool, 147. Capasso v. Woolfolk, 162. Capel V. Powell, 117. Capital and Counties Bank v. Henty, 305. Card V. Case, 406. Carden v. Louisville, etc., Ry., 237. Cardinal v. Smith, 257. Cardon v. McCormall, 281. Carew v. Rutherford, 289. Carey v. Berkshire, etc., Ry., 232. Carey v. Bright, 354. Carey v. Rochereau, 184. Cargill V. Duffly, 134. Carleton Mining Co. v. Ryan, 177. Carlin v. Wolf, 504. Carlisle v. Sheldon, 443. Carlson v. Phoenix, etc., Co., 166. Carney v. Concord St. Ry., 441, 459. Carpenter v. Bailey, 67. Carpenter v. Boston & A. Ry., 155. Carpenter v. Dresser, 364. Carr v. Clark, 281. Carr v. Hood, 235. Oarr v. State, 268. Carrigan v. Washburn, etc., Co., 169. Carrington v. St. Louis, 111. Carrol v. The State, 55. Carroll v. Pethers, 26, 223. Carroll v. Marcoux, 450. Carroll v. Missouri Ry., 75. Carroll V. Staten Island Ry., 87. Carroll v. W; U. T. Co., 165. Carslake v. Mapledoran, 313. Carson v. Godley, 453. Carson v. Smith, 215. Carter v. Columbia, etc., Ry., 88, 89. Carter v. Goode, 215. Carter v. Lockey Piano Case, 179. Carter v. Oliver Oil, 166. Carter v. Towne, 93, 424, 452. Carter v. Wallace, 338, 339. Carter v. Wells, Fargo & Co., 211. Carterville Coal Co. v. Abbott, 83. Case de Libellls Famosis, 301. Casebeer v. Mowry, 198, 217. Carelton v. Taylor, 243. Casement v. Brown, 134. Casey v. Cincinnati Typo. Union, 286, 515. Casey v. Penn. Asphalt Co., 178. Cassidy v. Uhlman, 368. Castenholz v. Heller, 378. Castle V. Duryee, 59. Castle V. Houston, 319. Caswell V. Hunton, 279. Caswell V. Parker, 126. Catlin V. Valentine, 402. Cattano v. Met. Ry., 439. Catts V. Phalen, 126. Cavanaugh v. Dinsmore, 151. Celluloid Mfg. Co. v. Cellonite Mfg. Co., 391. Centaur Co. v. Link, 391. Centaur Co. v. Neathery, 391. Central Coal Co. v. John Henry, 204. Central, etc., Co. v. Lampley, 353. Central of Ga. Ry. v. Brown, 115. Central Iron & Coal Co. v. Vanden- henk, 508. Cen. Ry. v. Crosby, 437. Cent. Ry. of N. J., In re, 197. Central Stock & Grain Ech. v. Board of Trade, 477. Central Un. Tel. Co. v. State, 480. TABLii OK Cases. XXXlll Central Union Telephone Co. v. Falley. 475. Centreville & A. B. T. Co. v. Barn- ett, 50.". Certwell v. Hoyt, 283. Cerveney v. Chic. Daily News, 302. Chaddock v. Plummer, 128, 156. Chaffin V. Lynch, 297. Chaloner v. Lansdown, 328. Chamberlain v. White, 300. Chamberlin y. Fuller, 377. Chamberlin v. Shaw, 351. Chamberlin v. Vance, 318. Chambers v. Baldwin, 67. Chambers v. Bedell, 1931 Chambers v. Lewis, 351. Chambliss v. Blau, 321. Chapin v. Holyoke Y. M. C. A., 115. Chapleyn of Greye's Inne v. Y. B.. 52. Chapman v. Decrow, 56. Chapman v. New Haven Ry., 443. Chapman v. Kckersgill, 257. Chapman v. State, 266. Chapman v. Thumblethor, p., 192. Chapman v. W. U. T. Co., 103, 104. Chappell V. Ellis, 192, 200. Chappell T. Sheard. 393. Charman v. Lake Erie Ry., 186. Chase v. Ingalls, 242. Chase v. Jefferson, 193. Chasemore v. Richards, 62. Chattanooga, etc., Co. v. Venable, 180. Chattanooga Light & Power Co. v. Hodges, 434, 438. Chattanooga Rapid Transit Co. v. Walton, 83. Chatfield v. Wilson, 62. Chatham Furnace Co. v. Moffat, 374. Cheatham v. Powder Co., 405. Cheney v. Ocean Steamship Co., 157. Chesebro v. Powers, 383. Chesapeake & O. Co. v. County Comm'rs, 218. Chesapeake & O. Ry. v. Dixon, 186. Chesapeake, etc., Ry. v. Judd, 201. Chesapeake & Pot. Telephone Co. v. Bal. & O. Tel. Co., 475, 478. Chesapeake & U. Tel. Co. v. Man- ning. 481. Chesapeake, etc., Co. v. Mackenzie, 341. Chesley v. Nantasket, etc., Co., 426. Chester v. Dickerson, 380. Chestnut v. Chestnut, 120. Chicago V. Stearns, 440. Chicago V. Taylor, 50. Chic. & A. Ry. v. Pillsbery, 155. Chicago & A. Ry. v. Wise, 186. Chic, B. & Q. Ry. v. Bryan, 204. C. B. & Q. Ry. V. Krayenbuhl, 467. Chicago, B. & Q. Ry. v. Lilley, 435. Chicago, B. & Q. Ry. v. McLallen, 160. Chicago City Ry. v. Leach, 176. Chic. City Ry. v. Wilcox, 445. Chicago, etc., Co. v. Meech, 210 Chicago, etc., Co. v. Reinneiger, 168. Chicago, etc., Ry. v. Caulfield, 98. Chicago, etc., Ry. v. Doyle, 216. Chic, etc, Ry. v. Dunn, 119. Chicago, etc, Ry. v. Flexman, 155. Chicago, etc., Ry. v. Gillison, 179. Chicago, etc., Ry. v. Honey, 442. Chicago, etc., Ry. v. Johnson, 423. Chicago, etc., Ry. v. Kelly, 178. Chic, etc., Ry. v. Kowalski, 445. Chicago, etc., Ry. v. Kneirin, 161. Chic, etc., Ry. v. Lagerkraas, 234. Chic, etc., Ry. v. Maroney, 163. Chic, etc., Ry. v. Moranda, 182. Chicago, etc., Ry. v. Ross, 177. Chic, etc., Ry. v. Thomas, 235. Chic, etc., Ry. v. Winfrey, 437. Chick V. Newberry Co., 108. Chickering v. Lord, 215. Child V. Afflick, 66, 157. 328. Chiles V. Drake, 200. Chellis V. Chapman, 292. Chipley v. Atkinson, 287. xxxiv Table of Cases. Chipman v. Palmer, 415. Choctaw, etc., Ry. v. McDade, 80. Chrlstal v. Craig. 312. Christian v. Illinois Cent. Ry., 343, 459. Christian Hospital v. The People, 512. Christie v. Robertson, 333. Christopherson v. Bare, 267. Church V. Ottawa, 212. Church V. Proctor, 31. Churchill v. White, 125. Churnot v. Lawson, 343. Cincinnati, etc., Ry. v. Lohe, 439. Cincinnati, etc., Ry. v. McMullen, 166. Cin. Trib. Co. v. Bruck, 260. Citizens' Ry. v. Robblns, 206. Citizen, etc., Ry. v. Willoeby, 204. City Council of Montgomery v. Townsend, 50. City Delivery Co. v. Henry, 151. City Iron Works v. Barber, 380. City of Allegheny v. Campbell, 208. City of Atlanta v. Green, 50. City of Atlanta v. Stewart, 427. City of Carthage v. Munsell, 397. City of Chicago v. Babock, 223. City of Chicago v. Seben, 111. City of Evansville v. Senhenn, 445. City of Lafayette v. Timberlake, 110. City of Lanark v. Dougherty, 440. City of Llano v. Llano County, 411. City of Newton v. Joyce, 44. City of Pekin v. McMahon, 459. City of Petersburg v. Applegart, 108. City of Philadelphia v. Gavagnin, 108. City of Richmond v. Long, 109. City of San Antonio v. Smith, 218. Claflin V. Gurney, 360. Claflin V. Meyer, 425. Claiborne v. Chesapeake & O. Ry., 245, 247. Clapp V. LaGrill, 459. Clarendon Land Co. v. McCleland Bros., 342. Clark V. Chambers, 462. Clark V. Downing, 268. Clark V. Foot, 451. Clark V. Fry, 187. Clark V. Gay, 23. Clark V. Ice Co., 196. Clark V. Keliher, 56. Clark V. Molyneux, 67, 326. Clark V. Raleigh, etc., Ry., 88. Clark V. Russell, 426. Clarke V. Holms, 83. Clasen v. Pruhs, 129. Clay V. People, 299. Clayards v. Dethick, 81. Cleary v. Booth, 130. Clements v. Odorless & Co., 253. Clemmons v. Danforth, 322. Cleveland v. Bangor Street Ry., 47. Cleveland v. City of Bangor, 226, 227. Cleveland City Ry. v. Osborn, 60. Cleveland & C. Ry. v. Jenkins, 23, 293. Cleveland, etc., Ry. v. Crawford, 429. Cleveland, etc., Ry. v. Marsh, 459. Cleveland Rolling M. Co. v. Corri- gan, 441. Clifton V. Hooper, 198. Cloon V. Gerry, 253. Closkey v. Pulitzer Pub. Co., 319. Closson V. Staples, 261. Clow V. Chapman, 277. Clute V. Clute, 307. Clutterbuck v. Chaffers, 293, 294. Clydesdale Bank v. Paton, 366. Clyma v. Kennedy, 243. Coal Creek Mining Co. v. Davis, 182. Coal Mining Co. v. Clay, 162. Coast Company v. Mayor of Spring Lake, 505. Cobb V. Cater, 57. Cobb V. Columbia, etc., Ry., 156. Cobb V. Smith, 412. Takl.e ok Casi^s. XXXV Cochrane v. Mayor of Frostburg, 110. CockriU v. Hall, 366. Cockroft V. Smith, 52 Coffeen v. Brunton, 385. Coffin V. Brown, 331, 334. Coffin V. Coffin, 30, 320. Cogdell V. Yett, 59. Coggs V. Bernard, 423. Cogswell V. New York, etc., Ry. Co., 47. Cohen v. Dry Dock Ry. Co., 151. Coit V. West Un. Tel. Co., 488, 490. Colby V. Jackson, 248. Cole V. Atlantic, etc., Ry., 100. Cole V. Curtis, 252. Cole V. Fisher, 346. Cole V. Maunder, 55. Cole V. N. Y. Bottling Co., 428. Cole V. Smith, 369. Cole V. Turner, 268, 269. Coley V. North Car. Ry., 305. Collard v. Marshall, 514. Collins V. Carnegie, 84, 85. Collins V. Council Bluff, 204. Collins V. Fowler, 241. Collins V. Greenfield, 107. Collins V. Harrison, 161. Collins V Love, 251. Collins V. RenisoB, 56. Columbia, The, 232. Columbian Athletic Club v. State ex rel. McMahon, 506. Columbia Mill Co. v. Alcorn, 386. Colwell V. St. Pancras Borough Council, 405. Colwell V. Tinker, 236. Comer v. Knowles, 242. Comer v. Taylor, 285. Comfort V. Young, 321. Commings v. Stevenson, 414. Comm. Bank v. Hughes, 364. Comm. V. Call, 375. Comm. V. Carey, 245. Comm. V. Claps, 334. Comm. V. Clark, 56. Comm. V. Colberg, 77. Comm. V. Crotty, 243. Comm. V. Donahue, 54, 191. Comm. V. Hubley, 44. Comm. V. Hunter, 68. Comm. V. McLaughlin, 246. Comm. V. Morrisey, 44. Comm. V. Parks, 398. Comm. V. Sharpless, 44. Comm. V. Stratton, 77, 269. Commonwealth v. Coffee, 345. Commonwealth v. Malone, 52. Commonwealth v. Mitchell, 5. Commonwealth v. Rourke, 345. Commonwealth v. Shorthall, 42. Commonwealth v. Western Un. Tei Co., 478. Commissioners of Ham. Co. v. Mig. hels, 106. Compagnie Francaise v. State Board of Health, 44. Comparet v. Burr, 348. Conrad v. West. Un. Tel. Co., 482, 483. Consol. Elec. Co. v. Healy, 465. Consolidated Steel & Wire Co. v. Murray, 515. Cooke V. Nathan, 372. Cooke V. Wildes, 324. Cooley V. Galyon, 322. Cooper V. Georgia C. & N. Ry., 434. Cooper V. Mullins, 182. Cooper V. Overton, 469. Cooper V. Schleslnger, 373. Cooper V. Willomat, 363. Cope V. Ramsey, 31. Copeland v. Draper, 454. Condict V. Jersey City, 109. Condran v. Chicago, etc., Ry., 88. Congregation v. Smith, 124. Conhocton Stone Road v. Bluff., etc., Ry., 413. Conklin v. Thompson, 102. Conlan v. Roemer, 370. Conley v. Blinerby, 17. Connell v. W. U. T. Co., 104. Connelly v. Nashville, 109. Connelly v. W. U. T. Co., 104. XXXVl Table of Cases. Conner v. Sisters of the Poor, 114. Conners v. Walsh, 55, 88, 271. Conroe v. Conroe, 291, 292. Conroy v. Pittsburg Times Co., 319. Conroy v. Vulcan Iron Works, 172. Consolidated Co. v. Curtis, 354. Consolidated Coal Co. v. Seniger, 132. Consolidated Fireworks Co. v. Kiehl, 138. Consolidated Steel Co. v. Murray, 286. Consolidated Traction Co. v. Lam- bertson, 100. Constable v. Nat. Steamship Co., 221. Continental Co. v. Bliley, 205. Continental Ins. Co. v. Board of Fire Underwriters, 70, 287. Conway v. Reed, 126. Cook V. Cook, 316. Cook V. Ellis, 200. Cook V. Johnson, 438. Cook V. Patterson, 349. Cook V. Southern Ry., 149. Cook V. Thornton, 348. Cooke V. Bangs, 34. Cooper V. Barber, 63. Cooper V. Booth, 258. Cooper V. Chitty, 347. Cooper V. Cooper, 27. Cooper V. Greeley, 290, 303, 308. Cooper V. Hart, 252. Cooper V. Shore Blec. Co., 234. Cooper V. Stone, 335, 336. Cooper V. Willomatt, 354. Corbett v. St. Vincent's Industrial School, 114. Corbin v. Philadelphia, 437. Corby v. Hill, 457. Corcoran v. Corcoran, 317. Corey v. Havener, 226. Cork V. Blossom, 142, 406. Corland v. West. Un. Tel. Co., 486. Cornford v. Carlton Bank, 116. Corning v. Troy I. & N. Factory, 506. Corrlgan v. Stilwell, 82. Cotulla V. Kerr, 314. Cotrill V. Krum, 378. Coryton v. Lithebye, 300. CosgrifE V. Miller, 342. Costa V. Yoachim, 185. Costello V. Third Ave. Ry., 434. Costich V. City of Rochester, 204. Cosulich V. Standard Oil Co., 426. Cotton V. Sharpstein, 357. Cottrill V. Chic. etc. Ry., 437. Coulson & Son v. Coulson & Co., 514. Coulter V. Am., etc., Co., 437. Coulter V. Clark, 370. Coulter V. Township, 235. Countryman v. Lighthill 194. County Board of Education v. State Board of Education, 239. Coup V. Wabash, St. L. & C. Ry., 75. Courthorpe v. Mapplesden, 508. Courtoiy v. Dozier, 241. Covell V. Chadwick, 512. Covert V. Cranford, 415. Covington Tr. Co. v. Kelly, 443. Covington, etc., Co. v. Steinbock, 140, 141. Cowan V. West. Un. Tel. Co., 486, 496, 497, 499. Cowden v. Wright, 281. Cox V. Crumley, 213. Coxhead v. Richards, 324, 325, 328. Cragin v. Lovell, 214. Craig v. City of Charleston, 109, 111. Craig v. Ginn, 250. Craker v. Chicago & N. W. Ry. Co.. 100, 155. Crane Elev. Co. v. Lippert, 456. Crane v. Waters, 335. Cranford v. Tyrell, 399. Crashley v. Press Pub. Co., 305, 308. Crater v. Crater, 121. Craven v. Bloomingdale, 150, 201, 203. Craven v. Hodenhausen, 403. Crawford v. Hughes, 341. Cregan v. Marston, '167. Oreevy v. Carr, 318. Table of Cases. xxxvn Cregin v. Brooklyn, etc., Ry., 229. Crescent City Co. v. Butcher's Union, 253. Crighton v. Dahmer, 511. Criner v. Brewer, 227. Crisler v. Ott, 140. Crispin v. Babbitt, 177. Croasdale v. Van Boyneburg, 154. Crocker v. Mann, 194. Croekford v. Alexander, 507. Crockett v. McLanahan, 322. Croft V. Jennings, 354. Crogan v. Schlele, 455, 456. Cropp V. Tilney, 302. Cross V. Andrews, 60. Cross V. Guthery, 232. Cross V. Kent, 60. Crossley v. Lightowler, 415. Crowley v. Groonell, 343, 450. Croyle v. Moses, 368. Cruikshank v.- Gordon, 315. Crump V. Lambert, 402. Cruselle v. Pugh, 180. Cuddy V. Horn, 443. Cuff V. Newark, etc., Ry., 140, 143. Cullen V. Hanisch, 254. Cullen V. Norton, 162. Culmer v. Wilson, 119, 218, 219. Cumberland, etc., Co. v. Martin, 457. Cumberland, etc., Co. v. United Elec. Ry., 451. Cumberland Tel. Co. v. Poston, 339. Cumberland T. & T. Co. v. Allen, 495. Cumberland T. & T. Co. v. Hicks, 496. Cumberland Tel. & Tel. Co. v. Ho- bart, 477, 495. Cuming v. Brooklyn Ry., 128. Cumming v. Brooklyn, 281. Cummings v. Nat'l Furnace Co., 428. Cumpston v. Lambert, 219, 220. Cunningham v. Int. Ry., 180. Cunningham v. Underwood, 202. Cunningham v. Yeomans, 193. Curley v. Hoff, 162. Curran v. Galen, 287. Curran v. Olson, 156. Curry v. Mannington, — ■ Curtice v. Thompson, 413. Curtin v. Somerset, 453. Curtis V. Gi-oat, 339. Curtis V. Kiley, 143. Gushing v. Hederman, 300, 312. Cutting V. Tower, 229. D. L. & W. Ry. V. Devore, 444. D. L. & W. Ry. V. Hardy, 137, 181. D. L. & W. Ry. V. Reich, 469. D'Amico V. City of Boston, 456. Dailey v. Houston, 117. Dale V. Harris, 325, 329. Daley v. Norwich, etc., Ry., 445. Dalton V. Angus, 140. Dalton V. S. E. Ry., 235. Daltry v. Media Elec. Co., 451. Daly V. Hintz, 444. Daly V. Kiel, 168. Daly V. Wise, 373. Dame v. Dame, 360. Dand v. Sexton, 343. Daniels v. Keokuk Water Works, 419. Daniels v. N. Y., etc., Ry., 93, 343, 470. Danovan v. Jones, 246. Darley Main Colliery Co. v. Mit- chell, 225, 238. Daugherty v. Am. Tel. Co., 488. Daves v. Southern Pac. Ry., 183. David V. New York, 84. David V. Park, 378. Davidson v. Abbott, 283. Davies v. Nicholas, 360. Davles v. Snead, 66, 330. Davis V. Solomon, 317. Davis V. Am. Society for Prev. Cruelty to Animals, 510, 511. Davis V. Atlanta, etc., Ry., 423. Davis V. Augusta Factory, 168. xxxvm Table of Cases. Davis V. Betz, 371. Davis V. Brown, 311. Davis V. Cal., etc., Ry., 436, 439. Davis V. Gary, 311. Davis V. Cent. Cong'l Soc, 458. Davis V. Cent. Vt. Ry., 221. Davis V. Chic, etc., Ry., 457. Davis Coal Co. v. Polland, 83, 168, 170. Davis V. Davis, 379. Davis V. Gardiner, 317. Davis V. Guarnieri, 442, 453. Davis V. Houghtellin, 147. Davis V. Hull, 504. Davis V. Hurt, 347. Davis V. Johnson, 263. Davis V. Knoxville, 110. Davis V. Lebanon, 109. Davis V. N. y. & N. B. Ry., 216. Davis & Son v. Hurt, 353. Davis V. Niagara Falls Co., 63, 406. Davis V. Rich, 80, 406. Davis V. Shepstone, 335. Davis V. Sladden, 311. Davis V. Standard Nat. Bank, 17. Davis V. Summerfleld, 140. Davis V. West. Un. Tel. 492. Davis V. W. U. T. Co., 104. Davis V. Whitridge, 192. Davis V. Young, 239. Davison v. Duncan, 327. Dawe V. Morris, 15. Dawkins v. Lord Rokeby, 35. Dawkins v. Prince Bdvirard, 35. Dawkins v. Rokeby, 321. Dawson v. Schloss, 225. Day V. Bream, 297. Day V. Buller, 316. Day V. Woodworth, 202. Dayton v. Roberts, 411. Deaconess Home and Hospitnl >. Bontjes, 400. Dean v. Brock, 184. Deane v. Clayton, 461. Debs, In re 512-516. De Gair v. Mainstee Ry., 170. De Camp v. BuUard, 338. Decker v. Gammon, 341. Decker v. McSorley, 444. De Oosta v. Hargraves Mills, 169. De Courcey v. Cox, 33. De Crespigny v. Wellesby, 291. Deere v. Guest, 507. Deford v. State, 140. Degenhart v. Heller, 267. De Geofroy v. Merchant's Bridge Co., 50. DeGray v. Murray, 450. Deltzman v. Mullin, 277. Delacroix v. Thevenot, 294. DeLaney v. Rochereau, 184. Delory v. Blodgett, 136, 137. Delves v. Wyer, 210. Dement v. Houston Printing Co., 319. Deming v. Darling, 368. Dempsey v. Chambers, 131-145. Dench v. Walker, 352. Denison Paper Co., 223. Dennick v. Central Ry., 217. Dennis v. Clark, 128, 281. Dennis v. Eckhart, 404. Dennis v. Johnson, 316, 319. Dennis v. Mobile, etc., Ry., 408. Dennis v. Ryan, 251. Denny v. Brunson, 502. Denny v. Manhattan Ry., 184. Dent V. Chiles, 360. Denton v. G. N. Ry., 375. Denver, etc., Ry. v. Harris, 191, 202. DePew V. Robinson, 315. Derringer v. Plate, 386. Derry v. Handley, 299. Derry v. Peek, 372, 373. DeS. V. DeS., Y. B., 266. Deskins v. Gose, 270. Desmond v. Brown, 294. Detroit v. Blackeby, 111. Detroit Daily Post v. McArthur, 202. Detroit & M. Ry. v. Van Stelnburg, 429. Detzur v. Stroh Brewing, 455. DeVoin v. Mich. Lumber Co., 356. Table of Cases. XXXIX Devereaux v. Barclay, 355. Dewell V. Sandars, 342. Dexter v. Cole, 346, 347. Dexter v. Harrison, 312. Develin v. SnelUnburg, 341. Devoe v. New York, etc., Ry., 158, 159. Dewey v. Detroit, etc., Ry., 167. Dewey v. White, 43. Dibdin v. Swan, 335. Dicken v. Liverpool, etc., Co., 445. Dickinson v. Barber, 60, 308. Dickinson v. West End Ry., 180. Dickson v. Omaha, etc., 92. Dickson v. Renter's Tel. Co., 487, 489. Diethers v. St. Paul Gas Light Co., 137. Dillard v. Collins, 319. Dillenberger v. Weingartner, 439. Dillehay v. Hickey, 450. Dillingham v. Russell, 155. Dillingham v. Snow, 36. Dillon V. Hunt, 144. Dimock v. U. S. Nat. Bk., 206. Dinnihan v. Lake Ont. Co., 456. Disbrow v. Tenbroeck, 355. Dishaw v. Wadleigh, 263. Dittman v. Repp, 402. Dixon V. Bell, 128, 424. Dixon V. Clow, 198, 338. Dixon V. Cooper, 31. Dixon V. Holden, 291. Dixon V. Swift, 457. Doan V. Penn. Ry., 443. Dobbins v. Los Angeles, 512. Dobbins v. M. K. & T. Ry., 421. Dobson V. Cothran, 280. Dobson V. N. O., etc., Ry., 178. Dodd Grocery Co. v. Postal Tel. Co., 494. Dodge V. Colby, 214, 383. Dodge V. Stacey, 413. Dodwell V. Burford, 268. Doe V. Roe, 278. Doering v. State, 24.5. Dolan V. Chicago, etc., Ry., 407. Dolan V. J. C. Hubbinger Co., 147. Dole V. Erskine, 52, 271. Dole V. Lyon, 218. Dole V. Van Rensselaer, 313. Doliff V. Robbins, 183, 358. Dolph V. Ferrisburg, 341. Donagby v. Brennan, 62. Donahoe v. Richards, 128, 281. Donahoe v. Wabash, etc., Ry., 437. ■Donahue v. Shippee, 183, 353. Donald v. Suckling, 363. Donaldson v. Commissioners, 113. Donaldson v. Miss. Ry., 233. Donoghue v. Hayes, 308. Donovan v. Lang, 136, 138. Dooling V. Budget Pub. Co., 383. Dooling V. Williams, 271. Doolittle V. Southern Ry., 434. Doolittle V. Shaw, 355. Dooly V. Stringham, 504. Dooner v. D. & H. Canal Co., 167. Doran v. Cohen, 213. Dorman v. Ames, 411, 412. Dorr V. Cory, 370. Dorsey v. Kansas, etc., Ry., 152. Douge V. Pearce, 118. Dougherty v. Chestnut, 339. Dougherty v. Posegate, 359. Dougherty v. Stepp, 337. Douglas V. Allen, 249, 250. Douglass V. Daisey, 329. Doulson V. Matthews, 214. Dowd V. Erie Ry., 172. Dowd V. N. Y., O. & W. Ry., 80, 159, 170, 171. Dowd V. Wadsworth, 361. Downs V. City of High Point, 409. Downes v. Harper Hospital, 114. Downing v. Elliott, 400. Doxtator v. Chic. & M. Ry., 359. Doyle V. Vance, 343. Drake, Ex parte, 227. Drake v. Auburn City Ry., 80, 169. ■Drake v. Hogan, 184. Drake Med. Co. v. Glessner, 389. Draper v. Baker, 268. Draper v. Brown, 415. xl Table of Cases. Draper v. Skerrett, 388. Drew V. Spaulding, 348. Drlggs V. Burton, 250. Driscoll V. Scanlon, 147. Driscoll V. Towne, 135, 136, 138. Drohan v. Lake Shore, etc., Ry., 223. Drum V. New England Co., 167. Drumm v. Cessnum., 262. Duck V. Mayeu, 223, 224. Ducktown Sulphur, etc., Co. v. Barnes, 417. Duckworth v. Johnson, 235. Dudley v. Briggs, 24. Dudley v. Home, 310. Dudley v. Kennedy, 408. Dudley v. Love, 57. Duffies V. Duffies, 277. Dnfort V. Ahadie, 96. Duke V. Rome, 111. Duke of Brunswick v. Harmer, 296. Dulieu V. White, 97. Dunbar v. City of Augusta, 44. Dunhar v. Cowger, 270. Dunbar v. Dunbar, 236. Duncan v. Findlater, 131. Duncan v. Griswold, 282. Duncan v. Maine Cent. Ry., 76. Duncombe v. Daniel, 318, 334. Duncombe v. Reeve, 346. Dunks V. Grey, 127. Dunlap V. Linton, 238. Dunn V. Grand Tr. Ry., 426. Dunn V. Hartford, etc., Ry., 145. Dunn V. Western Un. Tel. Co., 478, 495. Dunton v. Allen Line S. S. Co., 58. Duplany v. Davis, 336. Durden v. Barnett, 281. Durkin v. Kingston Coal Co., 132. Dustin V. Cowdry, 191. Dutcher v. Culver, 194. Dutton v. Amesbury Nat. Bank, 135. Dutton V. Borough of Landsdowne, 415. Duval V. Barnaby, 449. Dwight V. El. C. & N. Ry., 199.- ■ Dwinelle v. N. Y. Central & Hud. Riv. R. Co., 144, 155. Dwyer v. Mehan, 317. Dyche v. Vicksburg, etc., Ry., 359. Dyer v. Munday, 153. Dyk. V. Du Young, 268. B. Eagan v. Maguire, 87. Eaglesfield v. Londonderry, 372. Earl of Ripon v. Hobart, 504, 505. East Jersey Water Co. v. Bigelow, 411, 412. East River Gas Light Co. v. Don, elly 35. Bast River Gaslight Co. v. Don- nelly, 36. East Tenn Ry. y. De Armond, 182. Eastland v. Clarke, 161. Eastman v. Amoskeag Mfg. Co., 419. Eastman v. Meredith, 110. Eastman v. Monastes, 254. Easton v. Bank of Stockton, 261. Eaton V. N. Y. C. Ry., 167. Eaton, Cole & Co. v. Avery, 375. Ebersoll v. Krug, 118. Eckert v. Long Is. Ry., 437. Eckstein v. Frank, 125. Eddy V. Lafayette, 208. Edgerly v. Union St. Ry., 442. Edington v. Burl., etc., Ry., 467. Edington v. Pitzmaurice, 367. Edison v. Thos. A. Edison Jr. Chem. Co., 513. Edmondson v. City of Moberly, 47. Edmonson v. Ken. Cen., 178. Edmonson v. Stevenson, 328. Edsall V. Russell, 316. Edward Hines Lumber Co. v. Ligas 182. Edwards v.. AUonez Mining Co., 416. Edwards v. Edwards, 345. Edwards v. Turner, 28. Edwards v. Wessinger, 117. Edwai-ds v. Wooton, 293. Eggett V. Allen, 252. Table of Cases. xli Ehrgott V. Mayor, etc., 90, 92, 94. Eichengreen v. Louisville Ry., 154. Eidelmann v. St. Louis Co., 146. Eighmy v. Ry. Co., 114. Elder v. Morrison, 244. Elgin Nat. Watch Co. v. 111. Watch Co., 385, 391. Eliott V. Hall, 453. Elizabeth,«The, 10. Elkins V. McKean, 453. Ekins V. Tresham, 368. Ell V. Nor. Pac. Ry., 166, 178, 207. EUenwood v. Marietta, 214. Elliot V. Ailsbury, 311. Elliot V. Porter, 225. EUick V. Wilson, 437. Ellis V. Am. Tel. Co., 491. Ellis V. Buzzell, 291. Ellis V. Kansas City Ry., 410. Ellis V. Loftus Iron Co., 337. Ellis V. McNaughton, 184. Ellis V. N. Y., etc., Ry., 179. Ellis V. Sheffield Gas Co., 140. Ellis V. Wire, 205. Ellsworth V. Metheney, 457. Elmer v. Fessenden, 90, 299. Elmhirst v. Spencer, 506. Elmore v. Seaboard Ry. 83, 426. Elsee V. Smith, 258. Elsey V. Postal Tel. Co., 490. Elwood V. W. U. T. Co., 153. Ely V. Supervisors, 196. Ely V. Yore, 191. Emack v. Kane, 513. Emblen v. Myers, 201. Emerick v. Ireland, 339. Emerson v. Cochran, 257. Emerson v. Fay, 135. Emerson v. Shores, 193. Emmens v. Pottle, 297. Emmons v. Alvord, 9, 17. Emory v. Jenkinson. 353. Endsley v. Johns, 371, 376. Enfield v. Colburn, 378. England v. Cowley, 350. Englehart v. Farrant & Co., 147, 151. Engleton v. Kabrich, 262. English V. Amidon, 81. English V. Progress El. L. & M. Co., 506. Enos V. Enos, 318. Enquirer Co. v. Johnston, 318. Brdman v. 111. Steel Co., 169. Erdman v. Mitchell, 515. Erhardt v. Boaro, 503, 509, Erie City Iron Works v. Barber, 116. Erie City Ry. v. Schuster, 445. Erie Ry. Co. v. Salisbury, 150, 156. Ertz v. Produce Exchange, 73. Estell V. Myers, 379. Estes V. Kelsey, 196. Esty V. Wilmot, 346. Etchison v. Pergerson, 325. Etter V. Bailey, 357. Euler V. Sullivan, 415. Euting V. Chic. & N. W. Ry., 156. Evanisch v. Gulf, etc., Ry., 468. Evans v. Chicago, etc., Ry., 47. Evans Laundry Co. v. Crawford, 84. Evans v. Davidson, 152. Evans v. Fertilizing Co., 398. Evans v. Harlow, 382, 383. Evans v. Josephine Mills, 441. Evans v. Thompson, 252. Evans v. Waite, 82, 83, 89. Evans v. Wilmington, etc., Ry., 415. Evansville, etc., Ry. v. Hiatt, 438. Evening Post Co. v. Richajrdson, 333. Evenson v. Spaulding, 515. Everett v. Henderson, 243. Everett Piano Co. v. Brent, 382. Everton v. Ergati, 55. Evey V. Mex. C. Ry., 216. Eviston V. Cramer, 203. Ewan V. Lippincott, 181. Ewing V. Pittsburgh Ry. Co., 93, 97, 99. Ewings V. Walker, 345. Express Co. v. Copeland, 334. xlii Table of Cases. P. Fadden v. Satterlee, 239. Fagundes v. Cent. Pac. Ry., 182. Fairchild v. McMahon, 370. Fairly v. West. Un. Tel. Co., 498. Falloon v. Schilling, 45. Falvey v. Stanford, 211. Fanning v. Chase, 312. Farber v. Mo., etc., Ry., 459. Farley v. Gate City Gas L. Co., 417. Farley v. Lincoln, 352. Farmers' Co-op. Co. v. Albemarle, etc., Ry., 408. Farnham v. Pierce, 129. Farr v. State Bank, 364. Farrar v. Beswick, 362. Farrar v. Rollins, 360. Farrell v. Waterbury Horse Ry., 429. Farwell v. Boston, etc., Ry., 131, 173. Farwell v. Becker, 220. Faulkner v. Mammoth Min. Co., 170, 171. Faust V. Phila. & Reading Ry., 147. Fay V. Gray, 363. Fay V. Parker, 198, 200. Fay V. Prentice, 395. Feary v. Hamilton, 229. Feary v. Met. Street Ry., 59. Feather v. The Queen, 38, 40. Feiten v. Milwaukee, 382. Felcher v. McMillan, 361. Felton V. Aubrey, 457. Felton V. Bullard, 167. Feltus V. Swan, 184. Fenelon v. Butts, 201, 262. Fent V. Toledo, etc., 91. Ferguson v. Anglo-Am. Tel. Co., 497. Ferguson v. Col., etc., Ry., 468. Ferguson v. Fermenich Co., 415. Fernald v. Chase, 349, 351. Fernandes v. Sac City Ry., 429. Fevrero v. West. Un. Tel Co., 490, 498. Fertlch v. Michener, 248. Fetter v. Veal, 212. Ficken v. Jones, 424. Fickett V. Lisbon P^Us Co., 436. Fields V. Stokely, 43, 196. Fielders v. Nor. Jersey Ry., 455. Fifleld V. Maine Co., 360. Filer v. N. Y. Cent. Ry., 23, 212. Filer v. Smith, 247. Filliter v. Phippard, 45ft. Fineux v. Hovenden, 408. Finlay v. Chirney, 228. Finley v. Steele, 323, 331. Fire Ins. Patrol v. Boyd, 109. Firestone v. Rice, 244. First Nat. Bank v. Minn., etc., Elec. Co., 206. First Nat. Bank v. Tyson, 409. First Nat. Bank v. West. Un. Tel. Co., 497. First Nat'l Bank of Carlisle v. Gra- ham, 423. First Nat'l Bank of Mt. Vernon v. Sarlis, 44. Fisher v. St. Louis, 397. Fish V. Cleland, 37L Fish V. St. Louis, etc., Co., 297. Fishp,'- 7. Badger, 56. Fishfer V. Bristow, 249. jjjsher ^ Brown, 205, 371. Fisher v. Feige, 64. Fisher v. Kyle, 357, Fisher v. Prince, "364. Fiske V. Enders, 151. Fishmonger's Company v. East In- dia Co., 505. Fitts V. Hall, 123. Fitzgerald v. Cavin, 77, 267, 269. Fitzgerald v. Conn. Co., 171. Fitzgerald v. Conn, Rryer Paper Co., 80. Fitzgerald v. Connecticut River Co., 81. Fitzgerald v. Fitzgerald Co., 116. Fitzgerald v. Quann, 118. Fitzgerald v. Redfield, 315. Fitzgerald v. St. Paul, etc., Ry., 444. Table oy Cases. xliii Fitzpatrick v. Flannagan, 378. Fitzpatrick v. Welch, 447. Fitzpatrick v. Great Western Ry., 97. Fitzsimons v. Braun, 65. Pivas V. NichoUs, 87. Fkumoto V. Marsh, 243. Fla. So. Ry. v. Hirst, 436, 440. Flaherty v. Aloran, 45. Flaherty v. Minn., etc., Ry., 443. Flam V. Lee, 52, 262. Fleetwood v. Curley, 312. Plegal V. Hoover, 223. Fleming v. Wes. Pac. Ry., 429. Flesh V. Lindsay, 117, 118. ' Fletcher v. Baltimore, etc., Ry., 179. Fletcher v. Cole, 345. Fletcher v. Ellis, 265. Fletcher v. Rylands, 446. Fletcher v. Tuttle, 510. Florida Cent. Ry. v. Foxworth, 234. Floyd V. State, 242. Flury V. Grimes, 194. Flynn v. Taylor, 409. Foard v. McComb, 374. Fogg V. Boston, etc., Ry., 116. Foley V. Foley, 129. Folk V. City of Milwaukee, 110. Folwell V. Providence Journal Co., 298. Fonville v. McNease, 296. Foot V. Card, 277. Forbell v. City of New York, 62, 63, 504. Forbes v. Hagmian, 252. Forbes v. Johnson, 322. Ford v. Lake Shore, etc., Ry., 158. Ford v. Monroe, 232. Ford V. Schlimman, 97. Ford V. School District, 110. Ford V. Surget, 42. Ford V. Taggart, 56. Forde v. Skinner, 268. Formann v. Consolidated Trac. Co., 203. Forsyth v. Wells, 204. Fort Smith Oil Co. v. Slover, 178. Fortman v, Rottier, 258. Forster v. Orr, 253. Fort Worth Ry. v. Beauchamp, 405, 406. Fort Worth, etc., Ry. v. Glenn, 410. Forward v. Adams, 313. Fosdick V. Collins, 350. Foshay v. Ferguson, 254. Foster v. Bates, 145. Foster v. Charles, 376. Foster v. Dow, 264. Foster v. Pitts, 262. Foster v. The Commonwealth, 13. Fotheringham v. Adams Ex. Co., 241. Pouldes V. Willoughby, 346, 349. Foulger v. Newcomb, 315. Fowler v. Chicago, etc., Ry., 179. Fowler v. Dowdney, 311, 313. Fowler v. Hollins, 357. Fowler v. Owen, 226. Fowler v. Western Un. Tel. Co., 474, 475, 494. Fowles V. Bowen, 316, 328. Fox V. Bradley, 101. Fox V. Broderick, 295. Fox V. Dawson, 27. Pox V. Lapthorne, 315. Fox V. St. John, 212. Fox V. Barry, 262, 263. Francis v. Burnett, 249. Francis v. Flinn, 512. Francis v. Shoelkopf, 410. Francis v. W. U. T. Co., 104, 487, 495, 496. Francisco v. State, 248. Prazier v. Bigelow Carpet Co., 208. Prazier v. City of Chicago, 49. Prazier v. Nortinus, 194. Frederick v. Columbus, 109. Freeman v. Boland, 125, 357. Freeman v. Harwood, 205. Freeman v. Price, 312. Freeman v. Rosher, 145. Freeman v. Venner, 379. Freer v. Davis, 504. French v. Buffalo, etc., Ry., 423. xliv Table of Cases. French v. Ware, 266. Fresh v. Cutter, 66, 328. Friel v. Plumer, 262. Frishie v. Fowler, 311. Frlsbie v. Morris, 249, 257. Firitz V. Hobsbn, 409. Fritz V. Southern Ry., 155. Frizzell v. Rundle, 354. Frome v. Dennis, 357. Frost V. Eastern, etc., Ry., 470. Frost V. Plumb, 352, 355, 356. Fry V. Bennett, 335. Fry V. Leslie, 121. Fry V. McCord, 293, 294, 304. Fudden v. Satterlee, 239. Fullam V. Cummings, 348. Fuller V. Fenner, 94. Fullerton v. Fordyce, 209. Fullam V. Stearns, 346. Fuller V. Tabor, 350. Pullman v. Stearns, 198. Fulton, etc.. Mills v. Wilson, 221. Furbush v. Fisher, 188. Furman v. Van Size, 129, 283. Furnes v. Smith, 125. Furnish v. Missouri, etc., Ry., 279. Gage V. Shelton, 311. Gahagan v. Bos. & M. Ry., 436. Gaillard v. Laxton, 246. Gainey v. West. Un. Tel. Co., 493. Gainsville Natl. Bank v. Bamberger, 371, 375. Galbraith v. West End Ry., 423. Galena, etc., Ry. v. Jacobs, 440, Gallagher v. Flury, 419. Gallagher v. Humphrey, 457. Gallgher v. Jones, 206. Galveston, etc., Ry. v. Garrett, 166. Galveston, etc., Ry. v. Hanway, 114. Galveston, etc., Ry. v. Moore, 445. Galveston, etc., Ry. v. Zantzinger, 210. Galvin v. Pierce, 178. Galvln V. Rhode Island Hospital, 113. Galway v. Met. El. Ry., 506. Gambrlll v. Schooley, 296. Gannon v. N. Y. etc., Ry., 437. Ganorean v. Superior Pub. Co., 316. Garby v. Bennett, 328. Gardemal v. McWilliams, 321. Gardner v. Heartt, 421. Gardner v. Providence Telephone Co., 475. Gardner v. Rowland, 346. Gardner v. Slate, 328. Gardner v. Village of Newburg, 506. Garland v. Wholeham, 201. Garnett v. Ferrand, 34. Gamieir v. Squiers, 246. Garr v. Selden, 316, 322. Garret v. Taylor, 285, 287. Garrett v. Hughlett, 194. Garrett v. Sewell, 337. Garrett v. West. Un. Tel. Co., 486. Garstin v. Asplin, 507. Gartin v. Meredith, 452. Garvey v. Long Island Ry., 47, 49. Gaskins v. Davis, 205. Gates V. Bowers, 363. Gates V. N. Y. Rec. Co., 303. Gattis V. Kilgo, 321. Gatzow V. Buening, 72. Gaunt V. Pynney, 402, 416. Gautret v. Egerton, 457. Gavett V. Man. & L. Ry.. 428. Gay V. So. Ry., 167. Geary v. Bennett, 311. Gee v. Culver, 252, 256. Genard v. Dickenson, 381. Genner v. Sparks, 240. Gent v. Lynch, 382. George v. Los Angeles Ry., 4G8. George v. Skivington, 453. George v. Smith, 386. Georgia Ry., etc.. Banking Co. v. Maddox, 46. George Fowler Sons & Co. v. Brook, 80. George Jonas Glass Co. v. Glass Bottle Blowers' Assoc, 515, 517. Georgia Southern Ry. v. Jossey, 185. Table of Cases. xlv Georgia So. Ry. v. Jossey, 218. Geraghty v. New, 129. Geraty v. Stern, 268. Gerner v. Mosher, 374, 375. Gemerd v. Gernerd, 277. Gewish v. Whitfield, 451. Geyer v. Douglass, 229. Gibney v. State, 438. Gibson v. United States, 49. Giblan v Nat. Amalgamated Union, 287, 289. Giblin v. McMullen, 424. Gibney v. Lewis, 100. Gibson C. J., in Herman v. Brook- erhoof, 255. Gibson v. International Trust Co., 147. Gibson v. Western N. Y. Ry., 222. Gila Valley, etc., Ry. v. Lyon, 158. Gilbert v. Erie Ry., 436. Gilbert v. Peek, 364. Gilbert v. People, 321. Gilbert v. Boak Fish Co., 419. Gilbert v. Finch, 224. Giles V. Harris, 510. Gillespie v. Beecher, 190. Gillespie v. Brooklyn Heights Ry., 102. Gillespie v. Lincoln, 109. Gillespie v. McGowan, 471. Gillett V. Roberts, 354. Gillette v. Tucker, 239, 454. Gillis V. Western Un. Tel. Co., 474, 475, 482, 486. Gilman v. Noyes 92, 93. Gillshannon v. Stony Brook, 180, Gillum V. Sisson, 57. Gilman v. Brown, 199. Gilmore v. Fuller, 82, 89. Gilmore v. Newton, 354. Gilson V. Spear, 122. Girvin v. N. Y. C., etc., Ry., 152. Givens v. VanStuddiford, 398. Gladwell v. Steggale. 10. Glanz V. Chicago, etc.. Ry., 90. Glassey v. Worcester Consoi. Co., 92. Glazer v. Hubbard, 31, 242. Gleeson v. Virginia Mid. Ry., 426. Glendon Iron Co. v. Uhler, 386. Glenmont Lumber Co. v. Roy, 83. Glover v. Riddick, 349. Goddard v. Grand Tk. Ry., 155, 204. Godfrey v. Coal Co., 83, 85. Godwin v. -Phlfer, 503. Godwin v. Telephone Company, 477. Goell V. Morse, 362. Golden Reward Co. v. Buxton Co., 205. Goldberg v. Dobberton, 297. Goldberg, etc., Co. v. Stablemen's Union, 514. Golden v. Newbrand, 147. Golderman v. Stearns, 313. Goldnamer v. O'Brien, 77. Goldsmith's Adm's. v. Joy, 210, 271. Goldsmith v. Tunbridge Wells Co., 416. Goodhart v. Penn. Ry., 212. Goodlander Mill Co. v. Standard Oil Co., 92. Goodrich v. Warner, 295. Goodsell V. Fleming, 196. Goodsell V. Hart, etc., Ry., 232, 233. Goodson V. Richardson, 509. Goodyear Dental Co. v. White, 265. Goodyear India Rubber Glove Co. v. Goodyear Rubber Co., 386. Goodwell V. Mont., etc., Ry., 177. Goodwin v. Wertheimer, 352. Goodwyn v. Chevely, 193. Gorden v. Strong, 229. Gordon v. Butler, 369. Gordon v. Parmelee, 369. Gore V. Condon, 383. Gore V. Izer. 354. Gorham v. Gross, 140. Gormley v. Gym. Ass'n., 371. Goslin v. Wilcox, 258. Gott V. Pulsifer, 335, 336, 383. Gottschalk v. Chicago, etc., Ry., 50. Gough V. Goldsmith, 3(iii. Gove v. Blethen, 314. Govt. St. Ry. V. Hanlon, 445. Grace & Hyde Co. v. Probst, 136. xlvi Table of Cases. Graham v. St. Charles, etc., Ry., 149. Graham v. Thompson, 378. Graham v. Wallace, 22. Graham v. W. U. T. Co., 103. Grainger v. Hill, 243, 262. Grand Trunk Ry. v. Cummings, 179. Grand Trunk Ry. v. Ives, 483. Grand Trunk Ry. v. Latham, 185. Grandona v. Lovdal 194. Gravel v. Clough, 205. Graves v. Dawson, 250. Gray v. Building Trades Council, 515. Gray v. Boston Gas L. Co., 414. Gray v. Durland, 129. Gray v. Griffin, 111. Gray v. Palmer, 366. Gray v. Pullen, 140, 143. Gray v. Scott, 436. Gray v. Taper-Sleeve Pulley Works, 384. Gray v. Times Publishing Co., 199. Gray v. W. U. T. Co., 104, 478. Greasley v. Codling, 408. Green v. Chapman, 335. Green v. Dunn, 361. Green v. Greenbank, 121. Green v. Hudson R. Ry., 230, 232. Green v. Kennedy, 247. Green v. Mills, 510. Green v. West. Un. Tel. Co., 494, 499. Greenfield Savings Bank v. Simons, 185. Greenberg v. Whitcomb Lumber Co., 183, 186. Greenleaf v. Francis, 62. Greenwade v. Mills, 252. Greenway v. Fisher, 357. Gregory v. Brooks, 36. Gregory v. Brown, 31. Gregory v. Duke of Brunswick, 289. Gregory v. Piper, 340. Gresham v. Taylor, 341. Gribble v. Pioneer Press, 318. Griebel v. Rochester Printing Co., 295. Grill V. Gen. Iron Screw Collier Co., 422. Griffith v. Holman, 408. Griffith V. McCuUum, 196. Griffith V. Ogle, 288. GrifEen v. Manice, 424, 437. Griffin v. McClung, 226. Griffis V. Sellars, 253. Griffith V. Hilliard, 509. Grinnell v. Wells, 282, 285. Grinnell v. Western Un. Tel. Co., 473, 485. Griswold v. Illinois Cen. Ry., 74, 221. Griswold v. Judd, 348. Griswold v. Boston & M. Ry., 359. Griswold v. N. Y. & N. E. Ry., 75. Grove v. Van Duyn, 31, 33. Grubs v. St. Paul, 109. Grundel v. Union Iron Works, 225. Guest V. Warren, 225. Guether v. Altman, 72. Guldaker v. Rockwell, 223. Guille V. Swan, 338. Gulf, Col., etc., Ry. v. Hayter, 97, 99. Gulf, etc., Ry. v. Donnelly, 172. Gulf, etc., Ry. v. Galveston, etc., Ry., 218. Gulf, etc., Ry. v. Kirkbride, 146. Gulf, etc., Ry. v. Trott, 100. Gumbert v. Wood, 195. Gunter v. Geary, 195. Gunter v. Graniteville Co., 166. Gurley v. Armstead, 183. Gurneau, etc., Co. v. Palmer, 166. Gustafson v. Rustemeyer, 368. Guttner v. Pac. Steam Whaling Co., 345. Gutsole v. Mathers, 300. Gutzman v. Clancy, 271. Guy V. Churctill, 265. Gwynn v. Citizens' Terephone Co., 477, 481. Gyre v. Culver, 54, 192. Tablk of Cases. dv H. Haag V. Board of Commissioners, 395. Haas V. Damon, 356. Haas V. Saekett, 227. Hackenhammer v. Lex. & E. Ry.; 98. Hacker v. Heiney, 312, 319. Hackett v. Brown, 312. Hackett v. West. Un. Tel. Co., 143. Haddon v. Lett, 316. Hadley v. Cross, 454. Hadrick v. Heslop, 255. Haehl v. Wabash Ry., 148. Hagerstown v. Klotz, 110. Hagerty v. Powers, 127. Haggard v. Pellcier Freres, 34. Hague V Wheeler, 45. Hahn v. Cooper, 283. Hahnke v. Frlederick, 449. Haigh V. Jaggar, 509. Haire v. Miller, 239. Hall V. Booth, 247. Hall V. Corcoran, 127, 356. Hall V. Hennesley, 295. Hall V. Hollander, 128. Hallam v. Post Pub. Co., 335. Hallett V. N. Y. C. Ry., 180. Haltey, The, 132, 216. Halley v. Gregg, 310, 318. Halliday v. Holgate, 363. Halliday v. Telephone Co., 140. Halls V. Thompson, 318. Halpin v. McCune, 509. Halsted v. Postal Tel. Co., 490, 491. Hamilton v. EHy, 503. Hamilton v. Eno, 335. Hamilton v. Lomax, 78. Hamilton v. Smith, 251. Hamilton v. Whitridge, 399. Hamilton v. Worsefold, 508. Hamilton Brown Shoe Co. v. Saxey, 512. Hammersmith, etc., Ry. v. Brand, 47. Hammond v. Corbett, 283. Hanck v. Tidewater Pipe Line Co., 63. Handcock v. Baker, 246. Handy v. Foley, 117. Handy v. Johnson, 267. Handy v. Waldron, 379. Haney Mnfg. Co. v. Perkins, 300, 383. Hanger v. Abbott, 238. Hankins v. N. Y., etc., 178. Hankinson v. Bilby, 307. Hanley v. California, etc., Co., l62. Hannabalson v. Sessions, 55. Hannon v. St. Louis Co., 107. Hannon v. Siegel-Cooper Co., 136. Hanse v. Cowing, 412. Hansley v. Jamesville, etc., Ry., 201. Hanson v. Gardiner, 508. Hanson v. Globe News Co., 295. Hanson v. Waller, 149. Hanway v. Galveston, etc., Ry., 114. Hardaker v. Idle Dist., 140. Hardy v. Murphy, 245. Hardy v. Williamson, 304. Harkness v. West. Un. Tel. Co., 483, 488. Harkrader v. Moore, 251. Harley v. Merrill Brick Co., 415. Harmon v. Old Col. Ry., 119, 279. Harness y. Steele, 247. Harpham v. Whitney, 251. Harriman v. Pittsburg, etc., Ry., 457. Harrington v. Edwards, 195. Harrington v. Los Angeles Ry., 87, 434. Harris v. Brisco, 265. Harris v. Cajneron, 128. Harris v. Cohen, 414. Harris v. Eaton, 56. Harris v. Marco, 54. Harris v. Saunders, 347, 348. Harris v. State, 130. Harris v. Terry, 311. Harris v. Webster, 279. Harrisburg, The, 232. xlvui Table of Cases. Harrison v. Berkley, 92, 94. Harrison v. Bush, 66, 324, 325. Harrison v. Duke of Rutland, 346. Harrison v. Harrison, 55. Harrison v. Howe, 382. Harrison v. Southwork, etc., Co., 404. Harrold v. Watney, 462. Harrop v. Hirst, 395. Hart V. Cole, 456. Hart V. Moulton, 367. Hart V. Reed, 328. Hart V. Skinner, 355. Hart V. West. Un. Tel. Co., 485. Hartfield v. Roper, 444. Hartford v. Brady, 193, 343. Hartford Fire Ins. Co. \. Chicago Mil. & St. P. Ry., 74, 221. Hartpence v. Rogers, 274. Hartrich v. Hawes, 169. Hartshorn v. Smith, 253. Hartung v. Shaw, 66, 321, 323. Harvey v. Dunlap, 58, 121. Harvey v. Young, 368. Hartvig v. Nor. Pac. L. Co., 158. Haskell v. New Bedford, 47. Haskell v. Starbird, 153, 380. Haskins v. Royster, 285. Hastings v. Lusk, 132. Hatch V. Cohen, 250. Hatchard v. Mege, 281. Hatchell v. Klmbrough, 213. Hauch V. Hernandez, 451. Haug V. Great Nor. Ry., 235. Haughey v. Hart, 455. Hauser v. Griffith, 200. Hawk V. Harman, 117. Hawkins v. Comm., 241. Hawkins v. Hatton, 226. Hawkins v. Hoffman, 353. Hawkins v. Sciet, 211. Hawthorne v. Hammond, 5. Hay V. Cohoes Co., 65, 337. Hay V. Conner, 353. Hayden v. Tucker, 399. Hayes v. Phil, etc., Ry., 453. Hayes v. Railroad Co., 646. Hayes v. Smith, 406, 450. Hayner v. Cowden, 316. Haynes v. Clinton Printing Co., 302, 305. Haynes v. Gas Co., 126.. Haynes v. Nowlin, 277. Hays V. Railway, 421. Haythorn v. Rushforth, 345. Hazeltine v. Edgmond, 406. Hazzard v. Fluny, 255. Hazzard Powder Co. v. Volger, 213. Heacock v. Heacock, 121. Head v. Briscoe, 117. Head v. Georgia, etc., Ry., 100. Head v. Porter, 41. Health Dep't. of N. Y. v. Purdon, 419. Hearne v. De Young, 319. Hearns v. Waterbury Hospital, 114. Hebritch v. Mellwaine, 293, 295, 324. Hebner v. Great Northern Ry., 66, 329. Hedin v. Minn, etc., Inst, 368, 370. Heeg v. Licht, 405, 451. Heermance v. James, 275. Hegarty v. Shine, 77. Hegeman v. Western Ry., 454. Heidenaag v. City of Philadelphia, 133. Helmann v. West. Un. Tel. Co., 482. Hein v. Holridge, 284. Heizer v. Kingsland, etc., Co., 453. Hellanes v. West. Un. Tel. 494. Heller v. Pulitzer Pub. Co., 305. Heller v. Sedalia, 109. Helms V. Nor. Pac. Ry., 131 183, 186. Heminway v. Heminway, 191. Hemmens v. Nelson, 308, 312. Hemmer v. Cooper, 369. Hemming v. Elliott, 312. Hendershott v. West. Un. Tel. Co 486. Henderson v. N. Y. Cen. Ry., 509, 418. Table of Cases. xli> Henderson v. Williams, 169. Hendricks v. West. Un. Tel. Co., 492, 493. Henley v. Wilson, 118. Henly v Burnstall, 257. Hennessy v. Bavarian Brewing Co., 233. Hennessy v. Braunschweiger & Co., 387. Hennessy v. Cafmony, 506. Henry v. Dennis, 375. Henry v. Moberly, 323. Henwood v. Harrison, 331. Hepburn v. Sewell, 227. Herbert v. Penn. Ry. Co.; 507. Herbert v. Rainey, 417. Heritage v. Dodge, 130. Herman v. BrookerhofE, 253. Herndon v. Bartlett, 193. Herr v. Central Ky. Asylum, 114. Kerr v. Johnson, 194. * Herreshofe v. Tripp, 238. Herrick v. Minn., etc., Ry., 216. Herring v. Boyle, 241. Herron v. Hughes, 350, 351. Hervey v. Moseley, 279. Hess V. Rosenthal, 164. Hett V. R. R. 361. Hewey v. Nourse, 451. Hewlett V. Swift, 185. Hewlett V. West. Un. Tel. Co., 482. Hewlette v. George, 130, 201. Hexamer v. Southal, 8. Heyne v. Blair, 252. Hibbard v. Western Un. Tel. Co., 474, 495. Hickey v. Mich. Cen. Ry., 194. Hlchinbotham v. Leach, 308, 319. Hicks V. Dorn, 195. Higginbotham's executors v. Com- monwealth, 39. Higgins V. Breen, 27. Higgins V. Butcher, 12, 230. Higgins V. Cent, etc., Ry., 216, 217. Higgins V. Minaghan, 52, 53, 270. Higgins V. West. Un. Tel. Co., 136. Higgins V. Woodward, 503. Higgins Co. v. Higgins Soap Co., 390, 391. Higginson v. Flaherty, 321. Higginson v. York, 338. Highland Ave. Ry. v. Robinson, 203. Highland Light, The, 232. Hildebrand v. McCrum, 242. Hill V. Boston, 107, 109, 111. Hill V. Boston & M. Ry., 159, 160. Hill V. Caverly, 185. Hill V. Caverly, 184. Hill v. Duncan, 118. Hill V. Hayes, 357. Hill V. Kimball, 101. Hill V. The Mayor, 47, 49. Hill V. Taylor, 240. Hill V. U. S. 16. Hill V. Ward, 382. Hill V. Wilson, 284. Hills V. Hobert, 279. Hinchman v. Weeks, 375. Hinckley v. Emerson, 57. Hinde v. Wabash, etc., Ry., 143. Hindman v. 1st Nat. Bank, 376, 380. Hinds V. Harbou, 183. Hine v. N. Y. Elec. Ry., 410. Hinkle v. State, 129. Hinson v. Postal Tel. Cable Co., 493. Hintz V. Granpner, 201. Hiort V. Bott, 351. Hiort V. L. £ N. W. Ry., 364. Hirschberg Optical Co. v. Michael- son, 377. Hirshfleld v. London Ry., 372. Hite v. Long, 191, Hlubek V. Pinske, 262. Hoadly v. Watson, 201. Hoag V. Lake Shore, etc., Ry., 90. Hoar V. Woods, 321. Hobbs V. Electric Light Co., 223. Hobbs V. London, etc., Ry., 92. Hockett V. The State, 472, 475, 476, 480. Hocks V. Sprangers, 325. Hodgeden v. Hubbard, 191, 192. 1 Table of Cases. Hodges V. Causey, 56. Hodgkinson v. Hodgkinson, 277. Hodgson V. St. Paul Plow Co., 183, 357. Hodgson V. Scarlett, 321. Hodgson V. Sidney, 236. Hodsman v. Grisell, 121. Hodson V. Coppard, 517. Hoff V. Shockley, 140. HofEBian v. Dixon, 374. Hoffman v. Eppers, 270. Hoffman v. King, 91. Hofschulte V. Panhandle Co., 364. Hogg V. Dorrah, 332. Hoggett V. Bigley, 31. Holbrook v. Connor, 369, 377. Holbrook v. Wight, 361. Holden v. Fitchburg Ry., 162. Holden v. Rutland Ry., 16. Holden v. Smith, 32. Hole V. Railway Co., 140, 141. Holland v. Bishop, 352. Holland House Company v. Baird, 65, 340. Hollenbeck v. Ristine, 328. Holler V. P. Sanford Ross, 147. Holley V. Mix, 243, 262. Holliday v. Holgate, 363. Holliday v. Holliday, 253. Holliday v. Sterling, 264. Hollingsworth v. Fitzgerald, 55. Hollins V. Fowler, 354, 358. Holly V. Bos. Gaslight Co., 444. Holmes v. City of Atlanta, 397. Holmes v. Great Nor., 180. Holmes v. Jones, 303, 317. Holmes v. Oregon, etc., Ry., 197, 232. Holshouser v. Denver Gas Co., 168. Hoist V. Stewart, 378. Holt V. Hayes, 339. Holt V. Parsons, 325. Holwerson v. St. LiOuis, etc., Ry., 434. Holzab V. New Orleans, etc., Co., 443. Romans v. Boston Elevated Ry., 99. Homer v. Thwing, 125, 356. Homer Ramsdell TIr. Co. v. La Compagnie Trans., 132. Hong Wah, In re, 398. Hood V. Sudderth, 283. Hooks V. Smith, 355. Hooper v. Gorham, 229. Ten Hopen v. Walker, 56. Hopkins v. Dickson, 191. . Hopkins v. Drowne, 382. Hopkins v. Oxley Stave Co.. 72, 73, 515. Hopkins v. Railroad, 204. Hopper V. Reeve, 268. Hord V. Southern Ry., 436. Horgan v. Pacific Mills, 129. Home V. Meakin, 454. Horner v. Lawrence, 184. Horner v. Marshall, 308. Horsfall v. Thomas, 378. Horton v. Jack, 354. Horton v. N. Y. C. Ry., 225. Horton v. Wylie, 82, 89. Hosford V. Ballard, 194. Hosier v. Hursh, 223. Hostetter Co. v. Martinoni, 384, 391. Hot Spirings Ry. v. Williamson, 50. Hotchkiss v. Hunt, 355. Houck v. Wachter, 408. Hough V. Texas, etc., Ry. Co., 164, 172. Houghton V. Rice, 275, 277. Hounsell v. Smyth, 457. Houston, etc., Ry. Co. v. Boiling, 147. Houston, etc., Ry. v. Clemmons, 436. Houston, etc., Ry. v. Meador, 144. Houston, etc., Ry. v. Phillio, 456. Houston V. Thornton, 374. Hoverson v. Noker. 127. Hovey v. Elliott 217. Hovey v. Rubber Tip Co., 282. Howard v. Cruther, 236, 284. Howard v. Ludwig, 135, 138. Howe V. Clancy, 24. Table of Cases. 11 Howe V. Northern Pac. Ry., 186. Hower v. Ulrich, 121, 127. Howey v. Fisher, 80. Howell V. Goodrich, 212. Howland v. Blake Manufacturing, 296, 329. Howlett V. Haswell, 122. Hoyt V. Jeffers, 91. Hoyt V. Macon, 261. Hubbard v. Deming, 195. Hubbard v. Preston, 56. Hubbell V. City of Viroqua, 110. Hubbell V. Wheeler, 346. Huber v. Merkel, 64. Huber v. Teuber, 200. Hudmon v. DuBose, 357. Hudson V. Swan, 362. Hudkins v. Hudkins, 283. HufE V. Ames, 445. Huff V. Austin, 425, 426. Hulf V. Ford, 137. Huff V. Watkins, 285. Huffman v. Hughlett, 26, 224. Hughes V. City of Auburn, 111, 112. Hughes V. Heiser, 408. Hughes V. Macfie, 462. Hughes V. Mung, 412. Hughes V. Percival, 140. Hughes V. United Pipe Lines, 205. Humphrey v. Church, 44. Humphrey v. Douglass, 121. Humphrey v. Pope, 274, 277. Humphreys v. Newport, etc., Ry., 166. Humpries v. Brogden, 63. Hunckel v. Vonieff, 321. Hunn V. Mich. Cent. Ry., 159. Hunnewell v. Duxbury, 376. Hupfer V. Nafl Dist. Co., 456. Hunt V. Bates, 226. Hunt V. Bell, 315. Hunt V. Great N. Ry., 329. Hunt V. Lowell Gas Light Co., 41. Hunter v. Cooperstown & S. V. Ry., 428. Hunter v. Sharpe, 335, 336. Huntington v. Attrill, 216. Huntington v. Shultz. 240. Hurst V. Detroit City Ry., 235. Hurst V. Warner, 42. Hurd V. Moore, 295. Hurlbut V. McKone, 402, 407. Hurlburt v. West. Un. Tel. Co., 494. Huset V. J. I. Case, etc., Co., 453. Hussey v. Norfolk, etc., Ry., 116. Hutcherson v. Durden, 238, 284. Hutching v. Engel, 121. Hutchins v. Hutchlns, 24, 288. Hutchins v. King, 354. Hutchinson v. York, etc., Ry., 174. Hyatt V. Adams, 120, 231, 232. Hyde v. Cooper, 145. Hyde v. Greuch, 250. Hyde v. Noble, 354. Hyde Park, etc., Co. v. Porter, 412, 414. Hyde's Ferry Turnpike Co. v. Yates, 427. Hyman v. Nye, 454. Hyman v. Solis Cigar Co., 386. Idaho, The, 362. lekyll V. Sir John Moore, 321. 111. C. Ry. V. Eicher, 457. 111. Cen. Ry. v. Harris, 218. Illinois Cent. Ry. v. Josey, 178. 111. Cen. Ry. Co. v. Kuhn, 216. 111. C. Ry. V. Leiner, 459. Illinois Cent. Ry. v. Spence, 179. Illinois C. Ry. v. Stewart, 201. 111. Railroad Co. v. Dick, 87. Illinois Steel Co. v. Bauman, 182. Illinois Steel Co. v. Mann, 172. Ilott V. Wilkes, 78, 461. Ind. B. & W. Ry. v. Birney, 209. Indemauer v. Dames, 161, 456. Industrial and General Trust Co. v. Tod, 15, 185, 357. Ingalls V. Bills, 454. Ingalls V. Bulkley, 361. Ingalls V. Miller, 377. Ingerman v. Moore, 168. lii Table of Cases. Inland, etc., Co. v. Tolson, 426, 431, 440. Inman v. Foster, 298. Insurance Co. v. Brame, 232. Insurance Co. v. Randall, 14. Ins. Co. V. Reed, 371. Insurance Patrol v. Boyd, 114. Interocean Pub. Co. v. Associated Press, 476. Internat., etc., Ry. v. Williams, 434, 436. lonnone v. N. Y., etc., Ry., 180. Ireland y. North Car. Ry., 88. Irish V. Cloyes, 350. Iron Co. V. Bamford, 373. Iron Age Publ'g Co. v. Crudup, 300, 303. Irons V. Field, 313. Irvine v. Gibson, 60. Irwin V. Brandwood, 316. Irwin V. Patchin, 340. Isaack v. Clark, 359. Isham V. Davis Estate, 93. Isham V. Dow's Estate, 93. Iveson V. Harris, 517. Iveson V. Moor, 409. J. Jacobs, Matter of, 397. Jackson v. Bell, 255. Jackson v. Duke of Newcastle, 506. Jackson v. Hopperton, 66, 326. Jackson V. Knowlton, 242, 247. Jackson v. Norfolk, etc., Ry., 178. Jackson v. Stanfleld, 72. Jacobs V. Central Ry. of W. J., 74. Jacobs v. Seward, 362. Jager v. Adams, 455. James v. Caldwell, 34-. James v. Campbell, 5S, James v. Christy, 232. James v. Harrodsburg, 112. James v. Hayward, 195. James v. Rapides Lumber Co., 168, 169. J. M. James Co. v. Continental Nat. Bank, 18, 293. James Military Acad v. Gaiser, 316. Jansen v. Mayor Jersey City, 180. Jaques v. Stewart, 205. Jarman v. Rea, 334. Jarnigan v. Fleming, 307. Jefferson v. Bishop of Durham, 502. Jeffersonville, etc., Ry., v. Esterie, 47. Jeffries v. G. W. Ry., 345, 349. Jenkins v. Jensen, 237, 238. Jenkins v. Penn. Ry., 206. Jenkins v. Richmond, etc., Ry., 179. Jenkinson v. Coggins, 450. Jennings v. Grand Trunk Ry., 222. Jennings v. Iron Bay Co., 165. Jenoure v. Delmege, 324, 335. Jerome v. Ross, 503. Jersey City v. Kieman, 411. Jetton-Dekle Lumber Co. v. Mather, 515. Jeverson v. Moor, 409. Jewell V. Colby, 60. Jewell V. Mahood, 346. Jewett V. Whitney, 198. Joanness v. Bennett, 324. Joannes v. Burt, 313. John S. Metcalf Co. v. Nystedt, 165. Johnson's Adm'x v. Richmond, 222. Johnson v. Bradstreet, 329. Johnson v. Brown, 322, 323. Johnson v. Cate, 373. Johnson v. Chambers, 252. Johnson v. Eberts, 251. Johnson v. Farr, 351. Johnson v. Gavitt, 370. Johnson v. Glidden. 127. Johnson v. Hitchcock, 382. Johnson v. Hudson, 299, 300. Johnson v. Johnson, 120. Johnson v. King, 260. Johnson v. Lewis, 413. Johnson v. Lindsay, 180. Johnson v. Louisville, etc., Ry., 441. Johnson v. Martin, 183. Johnson v. Miller, 253, 255. Table of Cases. liii Johnson v. Patterson, 56. Johnson v. Perry, 54, 192. Johnson v. Pie, 123. Johnson v. Robertson, 95, 316. Johnson v. Shields, 311. Johnson v. Simonton, 305. Johnson v. St. I.,ouis Dispatch Co., 299. Johnson v. Spear, 166. Johnson v. State, 480. Johnson v. Torpy, 219. Johnson v. Walsh, 428. Johnston v. District of Columbia, 35. Jones V. Allen, 353. Jones V. Blocker, 285. Jones V. Boyce, 437. Jones V. Brown, 34. Jones V. Brownlee, 322. Jones V. Canal, etc., Co., 439. Jones V. Carey, 449. Jones V. Chappell, 410. Jones V. Chicago, etc., Ry., 436. Jones V. City of Williamsburg, 106, 110. Jones V. Corporation, 136. Jones V. Crawford, 17. Jones V. Festlniog Ry., 450. Jones V. Forest Oil Co., 64. Jones V. Hannovan, 198. Jones V. 111. Central Ry.. 426. Jones V. Jones, 196. Jones V. King, 198. Jones V. Lemon, 237. Jones V. Little, 315. Jones V. Lowell, 225. Jones V. Mayor, etc., of Liverpool, 137. Jones V. McDowell, 307. Jones V. N. Y., etc., Ry., 167. Jones V. Rochester Gas & Electric Co., 10. Jones V. St. Louis, etc., Ry., 180. Jones V. Stanly, 21, 67. Jones V. Tevis, 280. Jones V. Utica, etc., Ry., 279. Jones V. Townsend, 334. Jones V. West. Un. Tel. Co., 485. Jones V. Williams, 196. Jones V. Wilmington, etc., Ry., 252. Jonsson v. Llndstrom, 360. Jordan v. Grand Rapids Ry., 343. Jordan v. Wyatt, 344. Joseph V. Macowsky, 392. Joseph B. Thomas, The, 428. Joseph Schlitz Brewing Co. v. Compton, 417. Joslin V. Grand Rapids Ice Co., 136. Juchatz V. Michigan Alkali Co., 80, 169. Judkins v. Maine Central Ry., 158. Judson V. Giant Powder Co., 429. Juliet V. Harwood, 143. Junker v. Fobes, 14. Jutt V. Hughes, 337, 447. K. Kahl V. Memphis, etc., Ry., 216. Kahner v. Otis Elevator Co., 453. Kake v. Horton, 232. Kalen v. Terre Haute Ry., 96. Kane v. Mulvaney, 327. Kansas v. Colorado, 105. Kansas City v. Slangstrom, 206. Kansas City Ry. v. Dalton, 96, 98, 99. Kansas City Ry. v. Hammond, 158. Kansas City Ry. v. Kelly, 459. Kansas, etc., Co. v. Galloway, 252, 255, 256. Kansas, etc., Ry. v. Dye, 160. Kansas, etc., Ry. v. Mihlman, 212. Kansas, etc., Ry. v. Peavey, 222. Kansas Pac. Ry. v. Miller, 232. Karasek v. Peier, 45. Karow v. Continental Ins. Co., 61. Katz V. Walkinshaw, 64, 504. Kaucher v. Blinn, 313. Kavanagh v. Barber, 410. Kearney v. London, etc., Ry., 427. Keating v. Mich. Cent. Ry., 147. Keating v. Pac. Steamship Co., 179. Keck V. Halstead, 53. li Table of Cases. Kid V. Mitchell, 205. Keefe v. Mil., etc., Ry., 464. Keeler v. Schwenk, 166. Keenan v. Edison, etc., Co., 83. Keep V. Quallman, 267. Keffe V. Mil. etc., Ry., 460. Kehr v. Hall, 348. Kelghtley v. Bells, 321. Keil V. Chartiers Val. Gas Co., 338. Keil V. Wright, 509. Keiser v. Mahoney City Gas Co., 418. Keiser v. Smith, 271. Kelk V. Pearson, 418. Keller v. Mosser, 338. Kelley v. Anderson, 427. Kelley v. Boston, 437. Kelley v. Dillon, 298. Kellogg V. King, 509. Kelly V. Blackstone, 439. Kelly V. Fourth of July Co., 162. Kelly V. Manhattan Ry., 455. Kelly V. Mich. Cen. Ry., 421. Kelly V. N. H. Steamboat Co., 165, 177. Kelly V. New Haven Steamboat Co., 157, 176. Kelly V. N. Y., etc., Ry., 120, 279. Kelly V. O'Malley, 328. Kelly V. Traction Co., 154. Kemp V. West. Un. Tel. Co., 486. Kendall v. Drake, 268. Kendall v. Green, 195. Kendall v. Stokes, 35. Kendall v. Stone, 381. Kennedy v. Mayor, etc., 108. Kennedy v. McKay, 380. Kennedy v. Shea, 282. Kennet v. Robinson, 349. Kennon v. West. Un. Tel. Co., 495, 499. Kent V. Miles, 248. Ky. Cen. Ry. v. Thomas, 435. Kenyon v. Hart, 338. Keokuk, etc., Co. v. True, 155. Kepperly v. Ramsden, 143. Kerlin v. West, 503. Kernan v. Humble, 71, 286. Kerr v. Penn. Ry., 91. Kerwacker v. Cleveland, 87, 341. Ketchum v. Newman, 140, 338. Keyes v. Little York Gold Co., 415. Keywarth v. Hill, 351, 352. Kidd V. Horry, 512. Kidney v. Stoddard, 368. Kilbourne v. Thompson, 41. Kiley v. Western Un. Tel. Co., 474, 487. Kilgore v. Bruce, 370. Kilgore v. Jordan, 124. Kilgour V. Evening Star Co., 334. Killelea v. Cal. H. Co., 441. Kimball v. Billings, 183, 354. Kimball v. Comstock, 371. Kimball v. Cushman, 138. Kimber v. Press Assoc, 327. Kincaid v. Harden Co., 110. King V. Chic, etc., Ry., 213. King V. Hoare, 226. King V. Lake, 301, 302. King V. Morris, etc., Ry., 407. King V. Patterson, 67, 329. King V. Root, 335. King V. Southern Pac. Ry., /ol. King V. Watts, 330. Kingman v. Stoddard, 378. Kinney v. Hosea, 310. Kinney v. Koopman, 80, *06. Kinsler v. Clarke, 504. Kinsley v. Lake Shore and Michi- gan Southern Railroad Company, 144. Kirby v. Foster, 54, 192. Kirkpatrick v. Eagle, 327. Kirkpatrick v. Lockhart, 280. Kirtley's Administratrix v. Shinkl^ 367. Kitchen v. Campbell, 224. Klages v. Gillette-Herzog Co., isfe Kleebauer v. Western Fuse Co., 80, 405, 406. Kiene v. Ruff, 294. Klinck V. Colby, 322, 3tS 325. Kline v. Eubanks, 67. Table of Cases. Iv Kline v. Kline, 100, 267. Knickerbocker Ice Co. v. Finn, 449, Knight V. Abert, 342. Knight V. Egerton, 210. Knight V. West Jersey Ry., 216. Knisley v. Pratt, 83, 84. Kniver v. Phoenix Lodge, 77. Knott T. Morgan, 391. Knott V. Wagner, 59. Knowles v. Penn. Ry., 408. Knowlton v. Des Moines, etc., Co., 451. KnoxvlUe v. Cox, 439. Knoxville Traction Co. v. Lane, 155, 204. Knuter v. N. Y., etc., Tel. Co., 178. Kobbe V. Village of New Brighton, 397. Koenig v. Ritchie, 297, 331. Kohn V. Richmond, etc., Ry., 362. Kolka T. Jones, 261. Koons V. St. Louis, etc., Ry., 468. Koplltz V. City of St. Paul, 443. Korrady v. Lake Shore, etc., Ry., 235. Kosminsky v. Goldberg, 117. Kountze v. Kennedy, 374. Rowing V. Manly, 118. Kreay v. Anthus, 280. Krebs v. Oliver, 311. Kreuger v. Wis. Tel. Co., 341. Kriwinskl v. Penn. Ry. Co., 81. Kroessin v. Keller, 278. Krogg V. Atlantic, etc., Ry., 182. Krom V. Schoonmaker, 60. Krug V. Pltass, 202, 304, 305, 316. Krulevitz v. Eastern Ry., 154. Kucera v. Merrill L. Co., 441. Kuelling . t. Roderick Lean Mfg. Co., 453. Kujek y. Goldman, 22. Kumba v. Gilham, 127. Kunz V. City of Troy, 441. Kurtz V. Moffit, 245. Kyle V. Perfec. Mattress Co., 384, 387. Lacey, Ex parte, 397. LaCroix v. May, 387. Ladd V. Osborne, 509. Lafayette Bridge Co. v. Olsen, 177. Lafeyth v. Emporia Bank, 354. Lafferty v. Third Ave. Ry., 441. IJafltte V. New Orleans, etc., 152. Laflin & Rand Powder Co. v. Tear- ney, 405, 407. Laidlaw v. Sage, 60. Lahner v. Williams, 109. Lake Shore, etc., Ry. v. Lavalley, 158. Lake Shore, etc., Ry. v. Prentice, 202. Lake Super. Co. v. Erickson, 180. Lally V. Crookston Lumber Co., 169. Lamar v. Brown, 37. Lamb v. Littman, 157, 179. Lamb v. Taylor, 283. Lambert v. Bessey, T. Raym., 51. Lambert v. Misslsquoi Co., 162. Lambert v. Robinson, 193. Lamson v. Am. Ax. & T. Co., 439. Lambton v. Melish, 416. Lancaster T. Co. v. Rogers, 195. Land v. Fitzgerald, 456. Lander v. Seaver, 130. Lane v. Atlantic Works, 92, 93. Lane v. Bryant, 119. Lane v. Cameron, 356. Lane v. City of Concord, 400. Lane v. Copsey, 196. Lane v. Cotton, 183. Lang V. Lee, 371. Lange v. Benedict, 32, 34. Lange v. 111. Cen. Ry., 255. Langfoid v. U. S-, 16. Langley v. West. Un. Tel. Co., 482. Langlois v. Dunn Worsted Mills, 83, 439. Langridge v. Levy, 375, 453. Larabee v. Lewis, 38C. Larison v. Larlson, 120. La Riviere v. Pemberton, 442. Ivi Table of Cases. Larkin v. Avery, 191. Larkin v. Burlington, etc., Ry., 443. Larmore v. Crown Pt. Co., 457. Larson f. Chase, 98. Larson v. Furlong, 195. Lary v. Clev., etc., Ry., 457. Lashbrook v. Patten, 127. Lassiter v. West. Un. Tel. Co., 484. Latter v. Braddell, 76. Laubheim v. DeKoninglyke, etc., Co., 114. Laugel V. City of Bushnell, 397. Laughlin v. Camden Iron Works, 162. Laughlin v. Baton, 118, 279. Laughton v. Bishop of Sudor, 297, 331. Lauterbach v. Netzo, 252. Lavery v. Crooke, 283. Laverty v. Sneathen, 185, 357. Lavina v. State, 247. Lawless v. Anglo-Egyptian Cotton Co., 324. Lawrence v. Martin, 249. Lawrence v. Shipman, 135, 140. Lawrence v. Smith, 89. Lawrence v. Spence, 284. Lawrence Mfg. Co. v. Tenn. Mfg. Co., 384, 385, 386, 389. Lawson v. Hicks, 321. Lawson v. Seattle, 109. Lawton v. Steele, 43, 50, 196. Lax V. Corporation of Darlington, 81. Lazarus v. Phelps, 342. Lazenby v. White, 393. Leach v. Leach, 267. Leahan v. Cochran, 113. Leame v. Bray, 58. Learned v. Castle, 416. Leather Co. v. Flynn, 367. Leavell v. West. Un. Tel. Co., 480. - Leavitt v. Bangor, etc., Ry., 135. Le Blanche v. Lon. & N. W. Ry., 209. Ledbetter v. Thomas, 357. Ledlie v. Wallen, 312. Lee V. City of Burlington, 102. Lee V. Hodges, 283. Leeds v. Met. Gas Light Co., 210. Le Forest v. Tolman, 215, 216. Lefrois v. County of Monroe, 107, 112, 113. Leger v. Warren, 247. Legg V. Britton, 233. L'Hote V. City of New Orleans, 44. Lehrer v. Elmore, 201, 298. Lellis V. Lambert, 275, 277. Lellis V. Mich. Cent. Ry., 167. Lemmon v. Webb, 194. Lemons v. Wells, 310. Lennon, ex parte, 517. Leonard v. Belknap, 351. Leonard v. Castle, 198. Leonard v. Hornellsville, 110. Leonard v. Springer, 370. Leonard v. Tidd, 357. Leonard v. Wilkins, 56. Lepnick v. Gaddes, 457. LeRoy v. Wright, 503. Leslie v. Lewiston, 444. Lester v. Thurmond, 321. Letts V. Kessler, 45. Leucker v. Steileu, 284. Leuthold v. Pairchild, 183, 358. Leverson v. Kirk, 347. Leward v. Basely, 52, 286. Lewes v. Morgan, 517. Lewis V. Clegg, 201. Lewis V. Daily News Co., 302, 323. Lewis V. Heulock's, etc., 233. Lewis V. Levy, 327. Lewis V. Littlefield, 126. Lewis V. News Co., 291. Lewis V. Read, 145. Lewis V. Seifert, 158. Lewis V. Taylor Ooal Co., g3. Lewis V. Terry, 453. Lexington & Ohio Ry. v. Applegate, 47, 49. Lexington Ry. Ca v. Cozine, 204. Lexington Ry. v. Fain, 12G. Leyman v. Latimer, 320. LIchtenveller v. Lanbach, 56. Table of Cases. Ivii Lightbody v. Gordon, 325. Light V. Jacobs, 379. Lillibridge v. McCann, 91. Limburg v. Germ. Fire Ins. Co., 21L Llmberg v. Glenwood Lumber Co., 171. Liming v. 111., etc., Ry., 438. Limpus V. London, etc., Co., 151. Lindvall v. Woods, 162. Lining v. Bentham, 31. Llnnehan v. Rollins, 134. Linnehan v. Sampson, 437. Linnen v. Banfleld, 247. Lipe V. Eisenlerd, 129, 283. Lipscomb v. Houston, etc., Ry., 233, 235. Lipscomb v. Shofner, 261. List V. Miner, 271. Lister v. Ferryman, 247. Little V. Barreme, 41. Little V. Hackett, 136, 443. Little V. Pomeroy, 321. Little, etc., Ry. v. Harrell, 443. Little V. Superior, etc., Ry., 440. Little Miami Ry. v. Stevens, 178. Little Miami Ry. Co. v. West, 152. Little Rock, etc., Ry. v. Barry. 160. Little Rock, etc., Ry. v. Eubanks, 166. Livermore v. Batcheller, 56. Livingston v. Bishop, 226. Livingston v. Bradford, 331. Livingston v. Jetferson, 213. Livingston v. Kodiak Packing, 182. Livingston v. Livingston, 508. Livingston v. Rawyards, 204, 339. Lloyds Bank Limited v. Royal Brit- ish Bank Limited, 514. Lloyd V. The Mayor, 106. Lobadie v. Hawley, 184. Locke V. Bradstreet, 329. Locke V. State, 39. Lockett V. Ft. Worth, etc., Ry., 417. Lockenour v. Sides, 257. Lockhart v. Lichtenthaler, 453. Loekwood v. Belle City Ry., 423. Lockwood v. Loekwood, 274. Lodge v. O'Toole, 311. Loesch v. Koehler, 44. Logan v. Austin, 77. Logan V. Gedney, 341. Logansport v. Dick, 108. Loggins V. Southern Ry., 244. Loker v. Damon, 93, 209. London and Brighton Ry. Co. v. Truman, 45, 396. London Guarantee Co. v. Horn, 71, 287. London & Northern Bk. v. George Newnes, 514. Long v. Booe, 275. Long V. City of Elberton, 49. Look V. Dean, 247. Loranger v. Loranger, 312. Lord V. DeWitt, 402, 403. Lord V. Langdon, 45. Lord Derby, The, 272. Lord Townsend v. Hughes, 211. Lord Wellesley v. Earl of Morning- ton, 517. Lorentz v. Robinson, 150. Long V. Woodman, 366. Loring v. Mulcahy, 357. Los Angeles County v. Spencer, 43. Losee v. Buchanan, 427, 448. Lothrop V. Adams, 318. Lottman v. Barnett, 184. Loubz V. Hofner, 344. Loudon V. Eighth Ave. Ry., 425. Lough V. John Davis, etc., Co., 184. Loughlin v. State, 162. Louisville Gas Co. v. Kentucky Heating Co., 504. Louisville, etc., Ry. v. Balard, 204. Louisville, etc., Ry. v. Campbell, 353. Louisville, etc., Ry. v. Creighton, 201. Louisville, etc., Ry. v. Collins, 182. Louisville, etc., Ry. v. Davis, 157. Louisville Railway Co. v. Fay, 75. Louisville, etc., Ry. v. Fox, 210. Louisville, etc., Ry. v. Hall, 166. Jvin Table ok Cases. Louisville, etc., Ry. v. Lanstord, 234. Louisville, etc., Ry. v. Minogue, 21L Louisville, etc., Ry. v. Rush, 281. Louisville, etc., Ry. v. Semonis, 57. Louisville Press Co. v. Tennelly, 298. Louisville, etc., Ry. v. Stommel, 442. Louisville, etc., Ry. v. Wallace, 207. Louisville & N. Ry. v. Gerson, 424. Louisville & N. Ry. v. Grant, 222. Louisville & N. Ry. v. Harmon, 217. Louisville & N; Ry. v. Hocker, 459. Louisville & N. Ry. v. Owen, 222. Louisville & N. Ry. v. Walden, 423. Louisville & N. Ry. v. Whitlow, 217. Lovell V. Hammond, 352. Louthan v. Hewes, 180. Love V. American Manufacturing Co., 83. Love V. Atlanta, 109. Lovejoy v. Murray, 225, 226. Loveless v. Fowler, 356. Loveless v. Standard Gold Min. Co., 156, 179. Lovell Co., John C. v. Houghton, 382. Lovell V. Noyes, 63, 396. Lovett V. Hobbs, 7. Low V. Elwell, 190. Low V. Mumford, 225. Lowe V. California State Fed. of Labor, 515. Lowe V. Prospect Hill Cem., 395, 400. Lowe V. Wartman, 250. Lowndes v. Settle, 508, 509. Lowry v. Cate, 126. Luby V. Bennett, 258, 260. Lucas V. Mich. Cen., 197, 199. Lucke V. Clothing Cutters, 72, 287. Lufkin V. Zane, 414. Lull V. Fox, etc., Co., 415. Lumber Co. v. Simmons, 225. Lumby v. Allday, 314. Lund V. Tyler, 269, 270. Lunsford v. Dietrich, 251. Lygo v. Newbold, 462. Lyle V. Clason, 293. Lymbe v. Hockley, 313. Lynch v. Union Inst, for Savings, 506, 509. Lynch v. Florida Central Ry., 152. Lynch v. Knight, 92, 95, 100, 274. Lynch v. Nurdln, 462. Lynn v. Hooper, 395. Lyons v. Desotelle, 86. Lyons v. Merrick, 341. Lythgoe v. Vernon, 224. M. McAllister v. Detroit Free Press Co., 295. McAllister v. Press Co., 321. McAlpin V. Powell, 469. McAndrews v. Collerd, 399, 405. McAndrew v. Elec. Tel. Co., 484. McArthur v. Home Life Assurance, 153. McAulay v. Birkhead, 284. McAvoy V. Wright, 225. McBeath v. Rawle, 163. McBee v. Fulton, 327. McBride v. Scott, 224. McCabe v. O'Conner, 121. McCafEerty v. Spuyten Duyvil, etc., Ry., 143. McCaffrey v. Mossberg, etc., Co., 453. McCall V. McDowell, 42. McCalla v. Multunoah Co., 107. McCalla v. Wood, 127. McCardle v. McGinley, 261. McCarr v. Nat. & Prov. Mills, 129. McCarrier v. HoUlster, 143. McCarthy v. De Armit, 245, 247. McCarthy v. Fremont, 56. McCartney v. Londonderry & Co., 395. McCarty v. Timmins, 151. McCaskell v. Elliott, 406. Table of Cases. lix McCausland v. Cresap, 24. McCaugna v. Owosso, etc., Co., 421. McChesney v. Wilson, 56, 122. ilcClaferty v. Philp, 252, 254. MeClintock v. Railroad, 339. McCloskey v. Pulitzer Pub. Co., 305, 319. McClusky V. Garfield Co., 169. McColman v. Wilkes, 340. McCombie v. Davis, 351, 355. McConnell v. Lemley, 458. McCord V. Iker. 507. McCord V. West. Un. Tel. Co., 490. McCormick v. Penn. Ry., 360. McCormlck v. Sisson, 250. ' McCormick Co. v. Willan, 261. McCracken v. Ansley, 241. McCracken v. West, 376. McCue V. Klein, 77, 269. McCullough V. Greenfield, 246. JlcCully V. Clarke, 430. McDade v. Chester City, 110. McDaniel v. Baca, 381, 382, 383. McDavitt V. Boyer, 321. 323. McBermott v. Am. Brewing Co., 152. McDermott v. Union Credit Co., 304. McDonald v. Franchere Brothers, 152: McDonald v. Lyon, 510. MacDonald v. Massachusetts Hospi- tal, 113. McDonald v. Newark, 404, 411. McDonald v. Snelling, 92. McDonnell v. Rifle Boom Co., 140. McDonough v. Gilman, 412. McEacheran v. Western, etc., Co., 378. McElfresh v. Kerkendall, 118. McEUigott V. Randolph, 117. .AIcElwee V. Blackwell, 381. McFadden v. Jewell, 109. McFadden v. Santa Anna Ry., 120. .MeFadin ^- David, 309. McFarlan v. Penn. Ry., 151. .McFarJane v. Grober, 237. McGarr v. Nat. & Prov. Mills, 128, 281. McGarrahan v. N. Y., etc., Ry., 109. McGaw V. Hamilton, 320. McGill V. Me., etc., Co., 438. McGorty v. Southern, etc., Co., 439. McGovern v. Central Vt. Ry., 158. McGown V. International, etc., Ry., 235. McGraw v. Town of Marion, 110. McGregor v. Camden, 402. McGregor v. Thwaites, 299. McHugh V. Nor. Pac. Ry., 186. Mclnenney v. Del. & Hud. Ry., 136. Mcintosh V. Matherly, 293. Mclntyre v. McBean, 325. Mclntyre v. Sholty, 60, 61. McKay v. New England Dredging Co., 233, 234. Mackay v. West. Un. Tel. Co., 497. McKeesport Sawmill Co. v. Penn. Co., 195. McKelvey v. McKelvey, 130. McKendry v. McKendry, 121. McKeon v. Chic. M. & St. P. Ry., 497. McKinley v. Chicago & N. W. Ry., 155. McLain v Huffman, 360. McLaine v. Head & Dowst Co., 163, 177. McLaughlin v. Cowley, 322. McLaughlin v. Fisher. 293, 309. McLean v. Fleming, 385, 386, 394. McLean County Coal Co. v. Long, 204. McLeod V. Conn., etc., Ry., 215. McLeod V. Jones, 193. McLoughlin v. Am. Circular Loom Co., 303. McManus v. Crickett, 153. McMaster v. 111. C. Ry., 177. McMillan v. Spider Lake Co., 234. McMorris v. Simpson, 357. McXay v. Stratton, 242. McNear v. Atwood, 356. McNee V. Coburn, etc., Co., 159. Ix Table of Cases. McNe'e v. Coburn Trolley Co., 160. McNeill V. Durham, etc., Ry., 88. McNulty V. Penn. Ry., 180. McPartland v. Read, 355. McPeek v. West. Un. Tel. Co., 497. McPherson v. Runyon, 261. McPherson v. Daniels, 298, 319. McQueen v. Fulgham, 95. McReady v. Rogers, 226. McQuillan v. City of Seattle, 439. McVey v. Manatt, 226. Mabry v. City Elec. Ry., 100. Macauley v. Tierney, 71, 72, 74. Machado v. Fontes, 216. Machette v. Wamless, 208. Mack V. South, etc., Ry., 97, 204. Mackay v. Ford, 321. Mackey v. VIcksburg, 111. Mackin v. B. & A. Ry., 167. Mackin v. United States, 311. Madden v. Chesapeake Ry., 158. Maddox v. Brown, 151. Magar v. Hammond, 78, 458. Magee v. Holland, 280, 281. Magonrick v. W. U. Tel. Co., 100. MagU'inay v. Saudek, 283. Mahan v. Brown, 45, 63. Mahon v. City of Dubuque, 199. Mahoney v. Bartley, 116. Mahoney v. Dankwort, 98, 101. Mahony v. Belford, 200. Maier v. Randolph, 146. Mairs v. Bal. & O. Ry., 13. Mairs v. Manhattan Real Estate Assoc, 338. Maisenbacker v. Concordia Society, 202, 271. Makely v. A. Boothe Co., 274. Makely Mill Co. v. Garrett, 164. Malachy v. Soper, 383. Malever v. Spink Dyer, 43. Mali V. Lord, 149. Mallalieu v. Laugher, 351. Malone v. Knowiton, 341. Malone v. Robinson, 356. Malone v. Stilwell, 118. Maloy V. City of St. Paul, 439. Maltbie v. Belden, 169. Mangan v. Atterton, 462. Manhattan Med. Co. v. Wood, 392. Mann v. County Court, 510. Mann v. O'SuUivan, 182. Manning v. Brown, 191. Mfg. Co. V. Trainor, 386. Manufacturers' Gas Co. v. Indiana Natural Gas Co., 45. Manufacturers' Gas & Oil Co. v. Ind. Nat. Gas Co., 64. Manufacturing Co. v. Morrissey, 172. Manvel v. Thompson, 129. Maple V. Cin., H. & D. Ry., 226. Marble v. Ross, 458. Marchant v. Pennsylvania Ry., 49. Marcus Sayre Co. v. Newark, 112. Marcy v. Taylor, 195. Marion Phosphate Co. v. Perry, 230. Marentllle v. Oliver, 268, 270. Marine Bank v. Piske, 361. Marine Ins. Co. v. St. Louis, etc., Ry., 414. Marino v. Lehmaier, 426. Mark v. Hudson River Bridge Co., 195. Markey v. County of Queens, 105, 106. Markham v. Houston, etc., Co., 443. Markley v. Snow, 154. Mairkley v. Whitman, 77, 269. Marks v. Baker, 232, 334. Marks v. Gray, 250. Marks v. Hastings, 255, 256. Marks v. Townsend, 242, 249, 263. Markx v. Press Pub. Co., 318. Marlin Fire Arms Co. v. Shields, 383, 512, 513. Marlow V. Weekes, 343. Mars v. Del. & Hud. Ry., 93. Marsh v. Astry Cro. Eliz., 183. Marsh v. Billings, 385, 391. Marsh v. Ellsworth, 322. Marsh v. Wise, 247. Marsh v. W. U. T. Co., 103. Marshall v. Blackshire, 57. Table of Cases. Ixi Marshall t. Cohen, 145. Marshall ▼. Oakes, 117. Marshall ▼. Ross, 393. Marshall tt. Wellwood, 427, 448. Marshall v. York, Newcastle, etc., Ry.. 16. Marshall, etc, Co. v. Kansas, etc, Ry., 353, 355. Martens t. Reilly. 19, 74. Martin v. Bal. ft O. Ry., 330. Martin v. Buffaloe, 226. Martin v. Chicago, etc., Ry., 80, 83, 84. Martin County Bank v. Day, 115. Martin v. Great Nor. Ry., 432. Martin v. Jordan, 369. Martin v. Louisville, etc., Ry., 183. Martin v. Payne, 283. Martin v. Porter, 205. Martin v. Robson, 119. Martin v. W. U. Ry., 436. Marye v. Dyche, 194. Maryland Nat. Enam. Co. t. Cor- nell, 165. Maryland Steel Co. v. Mamey, 93. Marzetti v. Williams, 17. Mason v. Keeling, 342. Mason v. Mason, 119, 308. Mason v. Richmond, etc., Ry., 179. Mason v. Thompson, 8. Mast V. Kem, ITS. Masters v. Bowling Green, 109. Mather v. Rillston, 436. Mathews v. Cowan, 123. Matthews v. Bliss, 379. Matthews v. Tiestee, 56. Mattice v. Brinkham, 350. Mattice v. Wilcox, 304, 316, 335. Maueh v. City of Hartford, 434. Mauldin v. Ball, 255. Maulsby v. Reifsnider, 321. Mannd v. Monmouthshire Canal Co.. 115. Max T. Roberts, 486. Max. Morris. The, 430. Maxfield ▼. Schwartz, Z'S. Maxmillian v. Mayor, etc., 110, 113. Maxson v. Del., L. & W. Ry., 279 May V. Jones, 293. May V. O'Neal, 354. May V. West Jersey Ry., 234. Mayer v. Thompson-Hutchinson Co., 184. Mayhew v. Herrick, 362. Mayhew v. Phoenix Ins. Co., 372. Maynard v. Buck, 8. Mayo. In re Estate of, 233. Mayo V. Western Un. Tel. 480. Mayor v. Walter, 250, 258, 264. Mayor of Albany v. Cunliff, 412. Mayor of Birmingham v. McCary, 143. 144. Mayor of Bradford v. Pickles, 62. Mayor of Manchester v. Williams, 115. Mayor, etc., of Macon v. Dykes, 92. Mayor, etc., of Newark v. Wilson, 44. Mead t. SUrling, 512. Mead v. Young, 241. Meadow Valley Mining Co. v. Dodds, 504. Meagher v. DriscoU, 98. Mearns v. The Central Ry. of N. J., 23, 436. Mechanics' Foundry v. Ryall, 507. Medcalfe v. Brooklyn Co., 252. Medina v. Perkins, 107. Medlin v. Balch, 360. Meeker v. Van Rensselaer, 196. Mellish V. Arnold. 211. Memphis, etc., Ry. v. Graham, 159. Memphis Telephone Co. v. Hunt, 339. Menendez r. Holt, 386, 393, 394, 490, 497. Mentzer v. W. C. Tel. Co., 101, 103. Mercer v. Gorbin, 269. Mercer v. Walmes, 283. Merchants' Nat. Bank v. Arm- strong. 376. Merchants' Bank v. Meyer, 354. Merivale v. Carson. 333, 336. Merrills v. Tariff Mfg. Co., 201. Ixii Table of Cases. Merz V. Chic, etc., Ry. Co., 361. Metcalf V. Alley, 265. Metcalf V. Times Pub. Co., 327. Meteye v. Times Pub. Co., 313. Metropolitan, etc., Co. v. Fortin, 157. Metropolitan Asylum District Co. V. Hill, 45, 396. Metropolitan Bank v. Poeoly, 257. Met. Elevated Ry. v. Kneeland, 17. Met. Omnibus Co. v. Hawkins, 304. Meunier v. Chemical Co., 171. Mewhirter v. Hatten, 279. Mexican Cent. Ry. v. Sprague, 173. Mexican Nat. Ry. v. Jackson, 215. Mexican Nat. Ry. v. Slater, 216. Meyer v. A. & P. Ry., 208. Meyer v. City of Richmond, 49. Meyer v. Harris, 413. Meyer v. The Journeymen Stone- cutters' Association, 512. Meyer v. King, 93. Meyer v. Milwaukee, etc., Ry., 93. Meyer v. Pae. Ry., 441. Michael v. Alestree, 186. Michael v. Stanton, 139. Middlesex Co. v. McCue, 65. Middleton v. Nichols, 283, 284. Mielenz v. Quasdorf, 294. Mighell V. Sultan of Johore, 39. Mihojevich v. Badechtel, 308, 309. Mildmay's Case, 381. Miles V. Weston, 245. Miles V. Worcester, 395, 411. Milhench v. E. Jenckes Mn'fg. Co., 178. Miller v. Baker, 344. Miller v. Black Rock Spn-ings, 62. Miller v. David, 317. Miller v. Detroit, etc, Ry., 170. Miller v. Express Propeller Line, 208. Miller v. Hancock, 456. Miller v. Horton, 50. Miller v, Hyde, 227. Miller v. Johnson, 295. Millisch V. Lloyds, 326, Miller v. McDonald, 319. Miller v. Parish, 311. Miller v. Rushforth, 503. Miller v. Staples, 183. Miller v Wilson, 358. MlUiken v West. Un. Tel. Co., 488. Mills V. Armstrong, 443. Mills V. City of Brooklyn, 36, 110. Mills V. City of Rochester, 35. Mills V. Graham, 126. Mills V. Wooters, 193. Mil., etc., Ry. v. Arms, 201. Milwaukee, etc., Ry. v. Kellogg, 91, 93. Miner v. Tribune Co., 333. Minn. Threshing Co. v. Regier, 262. Minter v. Bradstreet Co., 317. Missano v. Mayor, 109. Missouri v. Illinois, 105. Missouri Pac. Ry. v. Brazzil, 222. Missouri, etc., Ry. v. Burt, 80, 195. Missouri Pac. Ry. v. Divinney, 155. Missouri, K. & T. Ry. v. Edwards, 468. Missouri Pac. Ry. v. Ivy, 222. Missouri Pac. Ry. v. Richmond, 116, 329. Mo. Pac. Ry. v. Tex. Pac. Ry., 443. Missouri, Kans., etc., Ry. v. Wood, 10. Mitchell V. Alestree, 186. Mitchell V. Alestry, 186. Mitchell V. Bradstreet Co., 316, 329. Mitchell V. Darley Main Colliery, 238. Mitchell V. Dors, 508. Mitchell V. Hotchkiss, 229. Mitchell V. Jenkins, 251. Mitchell V. Raleigh Elec. Co., 451. Mitchell V. Rochester Ry., 93, 97, 98. Mitchell V. Sharon, 312. Mitchell V. Southwestern Ry., 258, 260. Mitchell V. State, 242. Table ok Cases. ixui Mitchell V. Tarbutt, 225. Mobile, etc., Ry. v. Clanton, 184, 185. Mobile, etc., Ry. v. Smith, 177. Mobus V. Town of Waitsfleld, 437. Mogg V. Mogg, 307. Jlogul Steamship Co. v. ilcGregor, 68, 2S9. 384. Mohney v. Cook, ST. 88. Moir V. Hopkins, 146. Molbus V. Town of Waitsfleld, 92. Monk V. Packard, 400. Monroe v. Cannon, 342. Monson v. Tus?auds Limited, 514. Montfort v. Hughes. 186. Montgomery v. Buffalo Ry.. 270. Montgomery v. Comm., 55. Montgomery, etc., Co. v. Chapman & Co.. 347. Montgomery v. Lock, 199. Montgomery v. Thompson, 390. Monumental Building Assoc. ▼. Herman, 123. Mood V. West. Un. Tel., 498. Moody V. Caulkins, 205. Moody V. Hamilton Mn'fg Co., 177. Moody V. Keener, 348. Moody V. Supervisors, 196. Moon V. Tower, 127. Mooney v. ilaynard, 194. Moor V. Foster. 313. Sloore V. Appleton, 21. Moore v. Brown, 413. Moore v. Ferrell, 50S. Moore v. Fitzpatrick, 360. Moore v. Francis, 304, 305. Moore v. Manufacturers' Bank, 321. Moore v. Met Ry., 154. Moore v. Shenk, 191. Moore v. Thompson, 241. Morain v. Devlin, 60. Moran v. Vicroy, 267. Morasse v. Brochu, 67, 315. Mordaunt v. Mordaunt, 61, 308. Morehouse v. Yeager. 371. Moreland v. Atchison, 372. Moreton v. Hovdem, 186. Morey v. Morning Journal Assoc, 295. Morford v. Woodworth, 418. Morgan v. Barnhill, 202. Morgan v. Dudley, 31. Morgan v. Duffy, 235. Morgan v. Hudnell, 3-tl. Morgan v. Hudson, etc., 158. Morgan v. Kendall, 200. 270. Morgan v. Kennedy, 118. Morgan v. Lingen, 304. Morgan v. Marquis, 362. Morgan v. O'Daniel, 267. Morgan v. Skiddy, 379. Morgan v. Smith, 181. Morgan v. Steble, 236. Morgan v. Vale of Neath Ry. 174, 181. Morisette v. Canadian Pac, 215. Morison t. Salmon, 385. Moritz V. Garnhart, 283. Morning Journal Assoc, v, Ruther- ford, 201, 318. Morrill v. Blackman, 367. Morril v. Moulton, 354. Morris v. Brown, 420. Morris v. City of Columbus, 44. Morris v. Langdale, 305. Morris v. Piatt. 52. 59. Morris v. R. R. Co., 438. Morris Canal Co. v. Ryerson, 413. Morris v. Whipple, 455. Morris v. Wood, 206. Morrison v. Smith, 309. Morrison v. Whittier Mach. Co., 169. Morrison Jewell Co. v. Lingane, 115. Morrow v. Wheeler, etc., Co., 253 Morse v. Chesapeake Ry., 96. Morse v. Nixon, 56. Mortin v. Schoppe, 266. Morton v. Detroit Ry. Co., 166. Morton v. The Mayor, 47. 396. Morton v. Moore, 395. Morton v. W. U. T. Co., 104. Mosley v. Jamieson, 211. Ixiv Table of Cases. Moses V. Dubois, 242. Moses V. Macferlan, 25. Moshenvel v. Dist. Columbia, 440. Hosier v. Beale, 341. Mosler v. Stoll, 306. Motes V. Berry, 54. Mott V. Dawson, 334. MoultOB V. Lowe, 265. Moulton V. Scarborough, 107, 111. Mount V. Derrick, 361. Mountain Copper Co. v. Van Buren, 426. Mountz V. Railroad Co., i39. Mowbray v. Merryweather, 420. Mower V. Watson, 323. Mowrey v. Walsh, 352. Moynahan v. Wheeler, 343. Moynihan v. Hills Co., 167. Mugford V. Richardson, 190. Mugler V. Kansas, 44. Muhlker v. N. Y. & H. Ry., 49. Mulcahy v. Reg., 289. Mulchey v. Methodist Relig. Soc, 187. Muldoon V. Rickey, 260. Mulgrave v. Ogden, 353, 359. Mullan V. Wis. Ry. Co., 155. Mullen V. St. John, 437. Muller V. McKesson, 80, 399, 406, 449. Mulligan, v. N. Y. etc., Ry., 152. Mulliner v. Florence, 355. Mundell v. Perry, 340. Hunger v. Hess, 126. Munford v. Taylor, 353. Munn V. Corbin, 44. Munn V. Illinois, 476. Hunns v. Dupont, 252. Munroe v. Dredging Co., 233. Munster v. Lamb, 321. Murgoo V. Cogswell, 359. Murphy v. Fond Du Lac, 198, 338.. Murphy v. Kaufman, 356. Muirphy v. Larson, 255. Murphy v. N. Y. C. Ry., 235. Murphy V. Olberding, 311, 819. Murray v. Burling, 356. Murray v. Chic, etc., Ry., 237. Murray v. Currie, 133, 139. Murray v. Dwight, 135, 137, 181. Murray v. Mace, 262. Murray v. McShane, 427. Murray v^ South Car Ry., 22, 172. Musselman v. Harquls, 509. Mustad V. Swedish Brethren, 156. Mutual Life Co. v. Phinney, 371. Myer v. Hobbs, 143. Myers v. Holborn, 135, 233. Myers v. Hudson Iron Co., 166. Hyhan v. La. Elec. Co., 168. Myhan v. Louisiana, etc., Co., 160: N. Naben v. Miecock, 307. Nanson v. Jacob, 357. Nanticoke v. Warne, 279. Narremore v. Cleveland & 0. Ry., 83, 84. Nash V. Jewett, 124. Nash V. Minn., etc., Co., 373, 374. Nashua Iron Co. v. Worcester, etc., Ry., 435. Nashville C. & Gt. L. Ry. v. McCon- nell, 67. Nashville, C. & St. L. Ry. v. Mc- Connell, 501. Nashville Lumber Co. v. Fourth Nat. Bk., 17. National Bank v. Graham, 423. Nat. Bank of Commerce v. Chic, etc, Ry., 362. Nat. Bank Loan Co. v. Petrie, 123. National Protective Association v. Cummlng, 68, 71, 72, 287. National Surety Co. v. United States, 348. Nat. Tel. Co. v. Baker, 451. Navarino v. Dudirap, 251. Nay V. Crook, 360. Neaf V. Palmer, 399. Neal V. Gillett, 121, 126. Neal V. Joyner, 245. Nebraska Telephone Co. v. State er rel. Yeiser, 476, 480, 481. Table of Cases. Ixv Necker v. Harvey, 453. Nederlandsch, etc., Co. v. Hol- lander, 128, 281. Neff V. Landls, 125. Nehr v. Dobbs, 254, 255. Neilson v. Jensen, 320. Nelnitz v. Conrad, 243. Nelson Business College v. Lloyd, 151. Nelson v. Burt, 348. Nelson v. Cook, 219. Nelson v. Crawford, 101, 267. Nelson v. Hubbard, 230. Nelson v. Iverson, 357. Nelson v. Merriam, 359. Nelson v. Milligan, 416. Nelson v. Whetmore, 350. Nethery v. Paine, 503. Nettleton v. Dinehart, 249. Nevada Bank v. Portland Natl. Bank, 371. Neville v. Gile, 278. Nevins v. Fitchburg, 47. New V. Southern Ry., 221. Newark, etc., Co. v. Hawk, 44. Newark Coal Co. v. Upson, 258. Newbold v. Bradstreet, 329. Newbro v. XJndeland, 393. Newburg v. Getchel, etc., Co., 168. Newcomb v. Boston Protective Dep., 85. Newcomb-Buchanan Co. v. Baskett, 355. New Dunderburg Co. v. Old, 208. Newell v. Downs, 251. Newell V. How, 315. Newell V. Randall, 368. Newell V. Whitcher, 96, 267. New England, The, 222. New Eng. Ry. v. Conroy, 177. Newman v. Kingerby, 314. Newman v. Phillipsburg, etc., Co., 445. New Omaha Co. v. Baldwin, 178. New Orleans, etc., Ry. v. Burke, 155, 156. New Orleans, etc., Ry. v. Jopes, 53. New Orleans, etc., Ry, v. Norwood, 139. New Pittsburgh Co. v. Peterson, 177. Newsom v. Anderson, 338. New York Cen. Ry. v. Lockwood, 75. N. Y. C. Ry. V. Steinbren. 443. New York, etc., Co. v. Bennett, 209. N. Y., etc., Ry. v. Ball, 436. New York, etc., Ry. v. Estill, 208. New York, etc., Ry. v. Schaffer, 23, 293. N. Y., etc.. Grain & S. Exch. v. Board of Trade, 481. N. Y. Imp. Co. V. Chapman, 376, 380. New York, N. H. & H. Ry. v. Inter- state Commerce Commission, 501. N. Y. Printing & D. Estab. v. Pitch, 508. N. Y. & W. Printing Tel. Co. v. Dryburg, 489, 490. Nicholaus v. Chicago, etc., Ry. 170. Nichols v. Boston, 413. Nichols V. Guy, 313. Nichols V. Marsland, 446. Nichols V. Pinner, 367. Nichols V. Union Pac. Ry., 207. Nichols V. United States, 40. Nicholson v. City of Detroit, 109. Nicholson v. -Merrit, 312. Nicholson v. Rusk, 298, 312. Nickerson v. Wheeler, 220. Nix V. Tex. Pac. Ry., 166. Nixon V. Selby Smelting Co., 177. Noble V. Bessemer Co., 164. Noblett V. Bartsch, 254. Nolan V. Jones, 124, 125. Nolin V. Franklin, 399. Norfolk V. Hoover, 177. Norfolk, etc., Ry. Co. v. Bohannon, 199. Norfolk Ry. v. Corlette, 427. Norfolk, etc., Ry. v. Cromer, 425, 433. Norfolk, etc., Ry v. Dougherty, 119. h Table of Cases. Norfolk & W. Ry. v. Hoover, 157. Norfolk, etc., Ry. v. Houchins, 156. Norfolk, etc., Ry. v. Marpole, 439. Norfolk, etc., Ry. v. Phillips 158, 178. Norfolk & C. Ry. v. Tanner, 76. Norfolk & Wes. Ry. v. Tanner, 74. Northampton's Case, 298. North Bloomfield G. M. Co. v. U. S., 505. Northcote v. Smith, 194. Northern Pac. Ry. v. Babcock, 217. N. W. Tel. Co. V. Minneapolis, 44. Nolan V. N. Y. & C. Ry., 158. Noll V. Phil. Ry., 180. Noonan v. Orton, 328. Norcross v. Thorns, 403. Nordt Deutscher Co. v. Ingebreg- sten, 177. Norman v. Orton, 249. Norman v. Rodgers, 364. Norris v. Baker, 174. Norris v. Corkill, 119. Nor. Cen. Ry. v. Baltimore, 411. Northern Cen. Ry. v. Newman, 203. North Chic. Street Ry. v. Brodie, 235. Nor. Pac. Ry. v. Adams, 233. Nor. Pac. Ry. v. Herbert, 165. North Star, The, 430. Northern Queen, The, 197. Northrup v. McGill, 364. Northwestern Pack. Co. v. McCue, 180. Norton V. Sewall, 454. Norvell v. Thompson, 338. Norwalk Gaslight Co. v. Borough of Norwalk, 143, 144. Noyes v. Colby, 341. Nye V. Merriam, 379. O. O. T. Co. V. Saunders, 104. Oakes v. Candy Co., 386, 387. Oakes v. Mase, 182. Oakes v. Miller, 378. Oakel V. Dalton, 228. Gates V. Met. St. Ry., 434. Obier v. Neal, 52. O'Brien v. Barry, 258. O'Brien v. Cunard S. S. Co., 135. O'Brien v. Goodrich, 506. O'Brien v. Murphy, 508. O'Brien v. Wis. C. Ry., 441. O'Connor v. Brucker, 468. O'Connor v. Golden Gate Co., 168. O'Connor v. Press Pub. Co., 292. Odd Fellows' Assoc, 185. Odin Coal Co. v. Denman, 156. Odiorne v. Colley, 345. Ogden V. Claycomb, 52. Ogden V. Lucas, 206. Ogilvie V. Hallan, 223. Ohio & C. Ry. Co. v. Kasson, 24. Ohio & M. Ry. v. Trapp, 199. Ohio Oil Co. V. Indiana, 45. Oil V. Rowley, 194. Okokski V. Penn., etc., Co., 162. Old Dominion Steamship Co. v. Mc- Kenna, 286. Oldham v. Peake, 307. Olds V. Chicago Open Board of Trade, 352. O'Leary, Ex parte, 398. O'Leary v. Roman, 270. Olivant v. Perineau, 364. Oliver v. Perlfins, 21. Oliver v. Phelps, 223. Olle v. Pittsburg, 248. Olmsted v. Partridge, 256. S. P. Olney v. Boston, etc., Ry., 177. Olsen V. Nor. Pac. L. Co., 158. Olson V. Tvete, 258. Olympe de La Grange v. South Western Tel. Co., 487. Omaha v. Jensen, 144. Omaha Bottling Co. v. Theiler, 168. Omaha, etc., Ry. v. Doolittle, 119. Omaha, etc., Ry. v. Krayenbuhl, 437. O'Maley v. Gaslight Co., 79. O'Maley v. So. Boston Co., 171. O'Malley v. Great Northern Ry., 74. Table of Cases. Ixvii O'Neil V. Behanna, 286. O'Neil V. Great Nor. Ry., 177. O'Neill V. Chic, etc., Ry., 164. Opsahi V. Judd, 81. Oregon, The, 208. Oregon, etc.. Ry. v. Tracy, 170. O'Reilly v. Glavey, 282. O'Reilly v. N. Y., etc.. Ry., 217. Organ V. Chic, etc., Ry., 235. Orman v. Salvo, 180. Ormsby v, Douglass, 329. Orr V. Sou. Tel. Co., 169. Orr, Ewing & Co. v. Johnston & Co., 385. Orton V. State, o2. Osborn v. Gillett, 231, 232. Osbom V. Schenck, 362. Osborne v. Knox, etc, Ry., 175. Osborne v. London & N. W. Ry., 80, 81. Osborne v. Missouri Pac Ry., Osborne v. Morgan, 183, 184. Osborne v. Van Dyck, 90. Osborne v. Vandyke, 82. Osborne Co., D. M., v. Piano Mfg. Co., 358. O'Shaughnessy v. Baxter. 242. O'Shaugnessy v. N. Y. Record Co.. 314. Ott T. Kaufman, 229. Over V. ShifHing, 308. Overholser v. Nat. Home, 113. Overholt v. Veiths, 468. Overton v. Freeman, 145. Oviatt V. Pond, 208. Owen T. Brockschmidt, 235. Owen V. Cook, 93. Owen V. Ford, 503. Oxford V. Cross, 312. Oystead v. Shed, 244. Pac. Postal Tel. Co. v. Bank of Palo Alto, 154. Packlngton v. Packington, 504. Paddock v. Samers, 418. Padmore v. Lawrence. 325. Page V. Citizens' Banking Co., 154. Page v. Dwight, 190. Page V. Parker, 187. Painter v. Mayor, 133. Palmer v. Chicago, etc., Ry., 272. Palmer v. Gordon, 459. Palmer v. .Maine C. Ry., 245, 246. Palmer v. Matthews, 319. Palmer v. Wick, etc. Company, 27, 187, 220. Palmer v. Wlnston-Salem Electric Ry., 147. Palmerl v. Man. Ry. Co., 116, 152, 154. Pancoast v. Bumell, 119. Pangburn v. Bull, 261. Paolino v. McKendall, 457, 471. Papke v. Hammond Co., 223. Parent v. Nashua Mfg., 147. Paris v. Levy, 335. Park V. O'Brien, 432. Park V. Detroit Free Press Co., 326. Parke v. Kilham, 395. Parker v. McQueen, 298. Parker v. Mise, 201. Parker v. Barnard, 6. Parker v. Farley, 250. Parker v. Huntington, 288. Parker v. Huntington, 253. Parker v. Kelly, 237. Parker v. Langley, 249. Parker v. Lombard, 357. Parker v. Parker, 251. Parker v. St. Ry., 441. Parker v. Union Woolen Co., 455. Parkhurst v. Masteller, 262. Parkins v. Scott, 300. Parmenter v. Barstow, 226. Parry v. Smith, 453. Pasley v. Freeman. 370, 371, 375, 376. Pastene v. Adams, 92. Pater v. Baker, 381, 382. Patrick v. Cole, 193. Patten v. Belo, 318. Ixviii Table of Cases. Patten v Gurney, 371. Patersou v. Hayden, 283, 285. Patterson v. Jos. Schlitz Brewing Co. 414. Patterson v. Marine Nat. Bk., 17. Patterson v. Pittsburgh, 172. Patton V. Texas, etc., Ry., 157. Patton V. Texas & P. Ry., 426, 429. Patty V. Bogle, 194. Patzack v. Von Gerlchten, 32. Paul V. Hummell, 127. Paul V. Fargo, 260. Paul V. Slason, 343, 344. Paule V. Halferty, 381. Pauley v. Steam Gauge, etc., Co., 5. Paulk V. Mayor of Sycamore, 511. Paulton V. Keith, 23. Paxton V. Boyer, 59. Payer v. Village of Des Plaines, 511. Payne v. Chic, etc., Ry., 443. Payne v. Elliot, 347, 348. Payne v. Tancll, 311. Paynter v. Bridgeton, etc., Co., 428. Payson v. Macomber, 241. Peacock v. Spitzelborger, 404. Peake v. Buell, 456. Peake v. Oldham, 307. Peard v. Jones, 316. Pearl v. West End Ry., 135. Pearsall v. West. Tin. Tel. Co., 484, 485. Pease v. Smith, 354, 355. Peay v. W. XT. T. Co., 104. Pechell V. Watson, 265. Peck Bros. & Co. v. Peck Bros. Co., 391. Peckham Iron Co. v. Harper, 380. Peck V. Williams, 450. Peden v. Am. Bridge Co., 235. Pederson v. Seattle, etc., Ry., 222. Peek V. Derry, 372. Peek V. Gurney, 368, 375. Pegram v. West. Un. Tel. Co., 485. Peigne v. Sutcllff, 125. People V. Canal Board, 511. People V. Detroit White Lead Works, 506. Pelton V. Nichols, 17. Pelton y. Ward, 309. Pemberton v. Colls, 316. Pendleton v. Davis, 271. Pennewill, In re, 27. Penn. Co. v. Langendorf, 437. Penn. Co. v. Phil, etc., Ry., 205. Penn. Co. v. Roney, 437. Pennsylvania Company v. Roy, 144 454. Pennsylvania Co. v. Weddle, 150. Penn. Lead Go's. Appeal, 419. Pennsylvania Ry. v. Angel, 47. Penn. Ry. Co. v. Bantom, 235. Penn. Ry. v. Gallagher, 181. Penn. Ry. v. Goodenough, 442. Penn. Ry. v. Vandever, 233. Penny v. Council, 140. Penny v. State, 350. Pennyman v. Robanks, 381. Penrose v. Curren, 125. Penruddock's Case, 413. People V. Croswell, 303. People V. Green, 321. People V. McLeod, 28. People V. Pearl, 199. People V. Sherlock, 304. People V. Warren, 242. People ex. rel. Copcutt v. Board of Health, Yonkers, 195. Perham v. Coney, 357. Perkins v. Mo., etc., Ry., 146. Perkins v. Pendleton, 287. Perkins v. Proctor, 31. Perkins v. Smith, 182. Perkins v. Spaulding, 254. Perkins v. Stein, 272. Perlstein v. Am. Ex. Co., 151. Perminter v. Kelly, 362. Perrenoud v. Helm, 256. Perry v. House of Refuge, 113. Perry v. Man, 305. Perry v. Porter, 320. Perry v. Rogers, 162. Peters v. Barth, 311. Table of Cases. Ixix Peters v. Bowman, 468. Peters v. Johnson, 453. Petersfield v. Vickers, 109. Peterson v. Gresham, 205. Peterson v. Hafner, 59, 121, 268. Peterson v. Hefner, 77. Peterson v. Seattle Co., 180. Peterson v. West. Un. Tel. Co., 296, 317, 477. Peterson v. Whitebreast, 177. Petrie v. Col., etc., Ry., 235. Petrie v. Lament, 185. Petticolas v Richmond, 226. Pettlnglll V. Rldeout, 14. Petts V. I sen, 229. Peyton v. Tex., etc., Ry., 437. Pfelffer v. Grossman, 338. Phelps V. Chic, etc., Ry., 439. Phelps V. Newlen, 62. Phelps V. Sill, 31. Phelps V. Walt, 186. Phil. & C. Ry. V. Smith, 416. Philadelphia, etc., Ry. v. Derby, 132. Phil., etc., Ry. v. Phil., etc.. Tow- boat Co. 87. Phil., etc., Ry. v. State, 181. Philadelphia Iron Co. v. Davis, 179. Phil. & Reading Ry. v. Derby, 424. Phil. Tract. Co. v. Orbann, 204. Phil., W. & B. Ry. v Quigley, 115. Philber v. Matson, 195. Philips V. Hall. 344. Phillips V Chic, etc., Ry., 181. Phillips V. Cloggett, 223. Phillips V. Kelly, 200. Phillips V. Library Co., 458. Phillips V. Len., etc, Ry., 211. Phillips V. Quarnet, 120. Phillips V. Ritchie, Co., 439. Phillips V. Trull, 246. Phillips V. Barber, 307. Phillips V. Eyre, 215, 217. Philpot V. Lucas, 254. Pickard v. Smith, 140. Pickering v. Moere, 363. Pickering v. Rudd, 337, 338. Pickering v. Truste, 364. Pickett V. Walsh, 518. Piehl V. Albany Ry., 427. Pierce v. Dart, 409. Pierce v. Drew, 475. Pierce v. N. C. Ry. Co., 149. Piersen v. Glean, 413. Pike V. Dilling, 200. Pike V. Hansen, 241. Pike V. Van Wormer, 313. Pikes V. Megoun, 36. Pillsbury v. Moere, 413. Pillswerth v. Hopton, 503. Pillott V. Wilkinson, 361. Pinkney Bros. v. Western Un. Tel. Co., 474. Plnney v. Berry, 413. Piper V. Pearson, 32. Piper V. Woolman, 316, 325. Piscataqua Nav. Co. v. N. Y., etc., Ry., 408. Pitt V. Donoman, 382. Pittsburg & C. Ry. v. Hollewell, 8. Pittsburg, C. C. & C. Ry. v. Maho- ney, 75, 221. Pittsburg, C. C. & St. L. Ry. v. Ma- honey, 75. Pittsburg etc., Ry. v. Lyon, 482. Pittsburg, etc., Ry. v. Shields, 156. Pittsburg, etc., Ry. v. Spencer, 443. Pittsburg, etc., Ry. v. Taylor, 207. Pittsburg etc., Ry. v. Vining, 445. Pittsburg, etc., Ry. v. Wood, 90. Pittsfleld Cotton ware Co. v. Pitts- field Shoe Co., 155. Pittsfleld, etc., Co. v. Shoe, 140. Plxley V. Clark, 63. Place V. Minster, 288. Plant V. Weeds, 515. Platner v. Johnson, 348, 350. Piatt V. Scott, 372. Piatt V. Tuttle, 347. Piatt Brothers £ Co. v. Waterbury, 111. Platz V. City of Cohoes, 86. Pleasants v. Smith, 511. Plevin y. Henshall, 364. Plumer v. Harper, 412, 413. Ixx Table of Cases. Plummer v. Dill, 458. Poindexter v. May, 342. Poissenot v. Reuther, 297. Pokrok Pub. Co. v. Zizkovsky, 319. Polhill V. Walter, 375. Polk v. Fancher, 202. Poland V. Brownell, 379. Pollard V. Lyon, 300, 310, 312, 316. Pollasky v. Mlnchener, 329. PoUey V. Lenox Iron Works, 350. Ponting V. Noakes, 466. Pool V. Southern Pac. Ry., 179. Pope T. Cordell, 344. Pope V. Pollock, 260. Pope Motor Car Co. v. Keegan, 515, 517. Port of Mobile v. Louisville & N. Ry., 511. Portance v. Lehigh Valley Co., 157. Porter v. Goble, 120. Porter v. Mack, 249, 262, 288. Porter v. Ritch, 248. Porter v White, 251. Post Publishing Co. v. Hallam, 66. Post. Pub. Co. V. Molony, 335. Postal Tel. Cable Co. v. Schaefer, 74. Postum Cereal Co. v. Health Food Co., 389. Potter V. Detroit, etc., Ry., 161. Potter V. Faulkner, 175. Potter V. Washbun, 345. Potts V. Imlay, 260. Poucher v. N. Y. C. Ry., 75. Powell V. Construction Co., 145. Powell V. Fall, 451. Powell V. Kohler, 238. Powell V. Sadler, 355. Power V. Baker, 226. Powers V. Fowler, 379. Powers V. Mass. Hospital, 114. Pratt V. Gardner, 32. Pratt Food Company v. Bird, 511, 513. Pratt Land Co. v. McLain, 367. Pre-digested Food Company v. Mc- Neal, 511. Preiser v. Wielandt, 101. Press Pub. Co. v. McDonald, 306. Preston v. Prey, 312. Pretty v. Bickmore, 414. Prewitt V. Clayton, 337. Price V. Bailey, 242. Price V. Atchinson Water Co., 465. Price V. Jenkins, 294. Price V. Price, 277. Prichard v. Commissioners of Mor- ganton, 107. Prideaux v. Mineral Point, 443. Prestly v. Fowler, 173. Primrose v. West. Un. Tel. Co., 474, 483, 497. Prince Mfg. Co. v. Prince's Metallic Paint Co., 392. Prindle v. Haight, 271. Pritchard v. Norton, 217. Propeller Towboat Co. v. West. Un. Tel. Co., 498. Proprietors of Locke v. Lowell, 47. Prosser y. Callis, 313. Protheroe v. Matthews, 56. Providence F. R. & N. S. Co. v. City of Fall River, 509. Prude v. Sebastian, 89. Prussak v. Hutton, 405. Publishing Co. v. Shields, 306. Pugh V. City etc., Tel. Co., 477. Pugh V. McCarty, 96. Pullen V. Glidden, 251. Pulling V. Great Eastern, 229. Pullman v. Hill, 294, 296. Pullman Car Co. v. Laack, 438. Pullman Car Co. v. Lawrence, 215. Pullman Palace Car Co. v. Law- rence, 204, 271. Punch V. Boyd, 514. Purcell V. Chicago, etc., Ry., 434. Purcell V. Richmond, etc., Ry., 204. Purcell V. Sowler, 328. Purcell V. St. Paul, etc., Ry., 97. Purdom Naval Stores Co. v. West. Un. Tel. Co., 495. Purple v. Union Pac. Ry., 88, 423. Purvis V. United Brotherhood, 515. Table uf Cases. Ixxi Putnam v. Wyley, 345. Puterbaugh v. Reasor, 442. Pye V. Faxon, 141. Pye V. Peterson, 397. Playford v. U. K. El. Tel. Co., 487, 4S9. Q. Quarman v. Burnett, 136. Quartz Hill Co. v. Eyre, 257, 259. Quartz Hill Mining Co. v. Beall, 513, 514. Queen v. Dayton Coal Co., 85. Queen v. Lords Commissioners of the Treasury, 40. Quigley v. Clough, 458. Quill V. Mayor, 109. Quinn v. Crimmlngs, 65, 448. Quinn v. Gross, 239. Quinn v. Heisel, 244. Quinn v. Letbem, 71, 73, 286, 287, 289. Quinn v. Moore, 235. Quinn v. Prudential Ins. Co., 305, 306, 308. Quinn v. Rice, 249. R. Rachelman v. Skinner, 250. Radley v. London, etc., Ry., 432, 433. Rafael v. Verelst, 214. Railroad Co. v. Hutchins, 205. Railroad Co. v. Jones, 420. Railroad Company v. Lockwood, 75, 222, 422. Railroad Co. v. Hanning, 134. Railroad Co. v. Walrath, 144. Railway Co. v. Hackett, 148. Ry. Co. V. O'Donnell, 353. Ry. Co. V. Peterson, 164. Railroad Co. v. Pollard, 425. Railway Co. v. Spangler, 222. Ry. Co. V. Stout, 460, 468. Ralston v. Bank of Cal.. 222. Ralli V. Troop, 133, 430. Randall v. Bal. & D. Ry., 171. Randolph v. O'Riordon, 443. Rankin v. Crane, 254. Ratcliffe v. Evans, 67, 381, 383. Rathbone v. Oregon Ry., 459. Ravary v. Grand Trunk Ry., 231. Ravenga v. Mackintosh, 252, 255. Rawlings v. Norbury, 308. Ray V. Sellers, 413. Rayeroft v. Tayntor, 287. Rayner v. Mitchell, 151. Rayson v. South London Co., 257. Raza V. Smith, 201. Razzo V. Varni, 101. Re Evening News, 326. Read v. Coker, 266. Read v. Edwards, 342. Reardon v. Thompson, 424, 457. Rearick v. Wilcox, 334. Read v. Hudson, 304. Reading v. Althouse, 50. Reagan v. St. Louis, etc., Ry., 160. Reddaway v. Banham, 388. Redding v. Wright, 378. Reddon v. Union Pac. Ry., 179. Redgate v. Roush, 66, 67, 325. Redhead v. Midland Ry., 454. Reddington v. Pos. Tel. Co., 423. Redpath v. West. Un. Tel. Co., 484, 485. Redway v. McAndrew, 258. Redway v. Gray, 311. Reed v. Detroit, 209. Reed v. Maley, 96. Reeder v. Purdy, 191. Reed v. Rice, 244. Reed v. Stockmeyer, 440. Reed v. West. Un. Tel. Co., 494, 496 498. Reedin v. London, etc., Ry., 134, Reese v. W. U. T. Co., 104. Reagan v. Chic, etc., Ry., 235. Reg. V. Day, 268. Reg. v. Flattery, 76, 77. Reg. V. Holbrook, 301. Reg. V. Jackson, 120. Reg. V. Skinner, 321. Reg. V. St, George, 267. Ixxii Table of Cases. Regina v. Walker, 244. Regis V. J. A. Jayne & Co., 387. Reid V. Colcock, 354. Reld V. Providence Journal Co., 307. Reid V. Mitchell, 77. 'Reiehel v. N. Y. Cent. Ry., 157. Reilly v. Sicilian Asphalt Co., 213. Reinhart v. Sutton, 409. Reitan v. Goebel, 312. Relle V. W. U. T. Co., 102. Relyea v. Kansas City Ry., 157. Republic V. Saratoga Vichy Co., 389. Republican Pub. Co. v. Mosman, 318. Respublica v. DeLongchamps, 268. Rex. V. Carllle, 326. Rex. V. Ivens, 7. Rex. V. Milton, 54. Rex. V. Wright, 326, 327. Reynell v. Sprye, 378. Reynolds v. Boston, etc., Ry., 168. Reynolds v. Pierson, 77. Reynolds v. West. Un. Tel. Co., 493. Rice V. Boyer, 123. Rice V. Eureka Paper Co., 172. Rice V. Manley, 67, 71. Rice V. Nickerson, 280. Rice V. Rice, 101. Rice V. Yocum, 182. Rich V. Mclnterny, 242, 247. Rich V. New York Central Ry., 2, 8, 19, 486. Rich V. Pilkington, 225. Richards v. Sanford, 211. Richards v. Citizens Nat. Gas. Co., 208. Richardson v. Atkinson, 352. Richardson v. Coal Co., 114. Richardson v. N. Y. C. Ry., 216, 217. Richardson v. Ashby, 363. Richardson v. Roberts, 310. Richmond v. Fisk, 268, 270. Richmond, etc., Co. v. Hudgins, 428. Rhoda V. Annls, 153, 380. Rhodes v. Dunbar, 402. Rhodes v. Rogers, 200. Richey v. McBean, 252. Richmond Gas Co. v. Baker, 212. Richmond v. Long, 113. Rick V. Saginaw Co., 218. Ridehout v. Knox, 45, 63. Rider v. Kite, 250. Rider v. Syracuse, etc., Ry., 434, 436. Ridgeway v. Downing Co., 141. Riewe v. McCormlck, 197, 200. Reiford v. Montgomery, 354. Rigney v. Chicago, 50. Riggs V. Denniston, 302. Riggs V. State, 42. Riley v. Simpson, 414. Riley v. Harris, 450. Riley v. Lidtke, 279. Rinehart v. Bills, 275. Ripon, Earl of, v. Hobart, 418. Rippy V. State, 53. Riser v. Southern Ry., 186. Ritchie v. Stenius, 308. Ritchie v. Walker, 151. Ricketts v. Chesapeake, etc., Ry., 203. Roach V. Damon, 193. Roath V. DriscoU, 62. Robb V. Carnegie Bros. & Co., 417. Robbins v. Barton, 371. Robbins v. Swift, 346. Roberts v. Camden, 307. Robbins v. Swift, 243, 262. Robert Mary's Case, 285. Roberts v. Mathews, 409. Roberts v. Missouri, etc., Co., 80, 169. Roberts v. Roberts, 316. Roberts v. Western Un. Tel., 499. Roberts v. Yarboro, 360. Robertson v. Edelstien, 305. Robertson v. Old Col. Ry., 75. Robinson v. Berry, 125. Robinson v. Bird, 183, 354. Robinson v. Blake Mnfg. Co., 165. Robinson v. Burleigh, 361. Robinson v. Cone, 441, 445. Robinson v. Jones, 294. Robinson v. McNeil, 150. Table of Cases. Ixxiii Robinson v. Storm, 389, 391. Robinson v. Superior Rapid Transit Ry., 203. Robinson v. W. U. T. Co.. 103. Roblin V. Kansas City, etc., Ry., 158. Robshaw v. Smith, 329. Robson V. North Eastern Ry. Co., 23. Roche V. Sawyer, 458. Rocliport V. Rockport Granite, 414. Rockport Granite Co. v. Bjornholm. 162. Rodenhausen v. Craven, 403. Rodgers v. Nowill, 385. Roe V. Winston, 136. 138. Rosel V. State, 305. Rogers v. Kennebec Steamboat Co., 76. Rogers v. Elliatt, 403. Rogers v. Stewart, 414. Rolland v. Batchelder. 293. Rommel v. Schambacker, 156. Rommey Marsh v. Trinity House, 92. Rooney v. Sewall, etc., Co., 168. Rooney v. Woolworth, 457. Root V. Stevenson, 126. Root V Sturdivant, 271. Rose V. Miles, 408. Rosenthal v. Weir, 492. Rosenthal v. Weir, Pres'dt 18. Ross V. Butler, 402. Ross V. Hixon, 254. Ross V. Johnson, 353, 359. Ross v. Leggett, 246. Ross V. Pynes, 381. Ross V. Ward. 320, 331, 334. Roswell V. Prior, 412. Roth V. Shupp, 244. Rothmiller v. Stein, 367, 376. Rothschild v. Mack, 370. Roulston V. McCelldnd, 359. Rounds V. D. L. & W. Ry., 148, 151. Rourke v. White Moss Colliery Co., 136. Rouse V. Detroit Elec. Ry., 235. Roiix V. Blodgett, etc., Co., 172. Rowell V. Boston, etc., Ry., 151. Roy V. Goings, 255. Royce v. Oakes, 347, 348. Rudd V Darling, 34. Rudder v. Koopman, 405. Rundle v. Del. & Raritan C. Co., an. Runyan v. Cent. Ry. of N. J., 2U0. Rushworth v. Taylor, 360. Russell v. Cottom, 341. Russell V. Dayton Coal Co., 156. Russell V. Hudson Ry., 180. Russell V. McCall, 226. Russell V. The Men of Durham, 107. Russell V. Morgan, 250. Russell V Pittsburg & C. Ry., 75. Russell V. W. U. T. Co., 104. Russen v. Lucas, 240. Russia Cement Co. y. Le Page, 390. Rutherford v Foster, 233. Rutherford v Paddock, 319. Rutland Ry. v. Bank, 364. Ryalls V. Leader 326. Ryan v. Louisville, etc., Ry., 432. Ryan v. New York Central, 91. Ryan v. Towar, 467- Ryerson v. Bathgate, 458. Rrlands v. Fletcher, <.\6, 448. S. Sabre v. Mott, 54, 192. Sadler v. Great Wes. Ry., 41d. Sadler v. Henlock, 134. St Helen's Smelting Co. v. Tiping, 402, 406. St. Louis V. Heitzeberg Packing Co., 398. St Louis, etc , Ry. v. Adcock, 160. St Louis, etc., Ry. v. Anderson, 239. St. Louis, etc., Ry. v. Biggs, 23s>. St. Louis, etc., Ry v. Bragg, 96. St Louis, etc., Ry. v. Lyman, 207. St. Louis, etc., Ry. v. Hecht, 442. St. Louis, etc.. Ry. v. Irwin, 171. St. Louis, etc., Ry. v. MeKinsey, 227. St. Louis, etc., Ry. v. Rexi'oaJ, 445. St. Louis, etc., Ry. v. Thurmond, 178. Ixxiv Table of Cases. St Louis, etc., Ry. v. Weakly, 222. St. Louis, etc., Ry. v. Weaver, 178. St Louis, etc., Ry. v. Wilson, 203. St. Louis, etc., v. Youley, 451. St. Louis Cordage Co. v. Miller, 83, 84. St. Louis Iron Mountain etc., Ry. V. Wilson 10. St. Louis Iron Mt. Ry. v. Yonly, 143. St. Louis S. W. Ry. v. Moss, 225. St. Paul, etc., Ry. v. Olson, 238. Saginaw, The, 197. Salem India Rubber Co. v. Adams, 378. Salisbury v. Erie Ry., 144, 452. Salisbury v. Green, 193. Salisbury v. Herchenroder, 93. Salladay v. Dodgeville, 209. Salter v. City of Columbus, 511. Salt Springs Bank v. Wheeler, 353. Salvln V. North Brancepeth Co., 401, 407, 505, 506. Sanipson v. Hammond, 348. Samuel v. Payne, 245, 246. Samuel Bros. v. Hostetter Co., 392. Sanborn v. Morrill, 362. Sanderson v. Caldwell, 226, 227. Sanderson v. Haverstick, 352. Sanderson v. Nor. Pac. Ry., 98, 496. Sander's Admx. v. Louisville, etc., Ry., 234. Sanford v. Pawtucket, etc., Ry. 135. San Antonio, etc., Ry. v. Griffin, 246. Sans V. Joerris, 298. Sarch v. Blackburn, 80. Sartwell v. Parker, 250. Saum V. Cofflet, 126. Saunders v. Baxter, 327. Saunders v. City of Ft. Madison, 109. Saunders v. Teape, 342. Sauter v. N. Y. C. Ry., 209. Savage v. Jackson, 371. Savage v. Smythe & Co., 353. Savage v. Stevens, 369. Savannah, etc., Ry. v. Beavers, 468. Savannah, etc., Ry. v. Quo, 155. Savlle V. Jardine, 312. Savin V. Roberts, "257, 259. Sawyer v. Davis, 48, 217. Sawyer, In re, 511. Saxlehner v. Eisner & Mendelson Co., 387, 393, 394. Saxon V. Castle, 257. Scammon v. Chicago, 143. Schaefer v. Osterbrink, 127. Schaffer v. Fond du Lac, 108. Sohaffner v. Ehrman, 17. Schaufs Admin'r. v. City of Padvi- cah, 469. Scheffer v. Washington, etc., Ry., 92. Schenck v. Schenck, 295. Schillinger v. U. S., 16, 39. Schink v. Strong, 125. Schmld v. Humphrey, 87. Schmidt v. Mesmer, 378. Schnaderbeck v. Worth, 271. Schneider v. Williams, 386. Schnell v. Blohm, 275. Schoepflin v. Coftey, 299. School Dist. V. Bragdon, 121. School District v. WUlams, 105, 112. Schooner, Robt. Lewers v. Kekau- oha, 197, 232. Schreiber v. Sharpless, 230. Schroeder v. Flint, 177. Schubert v. J. R. Clark Co., 453. Schumpert v. Southern Ry., 183. 186. Schutte V. United Electric Co., 149. 453. Schwalbach v. Shinkle, etc., Co. 414. Scott v. Hodges, 354. Scott V. Manchester, 108. Scott V. Rogers, 185. Scott V. Sampson, 318. Scott V. Shepherd, 92. Scott V. Stansfield, 34, 321. Scott V. Watson, 121. Scovlll V. Griffith, 353. Sea Gull, The, 232. Table of Cases. l.NXV Scale V. Baker, 374. Seale v. Gulf etc., Ry., 90, 438. Seamaa v. Cuppledick, 52. Seaman v. Nethercllft, 321. Searle v. Kanawha Ry., 454. Searles v. Scarlett, 304, 514. Sears v. Lyons, 201. Seaver v. Adams, 277. Sears v. Dennis, 437. Seaward v. Paterson, 517. Seawell v. Car. Cent. Ry., 155. Secretary of State In Council of India v. Kamachee Boye Sahaba, 37. Sceor V. Harris, 316. Seely v. Blair, 335. Seeley v. Briggs, 126. Seeley v. Peters, 341. Seger v. Barkhamsted, 213. Seifert v. City of Brooklyn, 36. Seifter v. Brooklyn, etc., Ry., 90. Selleck v. JamesviUe, 209. Selman v. Wolfe, 195. Selway v. Fogg, 378. Sentell v. New Orleans Ry., 44. Serjeant v. Blunt, 356. Seroka v. Kaltenburg, 118. Setton V. Tex., etc., Ry., 457. Sesler v. Montgomery, 295. Severlnghaus v. Beckman, 312. Sewall V. N. Y., etc., Ry., 436. Seward v. Vera Cruz, 232. Seyfer v. Otoe County, 436. Shadden v. McElwee, 321. Shafter v. Ahalt 317. Shafer v. Grimes, 229. Shafer v. Lacock, 428. Shainwald v. Lewis, 226. Shanaban v. City of Madison, 120. Shapiro v. Michelson, 269. Sharp V. Evergreen Township, 87. Shartle v. Minneapolis, 204. Shaw V. Cable Company, 487. Shaw V. Coffin, 121. Shaw V. Chic, etc., Ry., 222, 223. Shaw V. Earl of Jerssy, 508. Shay V. Thompson, 77. Shayne v. Evening Post Pub. Co., 230. Shea V. Mabry, 374. Shea V. Milford, 349. Sheahan v. Collins, 31. Shearer v. Evans, 358. Sheehorn v. Darwin, 21. Sheffill v. Van Deusen, 294. Shelley v. City of Austin, 441. Shelton v. Healey, 370. Shephard v. Chicago, etc., Ry. Co., 100. Sheppard v. Wakeman, 317. Shepheard v. Whitaker, 295. Shepherd v. Baer, 297, 331. Sheridan v. Charlick, 151. Sherlock v. Ailing, 234. Sherlock v. Louisville, etc., Ry., 239. Sherman v. Cong. Miss. Soc, 114. Sherman v. Langham, 407. Sherman v. Parish of Vermilion, 107, 110. Sherrill v. West. Un. Tel. Co., 492. Shervin v. St. Jos., etc., Ry., 178. Sherwin v. McKie, 208. Sherwood v. Chace, 311. Shields v. Younge, 232. Shingleur v. West. Un. Tel. Co., 486. Shinglemeyer v. Wright, 296. Shipley v. Fifty Associates, 410, 447. Shirley v. Billings, 155. Shivley v. Cedar Rapids, etc., Ry., 47. Shoe Co. V. Saxey, 2S6. Shorter v. People, 52. Schulwitz V. Delta Lumber Co., 147. ShurtlefE v. Parker, 300. Shurtleff v. Stevens, 325, 327. Shuter v. The City, 108. Sias V. Rochester Ry., 421. Sibley v. Story, 360. Sikes V. .Tohnson, 121. Sikes V. Tlppins, 275. Sillars v. Collier, 332. Simar v. Canady, 369. Simmons v. Everson, 63, 414, 448. Ixxvi Table of Cases. Simmons v. Richards, 241. Simmons v. Lillystone, 352. Simmons v. Mitchell, 309. Simmons v. Sikes, 352. Simmons v. Van Dyke, 247, 248. Simmons C. F. Med. Co. v. Mans- field Co., 386. Simons v. Burnham, 304, 309. Simonds v. Baraboo, 439. Simpson v. Keokuk, 208. Simpson v. Grayson, 282. Simpson v. Mercer, 219. Simmonds v. Homes, 57. Simon v. Goodyear, 373. SImone v. Kirk, 161. Simonton v. Loring, 148. Sims V. James, 354. Sims V. Macon etc., Ry., 442. Sinclair v. Stanley, 191. Sinclair v. Tarbox, 201. Singer Manuf. Co. v. Domestic Sewing Mach. Co., 512. Singer Mfg. Co. v. June Mfg., 390. Singer Mfg. Co. v. King, 361. Singer Manufacturing Co. v. Rahn, 130, 135. Singer Man'fg. Co. v. Stephens, 145. Singleton v. Pelton, 459. Simpson v. Grayson, 284. Six Carpenters's Case, 346. Skelton v. Skelton, 504. Skinner v. Grant, 320. Skoglund V. Minn. Street Ry., 119. Slater v. Jewwett, 181. Slater v. Mersereau, 206. Slater v. Swan, 270. Slattery v. Colgate, 454. Slaughter's Admin, v. Gerson, 378. Slayton v. Barry, 124, 125. Slight V. GutzlafE, 413. Slingerland v. Int. Contg Co., 198. Sloane v. Southern Cal. Ry., 97, 497. Sloniker v. Great Nor. Ry., 422. Smalley v. Smalley, 201. Smithurst v. Barton Square, Church, 455. Smith V. Archer, 353. Smith V. Ashley, 297. Smith V. Bagwell, 200, 201. Smith V. Baker, 158, 224. Smith V. Bradstreet Co., 304. Smith V. Bricker, 374. Smith V. Buchecker, 320. Smith V. Burrus, 261, 335. Smith V. Chic, etc., Ry., 159. Smith V. City of Brooklyn, 62. Smith V. City of New Castle, 439. Smith V. City of St. Joseph, 117, 120, 279. Smith V. Clark Hardware, 452. Smith V. Collyer, 507, 508. Smith V. Comm., 272. Smith V. Compton, 292. Smith V. Condry, 215. Smith V. Countryman, 370. Smith V. Cranshaw, 249. Smith V. Davenport, 127. Smith V. Donohue, 343. Smith V. Durham, 361. Smith V. Elliott, 411. Smith V. Erie Ry. Co., 161. Smith V. Poran, 185. Smith V. Giddy, 446. Smith V. Gold etc.Tel. Co., 482. Smith V. Grove. 347. Smith V. Ingram, 339. Smith V. James, 348. Smith V. Johnson & Co., 95. Smith V. King, 255. Smith V. L. & N. Ry., 152, 459. Smith V. McDowell, 505. Smith V. Mich. Buggy Co., 260. Smith V. Milwaukee Building, 144. Smith V. Matthews, 318. Smith V. Milwaukee, etc.. Ex- change, 140, 455. Smith V. Minor, 312. Smith V. Mitchell, 409. Smith V. Morse, 45. Smith V. Nashua & L. Ry., 359. Smith V. Norfolk, etc., Ry., 435, 441. Smith V. Parker, 366. Smith V. Pelah, 406. Smith V. Phillips, 410. Table of Cases. Ixxvii Smith V. Rochester, 109. Smith V. Savannah Ry., 459. Smith V. Sedalia, 112. Smith V. Selingsgrove Borough, 110. Smith V. Smith, 227. 258, 311, 331, 338 Smith V. State, 241. Smith V. Taylor, 118. Smith V. Trimhle, 421. Smith V. Tripp, 421. Smith V. Western Un. Tel. Co., 473, 477, 486, 496. Smith Kline & Co. v. Smith, 370. Smithwick v. Hall, 435. Smoot V. Mobile, etc., Ry., 167. Smyth V. Ames, 480. Snead v. Bonnoll, 242, 246. Sneeden v. Harris, 262. Snook V. Town Council of Bradford, 340. Snow V. Pitchburg Ry., 155. Snow V. N. Y. etc., Ry., 90. Snowbrog v. Nelson-Spencer Co., 172. Snyder v. Andrews, 294. Snyder v. Cabell, 402. Snyder v. Hopkins, 503. Soane v. Knight, 335. Solverson v. Peterson, 303. Solomon v. Manhattan Ry., 429. Soltau V. DeHeld, 506. Somerville v. Hawkins, 328. Sone V. Sone, 271. Sorensen v. Balaban, 281. Sorenson v. Dundas, 241. Southam v. Allen, 315. Southcoce V. Stanley, 458. Southern Bell Tel. Co. v. Francis, Southern Bell Tel. Co. v. McTyer, 451. Southern Express Co. v. Flatten, 271. Southern Kan. Ry. v. Rice, 204. youthpi-n Pac. Ry. v. Seley, 171. Southern Ry. Co. v. Crowden, 120. Southern Ry. Co. v. Machinists Local Union 70, 515. Southern Ry. v. Shaw, 459. South Pla. Ry. v. Rhodes, 160. Southwick V. Stevens, 304. Southworth v. Smith, 362. Sovern v. Yoran, 359. Spackman v. Foster, 357. Spade V. Lynn, 58, 96, 99, 100. Spalding v. Oakes, 220. Spalding v. Preston, 348. Spangler v. St. Joseph, etc., Ry., 155 Sparf V. United States, 305. Spear v. Chapman, 268. Spear v. Cummings, 281. Spear v. Hiles, 201. Spear v. Sweeney, 271. Spees V. Boggs, 426. Spence v. Schultz, 140, 143. Spencer v. Cramblett, 262. Spencer v. Freeholders of Hudson 108. Spencer v. Mount Pleasant Ry., 50. Spleker v. Lash, 386. Spitze v. Baltimore & 0. Ry., 223. Spivey v. Morris, 227. Spokane Truck Co. v. Hoefer, 198 210. Spooner v. Manchester, 355. Spoor v. Spooner, 242. Sportono v. Tourichon, 309. Sproul V. Pillsbury, 296. Squire v. Johns, 315. Squire v. West. Un. Tel. Co., 497. Squires v. Wason Mfg. Co., 331, 383 Sroufe v. Moran Bros. Co., 179. Stack V. Cavanaugh. 126. Stacy, Clarke, The, 157. Stafford v. Chicago B. & T. Ry., 158 Stabler v. Phila., etc., Ry., 235. Staldter v. City of Huntington, 169. Stallings v. Owen, 88. Standard Oil Co. v. Helmick, 172. Stand. Oil Co. v. Murray, 45?. Stanford v. Hurlstone, 509. Stanford v. Howard, 192. Stanley v. Gaylord, 355. State V. Hunter 244. Stansell v. W. U. T. Co., 104, 498. I XXVI 11 Table of Cases. staples V. Schmid, 150, 154, 203. Stark V. Ohetwood, 382. Starkie v. Richmond, 506. Starr v. Bennett, 372. State V. Alve, 510. State V. Avery, 293. State V. Balch, 334. State V. Barr, 78. State V. Bryson, 52. State V. Burpee. 305. State V. Crawford, 506. State V. Davis, 267. State V. Dooley, 192. State V. Elliot, 54. State V. Grant, 245. State V. Haley, 349. State V. Hasklns, 334. State V. Johnson, 52. State V. Jones, 129. State V. Keeran, 196. State V. Lazarus, 56. State V. Lewis, 244. State V. Lonsdale, 329. State V. Lunsford, 241. State V. McDanlel, 31. State V. Melton, 52. State ex rel. Lasserre v. Michels, 121. State V. Moore, 243. State V. Monroe, 269. State V. Mott 397. State V. Oliver, 120. State V. Omaha Nat. Bank, 348. State V. Parrott, 195. State V. Patterson, 55. State V. Paul, 196. State V. Rankin, 415. State V. Sherman, 52. State V. Shepard, 266. State V. Shoemaker, 295. State V. Southern Ry., 89. State V. Taylor, 399. State V. Telephone Co., 475. State V. Stewart, 71, 290. State V. Webster, 77. State V. Wolever, 34. State Mut. Life v. Baldwin, 293. State ex rel. Webster v. Nebraska Telephone Co., 475, 476, 478. Staten v. State, 52. Staub V. Benthuysen, 297, 298. Stausfeld v. Boiling, 57. Steamboat New World v. King, 422. Steamship Co. v. Ingebregsten, 165, 166. Steams v. Marsh, 363. Stearns v. Mills, 35. Stearns v. Ontario Spinning Co., 428. Stearns v. Sampson, 191. Stebbins v. Dean, 229. Steel V. Lester, 186. Steel V. Southeastern Ry., 134. Steel Co. V. Marney 437. Steele v. May, 148, 155. Steele v. Southwick, 302, 303. Steiner Brothers v Clisby, 375. Steinhauser v. Spraul, 183. Stemper v. Raymond, 254. Stenberg v. Wilcox, 456. Stephen v. Commissioners, 134. Stephens v. So. Pac. Ry., 156, 221. Stephens v Elwall, 182, 354. Stephens v. Myers, 266. Stephens v. Wilson, 244. , Stephensen v. Little, 89. Stephenson v. Hall, 281. Stephenson v. Price, 205. Sterling v. Warden, 190. Sterling Remedy Co. v. Gory, 388. Sterling Remedy Co. v. Spermine, 384, 388. Stern v. La Compagnie Generale Transatlantique, 11. Sterry v. Foreman, 317. Stevens v. Beekman, 507, 508. Stevens v. Chamberlain, 175. Stevens v. Hartwell, 298. Stevens v. Midland Counties Ry., 115. Stevens v. O'Neill, 202. Stevens v. Wiley, 363. Stevenson v. Love, 16. Stevenson v. Morris, 119. Table of Cases. Ixxix Stevenson v. Pucce, 404. # Stevens v. Sampson, 326. Stevenson v. Wallace, 140. Steward v. Gromett, 250. Steward v. Young, 38i. Stewart v. B. & O. Ry., 217, 234. Stewart v. Benninger, 193. Stewart v. Calif. Imp. Co. 137. Stewart v. Ferguson, 163, 426. Stewart v. Major, 312. Stewart v. Sonneborn, 251, 254, 255. 257. Stewart v. Southard, 35. Stewart v. Stearns, 369. Stewart v. Tribune Co., 318. Stickney v. Allen, 364. Stock V. Boston, 108. Stockdale v. Hansard, 320. Stockdale v. Onwhyn, 89. Stocker v. Planet Building Soc, 508. Stodghill V. Chic, etc., Ry., 212. Stokes V. Saltonstall, 425. Stone V. Boston, etc., Ry., 90. Stone V. Carlan, 391. Stone V. City of Seattle, 111. Stone V. Croker, 254. Stone V. Denny, 374. Stone V. Dry Dock etc., Ry., 441. Stone V. Hills, 151. Stony Creek Woolen Co. v. Smal- ley, 370. Storm V. Green, 201. Storrs V. City of Utica, 140. Storrs V. Feick, 341. Story V. Downey, ±19. Story V. State, 54, 192. Stoudt V. Shepherd, 284. Stout V. Sioux City, etc., Ry., 460. Stout V. Wren, 77. Stoutenbourgih v. Plow, Gilman, etc. Co., 172. Stowell V. Lincoln, 198. Stowell V. Otis, 349. Stranahan Bros. Catering Co. v. Coit, 153, 154. Strand v. Griffith, 360, 378. Strang v. Bradner, 153, 380. Strauss v. Pr-ancis, 336. Strauss v. Meyer, 322. Stregel v. Moore, 339. Strohl V. Levan, 127. Stroop V. Swapts, 118. Strode v. Clement, 323. Strouse v. Leiff, 118. Stuart V. Bell, 66, 323, 324, 328, 330. Stuart V. F. G. Stewart Co., 390. Stuart V. Phelps, 351. Stuart V. West End Ry., 168. Stuart V. W. U. T. Co., 103. Stubbs V. MulhoUand, 251, 255. Studwell V. Shapter, 125. Stumm V. Hummel, 275. Sturgis V. Society, 140. Sturgis V. Keith, 205. Stuyvesent v-. Wilcox, 192. Styles V. P. R. Long Co., 453. Sullivan V. Dunham, 340. Sullivan v. Jones & Laughlin Steel Co., 408. Sullivan v. Louisville & N. Ry., 147, 156. Sullivan v. Tioea Ry., 209. Sullivan v. Union Pac. Ry., 232. Summerfleld v. W. U. T. Co., 104. Summers v. Daviess County, 106. Sumner v. Beeler, 243, 244. Sumner v. Utley, 316. Sun Life Assur. Co. v. Bailey, 293, 300. Sund«rlin v. Bradstreet, 329. Sunman v. Brewin, 319. Sun Printing Co v. Schenck, 292. Surocco V. Geary, 44. Supreme Lodge v. Unverzagt, 260. Susquehanna Fertilizer Co. v. Ma- lone, 407. Sutton V. Huffman, 283. Sutton V. McConnell, 256. Sutton V. Morris 219. Sutton V. Wanwatosa, 87. Suydam v. Moore, 186. Svendsen v. State Bank, 18. b Table of Cases. Swalnson v. North E. Ry., 175. Swan V. Tappan, 382. Sweeney v. Old Col., etc., Ry., 420. 456. Sweeney v. Gulf, etc., Ry., 179. Sweet V. Postal Tel. Co. 482. Sweetapple v. Jesse, 308. Sweetland v. Lynn & B. Ry., 439. Sweeney v. Baker, 335. Swepson v. Davis, 253. Swift V. Broyles, 417. Swift V. Dickerman, 95, 100. Swift V. O'Neil, 172. Swift V. Rounds, 367. Swim V. Wilson, 183, 354. Swire v Francis, 380. Swords V. Edgar, 456. Syracuse Knitting Co. v. Blanchard, 15, 366. Syracuse Selar-Salt Co. v. Rome, etc., Ry., 401. Sykes v. Lawlor, 281. Sykes v. Sykes, 384. Taber v. Jenny, 348. Tabert v. Tipper, 336. Tacoma Ry. & Power Co. v. Pacific Traction Co., 503. Tagg V. McGeorge, 168. Taggard v. Innes, 60, 62. Talbot V. Prederickson, 13. Tarbell v. Rutland Ry., 75. Tarbutton v. Tenville, 110. Tarleton v. Lagarde, 804. Tapley v. Blabey, 318. Tarry v. Ashton, 140. Tatton V. Wade, 379. Taylor v. Carpenter, 393. Taylor v. City of Owensboro, 110. Taylor v. Commercial Bank, 380. Taylor v. Commercial Bank, 366. Taylor v. Cole, 339. Taylor v. Coolidge, 201. Taylor, etc., Ry. Co. v. Warner, 139. Taylor v. Geo. Marble Co., 178. Taylor v. Green, 132. Taylor v. Haddonfield, etc., Co.,457. Taylor v. Hawkins, 328. Taylor v. Hearst, 295. Taylor v. How, 295. Taylor v. Manchester & C. Ry., 28. Taylor v. Marfcham, 53. Taylor v. Mayor, 110. Taylor v. Penn. Co., 217. Taylor v. Perkins, 313. Teagarden v. McLaughlin, 121, 127. Tedescki v. Berger, 506. Teleg. & Cable Co. v. Wells, 490. Telegraph Co. v. Frith, 498. Telegraph Company v. Telephone Company, 475, 476, 478. Telephone Co. v. Shaw, 339. Terry v. Davis, 260. Terry v. Hooper, 315. Terry v. Hutchinson, 129, 282. Terry v. Munger, 26, 224. Terwilliger v. Wands, 94, 316, 317. Tewksbury v. Bucklin, 341. Texarkana, etc., Ry. v. Anderson, 198. Texas, etc., R. Co. v. Archibald, 80 Texas, etc., Co. v. Carr 222. Texas, etc., Ry. v. Coaroy, 171. Texas, etc., Co. v. Echos, 158. Texas, etc., Ry. v. Humble, 119. Tex., etc., Ry. v. Scoville, 156. Tex. & P. Ry. v. Barret, 425. Thayer v. Boston, 111. Thayer v. Brooks, 214. Thamagan v. Womack, 20U. Thibault v. Sessions, 318. Thillman v. Neal, 271. Thirkfield v. Mountain View Ceme- tery, 202. Thomas y. Altoona, etc., Ry., 134. Thomas v. Central Ry. of N. J., 9". Thomas v. Cincinnati, etc., Ry., 515 Thomas v. Harrington, 140. Thomas v. Jackson, 316. Thomas v. Lancaster Mills, 9Z. Thomas v. Maysvihe Gas Co., 451. Thomas v. Oakley, 507, 508. Table of Cases. Ixxxi Thomas v. Quartermalne, 79, 430. Thomas v. Rumsey, 299. Thomas v. Turck, 246. Thomas v. West Un. Tel. Co., 493, 494. Thomas v. Winchester, 424, 453. Thompson v. Berry, 56. Thompson v. Gibson, 411. Thompson v. Moesta, 353. Thompson v. Phoenix Ins. Co., 371. Thompson v. Pioneer Press, 319. Thompson v. Rose 351. Thompson v. Rubber Co., 254. Thompson v. Sun Pub. Co., 307. Thompson v. West. Un. Tel. Co., 484, 488. Thomson v. Winchester, 385. Thorley v. Lord Kerry, 301. Thorne v. Prentiss, 378. Thornton v. Smith, 413. Thornton v. Taylor, 53. Thorogood v. Bryan, 443. Thorogood v. Robinson, 350. Thorp V. Smith, 375. Thorpe v. Brunsfltt, 415, 416. Thorpe v. Wray, 201. Thrall v. Lathrop, 355. Thurston v. Blanchard, 352. Thurston v. Hancock, 63. Thurston v. Martin, 212. Thurston v. Ummon, 264. Thyng v. FItchburg Ry., 165. Tibbetts v. Knox, etc., Ry., 143. Tidd V. Overell, In re Tidd, 239. Tiffany v. Boatman's Bank, 235. Tifft V. TIfft, 127. Tillett V. Ward, 343. Tllman v. Beard, 244. Times Pub. Co. v. Carlisle, 291. Timlin v. Stand. Oil Co., 414. Timothy v. Simpson, 244, 246. Tindle v. BIrkott, 375. Tinker v. Colwell, 275. Tinker v. Morrill, 353. Tisdale v. Major, 'loS. Titus V. Bradford, etc., Ry., 163. Tobias v. Harland, 382. Tobin V. West. Un. Tel. Co. 491. Todd V. Hastings, 314. Todd V. Hawkins, 329. Tolohester, etc., Co. v. Steinmef.. 152, 154. Toledo, Ann Arbor & N. M. Ry., v. Pennsylvania Co., 517. Toledo Brewing, etc., Co. v. Bosch. 162. Toll V. Thomas, 116. Tolman v. Syracuse, etc., Ry., 432. Tomlin v. Hlldreth, 109, 111. Tomlinson v. Warner, 258. Tompson v. Dashwood, 295. Tonawanda Ry. v. Munger, 420. Toogood V. Spyring, 66, 323. Toose V. St., 306. Tootle V. Clifton, 417. Toplitz V. Bauer, 363. Torpy V. Johnson, 220. Torrey v. Black, 223. Torrey v. Field, 322. Totton V. Sun Pub. Assoc, 304. Town V. Hazen, 350. Town of Hutchinson v. Filk, 411. Towne v. Wiley, 125, 356. Towns V. Vicksburg, etc., Ry., 179. Townsdin y. Nutt, 119. Townsend v. Cowles, 372. Townsend v. Epstein, 63, 409. Townsend v. Hughes, 307. Townsend v. Wathen 465, 466. Toy V. U. S. Cartridge Co., 166. Trabing v. Cal. Nav. Co., 202. Trade-Mark Cases, 387. Train v. Boston Disinfecting Co., 43. Trammell v. RusselvIUe, 244. Transportation Co. v. Standard Oil Co., 71, 74. Traylor v. Horrall, 350. Treadwell v. Whittier, 424. Trebby v. Publishing Co., 305, 320, 327. Trenton Mutual Life, etc., Co. v. Perrine, 115. Treschman v. Treschman, 193. Trigg V. St. Louis, etc., Ry., 97. Ixxxii Table of Cases. Trigg, W. R. Co. v. Lindsay, 166, 178. Trimble v. Whithin Mach. Wlcs., 165. Trimmer v. Hiscock, 315. Trollope V. London B. T. Fed., 513, 514. Trott V. Warren, 352. Trotter v. McLean, 205. Troxler v. Soutliern Ry., 83, 156, 171. Troy, etc., Ry. v. Commonwealtli, 39. Trudo V. Anderson, 354. True V. Intern. Tel Co., 482. True & True Co. v. Woda, 426. Truesdell v. Combs, 33. Trumbull v. Gibbons, 295. Trussell v. Scarlett, 329. Tryon v. Pingree, 242. Tuberville v. Savage, 266. Tubbs V. Tukey, 248. Tucliachinsky v. Lehigh, etc., Co. 80, 406. Tucker v. Howard, 506. Tucker v. Wright, 364. Tuff V. Warman, 433. TuUay V. Reed, 56. Tuller V. Talbot, 147. Turess v. N. Y., etc., Ry., 469. Turley v. Boston Ry., 147. Turner v. Brock, 226. Turner v. Great Northern Ry., 96. 101. Turner v. Miriield, 506. Turner v. North Car. Ry., 87. Turner v. Stallibrass 8, 17. Turner v. St. Clair Tunnel Co., 218. Turnpike Company v. News Com- pany, 475. Turnpike Co. v. Stewart, 443. Tarrill v. DoUoway, 307. Tuttle V. Atlantic City Ry., 99. Tuttle V. Detroit, etc., Ry., 171. Tuttle V. White, 205. Twycross v. Grant, 228. Tyler v. City of Lansingburgh, 49. Tyler v. Western Un. Tel. Co., 473, 484. Twigg V. Ryland, 406. Twilley v. Perkins, 247. U. Udell V. Atherton, 380. Kline v. N. Y. C, etc., Ry., 417. Ulshowski V. Hill, 453. XJlvey V. Jones, 56. Union Mut. Life Ins. Co. v. Thomas, 321. Union Pac. Ry. v. Barnes, 15, 366. Union Pac. Ry. v. Jarvis, 160. Union Pac. Ry. v. McDonald, 343, 464. Union Pac. Ry. v. Ray, 208. Union Pac. Ry. v. Rollins, 440. Union Steamship Co. v. Claridge, 181. Union Stockyard Co. v. Mallory, 349. United Railways v. Deane, 4. Upham V. Barbour, 363. Upjohn V. Board of Health, 419. Uppington v. City of New York, 133, 134. Upton V. Times-Democrat, 219. Upton V. Tribelcock, 371. Upton V. Vail, 371. U. S. of Shakers v. Underwood, 226. U. S. V. Clark, 42. U. S. V. Cole, 411. U. S. V. Dixon, 44. U. S. V. Duluth, 505. U. S. V. Paquete Habana, 208. U. S. ex re}. Guaranty Trust Co. v. Haggerty, 501. U. S. Tel. Co. V. Gildersleeve, 485. United States v. Lee, 39, 40. United States v. Lynah, 16, 46. United States v. Richardson, 266. U. S. Tel. Co. V. Wenger, 496. Upton V. Hume, 318. Usill V. Hales, 327. Uthermalen v. Boggs Run Co., 471. Table of Cases. V. Valparaiso v. Hagen, 112. Valpy V. Sanders, 224. Van Antwerp v. Linton, 184. Van Avery v. Union Pae. Ry., 182. Van Derveer v. Sutphin, 318. Van Deusen v. Newcomer, 248. Van Hoboken v. Mohns, 291. Van Horn v. Van Horn, 70, 288, 300. Van Leuven v. Lyke, 449. Vance v. Courier Journal Co., 333. Vance v. Vance, 237. Vanderbilt v. Mathls, 25l! Vandiver v. Pollak, 220. Van Duzen Gas Co. v. Schelies, 440. Vane v. Lord Barnard, 504. Vann v. McCreary, 255. VanValkenburg v. Thayer, 344. Vasse V. Smith, 122, 125. Vau^an v. Congdon, 32. Vaughan v. Watt, 361. Vegelahn v. Gunter, 68, 71. 72, 286. Veith V. Hope Salt Co., 426. Velzian v. Lewis, 354. Venal v. Core, 254. Venard v. Cross, 409. Vemol V. Vernol, 378. Vernon v. Keys, 377. Vetaloro v. Perkins, 234. Victor Coal Co. v. Miner, 85. Victorian Ry. Commissioners v. Coultas, 97, 98. Victory, The, 430. Vilas V. Mason, 351. Village of Carterville v. Cook, 92. Village of Culbertson v. Holiday, 423. Village of Orleans v. Perry, 440. V-illage of Pine City v. Munch, 47. Villepigue v. Shular, 129. Villars v. Monsley, 302, 313. Vinal V. Core 247. Vincent v. McNamara, 225. Vincent v. Stinehour, 58. Vinson v. Flynn, 190. Virginia C. Ry. v. Sanger, 426. Vittum V. Gllman, 229. Vizetely v. Mudie's Select Library, 297. Vocht V. Keuklence, 119. Volkmar v. Man. Ry., 428. Vosbeck v. Kellogg, 134, 135. Vosburg V. Putney, 270. Vose V. Lancashire, etc., Ry., 159, 173. Vossel V. Cole, 283. Volz V. Chesapeake Ry., 178. Vulcan V. Myers, 385, 387. W. Wabash Printing Co. v. Crum, 200. Wabash Ry. v. Brown, 222. Wabash, etc., Ry. v. Peyton, 181. Wabash Ry. v. Savage, Haver v. Cent. Ry., 155. Wachsmith v. Merch. Nat. Bk., 243. Wachsumth v. Shaw Co., 167. Wade V. Kalbfleisch, 229. Waide V. Nat. Bank of Commerce, 261. Wade V. Nat. Bank of Tacoma, 257. Wadsworth v. Boston, 428. Wadsworth v. W. U. T. Co., 103. Wadsworth v. West. Un. Tel., 489. Wagaman v. Byers, 311. Waggoner v. Jermane, 412. Wagner v. Jayne Chem. Co., 167. Wahl V. Meth. Ep. Cem., 401, 416. Wahl V. Walton, 244, 245. Wainford v. Heyl, 117. Wakelin v. London, 431. Walden v. Peters, 383. Walden v. West. Un. Tel. Co., 498. Waldron v. Hoverhill, 107. Walker v. Borland, 205. Walker v. Chic, etc., Ry., 452. Walker v. Davis, 124. Walker v. First Nat. Bank, 18} 357. Walker v. Fuller, 201. Walker v. Hannibal, etc., Ry., 150. Walker v. Vicksburg, etc., Ry., 233 Ixxxiv T^BLE OF Cases. Walker v. West. Un. Tel. Co., 490. 494. Walkley v. Bostwick, 282. Walkowski v Penokee, etc.. Mines 167. Wall V. Livezay, 425. Wallace v. Cannon 87. Wallace v. Merimack, etc., Co., 86. Wallace v. Southern Cotton Oil Co., 135. Waller v. Lock, 329, 330. Walley v. Deseret Nat. Bank, 363. Wallula Pac. Ry. Co. v. Portland, 503. Wain V. Wain, 223. Walsh V. Assoc, of Master Plum- bers, 515. Walsh V. Pitchburg Ry., 470. Walter v. County Comm'rs, 413. Walters v. Eaves, 374. Walton V. N. Y., etc., Co., 150. Wamsley v. Atlas Stetmsliip Co., 10, 353. Wandsworth Board v. United Tel. Co., 338. Warax v. Cincinnati, etc., Ry., 183, 186. Ward V. Blackwood 210. Ward V. Clark, 352. Ward V. Conn. Pipe Co., 208. Ward V. Maine C. Ry., 434. Ward V. Moftett, 364. Ward V. New Eng. Fiber Co., 139. Ward V. People, 345. Ward V. Weeks, 299, 300. Ward V. West Jersey Ry., 97, 99. Warder v. Whitish, 378. Wardner-Bushnell Co. v. Harris, 358. Ward Rooks v. Alabama, etc., Ry., 93. Ware v. Cartledge, 295. Waring v. Clarke, 197. Warning v. Gaskell, 363. Warnack v. People, 225. Warner v. Bacon, 212. Warner v. Mo. Pac. Ry., 331. Warner v. Press Pub. Co., 295, 318. Warner v. Southall, 306. Warnock v. Mitchell, 293. Warr v. Jolley, 286. Warren v. Boston, etc.. Railway Co., 100. Warren v. FitchbuTg Ry., 424. Warren v. Manchester St. Ry., 445. Warren v. Warren, 277. Wartman v. Swindell, 198, 269. Washburn v. Oilman, 206. Washer v. Slater, 248. Washington Gas Light Co. v. Lans- den, 91, 116, 299. Wash. & Geo. Ry. v. Hickey, 207. Wasmer v. D. L. & W. Ry., 438. Wason V. Walter, 327, 332. Wasson v. Mitchell, 35. Waterer v. Freeman, 249. Water Co. v. Ware, 140, 141, 144. Waterman v. Hall, 344. Waters-Pierce Oil Co. v. Davis, 452. Watkin v. Hall, 298. Watkins v. Junker, 208. Watkins v. Kaolin Mant. Co., 102. Watson V. Cross, 5. Watson V. Dills, 97, 99. Watson V. Jones, 373, 374. Watson V. McCarthy, 313. Watson V. New Milford Water Co., 63, 417. Watson V. Rindernecht, 54, 270. Watson V. Town of New Milford, 417. Watson V. Tex., etc., Ry., 213. Watson V. Trask, 303. Watson V. Vanderlash, 316. Watt V. Potter, 361. Watts V. Praser, 296, 299. Watts V. Kinney, 214. Waukesha Hygeia Min. Spring Co V. Waukesha, 411. Way V. Chicago, etc., Ry., 88. Way V. Powers, 151. Weakley v. Page, 506. Weakley v. Pearce, 353. Table of Cases. Ixxxv Weaver v. Ashcroft, 364. Weaver v. Devendorf, 35, 36. Weaver v Ward, 60. Webb v. Beavan, 310. Webb V. Cecil, 381. Webb V. Drake, 72. Webb V. Fisher, 31. Webb V. Portland Man-ifacturing Co., 198. Webber v. St. Paul City Ry., 229, 230. Webster v. Norwegian, 234. Webster v. Rome, etc., Ry., 436. Weed v. Ballston Spa, 439. Weeks v. Currier, 374. Weeks v. Schorer, 177. Weeks v. Sharer, 157. Weet v. Brockport, 111. Weinstock v. Marks, 391. Weir V. Hoss, 294. Weiser v. Holzman, 452. Weiss V. Penn. Ry., 431, 433. Welch V. Boston & A. Ry., 222. Welch V. Durand, 272. Welch V. Mohr, 355. Weldon v. Harlem Ry. Co., 149. Welle V. Celluloid Co., 170. Weller v. McCormick, 455. Wellington v. Downer Ker. Oil Co., 452. Wellman v. Sun Publishing Co., 302. Wells v. Abrahams, 13. Wells V. Cook, 375. Wells V. Howell, 341. Wellston Coal Co. v. Sjiith, 83. Weltmar v. Bishop, 305, 315. Wenman v. Ash, 295. Wennhak v. Morgan, 295. Wentworth v. McDuffie, 353, 356. Wescott V. Middleton, 403. Wesson v Washburn Iron Co., 409. West V. Cabell, 243. West V. Hanrahan, 307, 310. West V. Louisville, etc., Ry., 413. West y. Walker, 503. West V. West. Un. Tel Co., 488. Westbrook v. Mobile, etc., Ry., 445. West Point I. Co. v. Reymert, 503, 504. Westerfleld v. Levis, 445. Western & A. Ry. v. Bailey, 459. Western & A. Ry. v. Ferguson, 435. Western, etc., Ry. v. Young, 207. Western Co. v. Wilmarth, 258. Western Counties Co. v. Lawes Chem. Co., 382. Western Granite Co. v. Knicker- bocker, 396. Western Ry. of Ala. v. Milligan, 147. West. Un. Tel., Co., 83 Fed. 992, 486. W. U. Tel. Co. V. Ayers, 103. West. Un. Tel. Co. v. Bates, 496. West. Un. Tel. Co. v. Beals, 485, 498. West. Un. Tel. Co. v. Blanchard, 484. West Un. Tel. Co. v. Broesche, 488, 492, Western Un. Tel. Co. v. Call Pub. Co., 478, 479, 481. West. Un. Tel. Co. v. Church, 496. West. Un. Tel. v. Coggin, 497. West. Un. Tel. Co. v. Cook, 486. West. Un. Tel. Co. v. Crall, 4S5. West. Un. Tel. Co. v. Crawford, 498. West. Un. Tel. Co. v. Crider, 482. W. U. T. Co. V. Crocker, 103. West. Un. Tel. Co. v. Cross, 493. West. Un. Tel. Co. v. Cunningham, 482. Western Un. Tel. Co. v. Dubois, 490, 497. Western Un. Tel Co. v. Fatman, 498. Western Un. Tel. Co. v. Ferguson, 101, 103, 104, 477, 478. Western Un. Tel. Co. v. Fontaine, 474. Western U. T. Co. v. Foster, 149. West. Un. Tel. Co. v. Goodbar, 485. Western Un. Tel. Co v. Griswold, 474, 482, 484, 485. West. Un. Tel. Co. v. Hall, 495. West. Un. Tel. Co. v. Harding, 492. West. Un. Tel. Co. v. Harvey, 494. Ixxxvi Table of Cases. Western U. T. Co. v. Henderson, 103, 492, 493. West. Un. Tel. Co. v. Hines, 496. West. Un. Tel. Co. v. Howel, 485. West. Un. Tel. Co. v. Jennings, 493. Western Union Tel. Co. v. Krich- baum, 19. W. U. T. Co. V. Lawson, 103, 498. West. Un. Tel. Co. v. Longwell, 498. West. Un. Tel. Co. v. McGuire, 482. West. Un. Tel. Co. v. McLaurin, 498. West. Un. Tel. Co. v. Mathews, 493. West. Un. Tel. Co. v. Meek, 472. West Un. Tel. Co. v. Merediths, 487. West. Un. Tel. Co. v. Merrill, 498. W. Un. Tel. Co. v. Morris, 486, 497. Western Un. Tel Co. v. Mossier, 482. Western Un. Tel. Co. v. Myatt, 481. West. Un. Tel. Co. v. Neel, 483, 492. Western Un. Tel. Co. v. Neill, 474, 485. Western Un. Tel. Co. v. Pendleton, 481. West. Un. Tel. Co. v. Power, 482. Western Union Tel. Co. v. Pritchett, 66. Western Un. Tel Co. v. Reynolds Bros. 475, 481. W. U. T. Co. V. Rogers, 104. W. U. T. Co. V. Seed, 103, 498. West. Un. Tel. Co. v. Short, 484, 496. West. Un. Tel. Co. v. Schriver, 488. Western Un. Tel Co. v. Sklar, 104. Western Union Tel. Co. v. Snod- grass, 10. W. U. Tel Co. V. State, ex rel. Ham- mond Elevator Co., 477. West. Un. Tel. Co. v. Stevenson, 484. W. Un. Tel. Co. v. Swearingen, 493. West. Un. Tel. Co. v. Tenton, 490. W. U. T. Co. V. Waller, 104. West. Un. Tel. Co. v. Whitson, 494. West. Un. Tel. Co. v. Wilhelm, 487. Western Union Tel. Co. v. Williams, 341. West. U. T. Co. v. Wilson, 19, 488, 496. W. U. T. Co. v. Wood, 104. West. Un. Tel. Co. v. Woods, 496. Westervelt v Demarest, 372. Westfield v. Mayo, 218. Westlake v. Westlake, 277. Westmoreland, etc.. Gas Co. v. Dfc Witt, 64. Weston V. Weston, 275. Wetmore v. Mellinger, 260. Weyl V. Sonoma Valley Ry., 50. Whatman v. Pearson, 151. Wheal V. W. R., 248. Wheeler v. Grand Trunk Ry., 434. 435. Wheeldon v. Lowell, 193. Wheeler v. Baars, 153, 378. Wheeler v. Lawson, 345, 348. Wheeler v. Nesbit, 251. Wheeler Savings Bank v. Tracy, 212. Wheeler & Wilson Co. v. Boyce, 202. Wheeler & Wilson Co. v. Jacobs, 125. Wheelock v. Lee, 236. Wheelock v. Noonan, 509. Whelock V. Wheelwright, 355. Whipple V. Puller, 261. Whistler v. Ruskin, Times, 336. Whitaker v. Warren, 129. White & Co. V. Fitch, 371. White V. Elwell, 193. W^hite V. Lang, 86. Wliite V. Mellen, 383. White V. Norfolk, etc., Ry., 155. Whithead v. Keyes, 241. Whitfield v. S. E. Ry., 296. Whitford v. Panama Ry. Co., 216. Whiting v. Price, 377, 378. Whitmore v. Brown, 507. Whitney v. Hitchcock, 281. Whitney v. Clarendon, 212. Whitney v. Whitney, 121. White V. Ashley Co. 263. White V. Carrol, 323. White V. Carr, 256. White V. Mellen, 382. White V. Murtland, 282. White V. Nichols, 302, 321. Table of Cases. Ixxxvli White V. Osborn, 362. White's Case 6. White V. White, 121. Whitsett V. Ransom, 268. Whitson V. May. 258. Whittaker v. Stangvick, 508. Whitten v. Bennett, 249. Whitten v. Doolittle's Executor, 264. Whitten v. Fitzwater, 367. WhitUer v. Dietz, 387. Whittington v. Gladwin, 315. Witcha, etc., Ry. v. Beebe, 212. Wiedmer v. .\^ Y. El. Ry., 428. Wieman v. Mabee, 325. Wier V. Allen, 381. Wier's Appeal, 407. Wiggin V. Coffin, 253. Wiggin V. Coffin, 251. Wiggin V. St. Louis, 144. Wilcock's Case, 364. Wilcox V. Chicago, 109. Wilcox V. Moon, 293, 295. Wilcox V. Zane, 456. Wildee v. McKee, 289. Wiley V. West J. Ry., 92, 94. Wilkes V. Hungerforo Mark Co. 409. Wilkins v. Standard Oil Co., 373. Wilkinson v. Howell, 250. Will V. Postal Tel. Co., 485. Willett V. St. Albans, 418. Willey V. Carpenter, 271. Wm. Johnson & Co. v. Johansen, 19V. 430. Williams v. Gesse, 353. Williams v. Hays, 60, 61. Williams v. Hill, 317. Williams v. Holdredge, 313. Williams v. Jones, 150. Williams v. Los Angeles Ry., 507. Williams v. McFadden, 368. W|lliams v. Nor. Pac. Ry.. 100. Williams v. Parker, 46. Williams v. Pope Mfg. Co., 215, 216. Williams v. Powell, 346. Williams v. Pullman Car Co.. 153. Williams v. Pullman Palace Car Co., 146. Williams v Smith, 304, 360. Williams Adm'r v. Southern Ry. Co., 152. Williams v. St. L., etc., Ry., 239. Williams v. Tex., etc., Ry., 445. Williams v. Underbill, 101. Williams v. Williams, 277. Williamson v. Freer. 294, 296. Williamson v. Jones, 504. Williamson v. Louisville Indus. School, 113. Willard v. Holmes, 254. Willamette Valley, The. 11. Wiley V. Alleghany, 108. Willis V. Armstrong Co., 93. Willis V. Atlantic, etc., Ry., 159. Willis V. Warren, 44. Wilkinson v. Downton, 101. Willock V. Penn. Ry., 222. Wilman v. Mizer, 373. Wilson V. Alabama, 42. Wilson V. Bowen, 197. Wilson V. Bret, 422. Wilson V. City of Troy, 208. Wilson V. Dubois, 383. Wilson V. Fitch, 318. Wilson V. Knubley, 228. Wilson V. Merry, 163. 165. Wilson V. MacKenzie, 42. Wilson V. McLaughlin, 359. Wilson V. Mayor, 36. Wilson V. Meyer, 508. Wilson V. Nichols, 370. Wilson V. Noonan, 96, 146. Wilson V. Phoenix Co., 340, 399, 405. Wilson V. Phoenix Powder Co.. 63. Wilson V. Tumman, 145. Wilson V. Wheeling, 204. Wilson V. White, 143. Wilt V. Welsh, 125. Wiltse V. Holt, 248. Wilton V. Middlesex Ry. Co.. 128, 280. Ixxxviii Table of Cases. Winkler v. Carr. & N. W. Ry., 452. Winn V. Rutland, 411. Winner v. Oakland, 442. Winnett v. Adams, 510. Winsette v. Hunt, 314. Winsmore v. Greenbank, 274. Winston's Adm'r v. 111. Cent. By., 186. Winter v. Atkinson, 192. Winterbottom v. Lord Derby, 408, 410. Winters v. Kan. City Ry., 445. Wintringham v. Lafoy, 344, 351. Wirtz V Eagle Bottling Co., 389. Wise V. Morgan, 453. Wiser v. Lawler, 367. Wiskie v. Montello Granite Co., 178. Witham v. Kershaw, 199. Witherspoon v. Blewett, 361. Wixon V. Newport, 110. Wofford V. Meeks, 304, 305, 307. Wolf V. Banereis, 118, 119. Wolf V. Des Moines Elec. Co., 455. Wolf V. Frank, 277. Wolf V. Kilpatrick, 414. Wolf V. Ferryman, 247. Wolf V. West. Un. Tel. Co., 483. Wolff, L., Mfg. Co. V. Wilson, 431. Womack v. West. Un. Tel Co., 485. Wood V. Cobb, 137. Wood V. Graves, 243, 262, 263. Wood V. Lane, 241. Wood V. Manley, 193. Wood V. Wood, 123. Wood V. Young, 201. Woodard v. Mich. So. Ry., 217. Woodbeck v. Keller, 319. Wooden v. Western, etc., Ry., 215. 216, 233. Wooden Ware Co. v. U. S., 105, 339. Woodling V. Oxiey, 245. Woodman v. Hubbard, 87. Woodman v. Hubbard, 355. Woodman v. Met. St. Ry., 140. Woodruff V. Bradstreet, 304, 309. Woods V. FinneU, 261. Woods V. Pangburn, 227. Woods V. Wiman, 325. Woodward v. Washburn, 242. Woodworth v. Hascall, 363. Woodworth v. Gorsline, 225, 227. Wolf V. Chalker, 196, 342, 406. Woolworth V. Meadows, 298, 306. Worcester v. Marchant, 129. Worden v. Cal. Fig Syrup Co., 392. Workman v. Mayor, 109. Workman v. New York, 113, 197. World Pub. Co. v. Mullen, 307. Wormouth v. Cramer, 294. Wort V. Jenkins, 202. Worthen v. Love, 450. Worthington v. Mencer, 441. Worthington v. Waring, 512. Wright V. Bank of Met, 206. Wright V. Big Rapids Co., 133. Wright V. City of Crawfordvsille, 392. Wright V. City of St. Cloud, 4S9. Wright V. Clark, 59. Wright V. Compton, 186. Wright V. Court, 247. Wright V. Leonard, 118. Wright V. Northampton, etc., Ry. 180. Wright V. Wilcox, 153, 186. Wrisley, Allen B., Co. v. Iowa Soap Co., 388. Wunder v. McLean, 414. Wurmser v. Stone, 264. Wyatt V. Buell, 321. Wyckoff V. Howe Scale Co., 390. Wykoff V. Stevenson, 360. Wyllle V. Palmer, 138. Wyman v. Leavitt, 96, 101. Wynee v. Parsons, 303. Y. Yalev. Seely, 193. Yarmouth v. France, 81. ' Yates V. Lansing, 31, 321. Yeager v. Burlington, etc., Ry., 168 Yeates v. Reed, GO, 308. Yeomans v. Contra Costa Co., 181. Table of Cases. Ixxxix Winchell v. Waakesha, 112. Wing V. Milliken, 205. York V. Chicago, etc., Ry., 135. York V. Pease, 325. Youl V. Harbottle, 355. Youmans v. Smith, 299, 322. Young V. Gormley, 100, 102. Young V. Muhling, 122. Young V. Vaughan, 344. Young V. W. U. T. Co., 103, 483, 488, 489, 495, 497, 498. Z. Zachary v. Pace, 861. Zeigher v. Danbury, etc., Ry., 181. Zelifl Y. Jennings, 91, 311. Zinn V. Rice, 263. Zulkee v. Wing, 185. THE LAW OF TORTS. INTRODUCTORY CHAPTER. The Antiquity of Torts :— The Recerfy of Text Books on Torts. Although the earliest form o^egal liability, known to our Anglo-Saxon and Xorman ancesto^, was quite similar to the present tort,' legal text-books upon tort in English law are very modem. The earliest treatise of value was published in this coun- try, in 1859,- and was followed me uoxl year in England by a larger work,' which still maintains a leading place among the increasing multitude of books on this fascinating topic. It is true that an attempt was made, as early as 1720, to systematize the case law upon the subject, but it was not very successful.* The volume has been dismissed by eminent authors with brief flings.' Perhaps it deserves their contemptuous comments. It is serviceable, however, as showing the modemness of this branch of English law and the antiquity of the principles upon which it rests. In comparison with recent treatises on Torts it appears fragmentary in the extreme. Although professing to be " a methodical collection of all the cases concerning actions on the case for torts and wrongs," ' " To exact for all injuries both Cases Concerning such Actions, to person and property, a payment (The name of the author is not in money to the person injured, ap- given.) pears to have been the first form of ' In the dedicatory letter to Jus- legal liability for injuries to pri- tice Holmes, Sir Frederick Pollock vate persons alike in Greece, in refers to this book as " remarkable Rome, and among the Teutonic chiefly for the depths of historical Tribes." Markby's Elements of ignorance which it occasionally re- Law, 5 600. veals." The Law of Torts, First •Hilliard on Torts. Ed., p. vi. 'Addison on Torts. Mr. Bishop expressed the opinion • The Law of Actions on the Case, that the book should be passed over for Torts and Wrongs; Being a as though it did not exist. Non Methodical Collection of all the Contract Law, S 3, n. 1. 2 The Law of Torts. it is limited to five topics. Actions for " Trover and Conversion of joods," for " Malicious Prosecutions," for " Nuisances," for " Dis- :eits and on Warranties," and " On the Comnion Custom against Carriers and Innkeepers," cover the entire field of Torts and Wrongs, according to the view of this anonymous author. We know that these were not the only actions for torts which were then in use, and the reports of which were then accessible to the student of English case law. Possibly, however, the five topics discussed in this volume embraced most of the cases which were deemed im- portant, and covered the field of ordinary tort litigation of that period. Certain it is, that the rules of English law relating to torts had not then been systematized, and that neither the bench nor the bar had any conception of a Law of Torts. They were familiar with various species of civil wrongs, such as assault and battery, false imprisonment, deceit, defamation, nuisance and the like, but they were entirely innocent of any knowledge of legal classification, which would unify these miscellaneous instances and reduce them to a well defined and " individual branch of the law." Beginning of Modern Theory of Torts. Sir Frederick Pollock, writing in 1886," declared that the really scientific treatment of the principles of torts " begins only with the decisions of the last fifty years." Fifteen years earlier, another writer had asserted that " the English lawyers had not yet made any attempt to define torts." ' In 1882, an accomplished and learned judge ' of the New York Court of Appeals opened a notable opinion with these words : "' We have been unable to find any accurate and perfect definition of a tort. Between actions plainly ex contractu and those as clearly ex delicto there exists what has been termed a border-land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coinci- dent as to make their practical separation somewhat difficult. The text-writers either avoid a definition entirely, or frame one plainly imperfect, or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes." "Pollock on Torts, Dedicatory 'Judge Finch in Rich v. New Letter, p. vi. York Central Ry., 87 N. Y. 382. ' Markby's Elements of Law, § 670. Introductory Chapter. 3 Indefiniteness of the Term. Although, during the last twenty years, text-books on torts have multiplied rapidly, and liti- gations involving the nature of a tort have been well-nigh innumer- able, neither a complete theory of torts nor a perfect definition of a tort has yet been attained. A very able and original writer thought to clear up all obscurity of the subject, by extending " torts to the natural partition line in the legal field, and making it Non-Contract Law." In his opinion, " there is not in the entire law any other division so plain and distinct, so completely one subject, so absolutely governed by common fundamental principles, resting in natural reason and recognized by the courts from the earliest dawnings of the common law jurisprudence, and never lost sight of or questioned, as this of non-contract law." These common fundamental prin- ciples he summarizes as follows : " In the whirl of life, each must strive to avoid injuring another; then, when this endeavor is made, whether successfully or not, every man must bear without compensa- tion whatever sufferings or losses come to him. Rights of action proceed alone from violations of duty, never from misfortunes." * Non-Contract Law. Notwithstanding the very positive as- surances of the author, the reader of this book, original as it is in many respects and valuable as it is throughout, will not discover that its scope is much more extensive than that of other leading treatises on torts, nor that all obscurity has vanished and a perfect and simple theory of torts has been presented. Indeed, it is apparent from the author's summary of common, fundamental principles which' has been quoted, that simplicity has been attained by resort to vague if not glittering generalities. Thou Shalt Do no Hurt to Thy Neighbor. Some years before Mr. Bishop set forth his theory of torts. Sir Frederick Pollock had declared that our law of torts, with all its irregular- ities, has for its main purpose nothing else than the development of this precept of Ulpian, "alteritm non laedere " — " thou shalt do no hiirt to thy neighbor." At the same time he asserted that " a com- plete theory of torts is yet to seek." He was not satisfied with so broad and vague a statement of general principles as that contained ' Commentaries on the Non-con- the Every Day Rights and Torts, tract Law, and especially as to By Joel Prentiss Bishop, 1889, pp. Common Affairs not of Contract, or iv., 616. 4 The Law 01^ Torts. ill Ulpian's precept. In the latest edition of this book,'" rue author discloses his dissatisfaction in the following paragraph, which did not appear in the first edition : " Alterum non laedere is to forbear from inflicting unlawful harm in general. As the English Church catechism has adopted Ulpian's words, it belongs to my duty to- wards my neighbor, to hurt nobody by word or deed. To be true and just in all my dealings. But neither the Latin nor English phrase is clear enough to bring out the real, fundamental distinc- tions implied in the fact that we recognize torts as forming an indi- vidual branch of the law." The distinguished author then proceeds to set forth those distinctions somewhat at length, and concludes his account of them with a summary of the ways in which a right of action for a tort can arise in our law, which covers a page and a half of the text. Other Attempts at Simplification. Other writers have at- tempted to simplify this branch of the law by defining a tort as the violation of a right in rem,^^ and declaring that to avoid committing a tort one need only to forbear.^'' Such statements, admirable as they are for brevity and comprehensiveness, are inadequate, if not misleading. Tort may be Negative. — Innkeeper. Not every tort involves an affirmative act. Omission may be tortious as truly as com- mission.^' An honest and respectable traveler enters an inn, calls for lodging and refreshment and tenders the proper price therefor. The innkeeper has unoccupied rooms and abundant supplies, but ignores the guest's demand. He takes no affirmative action. He does not eject the guest, nor does he say a word, nor pay any attention to him. He is simply passive. This omission is an actionable tort. The law imposed upon the innkeeper a duty towards guests, which he has violated. That duty was to receive, and furnish food and lodging at reasonable prices to, all travelers presenting " Pollock on Torts, Sixth Ed., pp. servants to protect a passenger 2 and 19. from the violence of a drunken fel- " Innes, Law of Torts, § 6. low-passenger, was an actionable '^ Austin, Jurisprudence, Lect. tort. " In such cases," said the XIV. court, " the negligence for which "United Railways v. Deane, 93 the company is liable is not the. Md. 619, 49 At. 923, 86 Am. St. R. tort of the fellow-passenger, but 453 (1901) ; holding that the negli- the negligent omission of the car gent failure or omission of railroad rier's servants." Introductorv Chapter. 5 themselves in proper condition, so long as he had room and sup- plies." It was an affirmative duty; a duty that was violated by omitting to act." But it may be said, that had the innkeeper forborne from taking up this semi-public vocation, his failure to receive and provide for the traveler would not have been tortious. Undoubtedly. So had he forborne from being born there would have been no tort by him. The act of becoming an innkeeper simply furnished an occa- sion for his tort. It had no causal connection with it. There was no element of wrongfulness in his taking up the occupation of inn- keeper. His tort consisted solely in omitting to perform the affirm- ative duty of an innkeeper. His forbearance to act was tortious. Other Examples of Negative Torts — of torts of omission as distinguished from torts of commission — are afforded by failures to comply with statutor}- requirements. For instance, a statute imposes upon factory-owners the dut)' (which did not exist at common law) of attaching certain fire escapes to factories, that are more than three stories in height. The owner of such a factory makes no change in his building, fails to obey the statute. A fire occurs and some of his emploj'ees, who could have escaped without the smell of fire on their garments, had the statutory command been obeyed, are badly burned. His omission is tortious. He is liable to an action at law for damages to each of such injured employees." He committed a tort by forbearing to act. "White's Case, Dyer lo8b (1693); "Hawthorne v. Hammond, 1 C. & Conurionwealth v. Mitchell. Parsons' P. 404 (1844). This was an action Cases (Pa.), 431 (1850); Watson v. on the case for damages, by reason Cross, 2 Duvall (Ky.), 147 (1865). of mot being admitted to defend- In the last case it is said: " Ap- ant's Inn at night, after defendant pellant, being an Innkeeper, was had retired. Plaintiff knocked on legally bound to receive and enter- the door and called to defendant, tain all guests apparently responsi- who paid no attention to plaintiff's ble and of good conduct, who might application. Parke, B., in substance come to his house, and if he refused charged the jury that if they found to do so, he was liable alike to an the noise was heard by defendant indictment and an action by the and implied that the persons who party aggrieved." Atwater v. Saw- made It wanted to be admitted as yer, 76 Me. 539 (1884). In this guests, defendant's failure to admit case, plaintiff applied for dinner them was a breach of his common at defendant's inn and was refused, law duty. He recovered eight dollars damages. " Pauley v. Steam Gauge aild 6 The Law of Torts. Tort may Violate Right in Personam. Equally unsound with the general proposition that we have just considered, is that other, (often linked with itj that a tort is a violation of a right in rem. Many, perhaps most, torts are of this character. On the other hand many a tort is a violation of a right in personam'}'' Right ofguest against Innkeeper. Such it is submitted is the Lantern Co., 131 N. Y. 90, 29 N. E. 999 (1892). The court held that the statutory requirements (L. 1887, Ch. 462, % 10) "of fire escapes was for the direct and special benefit of the operatives in such factories, and intended for their protection — that the law of 1887 imposed a duty upon the owners or occupants of the prescribed class of factories, for an omission to per- form which the operatives injured by the OTnission might recover dam- ages." In Parker v. Barnard, 138 Mass. 116, 119 (1883), the court said, " When, In the construction of a building the legislature sees fit to direct by statute that certain pre- cautions shall be taken, or certain guards against danger provided, his unrestricted use of his property is rightfully controlled, and those who enter in the performance of a lawful duty, and are injured by the neglect of the party responsible, have just ground of action against him." In Billings v. Breing, 45 Mich. 65 (1881), it appeared that the law made it incumbent on defendant to exhibit lights on his tugboat at night. He omitted to exhibit them, and such omission was held to be actionable negligence. The defend- ant's tort did not consist in running his tug at night, but in omitting to do what the law commanded him to do. " " There are rights vested in cer- tain determinate persons which are in personam, that is, which are available only against a determi- nate person or persons. Corre- sponding to them are duties laid on the determinate person or persons against whom the right avails as distinguished from the rest of the community. » * * These rights are sometimes acquired as the im- mediate consequence of duties im- posed on determinate persons to- wards certain other determinate persons by whom they are acquired. The breach of the duty Involves the violation of the right, and Is a tort. * * * We have therefore two distinct sets of rights. The first, the three great fundamental rights, which are in rem,; and which are rights not to be damaged in person, reputation, or property by any wrongful act ; the duty being to for- bear from violating them. The injuria is here found in the vio- lating act causing the damage. The second, the special modifications of the three fundamental rights, which spring out of certain rela- tions in respect of which the law fixes certain duties; the modifica- tions being made in respect of cer- tain given individuals on whom the duties, modified to correspond, are laid; being in respect of certain in- dividuals, they are in personam." Plggott's Law of Torts, pp. 6, 13. Introductory Chapter. 7 tort of the innkeeper in the case mentioned above. The traveler's right to entertainment is not a legal right available against all the world. He may be ever so honest and respectable, his wallet may be overflowing with money. He may be weary and hungry to faint- ing. But, he has no legal right to demand from any and every householder along his route lodging and refreshment. This right is available only against such persons as have voluntarily become innkeepers. Nor is it an absolute right against every innkeeper. \Miether the traveler has a legal right to be received and cared for as a guest, depends upon the plight of the inn when he presents himself. If it is full of guests, the innkeeper may ignore the tifeveler's request for entertainment, and may even turn, him curtly away, without violating any right of the jaded and famished traveler.'* Right of Shipper. Again, the tort committed by the common carrier, who neglects to receive or care for goods tendered to him for carriage, is not the violation of a right in rem. The right of the owner to have his goods carried is not one available against the world ; it is available only against a particular person, who has voluntarily subjected himself to the common-law duty to receive and carry, by holding himself out as a common carrier of such g^ds.'° Moreover, the right is not an absolute one, even against such a person. If the latter's means of transportation are fully oc- cupied he may refuse the goods in question, without committing a tort.^" Yet again, the innkeeper, who fails to keep safely his guest's property committed to his care, is liable to a tort action, unless the loss is due to an act of God, or to the public enemy or the guest's " Atwater v. Sawyer, 76 Me. 539 who wished to employ him." " In (1884); Rex v. Ivens, 7 C. & P. 213 effect, refusing to enter into the (1835); Schouler on Bailments (3 appropriate contract is of itself a Ed.), § 318. tort." Pollock, on Torts (6 Ed.), "In Allen v. Sackrlder, 37 N. Y. 513. 341 (1867), it is said, "No one can '"Lovett v. Hobbs, 2 Shower, 127 be considered as a common carrier, (1681); Schouler on Bailments (3 unless he has in some way held Ed.) § 377. He may refuse, also, himself out to the public as a car- if a mob prevents him from doing rier in such manner as to render business. Pittsburgh & C. Ry. v. himself liable to an action if he Hollowell, 65 Ind. 188 (1879). should refuse to carry for anyone 8 The Law of Torts. fault. Such, too, is the liability of the common carrier for goods which he has received for transportation. Torts of this kind are not violations of rights in rem. Neither the guest nor the goods owner has a right against the world, to have his property kept safely. If he delivers it to an ordinary bailee for hire, his right is to have it guarded with ordinary care.-' Any loss or injury not chargeable to the active misconduct or the ordinary negligence of the bailee, must be borne by himself. On the other hand, the inn- keeper or the common carrier who receives this property pursuant to his vocation becomes substantially the insurer of its safety. ^^ As soon as the relationship between guest and innkeeper or carrier is created, the guest or shipper acquires a legal right against the particular innkeeper or carrier, to have this property kept safely. This relationship, it is to be borne in mind, is a conventional one; it is the result of a contract between the parties.^^ To say that the right which the common law confers upon the guest or the shipper, as an incident of such contract, is a right in rem is certainly to wrench that term from its true signification. The right of the guest or the shipper to have particular property kept safely by a particular innkeeper or carrier with whom he has contracted, partakes far more of the nature of a right in personam, than of a right in rem. The tort liability of the innkeeper or the carrier of goods insecurely kept, which have been committed to his care, is said to spring out of contract.-* But for the contract between the parties, the omission of the carrier^" or the innkeeper to save the property from harm, "' Maynard v. Buck, 100 Mass. 40 course, may be implied from tlie (1868) ; Hexamer v. Sonthal, 49 N. circumstances, as well as estab- J. L. 682 (1887). lished by an actual agreement. In "" Mason v. Thompson, 9 Pick, order to raise an implied contract 280, 20 Am. Dec. 471 (1830). of liability on the part of an inn- ^ Bradley Livery Co. v .Snook, keeper for the goods of his guest 66 N. J. L. 654, 50 At. 358 (1901). lost or stolen, it must at least ap- Said the court in this case: " The pear that the guest placed the same liability of the innkeeper for the in his care and keeping." property of his guest placed in his "Rich v. New York Central Ry., care arises out of an express or an 87 N. Y. 382 (1882); Hutchinson on implied contract of bailment. Such Carriers (2 Ed.), §§ 738-740. contractual relation can only arise ="' Cf . Turner v. Stallibrass (1898), where it is apparent, under the 1 Q. B. 56, holding that an action facts, that such was the intention founded on the common law lia- of the parties. A contract, of bility of a bailee is an actiOB Introductory Chapter. 9 unless that omission were willful or negligent, would not be tortious. Agent as Tort Feasor. Of the same character is the tort of an agent who understates the price that has been offered for his principal's property, and appropriates to his own use the difference between the price stated and the price paid. Dealing with a case of this character. Chief Justice Holmes, speaking for the Supreme Judicial Court of Massachusetts, declared: "It is true that, but for the contract of agency, the concealment and misrepresentation might not be a tort. But there are other cases in which a tort is said to spring out of a contract. — \Miether an act is tortious or not always depends upon the circumstances of course, and it hard!}- needs remark that the circumstance of confidential relations should give wrongful character to an act that in a different situation — for instance that of a buyer — would be untouched by the law." ^^ In other words, the right of the principal which was violated by the agent was not a right in rem, but one in personam — a right born of the contract of agency between these two parties. Torts Springing out of Contract. The same doctrine was founded on tort, Collins, L. J., said: " An agreement of minds is pre- supposed in the case of any rela- tion which brings about the com- mon law liability of a bailee to his bailor. Where such relation is established, the result of the cases appears to be that, if the plaintiff can maintain his action by showing the breach of a duty arising at com- mon law out of that relation, he is not obliged to rely on a contract within the meaning of the rule " (relating to costs under a modern statute). ^Emmons v. Alvord, 177 Mass. 466, 59 N. E. 126 (1901). In this case the agent told his principal that the best offer he could get for cer- tain real estate of the principal was $3,000 cash and three lots of land. This offer was accepted by the prin- cipal, who deeded the real estate to th« offer and received the money and three lots aforesaid. In fact, the offer was $3,000 in cash and six lots, and the three lots not conveyed to the principal were conveyed by the offerer to a third person, who was supposed by the offerer to be an agent of the offeree, but who was a tool of the agent. Chief Jus- tice Holmes' intimation is, that had a purchaser told the seller that he was buying to sell again, and that all he could get from a third party with whom he was treating for its purchase, was $3,000 and three lots, when in fact the third party was ready and willing to give $3,000 and six lots, and did give that price to the first purchaser for the property, such falsehood, though Inducing the first seller to transfer the property for less than he could have ob- tained, had he stood out for more, would not have amounted to a tort. 10 The Law of Torts. laid down sixty years earlier, in a leading English case*'' by Chief Justice Tindal. " That there is a large number of cases in which the foundation of the action springs out of privity of contract be- tween the parties, but in which, nevertheless, the remedy for the breach or non-performance is indifferently either assumpsit, or case upon tort, is not disputed. Such are actions against attorneys, sur- geons, and other professional men, for want of competent skill or proper care in the service they undertake to render ; actions against common carriers, against ship-owners on bills of lading, against bailees of different descriptions ; and numerous other instances occur in which the action is brought in tort or contract, at the election of the plaintiff. And as to the objection, that this election is only given when the plaintiff sues for a misfeasance and not for a non- feasance, it may be answered that in many cases it is extremely difficult to distinguish a mere nonfeasance from a misfeasance. But further, the action of case upon tort very frequently occurs where there is a simple non-performance of the contract, as in the ordinary instance of case against ship-owners, simply for not safely and securely delivering goods according to their bill of lading. * * * The principle in all these cases would seem to be that the contract creates a duty, and the neglect to perform that duty, or the non- feasance, is a ground of action upon a tort.^*. " Boorman V. Brown, 3 Q. B. (Ad. Co., 168 N. Y. 533; 61 N. E. 896 & E. N. S.) 511 (1842), affirmed in (1901). The Elizabeth, 114 Fed. R. the House of Lords, II CI. & P. I. 757 (1902). In St. Louis, Iron (1844); Bretherton v. Wood, 3 Mountain etc., Ry. v. Wilson, 70 Brod. & Bing. 54 (1821), accord. Ark. 136; 66 S. W. 661 (1902), de- '^That the non-performance of a fendant's tort consisted in its fail duty, imposed either by statute or ure to keep its passenger waiting- by common law, subjects the non- room properly heated in winter, feasor to a tort action was held In Missouri, Kans. etc. Ry. v. Wood in the following recent cases: Jones 95 Tex. 223; 66 S. W. 449 (1902) V. Rochester Gas & Electric Co., 168 the company's tort was its failure N. Y. 65, 60 N. E. 1044 (1901),— an to prevent a small-pox employee action for the statutory penalty, from escaping while delirious and but the court declares that this was infecting plaintiff. In Western Un- not plaintiff's sole means of re- ion Tel. Co. v. Snodgrass, 94 Tex. dress. Defendant's refusal or neg- 284, 60 S. W. 308, 86 Am. St. R. 851 lect (see N. Y. Transportation Law (1901), a telegraph company was § 65), to comply with plaintiff's de- held liable for failure promptly to mand for illuminating gas was a deliver a message, even though no tort. Wamsley v. Atlas Steamship contract obligation was established; CHAPTER II. NATURE OF A TORT. Its Chief Characteristics. \\'ithout attempting to frame a per- fect definition of tort — a task which appears thus far to have been beyond the power of the English speaking lawyer— we shall be content with describing its leading characteristics. These may be stated briefly as follows : A tort is an act or omission which unlawfully violates a person's right, created by the law, and for which the appropriate remedy is a common law action for damages by the injured person. It will be observed that the right violated is private not public. This differentiates tort from crime. Again, the right is created by the law, not by the agreement of the parties. This is the broad distinc- tion between tort and breach of contract. Still again, the violation of this legal right must be remediable by a common law action for damages. If the redress for the unlawful act or omission had to be sought in a court of equity, or of admiralty, or in an ecclesiastical tribunal, and depends upon principles peculiar to those jurisdictions, the wrong was not accounted a tort by English common law.^ This limitation still attaches to the term, even in jurisdictions where ecclesiastical courts have been shorn of their cognizance of civil wrongs, and where the courts of common law and of equity have been consolidated. Let us consider these three peculiarities of tort more fully. the court holding that the company cases are those of the common law. was under a legal duty to receive Cases of assault and battery, or and promptly deliver the message. other personal injury on board a > Illustrations of such wrongs re- ship on the high seas, are within spectively are afforded by a breach the jurisdiction of admiralty courts, of trust, refusal to pay salvage, but they are decided in accordance adultery of husband or wife. It is with common law doctrines. See to be borne in mind, however, that Stern v. La Campagnie Generale many torts were, and still are cog- Transatlantique, 110 Fed. R. 996 nizable by admiralty courts, but the (1901). The Willamette Valley, 71 legal principles applicable to such Fed. 712 (1896). II 12 The Law of Torts. Tort is distinguishable from crime. The same act or omission may subject the actor or the omittor to a criminal prose- cution and to a civil action for damages. In other words, a single act or omission may unlawfully violate a private right and a public right. Its violation of the former is a tort : its violation of the lat- ter is a crime. For instance, A, without justification or excuse at- tacks B and knocks him down. He has violated B's right to per- sonal security and is liable to an action by him in tort for damages. He has also violated a right of the State, by his breach of the peace and by the injury inflicted upon one of its citizens, thus ren- dering himself liable to a criminal prosecution by the State.'' This differentiation of the tortious from the criminal character- istics of the same act is comparatively modern. " The early ten- dency was * * * to treat offenses against individuals, even when, like theft and homicide, they were a serious menace to the gen- eral welfare, as merely civil injuries to be compensated for by dam- ages." ^ After the idea was clearly grasped that the same act might be injurious to the State as well as to the individual, and ought to subject the wrongdoer to criminal pimishment as well as to the payment of damages to his victim, English Courts foimd themselves perplexed over the relation of these two sets of pro- ceedings. Should the criminal prosecution have precedence over the civil action, or should each proceeding be allowed to progress without hindrance from the other? Merger of Tort in Felony : In England. In the earliest re- ported case,* dealing with this question we have the following statement : " If a man beats the servant of J. S. so that he dies of .the battery, the master shall not have an action against the other for ' " It is sometimes alleged by feet the whole community. The books of authority that the differ- right which is violated by a tort ence between a tort and a crime is is always a different right from that a matter of procedure, the former which is violated by a crime. The being redressed by the civil, while person of inherence in the former the latter is punished by the crim- case is an individual, in the latter inal courts. But the distinction lies case is the State." Holland's Juris- deeper, and is well expressed by prudence, (9th. Ed.) pp. 311, 312. Blackstone, who says that torts are » Holland's Jurisprudence, (9th an infringement or privation of the Ed.) 357. private or civil, rights belonging to * Higgins v. Butcher, Yelv. 89, individuals; crimes are a breach of (1606). public rights and duties which afr Nature or a ToRt. ^3 the battery and loss of the service, because the servant dying of the extremity of the battery it is now become an offense to the crown, being converted into a felony, and that drowns the particular offense and private wrong offered to the master before, and his action is thereby lost." ' From this time on we find dicta in judicial opinions, in di- gests, and in text-books to the effect, that when an act constitutes a felony as well as a tort, the tort is merged in the felony. There is no express decision of an English Court enforcing this doctrine, however, and after undergoing several modifications," " it seems, if not altogether exploded, to be only awaiting a decisive abroga- tion " in England.' Same in America. It has never received judicial sanction in this countr}-,' although judges have shown readiness to adopt a modification of the doctrine, viz. that all civil remedies in favor of a party injured by a felony are suspended until after the termina- tion of a criminal prosecution against the offender." They rested their decisions upon considerations of public policy, asserting that " the public good requires that offenders should be brought to jus- tice; and if a civil remedy- in favor of a party injured, is postponed until a public prosecution has terminated, he will be stimulated to effect this as soon as possible." " These reasons have not met ' According to the reports of this 1, § 20, now repealed and continued case in Noy. 13 and 2 Rolle's by Penal Code, § 720, and by § 1899 Abridg. 575, the only point decided of the Code of Civil Procedure; was that an action of trespass for Mairs v. Bal. & O. Ry., 175 N. Y. causing the death of plaintiff's wife, 409, 67 N. E. 901 (1908). could not be maintained by the hus- • Talbot v. Frederickson, Metcalf's band after her death, the cause of Yelverton, 90 (1813), a nisi priu.i action having died with her. decision of Chief Justice Sewall of ' See Lord Blackburn's historical Mass. In Boardman v. Gore, 15 sketch of the doctrine: Wells v. Mass. 336, 338 (1819), Chief Jus- Abrahams, L. R. 7 Q. B. 554, 560- tice Parker, doubted the propriety 563 (1^76). of this rule and in Boston & Wor- ' Pollock On Torts, (6th Ed.) cester Ry. v. Dana, 1 Gray 83 198. (1854), the rule was rejected in 'As early as 1801 the legislature Massachusetts, of New York enacted that the pri- "Foster v. The Commonwealth, vate remedy in tort should not be 8 W. & S. (Pa.) 77 (1824); Bal- merged in, nor in any way affected lew v. Alexander, 6 Humph. (Tenn.) by the felony, ch. 60 L. 1801, S 19. 433 (1846). Continued in R. S. p. Ill, ch. 4, T. 14 The Law of Torts. with approval, however, and the great majority of our judicial tri- bunals have held that " for an act which happens to be both a public and private wrong the public and the party aggrieved each has a concurrent remedy, the former by indictment, and the latter by an action suited to the particular circumstances of his case." ^' A distinguished Judge of the Court of Appeals of Virginia, after tracing the history of the rule of England, declared ;" I am persuaded that the object of promoting the prosecution of crimes, would be more promoted by allowing the injured individual to prosecute his civil action uninterruptedly, and thus expose all the circumstances of the transactions to the officers of the law, who are bound ex officio to prosecute for the public, than by holding out strong inducements to both parties, to compound the felony, by throwing impediments in the way of the civil remedy." ^^ The Supreme Court of New Hampshire has characterized the English rule as one having no practical use in any country, and has as- serted the belief " that if the civil action and the criminal prosecu- tion go forward together, the public justice will not sustain any de- triment whatever from that circumstance ;" while " to compel the injured party to wait until the prosecution for the offence is ended before he can commence an action must be, as is very well known, in most cases to deny all remedy."'^ The distinction between a tort and a breach of con- tract is broad and clear, in theory. In practice, however, it is not always easy to determine whether a particular act or course of con- duct subjects the wrongdoer to an action in tort, or merely to one for a breach of contract. The test to be appUed is the nature of the right which has been invaded. If this right was created by the agreement of the parties, the plaintiff is limited to an action ex contractu}*' If it was created by law he may sue in tort. A few cases in addition to those cited in the last note, will illustrate the difficulty experienced b\- lawyers in applying this test. Plaintiff brought an action of tort in the nature of deceit, al- "Boody V. Keating, 4 Greenleaf, Rand. (Va.) 204, 226 (1828). (Me.) 164, 166 (1826). This doc- "Pettingill v. Rideout, 6 N. H. trine was abrogated by legislature 454, 456 (1833). in Maine. See Statutes of Me., for " Insurance Co. v. Randall, 74 I'S^i f 102. , Ala. 170. 178 (1883); Junker v. "Allison V. Farmers' Bank, 6 Fobes, 45 Fed. 840 (1891). Nature of a Tort. i s leging' that he had been induced by false statements of the defend- ant to enter into a contract for building thirty miles of the Florida Railway. These statements were, that the defendant had pur- chased a certain quantity of rails at a certain price, and would sell them to plaintiff at the same price, if the latter would enter into the contract to build this section of the road. Plaintiff further alleged that defendant had not purchased any rails, and did not sell and did not intend to sell any rails to the plaintiff; that by reason of the contract into which the latter was induced to enter, he was obliged to purchase a larger number of rails at a higher price than that named by the defendant, to his great injury. Such allegations, the Court held,^" did not state a cause of action in tort. The only legal right of plaintiff which defendant invaded was the right to have de- fendant supply him with the agreed qua.ntit\- of rails at the agreed price. That was a contract right only. Had defendant supplied the rails at the agreed price, the false statement of defendant that he had bought the rails at a specified price would have worked no injury to the plaintiff. In other words, such statement, when separated from the promise, is seen to be legally unimportant and immaterial and not in any way the cause of damage to the plaintiff. Whatever legal injury the plaintiff sustained was due to defend- ant's non-performance of his agreement. Such non-performance was the only legal wrong committed by the defendant. Big'by V. United States: At the opposite extreme from the foregoing case may be placed the following : The plaintiff, while on his way to the marshal's office in the post-office building in Brook- lyn, was injured by the incompetence of the person in charge of the elevator. The building and elevator were owned by the United States, and the person in charge of the elevator was an employee of the federal government. Redress was sought against the United States, under a statute which permits recovery " upon any contract "Dawe V. Morris, 149 Mass. 188, 637 (1898), defendant's statement 21 N. E. 313, 14 Am. St. R. 404 " I can safely promise you that our (1889). In Union Pacific Ry. v. dealings, if you wish to continue Barnes, 64 Fed. 80 (1894), it is said them, will be more satisfactory than " an action for false and fraudulent last season," was held to be a prom- representations can never be main- ise and not a tortious misrepre- tained upon a promise or a pro- sentation, cf. Industrial and Gen- phecy." In Syracuse Knitting Co. eral Trust Co. v. Tod, 170 N. Y. ?33, V. Blanchard, 69 N. H. 447, 43 At. 63 N. B. 285 (1902) . i6 The Law of Torts. expressed or implied, with the government of the United States, of for damages, liquidated or unliquidated, in cases not sounding in tort." Plaintiff's theory was, that the United States entered into an implied contract ^° with him to carry him safely in the elevator, and for a breach of this obligation the government was liable in a contract action. But the court held that the plaintiff was a mere licensee; that the United States entered into no contract either ex- pressed or implied to carry him safely; that whatever duty of care the United States owed to the plaintiff, or whatever right to care the plaintiff possessed against the United States was created by lav/ ; that the duty was the same as that imposed by law upon the owner of the building which he permitted the public to enter and use for the purpose for which it was intended — " the duty to use ordinary care that faciliti.es offered to its licensees should be in a state of reasonable safety," that " a breach of such duty would constitute culpable negligence," and hence that plaintiff's cause of action must be in tort; that it could not be for a breach of con- tract." Plaintiff's Option to sue in Contract or Tort : Between the classes, of which the two preceding cases are representatives, is a numerous and extensive class, where the plaintiff is entitled to sue either in contract or in tort, because the defendant's act is an unlaw- ful interference with the right of plaintiff which is created by agree- ment between them, and also with a right which is created by law. " In United States v. Lynah, 188 the court held that plaintiff's cause U. S. 445, 23 Sup. Ct. R. 349 (1902), of action was for slander of title it is held that when the federal and not for breach of contract. So, government appropriates property if a common carrier receives A as which it does not claim to own, a passenger and his luggage, pur- there is an implied contract that it suant to a contract with B for their will pay the owner its value; while transportation, A's action against if it claims ownership of the thing the carrier for the loss of his lug- appropriated its appropriation is a gage is properly in tort. Marshal' tort, citing for the last proposition, v. York, Newcastle, Etc., Ry., 11 Langford V. U. S., lOlU. S. 345; Hill Com. Bench 655 (1851), cf. Glad- V. U. S., 149 U. S. 593, and Schlllin- well v. Steggall, 5 Bing. N. C. 733 ger V. U. S., 155 U. S. 163. (1839), holding that an action by " Bigby V. United States, 103 Fed. an infant against a physician for 597 (1900), 188 U. S. 400, 23 Sup. mal-practice, where the hiring was Ct. 468 (1902), cf. Stevenson v. by the.inf ant's mother, was properly Love, 106 Fed. 466 (1901), in which ex delicto. Nature of a Tort. 17 Several examples of this class have been given already, in discuss- ing the liability of common carriers,^^ innkeepers,^" and agents,^" These could be multiplied many times; but a few additional illus- trations will suffice for the present. The bailee of a horse, which is injured through his negligence, may be sued either for breach of his contract to treat the horse with ordinary care or for breach of his legal duty to so treat him.^^ A bank, which fails to honor its customer's check without lawful excuse, breaks its contract with the customer and also violates a duty imposed upon it by law. Accordingly the customer may sue either on the contract or for the tort.''^ A grantee of land who, after giving a bond and jnortgage on the premises to the grantor to secure a part of the purchase price, sells and conveys the land to a bona Ude purchaser as unencumbered, and thus enables the lat- ter to hold it free from the mortgage which had not been recorded, is of course liable in contract on the bond; but he is also liable in tort to the mortgagee for w;.rongfully depriving him of his lien on the land.^^ Yet again. . the .i^ee ^. Qf a note induces the plaintiff to sign it as a co-principal wfth the origimfrtnaker by promising not to so use it as to make plaintiff liable for its payment. Thereafter he does negotiate it before due to a bona Me purchaser, who compels plaintiff to pay the note. The payee has broken his promise to plain- tiff, but he is also liable in tort for his fraudulent use of the note with its consequent damage to plaintiff.^* Advantage of Suing in Tort : When a person is entitled to the option of suing another either in contract or in tort, it is ordi- " Supra, p. 10, citing Boorman v. lanta Nat. Bank v. Davis, 96 Ga, Brown, 3 Q. B. (Ad. & E. N. S.) 511 734, 23 S. E. 190, 51 Am. St. R. 139 (1842); Holden v. Rutland Ry., 72 (1895); SchafCner v. Ehrman, 135 Vt. 156, 47 At. 403 (1900). 111. 109, 28 N. E. 917 (1891); Patter " Supra, p. 4, citing Bradley Liv- son v. Marine Nat. Bk., 130 Pa. St ery Co. v. Snook, 66 N. J. L. 654, 50 419, 18 At. 632 (1889); Marzetti v At. 358 (1901). Williams, 1 B. & Ad. 415 (1830). "■ Supra, p 9, citing Emmons v. Al- == Conley v. Blinerby, 20 Misc. (N, vord, 177 Mass. 466, 59 N. E. 126 Y.) 371 (1899). (1901). "Jones v. Crawford, 107 Ga. 325, "Pelton v. Nichols, 180 Mass. 345, 33 S. E. 51 (1889), cf. Met. Elevated 62 N. B. 1 (1902); Turner v. Stall!- Ry. v. Kneeland, 120 N. Y. 134, 24 brass (1898), 1 Q. B. 56, 67 L. J. N. E. 381 (1890); Nashville Lum- Q. B. 52. bar Co. v. Fourth Nat. Bk., 94 Tenn. ^= Davis V. Standard Nat. Bank, 50 374, 29 S. W. 368 (1895). App. Div. (N. Y.) 210 (1900); At- 2 1 8 The Law of Torts. narily to his advantage to elect the tort action. In the case of the bank above referred to, if the customer sues in tort, he is entitled to substantial damages without proof of actual damage ^' certainly if he is a trader,^' while if he sues for a breach of contract to honor his check, his recovery will be limited to a nominal sum, unless he proves actual damage.^^ A plaintiff, suing in tort, may be entitled to arrest the defendant, or to attach his property, and, after judg- ment, to issue an execution against his body, when he could not have had recourse to any of these remedies, had he elected to sue in contract. Moreover, his right of action for breach of contract may be limited by some stipulation in the contract, which limitation he may escape by resorting to a tort action. For example, plaintiff shipped certain goods by an express company to one who had bought them on credit, accepting a bill of lading which limited the company's liability in case of- loss to fifty dollars, at which the prop- erty, it was expressly declared, was valued by the contracting parties.^' Learning that the consignee was insolvent, plaintiff gave notice of stoppage in transitu to the express company, but by rea- son of its negligent failure to properly notify the connecting car- rier to whom it delivered them, the goods were not stopped and returned to plaintiff, but were handed over to the insolvent pur- " Atlanta Nat. Bask v. Davis, 96 ously. Ga. 334. 23 S. E. 190, 51 Am. St. R. "Brooke v. Tradesman's Nat. Bk., 139 (1895), in wtiich case plaintiff 69 Hun (N. Y.) 202 (1893); Bur- was awarded $200 as damages for oughs v. Tradesman's Nat. Bk., 87 the bank's careless refusal to pay a Hun 1 (1895). check of $12.48, although he gave ^Rosenthal v. Weir, Pres'dt 170 no evidence of actual damage to his N. Y. 148, 63 N. E. 65 (1902). It is credit. to be noted that defendant's tort in =• Bank v. Milvain, 10 Vict. L. R. this case was negative. " Defend- 3 (1884); Bank of Commerce v. ant's line did not extend to Dallas, Goos, 39 Neb. 437, 445, 23 L. R. A. but ended at Kansas City, and the 190 (1894) ; Svendsen v. State Bank, delivery complained of was made by 64 Minn. 40, 65 N. W. 1086, 58 Am. the connecting company. There- St. R. 523 (1896) ; J. M. James Co. v. fore, there was in fact no conver- Continental Nat. Bank, 105 Tenn. 1, sion by the defendant, but its fault 58 S. W. 261 (1900) ; American Nat. lay in its failure to properly notify Bank v. Morey, (Ky.), 69 S. W. 759 the connecting carrier. The action (1902). In the last case, the court was, therefore, necessarily brought held that plaintiff was not entitled in its present form and not for con- to punitive damages, in absence of version," (170 N. Y. p. 154). proof that the bank acted malici- Nature of a Tort. ig chasers. For the damages thus sustained plaintiffs sued the com- pany in tort, and were met with the Hmitation clause of the con- tract. But the court held, that as plaintiffs had founded their ac- tion on the tortious negligence of the defendant, and not on the con- tract of carriage, the contract limitation did not modify plaintiff's common law right to recover the actual value of the goods. Disadvantage of Suing in Tort. While it is ordinarily advantageous to the plaintiff to elect a tort rather than a contract remedy, it is not always so. In some jurisdictions, it is held that a person, who has the option to sue a telegraph company in contract or in tort, for its failure to deliver a message, may recover damages for mental suffering and anguish if he chooses the contract action ; while he may not, if he sues in tor't, unless in the latter case he alleges and proves actual injury to his person, reputation or property.^® Again, a plaintiff may have greater difficulty in establishing his cause of action in tort, than in contract. Such was the experience of the plaintiff in a leading New York case ^" — a case worthy of careful study, not only because of this element, but because of its clear analysis of the nature of a tort. While the facts of the case are many and complicated, the following statement is believed to be full enough to bring out the point now under consideration. Richv. Railroad. Plaintiff was the owner of land near defend- ant's depot on Main Street in the City of Yonkers ; and also of land on the Nepperhan river. Defendant changed its depot to an- other part of the City, thus depreciating the value of plaintiff's Main Street property, which was heavily mortgaged. It wished to dispense with a draw over the Nepperhan and substitute for it a solid bridge. Plaintiff objected to this unless defendant paid him for the damage the bridge would inflict upon his Nepperhan prop- erty. Defendant informed plaintiff that unless he consented to the construction of the permanent bridge, it would continue its de- pot at the new site. Plaintiff was thus forced to choose between surrendering his riparian rights on the Nepperhan, and allowing his Main Street property to be lost by depreciation and mortgage " Western Union Tel. Co. v. Krich- of a negative tort, baum. 132 Ala. 535, 31 So. 607 ""Rich v. New York & C. Ry., 87 (1902); West. U. T. Co. v. Wilson. N. Y. 382 (1882), cf. Martens v. 93 Ala. 32, 9 So. 414, 30,^Am. St. R. Reilly, 109 Wis. 464, 84 N. W. 840 23(1890). Thisiff-Snother example (1901). 20 The Law of Torts. foreclosure. He chose the former alternative, and entered into a contract with defendant, by which he surrendered all riparian rights, in consideration of its agreement, " as soon as practicable, and within a reasonable time to build and forever maintain its principal passenger depot for Yonkers " on the Main Street site. Defendant proceeded to build the depot, and, a few months later had it ready for use. Meantime, it had asked the City of Yonkers for permission to close Main Street and to fence in its new depot. Plaintiff insisted that this change would damage his property to the extent of fifty thousand dollars, and the City refused defendant's request, because of the heavy damages the City would have to pay. Defendant then announced, that it would never occupy the new de- pot for passenger use, until the permission was granted. It then, according to plaintiff's allegations, planned a fraudulent scheme for the accomplishment of its purpose. This scheme included a deliberate breach of its contract to restore the depot to Main Street ; a public refusal to occupy and use it in order to depreciate plaintiff's mortgaged property and make the mortgagee feel inse- cure ; and also a direct instigation of the latter, by the defendant, to foreclose the mortgage, cut off plaintiff's interest in the property and execute a release from damages. As soon as this scheme was consummated, and the permission was granted by the City of Yon- kers, defendant opened and used its new depot. That the defendant had broken its contract with plaintiff was clear. Had the latter sued for such a breach, the task of proving his case would have been easy. He chose, however, to sue in tort, and found his way beset with difficulties. The trial court refused to permit him to prove the contract or its breach, because he was not suing on the contract. This ruling was approved by the gen- eral term. It was declared erroneous, however, by the Court of Appeals, which explained the theory of the Complaint and set forth the plaintiff's right thereunder as follows : " There was here, on thte theory of the Complaint, something more than a mere breach of contract. That breach was, not the tort; it was only one of the elements which constituted it. Beyond that and outside of that, there was said to have existed a fraudulent scheme and device by means of that breach to procure the foreclosure of the mortgage at a particular time and under such circumstances as would make that foreclosure ruinous tq the plaintiff's rights, and remove him as . Nature of a Tort. 21 an obstacle by causing him to lose his property, and thereby his means of resistance to the purpose ultimately sought. In other words, the necessary theory of the complaint is, that a breach of contract may be so intended and planned ; so purposely fitted to time, and circumstances, and conditions ; so inwoven into a scheme of oppres- sion and fraud ; so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of con- tract, and become, in its association with the attendant circumstances, a tortious and wrongful act or omission. It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.^"^ 3ut such legal duty may arise, not merely out of certain relations of trust and con- fidence, inherent in the nature of the contract itself, but may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. The duty and the tort grow out of the entire range of facts of which the breach of contract was but one." Extending the Area of Tort. The case, which we have stated thus at length, marks an important advance in the progress of the law of torts.^'' Had it come before a common law tribunal, a century ago, there is little doubt that the ruling of the trial Court would have been affirmed. Certainly the decision of the Court of Appeals would have amazed the anonymous author of " The Law of Actions on the Case for Torts and Wrongs.'^ The lack of prece- dent coupled with plaintiff's acknowledged right of action for breach of contract would have been powerful arguments against the plaintiff.^* At present, neither lack of precedent nor the fact that " In Jones v. Stanly, 76 N. C. 355 ^ Referred to supra, p. 1, as pub- (1877), a recovery was allowed blished A. D. 1720. against the defendant for $3,000 " Cf . Sheehorn v. Darwin. 1 Tread- damages, for maliciously inducing way (S. C.) 196 (1812), in which a railroad corporation, of which he the judge said, " I have never rea:! was President, to break the contract or heard of such an action; though to transport certain freight for such occurrences must frequent'y plaintiff. take place, nor does it bear any " Oliver v. Perkins, 92 Mich. 304, analogy to cases quoted. • • • 52 N. W. 609 (1892), accord. The Court will not be induced to 22 The Law of Torts. plaintiff ma\- bring a contract action is considered a serious obstacle to the maintenance of an action in tort. For example, plaintiff was induced to marry a woman by defend- ant's representations that she was virtuous and respectable. In fact she was pregnant at the time by defendant, and, within a few months after the marriage, gave birth to a child of which delendant was the father. Plaintiff sued defendant for damages, and was met with the defense, among others, that no precedent could be cited for the action. This was admitted, but the New York Court of Appeals declared, " If the most that can be said is that the case is novel, and is not brought plainly within the limits of some ad- judged case, we think such fact is not enough to call for a reversal of the judgment." The Court then proceeded to sustain plain- tiff's recovery on the ground that his right as husband to the conju- gal fellowship and society of a virtuous wife had been wrongfully invaded by defendant ; that such conduct by defendant was a fraud upon plaintiff resulting in damage to him.''' Plaintiff Must Show Breach of Legal Duty. While Courts are not dismayed by a want of precedent from sustaining novel tort actions, they do insist, that the plaintiff's statement of his cause of action shall disclose a legal right on his part which has been wrongfully invaded by the defendant. Or, to put it in another way, they insist upon the plaintiff's showing that defendant's al- leged misfeasance or nonfeasance was a breach of legal duty which he owed to plaintiff. Accordingly, a servant cannot maintain a tort action against his master for refusing to continue him in his employ, after the expiration of their contract, nor for refusing to give him a establish a new form of action, ing of this case Is adopted and fol- without manifest necessity, and lowed In Graham v. Wallace, 63 N. none such appears in this case." Y. Supp. (97 N. Y. St. Rep.) 372 In Murray v. South Car Ry., Mc- (1900), where a female ward, on Mullan Law, (S. 0.) 385, 36 Am. attaining her majority, was allowed Dec. 268, the majority opinion bases to maintain an action in her own the decision (that a master is not behalf against her personal guard- liable to a servant for the injuries ian for damages for her seduction of a fellow servant) chiefly upon by him, when she was under the want of precedent. statutory age of consent, although ^Kujek V. Gtoldman, 150 N. Y. the court found "the action with- 178, 44 N. E. 773, 34 L. R. A. 157, 55 out precedent." p. 373. Am. St. R. 670 (1896). The reason- Nature of a Tort. 23 certificate of character.^" In another case, plaintiff gave to an officer a valid process to serve on an actor. The officer entered defend- ant's theater for the purpose of serving the process, but defend- ant forbade his going to the stage to make personal service, and he returned the process unserved. It was held " that as the officer had the legal right to break the door to the stage as well as to com- mand sufficient force to enter, the cause of the plaintiff's injury, if any, was not defendant's refusal, but the officer's failure to do his duty. Still again, it is not the legal duty of a steam surface railroad company to expressly notify passengers that a train has stopped. If notice is given that a train is approaching a station, which is its " last stop," and where all passengers are to alight, anyone leaving the train before it stops acts at his peril. It is the duty of the Com' pany not to mislead the passenger, by announcing that it is safe fo< him to alight when in fact it is unsafe;'' but it is the passenger's duty to discover whether the train has come to a stop or not. False Statements Causing Damage. Not every false state- ment, made by one person which causes injury to another, consti- tutes an actionable tort. If it did, " a man might sue his neighbor for any mode of communicating erroneous information, such for example, as having a conspicuous clock too slow, since plaintiff might be thereby prevented from attending to some duty or acquir- ing some benefit." A class of false representations which have been held to have no legal effect, are those by which one excites " another to believe that he intends to make him his heir and then leaves his property away from him. Though such conduct may "Cleveland & C. Ry. v. Jenkins, a house, which he declared had he- 174 111. 398, 51 N. E. 811 (1898) ; come worthless to him, because de- New York & G. Ry. v. SchafEer, 65 fendant had murdered one of plain- Ohio St. 414, 62 N. B. 1036 (1902). tiff's servants in it; and the com- Nor does the law impose upon an plaint was held not to state a cause employer the duty of protecting his of action. employee from the violence of a " Mearns v. The Central Ry. of mob of strikers, Lewis v. Taylor N. J., 163 N. Y. 108, 57 N. E. 292 Coal Co., 112 Ky. 845, 66 S. W. 1044 (1900), cf. Bridges v. North Lon- (1902). don Ry. Co. L. R., 7 H. L. 213 "Paulton v. Keith, 23 R. I. 164, (1874); Filer v. N. Y. Cent. Ry., 49 49 At. 635 (1901), cf. Clark v. Gay, N. Y. 47 (1872); Robson v. North 112 Ga. 777, 38 S. E. 81 (1901), Eastern Ry. Co., 2 Q. B. D. 85 ■where plaintift sued for the value of (1876). 24 The Law of Torts. inflict greater loss on the sufferer than almost any breach of con- tract, and may involve greater moral guilt than many common frauds, it involves no legal consequences, unless the person making the representation not only excites an expectation that it will be fulfilled, but legally binds himself to fulfill it." =» Much less will blundering but honest advice, given gratuitously to one who is erecting a structure, create a legal liability against the adviser who acts as a mere volunteer.*" Breach of moral duty may not be a tort. It is a breach of legal duty only which gives rise to a tort action. And this is much narrower than moral duty. " If I know that a villain intends to defraud or in any way injure my neigh- bor, it is doubtless my duty, as a good citizen, and as a Christian man, to put him on his guard. But there is no rule of law which renders me liable for his loss in case of my neglect of duty. It is a moral duty simply ; not one recognized and enforced by law." *^ Waiving Tort and Suing in Contract. In certain cases the victim of a tort may sue the wrongdoer in a contract action, al- though no contract exists between them. For example X takes Y's horse and sells it without the latter's consent. Y has his option to sue X in tort for the conversion of the animal, or to waive the tort and sue in contract for the proceeds of the sale.*'' The latter form of action was devised for " the undisguised purpose of giving a better and more convenient remedy " *' to the injured person than his '» Alderson v. Maddison, 5 Exch. (1886), defendant falsely repre- D. 293, 296 (1880), cf. Hutchlns v. sented that plaintiff would not pub- Hutchins, 7 Hill (N. Y.) 104 (1845). lish a directory of Bristol County Here the defendants, by false rep- in 1885, and thus induced third per- resentations concerning the plain- sons to advertise in and subscribe tiff, induced a third party to revoke for defendant's directory, As a re- his will, devising valuable property suit plaintiff gave up the publlca- to plaintiff, and to execute another, tion of the directory, held plaintiff's depriving him of all the benefits intention to publish a directory wag wliich would have accrued under not property, and no legal right of the first will. Yet it was held that his was invaded by defendant. tie plaintiff had sustained no legal "McCausland v. Cresap, 3 Greene larm — he had no legal interest in (la.) 161, 169 (1851). the property mentioned in the first "Ohio & C. Ry. Co. v. Kasson, 37 will — nothing but a mere naked pos- n. Y. 218, 224 (1867). sibility "which is altogether too "Howe v. Clancy, 53 Me. 130 shadowy and evanescent to be dealt (1865). with by courts of law." Also, "Pollock on Torts (6th Ed.) 520. Dudley v. Briggs, 141 Mass. 582 Nature of a Tort. 25 lort action. If X died after converting the horse and before suit was brought by Y, the latter would be met in a tort action with the defense that the wrong done by X had died with him.** Y was therefore allowed to sue the personal representative of X in a con- tract action for the value of the horse, upon the fiction of an im- plied promise by X to pay the amount, as money had and received by him to Y's use. Speaking of this form of action, Lord Mans- field laid down the rule in a leading case *^ as follows ; " If the de- fendant be under an obligation, from the ties of natural justice, to refund ; the law implies a debt and gives this action, founded in the equity of the plaintiflf's case as it were upon a contract, quasi ex contractu, as the Roman law expresses it." Some of the reasons for encouraging this form of action are stated by Lord Mansfield as follows :*° " One great benefit which arises to suitors from the nature of this action is that the plaintiff need not state the special circumstances from which he concludes that, ex aequo et bono, the money received by the defendant, ought to be deemed as belonging to him : that he may declare generally that the money was received to his use; and make out his case at the trial. This is equally beneficial to the defendant. It is the most favorable way in which he can be sued ; he can be liable no further than the money he has received; and against that may go into every equitable defense upon the general issue; he may claim every equitable allowance ; he may prove a release without pleading it; in short, he may defend himself by everything which shows that the plaintiff ex aequo et bono, is not entitled to the whole of his de- mand or to any part of it.'' Distinction between Quasi-Contract and True Contract. The cases in which an injured party has an option to sue in tort or in quasi-contract, are to be distinguished from those where his op- tion is between a tort action and one for the breach of a true con- tract.*' Failure to observe this distinction has led some eminent "This defense was based on the ant, and the court held that he common law maxim; Actio person- vfa.s entitled to maintain this ac- alis moritur cum persona. tlon for the recovery of the money *> Moses V. Macferlan, 2 Burr. so pafd. 1005, 1008 (1760). The plaintiff in "Ibid. 1010. this case had been compelled, by de- " Supra p. 16, and Boorman v fendant's fraudulent use of promis- Brown, 3 Q. B. (Ad. & E. N. S.) 511 sory notes made by plaintiff, to pay (1842), there cited. a certain sum of money to defend- 26 The Law of Torts. judges to unbound conclusions. For example, it has been held that if an owner of goods, wrongfully converted by several persons, sues one of them in quasi-contract for their value, he thereby makes a final election to treat the transaction as a sale of the goods to such defendant, and cannot subsequently sue the others for " conver- sion." *' In such a case the conversion ought not to be deemed any the less a tort, because a legal fiction permits the owner to sue in assumpsit. There was in fact no sale to the defendant. Indeed, the plaintiff in his quasi-contract action alleges and proves conver- sion by the defendant. The tort is the very foundation of the ac- tion, and what the plaintiff waives, when suing in assumpsit, is more properly described as damages for the conversion, than the tort itself. His election is simply between remedies against this defendant for an act done, and should leave his rights against the other wrongdoers unimpaired, until he has obtained legal satisfac- tion for the wrong.*" It will be noticed that Lord Mansfield limited the right to waive tort and sue in contract to cases where the defendant is bound by " the ties of natural justice to refund " to the plaintiff. He does not intimate that the obligation of a tort-feasor to compensate his victim for injuries inflicted, can be treated as implying a promise to pay damages, and thus be made the basis of a contract action. Nor has a plaintiff ever succeeded in waiying a pure tort, which did not in any way unjustly enrich the defendant, and in maintaining a con- tract action for the damages.*"" In the Louisiana and Missouri cases, "Terry v. Hunger, 121 N. Y. 161; New York, in order to give a rem- 24 N. E. 272 (1890); Carroll v. edy. Is there resorted to, to deny Pethers, 102 Wis. 436; 78 N. W. a right; and the court says there 604 (1889). is no tort where but for the proof "HufEman v. Hughlett, 11 Lea of a tort there could have been no (Tenn) 549 (1883). Keener, Quasi recovery against anyone. The de- Contracts, Chapter 3. The learned cision will probably never be cited author in criticising Terry v. Mun- as illustrating the maxim, In /So- ger, supra, says: " Now, every one tione juris suhsistit equitas," at p. knows that when one man tortiously 212. takes the goods of another, there is ™ Bigby v. United States, 188 U. no sale between the parties; and S. 400, 23 Sup. Ct 468 (1902). At yet the highest court of New York p. 409, Harlan, J. says. " The plain- gravely asserts that there was. In tiff cannot by the device of waiving other words, a fiction to which it the tort committed by the elevator was no longer necessary to resort in operator make a case against the Nature of a Tort. 27 cited in the last note, the plaintifif had been induced by the false rep- resentations of defendant's intestate, that he was unmarried, to marry him and live with hini as his wife. Discovering the deceit after the wrongdoer's death, the plaintiff was held entitled to main- tain an action against his estate for the value of the services ren- dered him, to the extent that she could show that " he wis made richer, or his circumstances improved " thereby.^* Quasi-Delict. The law of Scotland, founded as it is upon the civil law, recognizes not only quasi-contracts, but also quasi-delicts. " Delicts proper," said Lord Watson, in deciding a Scotch case at the bar of the House of Lords, " embraces all breaches of the law which expose their perpetrator to criminal punishment. The term quasi-delict is generally applied to any violation of the common or statute law, which does not infer criminal consequences, and does not consist in the breach of any contract express or implied. Cases may and do often occur in which it is exceedingly difficult to draw the line between delicts and quasi-delicts. The latter class, as it has been developed in the course of the present century, covers a great variety of acts and omissions, ranging from deliberate breaches of the law, closely bordering upon crime, to breaches comparatively venial an4 involving no moral delinquency. "°^ In Louisiana, whose legal rules are also founded on those of the civil law, quasi-oflfense is used in much the same sense as quasi- Government of implied contract. A considering. See the facts stated party may in some cases waive a supra, p. 15. tort * * * but it has been well said " In some states, legislation has that a right of action in contract authorized persons injured by the cannot be created by 'Waiving a tort; fraud or deceit of another to sue in and the duty to pay damages for a assumpsit, for the damages caused tort does not imply a promise to by the Injury, and expressly de- pay them, upon which assumpsit clares, " that a promise to pay such can be maintained," citing Cooper v. damages shall be implied by law." Cooper, 147 Mass. 370, 373 (1888). See Mich. Compiled.Laws, §§ 10, 421, The decision in the latter case is applied in In re Pennewill, 119 Fed. ably criticized in Keener's Quasi 139 (1902). Contracts, pp. 321-325; and is con- '^Palmer v. Wick &c. Company tra to Fox v. Dawson, 8 Martin, 94 (1894), A. C. 318, 326; 6 Rep. 245; (4 La. 47) (1820), and Higgins v. 71 L. T. 168. In this case the quasi Breen, 9 Mo. 493 (1845); but the delict consisted in negligently sup- language, quoted by Mr. Justice plying and using a defective tackle- Harlan, is unexceptionable when block, applied to such a case as he was 23 The Law of Torts. delict in Scotland. " Offenses," said the Supreme Court of the State, " are those illegal acts which are done wickedly and with the intent to injure, while quasi-offenses are those which cause injury to another, but which proceed only from error, neglect or impru- dence." °^ Quasi-Tort. The term quasi-tort appears to be finding its way into our legal nomenclature, but not at all as a synonym of quasi- delict or quasi-offense. In a recent English text-book "* it is said " Suppose a solicitor be employed to transact certain business, and he does not transact it, or does it negligently. In that case the action aganist him might be either an action ex contractu, for breach of contract, or an action ex delicto, for breach of duty in not transact- ing, or in transacting negligently, the business which he had under- taken. Cases of this -kind are classified by some writers as quasi torts." In this sense the term has been used by Lord Justice Lind- ley, in a case where he was called upon to decide whether the action was founded upon contract or tort."" This usage, however, has not commended itself to th^ judiciary either in England or in the United States. "Edwards v. Turner, 6 Rob. (La.) "Rlngwood, Outlines of the Law 382 (1844). The quasi-offense in of Torts, p. 6 (London, 1898). this case was the wrongful seizure, == Taylor v. Manchester ft C. Ry. under a writ of attachment against 11 Times Law Rep. 27 (1894), 43 a third party of plaintiff's steam- W. R. 120, 71 L. T. 596, 64 L. J. Q. boat. B. 6 (1895), 1 Q. B. 134. CHAPTER III. HARMS THAT ARE NOT TORTS. § I. HARM MUST BE UNLAWFUL. If the gist of tort consists in the unlawful invasion of a legal right,* we shall not be surprised to find that one person may inflict harm upon another, without committing a tort. The famous maxim of the Roman Law — sic utere tuo ut alienum laedas — is not a prohibition of every sort of harm, but only of unlawful harm.'' A learned English judge once characterized the maxim as " mere verbiage," adding : " 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 till the law is ascertained ; and when it is, the maxim is superfluous." ^ Whether this irreverent fling at a time-honored maxim was justified or not, the learned judge was quite right in asserting that a party may damage another in person or property without liability to a tort action, provided the law permits it. Let us consider, briefly, some of the typical classes of harm that are not torts. Arrest of Innocent Person. We shall see in a later chap- ter, that our law guards with special jealousy the right of personal liberty; yet frequently it permits an innocent person to be arrested and imprisoned, and denies him any redress for the harm thus in- flicted. For example, a murder has been committed, and X has reasonable cause to believe that Y is the murderer ; the common law permits X to arrest Y and hale him before a magistrate, in the char- acter of imprisoned murderer. Even though Y Is absolutely inno- cent, and though such arrest and charge may cause Y a heavy money loss as well as injure his standing in the community, X has not committed a tort against him.* He must bear the loss, as one ^ Supra, chap. 11 § 1. ^ Ante v- *■ 'Beckwith v. Philby, 6 B, & C. 'Bonomi v. Backhouse, B. B. & 635 (1827). The common law rule E. 622 (1858); Erie, J. at p. 643. stated in the text has been modified 29 30 The Law of Torts. of the incidents of life in organized society. His right to personal liberty is temporarily sacrificed to the higher right of the public security. § 2. DEFAMATION BY LEGISLATORS. Members of Parliament in England, and Members of Congress and of State Legislatures in this country, are not to be questioned in any other place, for any speech or debate.^ While this exemption from liability for the defamation of another is guaranteed to legis- lators by constitutional provisions in express terms, it rests upon well-established principles of the common law. It is not accorded to legislators for their individual benefit, " but to support the rights of the people, by enabling their representatives to execute the func- tions of their office without feir of prosecution, civil or criminal." ° The privilege may be abused, and a private citizen may have his reputation basely defamed without any pecuniary recompense or legal redress. It is true, the house of which the defaming speaker is a member, may force him to retract the slanderous statement on pain of expulsion. But even if it takes no such action, and leaves the private citizen to bear without mitigation the stigma cast upon him, and to sustain any special damage caused to him, it is but one of many cases where '' a private benefit must submit to the public good. The injury to the reputation of a private citizen is of less importance to the commonwealth, than the free and unreserved exer- cise of the duties of a representative, unawed by the fear of legal prosecution." § 3. JUDICIAL officers' EXEMPTION. Similar considerations of public policy operate to exempt judicial in some of our states by statute.- similar clause^ in various state For example in New York, a private constitutions. person may arrest another only 'Coffin v. Coffin, 4 Mass. 1, 2S "for a crime committed or at- (1808). In this case defendant tempted In his presence; or when charged plaintiff With having the person arrested has committed robbed a bank. As this charge was a felony, although not in his pres- not made while acting as a mem- ence." Code of Grim. Proc. § 183. her of the Massachusetts legisla- = Bill of Rights, 1 W. & M. Sess. ture, it was held that defendant was 2 c. 2; U. S. Const. Art. 1, § 6; see not within the exemption. Harms That Are Not Torts. 31 officers from tort liability to persons, harmed by their mistakes, and even by their corrupt misconduct ^ in the performance of their judi- cial function. " Such an exemption is absolutely essential to the very existence, in any valuable form, of the judicial office itself; for a judge could not be either respected or independent, if his motives or conclusions, could be put in question at the instance of every disappointed suitor." ' In order to entitle a judicial officer to this exemption, however, it must apear that his mistake or misconduct occurred during a judi- cial proceeding and was a part of it. If a magistrate should of his own motion, without oath or complaint being made to him, and without color of legal authority, issue a warrant and cause the ar- rest of an innocent person, the one so illegally imprisoned could maintain a tort action against him." The act would not be a judi- cial act. It is the individual and not the magistrate who acts in such a case. " When tkere is no jurisdiction at all, there is no judge : the proceeding is as nothing " ^° has long been the accepted rule. 'Anderson v. Gorrle, (1895), 1 Q. B. 668. " By the common law of England no action will lie against a judge for acts done in the exercise of his judicial oiBce." Dixon v. Cooper, 109 Ky. 29, 58 S. W. 437 (1900). ' Grove v. Van Duyn, 44 N. J. L. 654, 42 Am. R. 648 (1900). In Yates V. Lansing, 5 Johns, (N. Y.) 282, 291 (1810), Kent. Ch. J. said: " The doctrine which holds a judge exempt from civil suit or indict- ment, for any act done or omitted to be done by him, sitting as judge, has a deep root in the common law. It is to be found in the earliest ju- dicial records, and it has been stead- ily maintained, by an undisturbed current of decision, in the English courts, amid every change of policy, and through every resolution of government." This view was ap- proved by the court of errors, in the same case on appeal, 9 Johns. 395 (1811), and the following American decisions in accord were cited: Lining r. Bentham, 2 Bay (S. C), (1796). Brodie v. Rutledge, 2 Bay (S. C.) 69 (1796); Phelps v. Sill, 1 Day, (Conn.) 315 (1804). In a few states there is a disposition to limit judicial immunity to mistakes made in good faith. See Gregory V. Brown, 4 Bibb. (Ky.) 28 (1815); Morgan v. Dudley, 18 B. Mon. 711 (1857); Hoggett v. Bigley, 6 Humph. (Tenn.) 236 (1845); Cope V. Ramsey, 2 Heisk. (Tenn.) 197 (1870). The last two cases have re- cently been limited to justices of peace, and applied to them because they are not subject to impeach- ment.in Tennessee; Webb v. Fisher, 109 Tenn. 101; 72 S. W. 110, 60 L. R. A. 791 (1903). "Glazer v. Hubbard, 102 Ky. 69, 42 S. W. 1114 (1897) ; State v. Mc- Daniel, 78 Miss. 1, 27 So. 994 (1900). "Perkins v. Proctor, 2 Wils, 382, 384 (1768), S. P. in Church v. Pearne 32 The Law of Torts. Lange v. Benedict. A modern case declares : " It is plain that the fact that a man sits in the seat of Justice, though having a clear right to sit there, will not protect him in every act which he may choose or chance to do there: Should such an one, rightfully hold- ing a court for the trial of a civil action order the head of a by- stander to be stricken off, and be obeyed, he would be liable." ^^ But, in actual practice, the question is not often as simple as in the supposititious case, just put. While it is generally agreed that the test of a judicial officer's liability to civil suit is, whether the act complained of was a matter within his jurisdiction as judge, the courts have had no little difficulty in applying the test.^^ However, the view which prevails generally has been set forth in a well con- sidered opinion of the New York Court of Appeals as follows: In order to exempt a judge from tort liability for misconduct, it must appear that when he acted, " he had judicial jurisdiction of the person acted upon, and of the subject matter as to which it was done. Jurisdiction of the person is when the individual acted upon is before the judge, either constructively or in fact, by reason of the service upon him of some process known to the law, and which has been duly issued and executed." Jurisdiction of the subject matter is the power to inquire and adjudge, whether the facts of a particular case make that case a proper one for judicial considera- tion by the judge before whom it is brought." Applying that view to the case then before the court it was held 75 Conn. 350; 53 At. 955 (1903). 48 Am. R. 758, 30 A. L. J. 289 "Lange v. Benedict, 73 N. Y. 12, (1883) — see dissenting opinion in 29 Am. R. 80, 18 A. L. J. 11 (1878); this case; Austin v. Vrooman, 128 citing Beauraln v. Sir William N. Y. 229, 28 N. E. 477, 44 A. L. J. Scott, 3 Camp. 338 (1813), where a 424, 14 L. A. 138, and note (1891). judge of the ecclesiastical court in ^^ Lange v. Benedict, 73 N. Y. 12, England, excommunicated one for 29 Am. R. 80, 18 A. L. J. 11 (1878): refusing to obey an order made by The decision is criticised in a him, that the person become guard- learned article on the " Liability of ian ad litem for an infant son. Officers acting in a judicial capa- " Piper V. Pearson, 2 Gray city," by Arthur Biddle, Esq. 15 Am. (Mass.) 120 (1854); Pratt v. (Jard- L. Rev. 427 (1881). Mr. Biddle ner, 2 Cush. (Mass.) 63 (1848); contends that the true rule is that Holden v. Smith, 14 Q. B. (A. & E. a judge enjoys immunity from ac- N. S.) 841 (1850); Patzack v. Von tion only so long as he does not ex- Gerichten, 10 Mo. App. 424 (1891; ceed his jurisdiction. Vaughan v. Congdon, 56 Vt. Ill, Harms That Are Not Torts. 33 that the defendant was exempt from liability to the plaintiff in tort, although the Supreme Court of the United States had ruled, that defendant had imposed the sentence of imprisonment for one year upon plaintiff without authority ; and had discharged plaintiff from such erroneous imprisonment. As Judge Benedict imposed the sentence while holding a term of the United States Circuit Court; as plaintiff was before the court under a valid process, and as the question, whether any sentence could be pronounced against him by that court, at that time, was one that he was then and there bound by his judicial duty to decide, his decision was a judicial act, and although erroneous and harmful to plaintiff was not an action- able tort. Grove v. Van Duyn. The same doctrine was applied by the Court of Errors & Appeals of New Jersey, in a carefully reasoned case already cited.^* Plaintiff was arrested under a warrant issued by defendant Stout, as justice of the peace, and was committed to jail by the justice on a sworn complaint charging him with forcibly and unlawfully carrying off a quantity of corn stalks from certain lands. The complaint was made under a statute which declared it to be an indictable offense to willfully, unlawfully and maliciously carry off any barrack, cock, crib, rick or stacks of hay, corn, wheat, barley, oats or grain of any kind, but which said nothing of corn- stalks. Later, plaintiff was discharged from the imprisonment, and sued the justice for assault and unlawful imprisonment. He was nonsuited, and this judgment was affirmed, although the court of errors declared that the misconduct described in the com- plaint before the justice was not the misconduct described in the statute. The justice it was held, was called upon by the facts laid before him, to decide whether his authority extended over the act complained of, and over the person who was charged with doing that act. In making that decision, he was doing a judicial act, and therefore^ was not liable in a suit to any person affected by his decision, whether such decision was right or wrong. Judges of Inferior Courts. The case, it will be observed, gives no countenance to the distinction recognized by some authori- ties, between the liability of judges of courts of general jurisdiction and those of inferior courts.*' On grounds of public policy, both " Grove V. Van Duyn, 44 N. J, L, " De Courcey v. Cox, 94 Cal. 665, 654; 42 Am. R. 648 (1882), 30 Pac. 95 (1892); Truesdell v. 3 34 The Law of Torts. classes are entitled to equal protection, and the most recent and best considered cases in this country, as well as in England, accord that protection.*" If either class is in greater need of this pro- tection than the other, it is the judges of inferior courts such as justices of the peace. As pointed out by a distinguished judge: " They stand nearer to the people than the judges of the superior courts, and are more liable to be influenced by popular feeling; and it is therefore even more important that the rule should be enforced, so that they may be accorded that immunity from suit which will lead to independence of action. Nor is there any danger that this immunity from suits for damages will leave the judges superior to the law, or as feeling that they are above the law," " For malicious or corrupt misconduct they are liable to removal from office and to criminal prosecution. Even though individuals may be forced to suffer harm at the hands of a corrupt judge, without obtaining pecuniary compensation from him, his immunity, as; already pointed out, does not proceed from a rple of law estab- lished for his benefit, but " for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences." *' Arbitrators : Military and Naval Courts. The same prin- ciple operates to exempt an arbitrator from liability to answer in damages for an erroneous award, even though it be also malicious and corrupt.** In England it is settled that members of military Combs, 33 O. St. 186 (1877). In was a coroner); State v. Wolever, these cases it is said: "Inferior 127 Ind. 306, 26 N. B. 762 (1890). tribunals, invested with special (Defendant was a Mayor) ; Bannis- jurlsdictlon only, and persons ter v. Wakeman, 64 Vt. 203 (1891). clothed with limited authority, such (Deft, was a justice of the peace); as justices of the peace, must at Rudd v. Darling, 64 Vt. 456, 25 At. their peril keep within their pre- 479 (1892); (Deft, was judge of city scribed jurisdiction; and if they court). transcend the limits of their author- " Brewer, J., in Cooke v. Bangs, ity, they are answerable to anyone 31 Fed. 640, 642 (1887). whose rights are thereby invaded." " Scott v. Stansfleld, L. R. 3 "Allec v. Reece, 39 Fed. 341, 40 Exch. 220 (1869). (Defendant was A. L. J, 226 (1889) (Defendant was a county judge), a justice of the peace) . Haggard v. " Jones v. Brown, 54 la. 74 (1880) . Pellc'ier Freres (1892), A. C. 61. Such misconduct, however, may de- (Defendant was a judge of a con- feat an action by him for fees as sular court). Garnett v. Ferrand, arbitrator. Bever v. Brown, 56 la. 6 B. & C. 619 (1827). (Defendant 565 (1881). Harms That Are Not ToRts. 35 or naval courts are entitled to the same exemption that is accorded to judges of civil tribunals.^" Indeed the rule we have been con- sidering should be applied, whenever the officer in question is acting in a judicial capacity, under legal authority to hear and determine matters of dispute between individuals ; and the cases cited in the last paragraph support this view. Quasi- Judicial Officers. When persons are legally empowered to deal with and determine questions, which call for the exercise of deliberation, judgment, and discretion, but which do not involve the administration of justice between individuals,^^ they are said to occupy a quasi- judicial position. Municipal officers belong to this class, when engaged in determining whether a sewer is necessary in a particular locality,^- or who is the " lowest responsible bidder giving adequate security."-' So do assessors, in determining whether a particular person is entitled to exemption from assess- ment, as a minister of the gospel, or in estimating the value of taxable property.''* School trustees and members of boards of edu- cation often act in a quasi-judicial capacity in deciding what chil- dren are entitled to attend school.^' The Postmaster-General of the United States, although ordinarily an executive officer, per- forms quasi- judicial functions, in settling the accounts of contrac- tors with his department.^" County boards of supervisors are leg- islative bodies, but in examining and approving the sureties on official bonds, they act in a quasi- judicial capacity.^^ In all such cases, the quasi-judicial officer is exempt from liability for the consequences of honest mistakes and errors of judgment, however harmful these may be to innocent persons. According to the weight of authority, his immunity does not extend beyond this,''' although in some jurisdictions the full immunity of judi- »See Dawkins v. Lord Rokeby, L. Donelly, 93 N. Y. 557 (1883). R. 7. H. L. 744, 45 L. J. Q. B. 8 "Weaver v. Devendorf, 3 Den. (1875); Dawkins V. Prince Edward (N. Y.) 117 (1846); Stearns v. (1876), 1 Q. B. D. 499, 45 L. J. Q. B. Mills, 25 Vt. 20 (1852). 567. " Stewart v. Southard, 17 Ohio, "Mills V. City of Rochester, 32 402 (1848). N. Y, 489, 495 (1865). =" Kendall v. Stokes, 3 How. (U. "Johnston v. District of Colum- S.) 87,98 (1845). bia, 118 U. S. 19, 6 Sup. Ct. 923 ="Wasson v. Mitchell, 18 la. 153 (1885). (1864). "Bast" River Gas Light Co. v. =» Cases in the last three notes; 36 The Law of Torts. cial officers has been accorded to him.^' In a leading case of the latter class it is said : " He is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt he may be impeached or indicted, but the law will not tolerate an action to redress the indi- vidual wrong which may have been done." ^^ The reason for the prevailing view has been stated by a learned author '^ as follows : " By the express or implied terms of the officer's authority, he is to act honestly, carefully, and after the dictates of his own judg- ment, which, of necessity, being a human judgment, may err: therefore, when he has done what is thus commanded, whether the result is correct or not, he has exactly discharged his duty, and the law, which compelled this of him, will protect him, whatever harm may have befallen individuals. * * * j(- follows that if the quasi- judicial act is corrupt, or even if it is negligent, it will not be protected." ^^ also. Pikes V. Megoun, 44 Mo. 491 (1869) ; Gregory v. Brooks, 37 Conn. 365 (1870); Black v. Linn, 16 S. D. — ; 96 N. W. 697 (1903). *" Weaver v. Devendorf, 3 Den. (N. Y.) 117 (1846); Mills v. City of Brooklyn, 32 N. Y. 489 (1865); East River Gas-Light Co. v. Donnel- ly, 93 N. Y. 557 (1887); Seifert v. City of Brooklyn, 101 N. Y. 139 (1896). '"Wilson V. Mayor, etc., of New York, 1 Den. (N. Y.) 595 (1845). Cf. Dillingham v. Snow, 5 Mass. 547 (1809), where quasi-judicial oflScers are likened to judges of in- ferior courts, but their liability for malicious acts is left undecided. " Bishop, Non Contract Law, § 787. '' In the famous case of Bernardis- ton V. Soame, (2 Lev. 114, 6 How- ell's State Trials, 1092-1120 (1674 and 1689), the plaintiff charged the defendant, as sheriff, with mall- 'ciously making a false return of an election, which plaintiff claimed had resulted in his election to the House of Commons, while accord- ing to the sheriff's return he had been defeated. At the trial, Twys- den, Rainsford, and Wylde, judges of the King's Bench, charged the jury, that if they believed the re- turn was made maliciously, they should find for the plaintiff. A verdict was given in plaintiff's favor for £800. On motion in arrest of judgment, it was held by Hale, C. J., and Twysden and Wylde, JJ., (Rainsford, J., doubting) that "for as much as the return is said to be false and malicious and with in- tent to put the plaintiff to charge and expense to prove his election, and so found by the jury, the ac- tion lay and judgment was given for tho plaintiff." This decision was reversed by the Exchequer Chamber, and the reversal was af- firmed by the House of Lords. The principal ground of reversal Is stated by North, C. J., as foUowa: " The Sheriff, as to the declaring the Harms That Are Not Torts. 37 § 4. HARMS INFLICTED BY ACTS OF STATE. Another class of harms, which are not torts, are those inflicted by acts of State. They are not of frequent occurrence, being limited to injuries done to the subjects of one nation by the sovereign authority of another, or by the subjects of that other and ratified by it. A typical example is supplied by Buron v. Denmam.^" The defendant, a captain in the British navy caused certain barracoons on the west coast of Africa to be burned and the slaves contained in them to be released. His conduct, although not authorized by previous orders, was approved and ratified by the British government. Thereafter, the owner of the slaves sued the captain for their loss, but it was held that the action would not lie because the captain's acts were acts of State. The principle underlying this and similar decisions has been stated in various forms. One statement is '' that the acts of a sovereign State are final and can be called in question only by war or by an appeal to the justice of the State itself. They cannot be examined into by the courts of the State which does them." '* Another form of statement is : " The transactions of independent States between each other are governed by other laws than those which municipal courts administer ; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make." ^^ The principle has been stated in still another form as follows: "When an act, inju- rious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the British government, it becomes an act of the State, and the pri- majority is judge; and no action Westminster Hall. will lie against a judge, for what '''2 Bxch. 167, 188-9 (1847). The he does judicially, though It be laid same principle is applied in Lamar falso, malitiose et scienter." Lord v. Brown, 92 U. S. 187 (1875), and North refers to the fact that the U. S. v. The Paquete Habana, 189 U. sheriff often acts ministerially, and S. 453, 465, 23 Sup. Ct. 593 (1902). declares that when acting in that " Stephen, History of the Criminal capacity, a different rule of liability Law of Eng. Vol. 11, p. 64. applies. When acting quasi-judici- " Secretary of State in Council of ally, however, he asserts, the sheriff India v. Kamachee Boye Sahaba, 13 should have the same protection Mo. P. C. 22, 75 (1859). that is accorded to any judge in 38 The Law of Torts. vate right of action becomes merged in the international question which arises between the British government and that of the for- eigner." '* Similar considerations have led to the adoption of the rule that neither the sovereign prince of an independent power, nor its duly accredited representative, is liable in tort for harm inflicted upon individuals, while sojourning in a foreign country. Redress for such an injury must be sought not in the ordinary courts of jus- tice, but through the channels of international diplomacy. The principle deducible from the cases on this topic has been judicially declared to be " that, as a consequence of the absolute independence of every sovereign authority, and of international comity, which induces every sovereign State to respect the independence and dig- nity of every other sovereign State, each and every one declines to exercise, by means of its courts, any of its territorial jurisdic- tion over the person of any sovereign or ambassador, of any other ^'Cockburn, C. J., in Feather v. The Queen, 6 B. & S. 257, 296 (1865), cf. People V. McLeod, 25 Wend. 483; 1 Hill, 377 (1841), in which the Supreme Court of New York refused to adopt this view. Mr. Webster declared in the U. S. Senate, that the opinion In that case was " not a reputable opinion, either, on account of the results reached, or the reasoning on which it proceeds." In his letter of in- struction to the Atttorney-General concerning the McLeod case, Mr. Webster wrote: " If the attack on the Caroline was unjustifiable, as this Government has asserted, the law which has been violated is the law of Nations; and the redress which is to be sought is the redress authorized in such cases by the pro- visions of that code." After re- marking, that if McLeod had been arrested by a United States officer, he would have been discharged by the Federal Government, while had he been sued for damages in a civil action he must have availed him- self of his defense in judicial pro- ceedings, Mr. Webster added: "But whether the process be criminal or civil, the fact of having acted un- der public authority and in obedi- ence to the order of lawful super- iors, must be regarded as a valid defense; otherwise, individuals would be holden responsible for in- juries resulting from the acts of government and even from the operations of war." Curtis' Life of Webster pp. 66-69. At that time, the Federal Government was unable to take McLeod from the jurisdic- tion of the State Court, but serious international difficulty was avoided by the verdict of acquittal. By an act of Congress, passed Aug. 29, 1842, (now a part of § 753, U. S. R. S.), authority. In such a case was given to the Federal courts to re- move the foreign subject from the Jurisdiction and control of the State tribunals and officers. Harms That Are Not Torts. 39 State, or over the public property of any ambassador, though such sovereign, ambassador or property be within its territory, and there- fore, but for the common agreement, subject to its jurisdiction." '^ Liability of Government Officials to Fellow Citizens. The immunities, which we have been considering, do not extend to government officials and agents, in their dealings with fellow citizens or subjects. It is true, the sovereign cannot be made a defendant in an action for a tort against a subject, nor in this coun- try, can the government of the Union or of a State be proceeded against in such an action, unless it consents to be so sued.'* Even "The Parliament Beige, 5 Pro- bate Div. 197, 214 (1880). Cited and followed in Mighell v. Sultan of Johore (1894), 1 Q. B. 149, 159, 63 L. J. Q. B. 593, in which the defend- ant was sued for a breach of prom- ise to marry the plaintiff. At the time he engaged to marry plaintiff, he was residing in England under the name of Albert Baker, and rep- resented himself to be a private in- dividual and subject of the Queen. Yet the court held that he could not be called to answer in the courts of England, for the breach of this promise, although it was accom- panied by deceit; that there could be no inquiry by the court into his conduct, he being an independent sovereign and not submitting to the jurisdiction. " The Federal Government has provided a court of claims for the decision of many cases which it consents may be brought against it. The principal classes of demands which may be litigated in that court, are claims founded on laws of Congress, on regulations of ex- ecutive departments, on contracts express and implied and on claims specially referred to the court by Congress. See U. S. R. S. § 1059 et teq. This court has no jurisdiction of claims against the government for a mere tort. Schillinger v. U. S. 155 U. S. 163, 15 Sup. Ct. R. 85 (1894); Bigby v. U. S. 188 U. S. 400, 23 Sup. Ct. 468 (1902). Most of our states have created similar tribunals, in which they permit themselves to be sued upon specified causes of action. As this permis- sion is altogether voluntary, on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it can be sued, and the manner in which the suit shall be conducted, and may with- draw its consent whenever it may suppose that justice to the public requires it. Beers v. Arkansas, 20 How. (U. S.) 527, 529 (1857); Locke V. State, 140 N. Y. 480, 482; 35 N. E. 1076 (1894) ; Troy, Etc. Ry. V. Commonwealth, 127 Mass. 43 (1879). Virginia prides herself on her early adoption of the policy " to allow to the citizen the same use of her courts against herself which she has against the citizen; the largest liberty of suit." Hig- ginbotham's executors v. Common- wealth, 25 Gratt. 627, 639 (1874). In United States v. Lee, 106 U. S. 196, 206, 1 Sup. Ct. R. 240 (1882), Justice Miller expressed the opinion that "As no person in this govern- 40 The Law of Torts. a petition of right will not lie, in England, for the redress of such a tort," because " the King can do no wrong." From this maxim, it follows as a necessary consequence that the king cannot authorize a wrong; for to authorize a wrong to be done is to do a wrong. As in the eye of the law no such wrong can be done so, in law, no right to redress can arise, and the petition which rests on such a foundation falls at once to the ground.^" But, while the injured subject or citizen has no remedy against the crown in England, or the State in this country, it follows from the maxim that the King can neither do nor authorize a wrong, that the authority of the king (the government with us), will afford no defense to an action, brought by a fellow subject or citi- zen, for an illegal act committed by a government oflScer. This position it has been judicially declared rests " on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand and the rights and liberties of the subject on the other. "*^ Accordingly if government officials acting under orders from the President of the United States take and hold possession of land without lawful authority, they are liable as trespassers, and the owner may have them ejected and recover possession.*' If the commandant of a ment exercises supreme executive form the various duties for which power, or performs the public duties it was created." of a sovereign, it is difficult to see ^ The Queen v. Lords Commis- on what solid foundation of prin- sioners of the Treasury, 1 Eng. ciple the exemption from liability Ruling Cases 802, English Notes p. to suit rests. It seems most prob- 815. The petition lies for breach of able that it has been adopted in our contract, for restitution of lands or courts as a part of the general doc- compensation in money, or for the trine of publicists, that the supreme fair value of services rendered to power In every state, wherever it the government, but not for a pure may reside, shall not be compelled tort, done by a person in the gov- by process of courts of its own crea- ernment service. tion, to defend itself from assaults "Feather v. The Queen, 6 B. & in those courts." In Nichols v. S. 257, 295 (1865). United States, 7 Wall. 122, 126 "Cockburn, C. J., in Feather v. (1868), Justice Davis said: "The The Queen, 6 B. & S. 257, 297 principle (of immunity from suit) (1865). Is fundamental, applies to every «'Unjted States v. Lee, 106 TJ. S. sovereign power, and, but for the 196, 1 Sup. Ct. R. 240 (1882). This protection which it affords, the gov- suit was brought against the officers ernment would be unable to per- in possession of the Arlington Es- Harms That Aret Not Torts. 41 national armory *' or a commodore in the navy ** is guilty of the infringement of a patent he is liable to an action in tort therefor, although he has acted under the orders of the Secretary of the Navy, and has used the patent only for the benefit of the United States. So, the sergeant-at-arms of a legislative body is liable for false imprisonment, if he arrests a person upon an order of that body, which it has not lawful authority to make.*^ Still again, the tate, but the United States inter- vened, and prosecuted the appeal to the Supreme Court. In the prevail- ing opinion. Justice Miller declares: " No man In this country is so high that he is above the law. All the oflScers of the government, from the highest to the lowest, are creatures of the law. and are bound to obey it. ♦ * * Shall it be said, in the face of all this and of the acknowl- edged right of the judiciary to de- cide, in proper cases, statutes to be unconstitutional which have been passed by both branches of Congress and approved by the Presi- dent, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without law- ful authority,without process of law, and without compensation, because the President has ordered it, and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Eu- rope, nor in any other government which has a Just claim to well regu- lated liberty and the protection of personal rights " pp. 220-1. "Head v. Porter, 48 Fed. 481, 45 A. L. J. 205 (1891). "Belknap v. Schild, 161 U. S. 10, 16 Sup. Ct. R. 443 (1895). In this case, the doctrine of former decis- ions was approved, that the United States have no more right than any private person to use a patented in- vention without license of the pat- entee, or making conipensation to him. It was also held that a suit would not lie against the United States for the infringement, as such suit sounded in tort, and the United States have not consented to be lia- ble to suits founded in tort, for wrongs done by their officers, though in the discharge of their offi- cial duties. " But," it was declared, " the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person, whose right of property they have wrongfully invaded or injured, even by the authority of the United States;" citing Little v. Barreme, 2 Cranch, (U. S. Sup. Ct.) 169 (1804), and Bates v. Clark, 95 U. S. 204 (1877). At p. 209 of last cited case, Miller, J., says: "Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more pro- tect themselves than civilians in time of peace, by orders emanating from a source which is itself with- out authority." "Kilbourne v. Thompson, 103 U. S. 168, 2 Transcript R. 56, 23 A. L. J. 227 (1881). The members of the House of Representatives who 42 The Law of Torts. unlawful order of a State Board of Health will not protect a person against a suit for damages, brought by one who has been injured by the enforcement of the order. Regard must be had to the maxim, " Salus populi stiprema lex," but regard must also be had to the liberty of the citizen, and both principles must be given reciprocal play.*" Acts of Military and Naval Ofificers. These may be divided into two classes: First; Those of superior officers towards their subordinates. If acts of this class are of a kind, which would subject the actor to tort liability, were he not an official, he must be prepared to justify them on one of two grounds, viz.: (i) the express or implied assent of the plaintiff, or {2) valid authority conferred upon him by the government.*' Second. Acts done by subordinates under the command of superior officers. If these acts are such as the superior had no legal authority to command, his orders will not excuse the subordinate.*' If, however, they are of a kind which the superior is generally empowered to command, and the facts do not clearly disclose to the subordinate the illegality of the acts, the order of a superior officer will protect him.*° § 5. HARMS DONE UNDER THE POLICE POWER. The State, in theproper exercise of its police power, may and often caused the issue of the order of "Wilson v. Mackenzie, 7 Hill (N. arrest, were not liable, because of Y.) 95, 42 Am. Dec. 54, with note the Constitutional provision of Art. (1845). 1, § 6, supra, p. 30; but the plaintiff "jBa; parte Milligan, 4 Wall. (71 recovered a judgment for $37,500 U. S.) 3, 18 L. Ed. 28 (1866). against the serjeant-at-arms. On ap- "Riggs v. State, 3 Cold. (Tenn.) peal, the court ordered the verdict 85, 91 Am. Dec. 272 (1866); McCall to be reduced to $20,000, or to be v. McDowell, 1 Abb. (U. S.) 212; set aside as excessive. The reduced Fed. Cas. No. 8,673 (1867) ; Ford v. sum was paid by a congressional Surget, 97 TJ. S. 594, 24 L. Ed. appropriation. The subject of "Leg- 1018 (1878); U. S. v. Clark, 31 islative Inquiries" is carefully con- Fed. 710 (1887); Commonwealth v. sidered in 1 Political Sc. Quar. 84. Shorthall, 206 Pa. 165, 55 At. 952 "Wilson V. Alabama, Etc, Ry., 77 (1903), 17 L. Q. R. 87; Dicey's Law Miss. 714, 28 So. 568 (1900), ct. of the Constitution, (1 Ed.) 308-9, Hurst V. Warner, 102 Mich. 238, 60 " A soldier may be liable to be shot N. W. 440, 26 L. R. A. 484 (1894) ; by a court-martial if he disobeys an Brown v. Murdock. 140 Mass, 314 order, and to be hanged by a judge (1885). and jury, if he obeys it." Harms That Are Not Torts. 43 does inflict serious hardships "upon individuals.'" For these, the vic- tims have no redress either against the State, or against its officers, agents, or servants, who act under its command. Accordingly, if the State orders all rags coming from certain regions, to be disinfected and the expense thereof to be paid by the owner, a particular owner has no right of action against the persons taking the rags for disin- fection, though he may be able to prove that the rags in question were not infected."' If the State prohibits the use of nets in fishings and authorizes the seizure and destruction of the nets so used, its agents are not liable in trover to the owners of the nets thus destroyed.'^ " To justify the State in thus interposing its authority in behalf of the public," said the court in the last cited case, " it must appear first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accom- plishment of the purpose, and not unduly oppressive upon individ- uals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or im- pose unusual or unnecessary restrictions upon lawful occupations." " Under this (the police) power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by :'' the demolition of such as are in the path of a conflagration;'* the slaughter of diseased ■"California Reduc. Co. v. Sani- Co., 144 Mass. 523, 11 N. E. 929 tary Reduc. Co., 126 Fed. 29 (1903). (1887); ef. Los Angeles County v. The second head-note is as follows: Spencer, 126 Cal. 670, 59 Pac. 202 " Laws or ordinances enacted under (1889), where a statute was held the police power for the protection constitutional, that authorized State of the public heaJth, reasonably agents to abate insect pests in or- adapted to that end, are not uncon- chards, nurseries and like places, stitutional because they may inct- and which made the expense of the dentally operate to deprive individ- abatement a lien on the premises uals of their property or its use thus disinfected, without compensation, or interfere "Lawton v. Steele, 152 U. S. 133, with their personal liberty, nor be- 136, 137, 14 Sup. Ct. 499 (1893), af- cause they may give one person a firming same case in 119 N. Y. 226, monopoly of a certain business or 23 N. B. 878 (1890). occupation, private rights being re- " Dewey v. White, M. & M. 56, quired to yield in such case to the (1827); Fields v. Stokely, 99 Pa. St. public good." 306 (1882). " Train v. Boston Disinfecting " Malever v. Spink, Dyer, 36 PI. 40 44 The Law of Torts. cattle :°° the destruction of decayed or unwholesome food," the prohibition of wooden buildings in cities,'^ the regulation of rail- ways and other means of public conveyance,"' and of interments in burial grounds :°° the restriction of objectionable trades to cer- tain localities :'"' the compulsory vaccination of children :°* the con- finement of the insane or those afflicted with contagious diseases:" the restraint of vagrants, beggars and habitual drunkards'" the suppression of obscene publications "* and houses of ill fame :'* and the prohibition of gambling houses °* and places where intoxi- cating liquors are sold." "'' So, the State may compel real-estate owners to bridge ditches which would otherwise obstruct the free passage or use of streets."' Harms Inflicted by Neighboring- Land Owners. At com- mon law, a man has a right to build a fence or other structure (1838); Surocco v. Geary, 3 Cal. 69 (1853) ; Bowditch v. Boston, 101 U. S. 16 (1879). " Loesch V. Koehler, 144 Ind. 278, 41 N. E. 326 (1895); Newark, Etc. Co. V. Hunt, 50 N. J. L. 308, 12 At. 697 (1888). So, the killing of dogs, which are not put on the assessment rolls by their owners, may be au- thorized by statute; Sentell v. New Orleans Ry., 166 U. S. 698, 17 Sup. Ct. 693 (1896). ""Dunbar v. City of Augusta, 90 Ga. 390, 17 S. E. 907 (1892); Munn V. Corbin, 8 Colo. App. 113, 44 Pac. 783 (1896). "First Nat. Bank of Mt. Vernon V. Sarlls, 129 Ind. 201, 28 N. B. 434, 28 Am. St. R. 85 (1891). ■" Bluedorn v. Missouri Pac. Ry., 108 Mo. 439, 18 S. W. 1103, 32 Am. S. R. 615 (1891); cf. N. W. Tel. Co. v. Minneapolis, 81 Minn. 140, 83 N. W. 527 (1900), applying city or- dinance regulating telegraph and telephone poles and wires. "'Mayor, Etc. of Newark v. Wil- son, 56 N. J. L. 667, 20 At. 487 (1894); Humphrey v. Church, 109 N. C. 13, 18 S. E. 793 (1891). "City of Newton v. Joyce, 166 Mass. 83, 44 N. E. 116 (1896); Comm. V. Hubley, 172 Mass. 58, 51 N. E. 448 (1898); Weir's Appeal, 74 Pa. 230 (1873); Butcher's Union Co. V. Crescent City, C. Ill U. S. 746, 4 Sup. Ct. 652 (1883). "Morris v. City of Columbus, 102 Ga. 792, 30 S. E. 850, 66 Am. St. R. 243 (1897). '"Compagnie Francaise v. State Board of Health, 51 La. Ann. 645, 25 So. 591, 72 Am. St. R. 458 (1899). ""Comm. V. Morrisey, 157 Mass. 471, 32 N. E. 664 (1892). "Willis V. Warren, 1 Hilton, (N. Y.) 590 (1859); Comm. v. Sharp- less, 2 S. & R. (Pa.) 91 (1815). ""L'Hote V. City of New Orleans, 51 La. Ann. 93, 24 So. 608 (1899). " Mugler V. Kansas, 123 U. S. 623, 8 Sup. Ct. 273 (1887). " U. S. V. Dixon, 4 Cranch, (U. S. C. C.) 107 (1830); Ex parte Tattle, 91 Cal. 589, 27 Pac. 933 (1891): Booth V. People, 186 111. 43, 57 N. E. 798, 78 Am. St. R. 229 (1900). "Boise City v. Boise City Rapid Transit Co., (Idaho); 59 Pac. 716 (1899). Harms IThat Ar^ Not Torts. 45 on his own land as high as he pleases, even though this is done ior the sole purpose of annoying a neighbor, or shutting the sunlight from his windows or garden. '"' This right may be modified by legislation, however. A statute which declares that " a fence un- necessarily exceeding six feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance," is a proper exercise of the police power.''" So is a statute which compels a land owner to plug abandoned oil-wells,'^ or to refrain from the use of artificial means to increase the natural flow of gas from a well." Legalizing Nuisances— Britain. As the State may declare property to be a nuisance, so, on the other hand, it may legalize a nuisance. In Great Britain, the power of parliament is unlimited in this direction. Accordingly, if an act of parliament authorizes a railroad to construct and maintain a station for loading and unloading cattle, the company will not be liable to those owning property near the station, though the latter be of such a character as to amount to a nuisance, at common law. " No doubt, * * * "• Letts V. Kessler, 54 Ohio St. 73, 42 N. E. 765 (1896); Mahan v. Brown, 13 Wend. (N. Y.) 261 (1835); Falloon v. Schilling. 29 Kan. 292; 44 Am. R. 642 (1883); contra, Burke v. Smith, 69 Mich. 380, 37 N. W. 838 (1888); Flaherty V. Aloran, 81 Mich. 52, 45 N. W. 381, 21 Am. St. R. 510 (1890). ™ Ridehout v. Knox, 148 Mass. 368, 19 N. E. 390 (1888); Smith v. Morse, 148 Mass. 407, 19 N. B. 393 (1888); Lord v. Langdon, 91 Me. 221, 39 At. 552 (1898); Karasek v. Peier, 22 Wash. 419, 61 Pac. 33 (1900). The tendency appears to be towards a strict construction of such a statute. In Brostrom v. Lauppe, 179 Mass. 315, 60 N. E. 785 (1901), it was held not applicable to a fence located wholly on defend- ant's land, from three to ten fdet from tbe line. ".Hague V. Wheeler, 157 Pa. 324, 27 Al. 714 (1893). "Ohio Oil Co. V. Indiana, 177 U. S. 190, 20 Sup. Ct. 576 (1900), af- firming S. C. in 150 Ind. 698, 50 N. E. 1125 (1898); Manufacturers' Gas Co. V. Indiana Natural Gas Co., 156 Ind. 679, 59 N. E. 169 (1901). "London and Brighton Ry. Co. v. Truman, 11 App. Cases, 45 (1885); cf. Metropolitan Asylum District Co. V. Hill, 6 App. Cases, 193 (1881). The distinction between the two cases is stated by Lord Chancellor Halsbury as follows: "A small-pox hospital might be built and main- tained, if it could be done without creating a nuisance, whereas the Railway Acts are assumed to estab- lish the proposition that the rail- way might be made and used, whether a nuisance were created or not." 46 The Law of Tokts'. when compensation is not given to those interested in the neigh- boring land, this is, as against them, harsh legislation ; " but it is valid legislation.^' In the United States. Such is not the rule, however, in this country. Legislation of the sort just referred to is unconstitutional with us, because falling within the prohibition against depriving a person of his property without due process of law, or against tak- ing private property for public use without just compensation.'* Accordingly, a federal statute, authorizing a railroad corporation to bring its track within the city limits of Washington, and con- struct such works as were necessary and expedient for the com- pletion and maintenance of its road, is not to be construed as authorizing the erection and maintenance of an engine house and repair shop, so near to a church edifice as to render it unfit for use as a place of public woi-ship. Such a construction would render the statute unconstitutional. Said the United States Supreme Court, "whatever the extent of the authority conferred, it was accompanied with this qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their prop- erty. "'° It was held, therefore, ■ to be no answer to the action by the religious corporation, whose church was rendered uncomfort- able and almost unendurable as a place of worship, that defendant was authorized by act of Congress to construct its line and terminal facilities within the city of Washington, nor that its engine-house and repair shop were properly built and conducted without negli- gence, nor that the chimneys were of the height required by the city ordinances.'' " See United States Constitution as it provides for compensating Amendments 5 and 14, Constitution property owners, who are prohib- of N. Y. Art. 1, §§ 6, 7. See United ited from building above a specified States v. Lynah, 188 U. S. 445, 23 height. Sup. Ct. 349 (1902), holding the "Baltimore and Potomac Ry. v. United States liable for property Fifth Baptist Church, 108 U. S. 317, taken by It. Constitution of Penn. 2 Sup. Ct. 719 (1883). Art. 1, § 10 and Art. 16, § 8, Const. '« Cf. Georgia Ry. Etc. Banking of Va. Art. 5, § 14. See Williams v. Co. v., Maddox, 116 Ga. 64, 42 S. E. Parker, 188 U. S. 491, 23 Sup. Ct. 440 315 (1902), holding that injuries (1902), holding the Massachusetts and inconveniences to persons re- high building statute constitutional, siding near a terminal yard, located Harms That Are Not Torts. 47 The same doctrine has been maintained by the State courts ; and private corporations'^ as well as municipal corporations'' have been held liable to neighboring property owners for nuisances in connec- tion with works which they were expressly authorized by statute to construct. In Cogswell v. New York, New Haven & Hartford Railway Company/' the trial court found that defendant's engine- house practically deprived the plaintiff of the use of her dwelling- house, by filling it with smoke and dust, and by corrupting and tainting the atmosphere with offensive gases ; but it denied relief to her on the ground that defendant, as a railroad corporation was authorized by statute to acquire real estate for an engine-house ; that an engine-house at the point where this one was erected, was necessary for the operation of the road : that in the construction and use of the engine-house and coal-bins, it had exercised all practicable care, and, therefore, the harm sustained by plaintiff was damnum absque injuria. This decision was sustained by the Gen- eral Term, but was reversed by the Court of Appeals, on the ground that the State legislature had not authorized the wrong of which- the plaintiff complained; and this rule of statutory construction in at a point authorized by statute, and At. 1005 (1S94) ; Adams v. Chicago, operated in a proper manner, are Etc. Ry., 39 Minn. 286, 39 N. W. 629 not actionable. The smoke, noises (1888); Village of Pine City v. and the like are not nuisances, but Munch, 42 Minn. 342, 44 N. W. 197 the necessary concomitants of the (1890); Pennsylvania Ry. v. Angel, franchise. 41 N. J. Eq. 316, 7 At. 432, 56 Am. "Brown v. Cayuga, Etc. Ry. Ct., R. 6 (1886); cf. Hammersmith, Etc. 12 N. Y. 486 (1885); Cogswell v. Ry. v. Brand, L. R. 4 H. L. 171, New York, Etc. Ry. Co., 103 N. Y. (1868). 10, 8 N. E. 537 (1886); Boham v. "Proprietors of Locke v. Lowell, Port Jervis Gas Light Co., 122 N. 7 Gray, (Mass.) 223 (1856); Has- Y. 18, 25 N. E. 246 (1890); Garvey kell v. New Bedford, 108 Mass. 208 V. Long Island Ry., 159 N. Y. 323, (1871); Bacon v. City of Boston, 54 N. E. 57 (1899); Evans v. Chi- 154 Mass. 100, 28 N. E. 9 (1891); cago. Etc. Ry., 86 Wis. 597, 57 N. Edmondson v. City of Moberly, 98 W. 354 (1893); Shlvely v. Cedar Mo. 523, 11 S. W. 990 (1889); Nev- Rapids, Etc. Ry., 74 la. 169, 37 N. ins v. Fitchburg, 174 Mass. 545, 55 W. 133, 7 Am. St. R. 471 (1887); N. E. 321 (1899) ; Hill v. The Mayor, Lexington & Ohio Ry. v. Applegate, Etc., 139 N. Y. 501, 34 N. E. 1090 8 Dana. (Ky.) 289 (1839); Jeffer- (1893); Morton v. The Mayor, Etc., aonville. Etc. Ry. v. Esterle, 13 140 N. Y. 207, 35 N. E. 490 (1893). Bush. (Ky.) 675 (1878); Cleveland "103 N. Y. 10, 8 N. E. 537 (1886), y. Bangor Street Ry., 86 Me. 232, 29 48 The Law of Torts. such cases was announced : " The statutory sanction, which will justify an injury to private property, must be express or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing the very act which occasioned the injury." Even had express authority been given by statute to build and maintain the engine-house, it would have afforded the defendant no protection.'" In the language of the Supreme Court of Massa- chusetts, " the legislature may authorize small nuisances, without compensation, but not large ones." '^ Hence a statute, expressly authorizing the ringing of bells, and the use of steam whistles and of gongs by employers to give notice to their workmen, will protect the employers from actions by neighbors, although such noises have been adjudged common law nuisances and enjoined as such by the courts, before the statute is passed.'^ '"Bellinger v. New York Central Ry., 23 N. Y. 42, 48 (1861). In this case the defendant was expressly authorized to build a particular bridge, which plaintiff claimed caused injury to his land by chok- ing the throat of the stream and throwing back a flood upon his premises. The court said: " If a corporation or an oflBcer should be authorized by statute to take the property of individuals for any pur- pose, however public or generally beneficial, without compensation, or for a private use making compensa- tion, the pretended authority would be wholly void, and of course could afford no protection. But this limi- tation has no application to cases where property is not taken, but only subjected to damages conse- quential upon some act done by the State or pursuant to its authority." The damage, in the case then before the court, was declared to be conse- quential, "Bacon v. City of Boston, 154 Mass, 100, 28 N. E. 9 (1891). ^ Sawyer v. Davis, 136 Mass. 239 (1884). The court said: " It Is then argued that the legislature cannot legalize a nuisance, and cannot take away the rights of defendant as they have been ascertained and de- clared by the court; and this is un- doubtedly true, so far as such rights have become vested. For instance, if the plaintiff under an existing rule of law has a right of action to recover damages, for past injury suffered by him, his remedy cannot be cut off by an act of legislature. So also, if, in a suit in equity to restrain the continuance of a nui- sance damages have been awarded to him, or costs of suit, he would have an undoubted right to recover them, notwithstanding the statute. But, on the other hand the legis- lature may define what in the fu- ture shall constitute a nuisance, such as will entitle the person in- jured thereby to a legal or requita- ble remedy, and may change the ex- isting law rule on the subject. This legislative power is not wholly be- Harms That Are Not Torts. 49 Taking Private Property. On the other hand, th6 legisla- ture can neither authorize the total destruction of property without' making compensation, nor can it authorize permanent and sub- stantial injury to such property without making compensation.*' Whether the authorized nuisance amounts to a taking of property of the victim, or inflicts but trifling, indirect or consequential in- jury, may be a difficult question of fact, in a particular case,** but the rule of law, to be applied when the fact is determined, is clear and unquestioned. In several states, the constitution provides that "private property shall not be taken or damaged for public use without just compen- sation. *° Under such a prevision, recovery may be had whenever yond the control of the courts, he- cause it Is restrained hy the consti- tutional provision limiting it to wholesome and reasonable laws, of which the court is the final judge; but within this limitation, the exer- cise of the police power of the leg- islature will apply to all within the scope of its terms and spirit: " Cf. Tyler v. City of Lansingburgh, 37 Misc. (N. Y. Sup. Ct.) 604 (1902), holding that when the legislature abolishes a village, against which a person has a cause of action, the municipal corporation, into which the village is merged, becomes liable and is properly substituted as de- fendant. '"Lexington & Ohio Ry. v. Apple- gate, 8 Dana (Ky.) 289 (1839); Hill V. Mayor, Etc., 139 N. Y. 501, 34 N. E. 1090 (1883). Said Judge Finch, in this case: " Obviously the general doctrine which levies upon individ- uals forced contributions for the benefit of the public, and denies compensation for the Injury done, is vulnerable at two points. It is defeated by construing the harm in- flicted into the taking of private property, for which ' compensation must be made, and sometimes by a 4 rigid construction of the authority claimed. Both methods indicate a lurking doubt of the equity of the general doctrine, and a disposition to narrow the field of its opera- tion." Garvey v. Long Island Ry., 159 N. Y. 323, 54 N. E. 57 (1889). " Beidman v. Atlantic City Ry., 19 At. 731 (N. J. Ch.)' (1890); American Bank Note Co. v. New York El. Ry., 129 N. Y. 252, 29 N. E. 302 (1891) ; Marchant v. Pennsyl- vania Ry., 153 U. S. 380, 14 Sup. Ct. 894 (1894) ; Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578 (1897); Meyer v. City of Richmond, 172 U. S. 95, 19 Sup. Ct. 106 (1898) ; Long V. City of Elberton, 109 Ga. 28, 34 S. E. 333 (1899); (A Prison; No recovery), Frazer v. City of Chi- cago, 186 111. 480, 57 N. E. 1055 (1900); (A small-pox hospital. No recovery), Muhlker v. N. Y. & H. Ry., 173 N. Y. 549, 66 N. B. 558 (1903); (Changing grade of rail- way track in a city street) ; Bedford V. U. S., 192 U. S. 217, 24 Sup. Ct. 238 (1904) ; (Damage, to land as the result of revetments along the Mississippi are consequential). "^ Osborne v. Missouri Pac. Ry., 147 U. S. 248, 13 Sup. Ct. 299 (1892), so The Law of Torts. the plaintiff's property has been damaged by any public improve- ment, whether the damage is caused by an actual physical invasion of the property, or indirectly by diminishing its saleability or its rental value.'" Destruction of Property Under the Police Power : In the exercise of its police power, the State may authorize the summary destruction of private property, as we have seen. An officer who seizes and destroys property under such authority has the burden of proving a justification.'^ If the statute authorizes the summary kill- ing of animals having the glanders, an adjudication by the local cattle commissioners that a horse had the glanders, is not conclusive against the owner of the animal. Such an adjudication is not a defense to those killing the horse pursuant to an order thereunder, if in fact the horse did not have the disease.*' " Of course," said the Court, " there cannot be a trial by jury before killing an animal, supposed to have a contagious disease, and we assume that the legislature may authorize its destruction in such emergencies without a hearing beforehand. But it does not follow that it can throw the loss on the owner without a hearing. If he cannot be heard beforehand, he may be heard afterward. The statute may provide for paying him in case it should appear that his property was not what the Legisla- ture has declared to be — a nuisance, and may give him his hearing in that way. If it does not do so, the statute may leave those who act under it to proceed at their peril, and the owner gets his hearing in an action against them." Whether the destruction of property by public officers, under the authority of a statute, as a means of preventing the spread of fire or applying Art. 11, § 21, of Mo. Const; 959 (1903). City Council of Montgomery v. ^ Chicago v. Taylor, 125 U. S. 161, Townsend, 80 Al. 489, 2 So. 155 8 Sup. Ct. 820 (1888), applying the (1886); Hot Springs Ry. v. Wil- provision of 111. Const, and foUow- liamson, 45 Ark. 429 (1885); Weyl ing Rigney v. Chicago, 102 111. 64 V. Sonoma Valley Ry., 69 Cal. 202, (1882). 206 (1886); City of Atlanta v. "Lawton v. Steele, 152 U. S. 133, Green, 67 Ga. 386 (1881); Gotts- 142, 14 Sup. Ct. 499 (1893). chalk V. Chicago, Etc. Ry., 14 Neh. "Miller v. Horton, 152 Mass. 540, 550 (1883) ; Reading v. Althouse, 93 26 N. E. 100 (1891). Such an ofScer Pa. 400 (1880) ; Spencer v. Mount acts in a ministerial capacity, and Pleasant Ry., 23 W. Va. 406 (1884); is answerable for negligence: Balr DeGeofroy v. Merchant's Bridge Co., v. Struck, 29 -Mont. 45, 74 Pac. 69, 179 Mo. 698, 79 S. W. 387, 64 L. R. A. 63 L. R. A. 481 (1903). Harms That Are Not Torts. 51 disease, is merely the regulation of rights created by necessity, which properly is referable to the police power, and which requires no provision for compensation, or whether it can be done only in the right of eminent domain, and with a provision for compensation, is a question upon which authorities differ. Recent legislation, however, generally makes provision for compensation when valu- able property is destroyed to stay fires.*' § 6. DEFENSE OF SELF AND PROPERTY. Inevitable Accident. A person, who inflicts harm upon an- other, in the defense of himself or his property, or by inevitable accident, is not liable therefor in tort. This has not always been the rule of English law. Anciently, our law, like every other primitive legal system, imposed an absolute responsibility upon the. voluntary doer of harm. We have the record of a case, early in the fourteenth century, brought for battery of the plaintiff, in which the jury found, " that the plaintiff was beaten, but this was because of his own assault, since the defendant could not otherwise escape. It was nevertheless adjudged that the plaintiff should recover his damages * * * and the defendant to go to prison." "" The Statute of Gloucester "^ had already provided that the King should pardon one, who had been found by a jury to have killed another in self- defense or by misadventure, but a plea of self-defense does not seem to have been successfully interposed to a civil action for dam- ages, until the opening of the fifteenth century : °- while the plea of misadventure or inevitable accident in civil cases, did not gain clear recognition for a century thereafter."' Even in the seventeenth century, we find eminent judges declaring that, " in all civil acts the law doth not so much regard the intent of the actor as the loss and damage of the party suffering, * * * And the reason is because he that is damaged ought to be recompensed." "* "Bates V. Worcester Protection (1400), Department, 177 Mass. 130, 58 N. "Responsibility for Tortious Acts, E. 274 (1900). VII Harvard Law Review, pp. 442- " Anonymous, Year Book, Ed. 2, 445, by Professor John W. Wlgmore. f. 381 (1319). "Bacon's Maxims, 7 (1630); "6 Ed. 1, Ch. 9 (1^78). Lambert v. Bessey, T. Raym, 421 "Chapleyn of Greye's Inne v. (1691). Year Book, H. 4, f. 8, pi. 40 52 The Law op Torts. Defense of Family. Not only in defense of oneself, may a person inflict harm upon another without committing a tort, but he is equally privileged in defending his master,'^ or his servant," or spouse," or child,'* or parent,'* or brother."" In all such cases, the law treats plaintiiif's harm as attributable to his own misconduct. In the language of Chief Justice Holt " If A strike B, and B strikes again, and they close immediately, and in the scuffle M mayhems A, that is son assault.'"^"^ A brings the harm upon himself and has no cause of action against B, so long as the latter uses no more vio- lence than a reasonable man would, under the circumstances, regard necessary to his defense.^"^ Whether a person acted reasonably in repelling an assault, or in believing that an assault was threatened, is a question for the jury. The one assailed " judges at the time, upon the force of the circumstances, when he forms and acts upon his belief, at the peril that a jury may think otherwise and hold him guilty. But he will not act at . the peril of making that guilt, if appearances prove false, which would be innocence if they proved true.^"' He need not wait until his assailant has given a blow, for perhaps it will come too late afterwards." ^"* On the other hand, he is not entitled to a verdict simply because he testifies that he believed he was about to be attacked.^"' He must »= Year JBook, 14 H. 6, 24, pi. 72 "' Cockroft v. Smith, 2 Salk. 642 (1436); Anonymous, Year Book, (1705). 21 Hy. 7, 39, pi. 50 (1505); Barfoot ""Dole v. Erskine, 35 N. H. 503 V. Reynolds, 2 Strange 953 (1734). (1857); Ogden v. Claycomb, 52 111. '"Seaman v. Cuppledick, Owen 365 (1869). 150, (about 1610) ; Orton v. State, 4 ™ Shorter v. People, 2 N. Y. 193 Greene, (la.) 140 (1853). (1849); Morris v. Piatt, 32 Conn. "Leward v. Basely, 1 Lord Raym, 75, 83 (1864). 62 (1695) ; Staten V. State, 30 Miss. '"Chapleyn of Greye's Inne v. 619 (1856); Biggs v. State, 29 Ga. — Y. B., 2 H. 4. f. 8, pi. 40 723, 76 Am. Dec. 630 (1860). (1400); State v. Sherman, 16 R. I. ""Commonwealth v. Malone, 114 631 (1889). Mass. 295 (1873) ; Higgins v. Mlna- "» State v. Brysonl 2 Winston Law .ghan, 76 Wis. 301, 45 N. W. 127 (N. CT) 86 (1864). tn this case, (1890). the court said: "A prayer for in- »»Obier v. Neal, 1 Houst. (Del.) struction, which assumed that one's 449 (1857); State V. Johnson, 75 N. personal feelings and apprehen- C. 174 (1876). sions, however eccentric or morbid >" State V. Melton, 102 Mo. 683, 15 these might be, determined the S. W. 139 (1880). character of his conduct, was prop- erly refused." Harms That Are Not Torts. S3 convince a jury that his behef was honest and well-founded.'"® " In other words, the law of self-defense justifies an act done in honest and reasonable belief of immediate danger. It does not rest on the actual, but on the apparent facts and the honesty of belief in danger.'*" When one is attacked by a number of per- sons, he may act with more promptness, and resort to more forcible means to protect himself or his family, than in the case of attack by a single person.'"" In defense of person or family, one may destroy animals or other noxious property without liability to the owner."" Defense of Property. The right to defend one's property, without liability for damages, necessarily inflicted upon others as an incident of the defense, has long been recognized. In one of the earliest reported cases on this topic, the defendant, in an action for assault, justified on the ground that the plaintiff came and took cer- tain goods of the defendant, who bade him leave the goods, but he would not, whereupon defendant took them out of his possession, which was the assault complained of. Chief Justice Newton said : " If a man will take my horse from me, or anything which belongs to me, and I will not suffer him to do it, although he is hurt, in this case I shall be excused. * * * For, since he was about to injure me, this malfeasance shall be said to be an assault upon me begun by him, and all this shall be said to be in defense of the goods and chattels of the defendant." ''" During the period which has passed since that decision, (nearly five centuries^ it has remained undoubted law, that a man is justified in using whatever force is reasonably necessary to protect and maintain his rightful possession of property.'" ""Rippy V. State, 2 Head (Tenn) such apprehended assault, the com- 217 (1858). pany was liable for compensatory "" New Orleans, Etc. Ry. v. Jopes, damages." 142 U. S. 18, 23, 12 Sup. Ct. 109 ""Higgins v. Minaghan, 78 Wis. (1891), holding the following 602, 47 N. W. 941 (1891) ; Thornton charge erroneous: "If the conduc- v. Taylor, 54 S. W. 16, (Ky.) tor shot, when there was in fact (1899). no actual danger, although from ""Keck v. Halstead, 3 Lutwyche, the manner, attitude and conduct 481 (1699) ; see Police Power, supra, of the plaintiff, the former had rea- p. 50; and Nuisance, infra, ch. 14. sonable cause to believe, and did be- "° Anonymous, Year Book, 19 H. lleve, that an assault upon him with 6, f. 31, pi. 59 (1440). a deadly weapon was intended, and '" Anonymous, Year Book, 9 Ed. only fired to protect himself from 4. f. 28, PI. 42 (1470); Taylor v. 54 The Law of Torts. Recaption : Whether he is also justified in recapturing his prop- erty by force, is a question upon which the courts are not agreed. If the property can be considered as still in the owner's legal posses- sion, although within the physical grasp of the wrong-doer; or if legal possession has been gained by force or fraud, and the owner makes fresh pursuit and promptly demands return of the property, the owner may safely use all reasonably necessary force to regain it.^" Some courts have held that whenever a person has wrongful possession of the chattels of another, and refuses to surrender them upon the demand of the owner, the latter is justified in using force sufficient to defend his right and retake the chattels. If the owner was compelled by law to seek redress by action, for a violation of his right of property, say these courts, the remedy would often be worse than the mischief.^^' The weight of authority, however, favors a distinction between cases where violence is used to retain possession ; and where it is employed to regain possession; holding it lawful in the former and unlawful in the latter.^^* According to this view " the law does not permit parties to take the settlement of conflicting claims, into their own hands. It gives the right of defense but not of redress. The circumstances may be exasperating ; the remedy at law may seem to inadequate; but still the injured party cannot be arbiter of his own claim. Public order and the public peace are of greater conse- quence than a private right or an occasional hardship. Inadequacy of remedy is a frequent occurrence, but it cannot find its comple- ment in personal violence." "^ Markham, Cro. Jac. 224 (1535); Al- (1827); Comm. v. Doaahue, 148 derson v. Waistell, 1 C. & K. 358 Mass. 529, 20 N. E. 171 (1889). (1844); Motes V. Berry, 74 Ala. 374 "'Story v. State, 71 Ala. 328, (1883); Bliss v. Johnson, 73 N. Y. 338 (1882); Sabre v. Mott, 88 Fed. 529 (1878). 780 (1898); Andre v. Johnson, 6 '""State V. Elliot, 11 N. H. 540 Blackf. (Ind.) 375 (1843); Bohb v. (1841); Gyre v. Culver, 47 Barb. Bosworth, 2 Littell (Ky.) 81 (N. Y.) 592 (1867).; Anderson v. (1808) ; Watson v. Rinderknecht, 82 State, 6 Baxt. (Tenn.) 608 (1872); Minn. 235, 84 N. W. 798 (1901); Johnson V. Perry, 56 Vt. 703 C1884). Bliss v. Johnson, 73 N. Y. 529 "'Anonymous, Keilwey, f. 92, pi. (1878); Harris ▼. Marco, 16 S. C. 4 (1506); Blades v. Higgs, 10 C. B. 575 (1881). N. S. 713, 30 L. J. C. P. 347 (1861) ; >" Kirby v. Poster, 17 R. I. 437, 22 Rex V. Milton, M. & M. 107 (1827); At. 1111, (1891). Baldwin v. Hayden, 6 Conn. 453 Harms That Are Not Torts. 55 Reasonable Force : — In defense of property, as in defense of person, one must act in a reasonable manner ; and what is reason- able depends largely upon the circumstances of each case. One may go to much greater lengths in repelling another from his house, or in ejecting one therefrom, than in dealing with a trespasser to other parts of his premises, or to his personal property. In an early case. Chief Justice Fineux said: ''If a man is in his house, and hears that such a one is coming to his house to beat him, he may well collect his friends and neighbors to help in the defense of his person. * * * One's house is his castle and defense, where he may properly abide." ^^* Two centuries later it is laid down as settled law that one may defend his house against a burglar by returning violence with violence.^^' Even the killing of a person, in the ac- tual resistance of an attempt to commit a felony upon or in a dwell- ing or other place of abode in which the slayer is, has long been deemed justifiable homicide.'^' In defense of other property, how- ever, the owner is not justified in taking life or in using dangerous weapons. If he stones ^^" or shoots "" a trespasser he is liable for assault and battery. While he may repel with force ^^^ an attempt to wrongfully enter upon his land or take chattels from his posses- sion, yet, if the wrongdoer has peacefully gained entrance or pos- "' Anonymous, Year Book, 21 H. '"Breen v. Goddard, 2 Salk. 641 7, f. 39, pi. 50 (1505). In Law- (1705), Cf. When a Man's House is Fence's Case, 2 RoUe's Abridgment, His Castle, 10 Al. L. J. 241. 548 (1609), it was held by the whole '"Carrol v. The State, 23 Al. 28, eourt, " One may justify the battery 58 Am. Dec. 282 (1853); Wharton of another who will enter my bouse. Criminal Law, (7 Ed.) Vol. 2, § for it is my castle." According to 1024. Bishop's New Criminal Law, State V. Patterson, 45 Vt. 308, 12 § 858, New York Penal Code, § 205. Am. R. 200 (1873): " The idea em- ""Cole v. Maunder, 2 Rolle's bodied in the expr^sion that a Abridgment, 548 (1635) ; Conners v. man's house is his castle, is not Walsh, 131 N. Y. 590, 30 N. E. 59 that it is his property, and, as such, (1892). he has the right to defend and pro- «" Bverton v. Ergati, 24 Neb. 235 tect it by other and more extreme (1888); Bloom v. State, 155 Ind. means than he might lawfully use 292, 58 N. E. 81 (1900). to defend and protect his shop, his "'Harrison v. Harrison, 43 Vt. office or his barn. The sense in 417 (1871); Hahnabalson v. Ses- vhich the house has a peculiar im- sions, 116 la. 457, 90 N. W. 93 munity is, that is is sacred for the (1902); Montgomery v. Comm., 98 protection of his person and of his Va. 840, 36 S. B. 371 (1900). family, " Hollingsworth v. Fitzger- ald, 16 Neb. 499 (1884). 56 The Law of Torts. session, the owner cannot justify forcible ejection without first requesting him to depart.^^^ Even then, he must use no more force than is necessary to overcome the wrongdoer's resistance.^^^ ' Defense Ag^ainst Animals : A person's property is often injured or threatened by animals belonging to another. Here, again, in defense of his property, one may do what is reasonably necessary for its protection, and no more. If a dog is in the act of destroy- ing a fowl or sheep, the owner of the latter may kill the dog, if he has reason to believe that such killing is necessary to save his prop- erty.^''* He is not entitled, however, to destroy valuable animals of his neighbor, simply because they are trespassers, even though they are habitual trespassers, and he has warned their owner to keep them at home or he will kill them.^^° His remedy is to impound them or sue for the damage done by them.^^° Generally, the killing of a trespassing domestic animal is not justifiable, unless it is en- gaged at the time in the destruction of property;^"' but wild ani- mals,^^* or domestic animals which, because of mischievous habits, are a common enemy and nuisance,^^° may be killed, though the '=* McCarthy v. Fremont, 23 Cal. 196 (1863); Tullay v. Reed, 1 C. & P. 6 (1823) ; Thompson v. Berry, 1 Cranch, C. C. 45 (1801); Briten- bach V. Trowbridge, 64 Mich. 393, 31 N. W. 402 (1887); Lichtenveller v. Lanbach, 105 Pa. 366 (1884). ™ Collins V. Renlson, Sayer 138 (1754); Comm. v. Clark, 2 Met. (Mass.) (1840); State v. Lazarus, 1 Mill (S. C.) 34 (1817). "' Leonard v. Wilkins, 9 Johns, (N. Y.) 233 (1812); Livermore v. Batcheller, 141 Mass. 179, 5 N. E. 275 (1886) ; Morse v. Nixon, 8 Jones' law, (N. C.) 35 (1866); McChesney V. Wilson, — Mich. — . 93 N. W. 627 (1903). In the last case the major- ity of the court held that the ques- tion of necessity. was for the jury. "^Johnson v. Patterson, 14 Conn. (1840); Chapman y. Decrow, 93 Me. 378, 45 At. 295 (1899); Hodges V. Causey, 77 Miss. 353, 26 So. 445 (1900); Harris v. Eaton, 20 R. I. 81, 37 At. 308 (1897). "'Ulvey V. Jones, 81 111. 403 (1876) ; Clark v. Keliher, 107 Mass. 406 (1871); Matthews v. Tiestee, 2 E. D. Smith, (N. Y.) 90 (1853); Ford V. Taggart, 4 Tex. 492 (1849). See note on this topic in 67 Am. St. R. pp. 293-295. ^Protheroe v. Matthews, 5 C. 4 P. 581 (1833); Bowers v. Horen, 93 Mich. 420, 53 N. W. 535, 32 Am. St. R. 513, 17 L. R. A. 773 (1892); Ten Hopen V. Walker, 96 Mich. 236, 55 N. W. 657, 35 Am. St. R. 598 (1893); Bost V. Mingues, 64 N. C. ^4 (1870). ^ Aldrich V. Wright, 53 N. H. 398, 16 Am. R. 339 (1873). »=" Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209, 15 L. R. A. 259, with valuable note; 30 Am. S. R. 426 (1892); Brill v. Flagler, 23 Wend. (N. Y.) 354 (1840); Fisher V, Badger, 95 Mo. App. 209, 69 S. W. 26 (1902). In this case the dog had broken into plaintiff's house and emptied a crock of milk. He Harms That Are Not Torts. 57 killing is not necessary to prevent any mischief impending at the moment. Ordinarily a landowner is not liable to the owner of tres- passing animals, which have eaten poisoned food on the former's premises, imless he placed it there for the purpose of injuring them."" In some jurisdictions, statutory authority is given to kill dogs that are in the habit of worrying sheep,^'^ or that are found doing mischief of any kind.^'- Accidental Harm : Primitive Rule. As stated on a former page, early English law did not recognize misadventure or accident as a defense to a criminal prosecution,^^^ or a civil action.^^* Its doc- trine was that " a man acts at his peril * * * If the act was volun- tary, it was totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the ac- tor.'"' Such was the current opinion of English lawyers, until about a century ago, if not later.." •"" In an early case '"' Justice Little- ton is reported as assenting to the statement of counsel : " If one was killed by defendant, the house- holder, as he jumped out of the house to escape. The court ex- pressed the opinion that the killing was reasonably necessary to protect plaintiff's property from future dep- redations by the dog; and also that the dog was a nuisance. "°Gillum V. Sisson, 53 Mo. App. 516 (1893); Dudley v. Love, 60 Mo. App. 420 (1894); Stansfeld v. Boil- ing, 22 Law Times, N. S. 799 (1870); Cobb v. Cater, 59 S. C. 462, 38 S. E. 114 (1901). The court was evenly divided in this case, two members approving the charge of the trial judge that, " If a man puts out poison to protect his property, and a dog invades his premises and gets the poison, the man would not be liable, but if he puts out the poison not for the protection of his property, but with the intent to kill his neighbor's dog he would be lia- ble for damages." The other two Judges thought the correct rule to be this: " That a person, exercising the right to put out poison on his premises, shall act with such care as shall reasonably be expected of a man possessing ordinary pru- dence under the circumstances." "' Marshall v. Blackshire, 44 la. 475 (1876); Hinckley v. Emerson, 4 Cow. (N. Y.) 351, 15 Am. Dec. 383 (1825). '^ Simmonds v. Holmes, 61 Conn. 1, 23 At. 702, 15 L. R. A. 253 (1891). "' Select Pleas of the Crown, Vol. 1, pi. 114 (1214), "Roger of Stain- ton was arrested because in throw- ing a stone he by misadventure killed a girl. And it is testified that this was not by felony. And this was shown to the King, and the King, moved by pity, pardoned him the death. So let him be set free." '"Supra, p. 51. '"" Holmes, The Common Law, 82. "•Pollock, The Law of Torts, (6th Ed.) 134, 139 . 58 The Law of Torts. assaults me and I cannot escape, and in self-defense I lift my stick to strike him, and in lifting it hit a man who is behind me, in this cas^ he shall have an action against me, yet my act was lawful, and I hit him, tne invito:" and as adding, "If a man is damaged he ought to be recompensed." Nearly four hundred years later, a learned English judge"' declared: "Looking into all the cases from the Year Book in 21 H. 7 down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answer- able in trespass." Not until the case of Stanley v. Powell,*" was this doctrine squarely rejected by an English Court, and the rule laid down that a person is not legally wronged, who suffers harm through the doing of a lawful act, in a lawful manner, by lawful means, and with due care and caution. Modern Doctrine : In this country, such rule received judicial sanction at a much earlier day.**" The case of Brown v. Kendall,*** contains a full exposition of .the principles upon which the rule rests. Two dogs, belonging to the plaintiff and the defendant were fighting, when the defendant took a stick about four feet long and commenced beating the dogs in order to separate them. In raising the stick to strike the dogs he accidentally hit the plaintiff in the eye, inflicting a severe injury. It was held that " if, in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising the stick for that pur- pose, he accidentally hit plaintiff in the eye, and wounded him, this was the result of pure accident, or was involuntary and unavoid- '" Anonymous, Y. B.. 6 Ed. 4, f. 7, (1843). " If not Imputable to the pi. 18 (1466). neglect of the party by whom It was ""Grose, J., in Leame v. Bray, 3 done, or to his want of caution, an East, 593 (1803). action of trespass does not He, al- ■=° (1891), 1 Q. B. D. 86, 60 L. J. though the consequences of a vol- Q. B. 62. untary act." '"Vincent v. Stinehour, 7 Vt. 62, '"Brown v. Kendall, 6 Gush. (1835): "The result of our exam- (Mass.) 292 (1850); Brown v. Col- ination is, that we think that there lins, 53 N. H. 442, (1873); Spade must be some blame or want of v. Lynn, Etc. Ry., 172 Mass. 488, care and prudence to make a man 52 N. E. 747, 70 Am. St. R. 298, answerable in trespass: " Harvey v. (1889); Dunton v. Allan Line S. S. Dunlap, Hill & Den. (N. Y.) 193 Co., 115 Fed. 250 (1902), occord. Harms That Are Not Torts. 59 able, and therefore the action would not lie. * * * To make an acci- dent, or casualty, or as the law sometimes states it, inevitable acci- dent," declared Chief Justice Shaw, " it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in whicli he was placed." '■'- Applying these principles, other courts have held that a person, who, in lav/fully defending himself against an attack of A, accident- ally and without negligence, harms B, is not liable to B for the harm."' Undoubtedly, when one is using fire-arms ^** or other dan- gerous instruments,"' even though he is using them lawfully, he is bound to exercise a degree of care commensurate with the risk, and conduct will be deemed negligent and, therefore, tortious, which would be treated as not tortious, and hence not actionable, had the instrument been harmless. When a person is suddenly and unexpectedly confronted by a ter- rible and impending dangfer, " the law presumes that an act or omis- sion done or neglected under the influence of the danger is involun- '" In Feary v. Met. Street Ry., 162 Mo. 75, 99, 62 S. W. 452. 459 (1901), it was held unnecessary to use " inevitable " or "unavoidable " in connection with accident, and that a charge, " that if the jury be- lieved the injuries sustained by the plaintiff were merely the result of accident, their verdict should be for the defendant," was correct. ■"Paxton V. Boyer, 67 111. 132 (1873). Defendant was knocked down by jilaintiff's brother, and, on rising, struck plaintiff with a knife, wounding his arm. The jury found, by special verdict, that " the blow complained of was struck by the de- fendant without malice, and under circumstances which would have led a reasonable man to believe it was necessary to his proper self-de- fense: " Cf. James v. Campbell, 5 C. & P. 372 (1832) ; Peterson v. Haf- ner, 59 Ind. 130, 26 Am. R, 81, and note on p. 93 (1877); Cogdell v. Yett, 1 Cold. (Tenn.) 230 (1860), where defendant did not intend to harm plaintiff, but his act was vol- untary and unlawful. In Wright v. Clark, 50 Vt. 130, 135 (1877), de- fendant killed plaintiff's dog, unin- tentionally, as the result of shoot- ing at a fox. The court held that as defendant was under no obliga- tion to shoot at the fox, he was an- swerable for any injury which might happen from his voluntary shooting, either by carelessness or by accident. Morris v. Piatt, 32 Conn. 75 (1864), follows Brown v. Kendall, supra, p. 58. "•Castle V. Duryee, 2 Keyes, (N. Y.) 169, 175 (1865); Knott v. Wag- ner, 16 Lea. (Tenn.) 481 (1886). »» Peterson v. Haffner, 59 Ind. 130, 26 Am. R. 81 (1877); Bullock v. Babcock, 3 Wend. (N. Y.) 391 (1829). 6o The Law qf Torts. tary." Any harm, therefore, which his involuntary act or omission inflicts upon others is deemed accidental.^*" Harm Inflicted by Lunatics. So long as the primitive notion prevailed that the doer of harm was absolutely responsible therefor, the insanity of the doer could afford no defense, either to a criminal prosecution or a civil action.^*^ When this notion was so far modi- fied, that misadventure or accident on the part of the doer became a defense, it would have been entirely logical for the courts to treat the acts or the omissions of lunatics as involuntary, and, consequently, not tortious but accidental.^*' This was not done, however, and the general rule is, to-day as it was centuries ago, that " if a lunatic hurt a man he shall be answerable in trespass." ^*° An exception has been suggested in the case of torts, " in which malice and therefore intention is a necessary ingredient."^"" Again, in actions for slan- der, if it is shown that the defendant's insanity " was great and no- torious, so that the speaking the words could produce no effect on the hearers," the plaintiff should fail, because it is manifest that he has sustained no legal damage.^'^^ It has been held that, " the doc- trine which renders an insane person responsible for what in a sane person would be called willful or negligent conduct, does not ap- ply to the personal conduct of the master of a vessel, in case his in- capacity to care for and navigate the ship resulted solely from ex- haustion caused by his efforts to save the vessel during a storm," which continued for three days and nights.^''' The Court asks, ""Laidlaw v. Sage, 158 N. Y. 73, (1882); Jewell v. Colby, 66 N. H. 52 N. B. 679, 44 L. R. A. 216 (1899), 399, 24 At. 902 (1890); Krom v. S. P. In Cleveland City Ry. v. Os- Sehoonmaker, 3 Barb. (N. Y.) 647 born, 66 Ohio. St. 45, 63 N. B. 604 (1848); Williams v. Hays, 143 N. (1902). Y. 442, 38 N. E. 449, 42 Am. St. R. "' 7 Harvard Law Review, 446. 743, 26 L. R. A. 153 (1894). "'Bishop, Non Contract Law, §§ ""Jewell v. Colby, 66 N. H. 399, 505-507; Piggott, Principles of the 400, supra, Williams v. Hays, 143 Law of Torts, 215. N. Y. 442, 446, supra. '"Weaver v. Ward, Hob. 134, '" Yeates v. Reed, 4 Blackf. (Ind.) (1616); Cross v. Andrews, Cro. 463, 32 Am. Dec. 43 (1838); Dlckin- Bllz. 622 (1599); Taggard v. Innes, son v. Barber, 9 Mass. 225, 228, 6 12 U. C. C. P. 77 (1862); Mclntyre Am. Dec. 58 (1812); Bryant v. Jack- v. Sholty, 121 111. 660, 13 N. B. 239, son, 6 Humph. (Tenn.) 199 (1845); 2 Am. St. R. 140 (1887) ; Cross v. Irvine v. Gibson, — Ky. — , 77 S. W. Kent,, 32 Md. 581 (1870); Moraln v. 1106 (1904). Devlin, 132 Mass. 87, 42 Am. R. 423 «» Williams v. Hays, 157 N. Y. 541, Harms That Are Not Torts. 6i " What careful and prudent man could do more than to care for his vessel until overcome by physical and mental exhaustion ? " Grant that no careful and prudent man could do more, does it follow that the master, rendered insane by such overwork, is not liable for the destruction of the vessel caused by acts or omissions due to his insan- ity, when it is admitted by the Court that he would have been liable, had his insanity come upon him in any other way? The distinction taken by the Court seems to indicate a lurking- suspicion of the un- soundness of the general rule, and its willingness to evade it, when- ever evasion is possible. Unsatisfactory Reasons : If we examine the reasons assigned for the rule, we shall not find them very satisfactory. One reason is that, " the law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or the condi- tion, miental or physical, of the person causing 'the damage." "^ But we have seen that the law abandoned that ground long ago. Another reason is that " where a loss must be borne by one of two innocent persons it shall be borne by him who occasioned it." "* This would render the defense of inevitable accident futile. Still another reason is that public policy requires the enforcement of the rule, so that tort-feasors may not simulate insanity as a de- fense to their harmful acts.^*' There would seem to be less danger of successful perjury by the defendant here, than in many accident cases. The rule is also supported on the ground of public policy, as tending to make a lunatic's relatives more careful about guarding him. But the occasional benefits derived from this tendency are small in comparison to the hardships resulting from the rule."' The tort liability of insane persons has rarely come before the courts of England for adjudication, but the dicta in reported cases "^ are generally in accord with the decisions in this country, 43 L. R. A. 253, 52 N. B. 589 (1899). >'»McIntyre v. Sholty, 121 111 660, (A second hearing in the Court of 13 N. E. 239, 2 Am. St. R. 140, Appeals.) (1887). '" WiUiams v. Hays, 143 N. Y. ™X).n the second trial of Williams 442, 447, 42 Am. St. R. 743, 745, 26 v. Hays, the trial court spoke of L. R. A. 153, 38 N. E. 449 (1894). this rule as enunciating a "cruel '" Heals V. See, 10 Pa. 56, 61, 49 doctrine " 157 N. Y. at p. 547. Am. Dec. 673 (1848); Karow V. Con- '"See those cited in preceding tinental Ins. Co., 57 Wis. 56, 46 Am. notes; and Mordaunt v. Mordaunt, R. 17 (1883). L- R. 2 P. & D. 103, 142, 39 L. J. P. 62 The Law of Torts. as are also the few decided cases in the Colonial courts."' Text- writers, however, are disposed to favor the view that the act or omission of an insane person, which he has not the power of willing or intending, are to be looked upon in law as involuntary or acciden- tal, and, therefore, acts or omissions which subject him to no tort liability."" § 7. CONFLICTING RIGHTS. Neighboring Land Owners. We have seen that the common law permits a land owner to build a fence or other structure on his own land as high as he pleases, even though the erection cuts off his neighbor's view, or shades his garden, or otherwise harms his property.^"" It also allows him to make excavations on his land, although these may result in the destruction of valuable springs or wells on his neighbor's premises, or may intercept or draw off bene- ficial subterranean waters."' In such cases it is declared the land owner is exercising a right which the law accords to him as owner, without invading any legal rights of the neighbor. The maxim. Sic utere tuo ut alienum non leadas, it is said " should be limited to causing injury to the right of another, rather than the property of another." Or to put it in another way, the common law secures to the land owner certain absolute rights of dominion; that is, rights which he may exercise without incurring legal liability, how- t D. 57, 59 (1870). A dictum that dell, 12 M. & W. 324, 13 L. J. Ex. a lunatic is civilly answerable for a 289 (1843); Chasemore v. Richards, libel. 7 H. L. C. 349, 29 L. J. Ex. 81 ■"Taggard v. Innes, 12 U. C. C. P. (1859); Mayor of Bradford v. Pick- 77 (1862); Donaghy v. Brennan, 19 les, (1895), A. C. 587, 64 L. J. Ch. N. Z. L. R. 289 (1901). 759; Roath v. DriscoU, 20 Conn. 533 '"Clerk and Lindsell, The Law (1850); Chatfield v. Wilson, 28 Vt. of Torts, pp. 39, 40; Piggott, Prinei- 49 (1855); Phelps v. Nowlen, 72 N. pies of the Law of Torts, pp. 215, Y. 39; Miller v. Black Rock Springs 216. Pollock, The Law of Torts, Co., 99 Va. 747, 40 S. E. 27 (1901); (6th Ed.) Ch. 3, § 1. Lunacy in Re- Cf. Smith v. City of Brooklyn, 160 lation to Contract; Tort and Crime, N. Y. 357, 54 N. B. 787, 45 L. R. A. 18 Law, Quar. Rev. 21 (1902); Ren- 664 (1899), and Forbell v. City of ton, on Lunacy, pp. 64, 65. New York, 164 N. Y. 522, 58 N. E. ""Supra, p. 45. 644, 51 L. R. A. 695, 79 Am. St. R. '"Greenleaf v. Francis, 18 Pick. 666 (1900). (Mass.) 117 (1836); Acton v. Blun- \\ Harms That Are Not Torts. 63 ever harmful their exercise may prove to his neighbor, or however malevolent may be the spirit with which he exercises them. It gives to him all that lies beneath the surface, whether it is solid rock or porous ground, or venous earth, or part soil and part water. It per- mits him to dig indefinitely downwards and apply all that is there found to his own purposes at his free will and pleasure.''' It also permits him to rear structures indefinitely upwards.*"* Limits of Land Owner's Privileges. If however, he exceeds these privileges and invades a legal right of his neighbor, as by maintaining a nuisance '®^ or by diverting or unreasonably using a flowing stream,*'" or by accumulating water which percolates be- neath the surface into his neighbor's land to its harm,**" or by with- drawing the lateral support from his neighbor's land *"' he is liable to respond in damages for the injury. It has been held, also, that a land owner invades a legal right of his neighbor, when, by means of wells and pumping stations, he forces the under-ground water from the neighbor's land into his wells, and thus deprives the neighbor of the natural supply of sub-surface water.*'* •"Acton V. Blundell, 12 M. & W. 924, 13 L. J. Ex. 289 (1843). '"Mahan v. Brown, 13 Wend. (N. Y. 261 (1835) ; Ridehout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. R. 560 (1889); Lovell V. Noyes, 69 N. H. 263, 46 At. 25 (1898). •"Aldred's Case, 9 Co. 59a (1610); Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911 (1891); Hanck v. Tidewater Pipe Line Co., 153 Pa. 366, 20 L. R. A. 642, 26 At. 644 (1893) ; Wilson v. Phoenix Pow- der CJo., 40 W. Va. 413, 52 Am. St. R. 890, 21 S. E. 1035 (1895); Town- send V. Epstein, 93 Md. 537, 49 At. 629, 86 Am. St. R. 441 (1901); Davis V. Niagara Falls Co., 171 N. Y. 336, 64 N. E. 4, 89 Am. St. R. 817, 57 L. R. A. 545 (1902). '"Watson V. New Milford Water Co., 71 Conn. 442, 42 At. 265 (1899). "'Cooper V. Barber, 3 Taunt, 99 (1810); Plxley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72 (1866). "* Thurston v. Hancock, 12 Mass. 220 (1815); Humphries v. Brogden, 12 Q. B. 739 (1850). "•Forbell v. City of New York, 164 N. Y. 522, 51 L. R. A. 695, 58 N. B. 644, 79 Am. St. R. 666 (1900). Said the Court: " In the cases in which the lawfulness of interfering with percolating waters has been upheld, either the reasonableness of the acts resulting in the interfer- enqe, or the unreasonableness of im- posing an unnecessary Testriction upon the owner's dominion of his own laud has been recognized. In the absence of contract or enact- ment, whatever it is reasonable for the owner to do with his sub-surface water, regard being had to the defi- nite rights of others, he may do. 64 The Law of Torts. It has also been held ''" that a land owner invades a legal right of his neighbor, by using in his gas-wells pumping machinery or other devices, by which the natural flow is greatly increased, and the common supply is injured or threatened with destruction. Said the court : " The right of each owner to take the gas from the com- mon reservoir is recognized by the law, but this right is rendered valueless if one well owner may so exercise his right as to destroy the reservoir, or to change its condition in such manner that the gas will no longer exist there." * * * " -p^g surface proprietors have the right to reduce to possession the gas found beneath. They could not be absolutely deprived of this right without a taking of private property. But there is a co-equal right in all of such owners to take the gas from the common source of supply. The use by one of his power to seek to convert a part of the common fund to actual possession may result in an vmdue proportion being attributed to one of the possessors of the right, to the detriment of others." In Pennsylvania,^" however, the courts have declared that a land owner has the absolute right not only to sink wells for water, gas or oil, but to use the most effective machinery possible for the He may make the most of it that he sonable as to the plaintiff and the reasonably can. It is not unreason- others whose lands are thus clan- able, so far as it is now apparent destinely sapped, and their value to us, that he should dig wells and impaired: " Followed in Katz v. take therefrom all the water that Walkinshaw, 141 Cal. 116, 70 Pac. he needs in order to the fullest en- 663 (1903); Cf, Fisher v. Feige, 137 joyment and usefulness of his land Cal. 39, 69 Pac. 618 (1902); denying as land; either for purposes of pleas- injunction to restrain upper rlpar- ure, abode, productiveness of soil, ian owner from denuding his land trade, manufacture, or for whatever of forest, for the malicious purpose else the land as land may serve. He of diminishing the flow of a stream, may consume it, but may not dis- and thus harming lower proprietor, charge it to the injury of others. Contra, Huber v. Merkel, 117 Wis. But to fit it up with wells and 355, 94 N. W. 354, 62 L. R. A. 589 pumps of such pervasive and poten- (1903). tial reach that from their base the '"> Manufacturers' Gas & Oil Co. v. defendant can tap the water stored Ind. Nat. Gas Co., 156 Ind. 679, 59 in the plaintiff's land, and in all the N. E. 169, (1900). region thereabout, and lead it to his '"Westmoreland, Etc.. Gas. Co. v. own land, and by merchandising it, De Witt, 130 Pa. 235, 18 At. 724, 5 prevent its return, is, however rea- I^. R. A. 731 (1889); Jones v. Forest sonable it may appear to the de- Oil C!o., 194 Pa. 379, 44 At. 1074, fendant and its customers, unrea- (1900). Harms TrtAT Are Not Torts. 65 extraction of the largest possible product, e\en though such use di- minishes the product of his neighbor's wells. According to this view ; " the property of an owner of land in oil, water and gas is not absolute until it is actually within his grasp and brought to the sur- face." Until then, the water, oil and gas are declared to be " min- erals f\:ne naturae, belonging to the land owner so long as they are on or in it and subject to his control, but when they escape and go to the land of another or come under another's control, the title of the former owner is gone." Test of Permissible Use of Land. On the other hand, it has been held that a land owner may blast rock, in the ordinary improvement of his premises, without liability to his neighbor for consequential harm ; provided he acts with due care ^'- and does not commit trespass.^"^ According to these authorities, " The test of permissible use of one's own land is not whether the use or the act causes injury to his neighbor's property, or that the injury was the natural consequence, or that the act is in the nature of a nui- sance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property having regard to all interests affected, his own and those of his neighbors, and having in view, also, public policy." 1^* •"Booth V. R. "W. O. Ry., 140 N. Y. 267, 24 L. R. A. 105, 35 N. B. 592, (1893); Holland House Company v. Baird, 169 N. Y. 136, 62 N. E. 149 (1901). There are dicta in Fitzsim- ons V. Braun, 199 111. 390, 65 N. E. 249, 59 L. R. A. 421 (1902), which are inconsistent with the foregoing doctrine, but the decision is not, nor are any of the cases, cited in the opinion, irreconcilable with it. In every one, there was actual tres- pass by the defendant, or the source of injury was held to be a nuisance for which the defendant was re- sponsible: Cf. Quinn v. Crimmings, 171 Mass. 255, 50 N. E. 624, 68 Am. St. R. 420, 42 L. R. A. 101 (1898), in which Holmes, J., declares, " It 5 is for the public welfare that build- ings be put up, and here, as else- where public policy and custom have to draw the line between op- posing interests." "= Hay v. Cohoes Co., 2 N. Y. 159 (1849); Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 76 Am. St. R. 274, 47 L. R. A. 715 (1900). In Mid- dlesex Co. v. MeCue, 149 Mass. 103, 21 N. E. 230, 14 Am. St. R. 402 (1889), it was held that the owner of a garden upon a slope of a hill may cultivate and manure it, with- out liability for damages to a pond at the foot of the hill. "* Andrews, C. J., in Booth v. R. W. & O. R., 140 N. Y. 267 (1893). 66 The Law of Torts. Conditional Privilege of Defamation. The principle under- lying the land owner cases is one of extensive and frequent appli- cation. In the law of defamation we shall find it playing an impor- tant part, under the title of " Conditional or qualified privilege." Not only may counsel, and witnesses, during the progress of a litiga- tion, defame a person with impunity, as we have seen in a former connection ;^^° but so may an employer in giving a character to a servant,^'* or any person in the discharge of a legal or moral duty,^'^ or in the pursuance of a right.'^' The right to enjoy a good reputation, until forfeited by his misconduct, is accorded to every one by our law ; and yet, " for the convenience and welfare of so- ciety," "' our law refuses to treat this as an absolute right. It balances " the needs and good of society against this right of the in- dividual," ^^'' and, in cases where it deems the former to outweigh the latter, grants the privilege of defamation. The courts have de- clared that " the business of life could not be well carried on," ^'^ if this privilege were not granted. To its exercise, however, are an- nexed certain conditions, which we shall consider more fully under the topic of defamation; the person making the defamatory state- ment must honestly believe that it is true,^'- and must not make it "''Supra, p. 30; also Hartung v. 387 (1899); Western Union Tel. Co. Shaw, 130 Mich. 177, 89 N. W. 701 v. Pritchett, 108 Ga. 411, 34 S. E. 216 (1902). (1899). ""Child V. Afflick, 9 B. & C. 403 »™ Parke, B., in Toogood v. Spyr- (1829); Fresh v. Cutter, 73 Md. 87, ing, 1 Cr. M. & R. 181 (1834). 20 At. 774, 10 L. R. A. 67, 25 Am. '«» Post Publishing Co. v. Hallam, et. R. 577 (1890). 59 Fed. 530 (1893). '" Harrison V. Bush, 5 E. & B. 344, ''' Parke, B., in Toogood v. Spy- 25 L. J. Q. B. 25 (1855); Stuart v. ring, 1 Cr. M. & R. 181 (1834); Of. Bell, 2' Q. B. 341 (1891); Beals v. Blackburn, J., in Davies v. Snead, Thompson, 149 Mass. 405, 21 N. E. L. R. 5 Q. B. 608, p. 611 (1870); 932 (1889) ; Bayssett v. Hire, 49 La. " Where a person is so situated that Ann. 904, 22 So. 44, 62 Am. St. R. it becomes right in the interests of 675 (1897); Redgate v. Roush, 61 society that he should tell to a third Ks. 480, 59 Pac. 1050 (1900). person certain facts, then, if he, "' Blackham v. Pugh, 2 C. B. 611 bona fide and without malice, does (1836); Baker v. Carrick, 1 Q. B. tell them, it is a privileged com- 838, 63 L. J. Q. B. 399 (1894); Cald- munication." well V. Story, 107 Ky. 10, 52 S. W. '»= Jackson v. Hopperton, 16 C. B. 850, 45 L. R. A. 735 (1899) ; Heb- N. S. 829, 10 L. T. N. S. 529, 12 W. ner v. Great Northern Ry., 78 Minn. R. 913 (1864). 289, 80 N. W. 1128, 79 Am. St; R. Harms That Are Not Torts. 67 with a malicious intention to injure its victim,'"' nor give it an un- necessarily wide publication.*'* Modem Industrial Competition. The adjustment of conflict- ing rights, in cases growing out of modern business practices, is proving to be a very difficult task ; but the principle, upon which the courts generally profess to rest their opinions, is that which we have been considering. The right to make contracts, or to labor or to build up a business is not an absolute right. It is qualified by a like right in others. Hence it should not be accounted a tort for A to buy goods from B, which he knows B has contracted to sell to C ; and, in the absence of fraud **' or some other independent wrong *'* by A, the weight of judicial authority is in favor of treat- ing such a purchase as not tortious towards C. The same rule should be applied to interferences with contracts for personal services or with opportunities to labor. In the absence of a statute on the subject, the fact, that the offer of high wages of one employer in- duces the servants of another to quit him and enter the service of the former, ought not to subject the offerer to an action in tort.'*' If the offer is bona fide, and is limited to persons not under contract ""Carpenter v. Bailey, 53 N. H. 590 (1873); Clark v. Molyneux, 3 Q. B. D. 237, 47 L. J. Q. B. 230, 37 L. T. N. S. 694 (1877); Buisson v. Huard, 106 La. Ann. 768, 31 So. 293. (1901). '"King V. Patterson, 49 N. J. L. 417, 9 At. 705, 60 Am. R. 622 (1887) ; Redgate v. Roush, 61 Ks. 480, 59 Pac. 1050 (1900). «Rice V. Manley, 66 N. Y. 82 (1876). In this case, plaintiffs had agreed to buy a quantity of cheese of S. Defendant, knowing of this agreement, caused a telegram to be sent to S., purporting to come from plaintiffs, to the effect that they did not want the cheese, and that S could sell it to others. Defendant took the telegram to S, who, sup- posing it genuine, sold and deliv- ered the cheese to defendant. This fraudulent conduct by defendant was held to be a tort towards plain- tiffs, who would have made a profit out of the transaction, but for de- fendant's interference: Angle v. Chicago, Etc. Ry., 151 U. S. 1, 13, 14 Sup. Ct. 240, 38 L. Ed. 55 (1893), is also a case of fraud on the part of defendant: Cf. Nashville C. & Gt. L. Ry. V. McConnell, 82 Fed. 65 (1897). ""Boysen v. Thorn, 98 Cal. 578, 33 Pac. 492, 21 L. R. A. 233 (1893); Pollock on Torts (6th Ed!) 232; Morasse v. Brochu, 151 Mass. 567, 25 N. B. 74, 8 L. R. A. 524 (1890); RatclifCe v. Evans, (1892) L. R. 2 Q. B. 524, 61 L. J. Q. B. 535. '"See Chambers v. Baldwin, 91 Ky. 121, 15 S. W. 57, 11 L. R. A. 545, 34 Am. St. R. 171 (1891) ; May V. Wood, 172 Mass. 11, 51 N. E. 191 (1898); Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902); Cf. Jones v. Stanley, 76 N. C. 355 (1877), hold- ing that an action for damages lies 68 The Law of Torts. to others, there is no semblance of authority for holding the offerer liable in tort to employers, who find themselves forced thereby to pay higher wages or lose their workmen. Nor is it tortious for a laborer, or body of laborers, to refuse to work with specified in- dividuals, or with a particular class, and to follow that refusal with a peaceful strike, although such conduct may result in the ta- booed laborers' losing employment and wages which they would have secured, but for this interference.^" Rival Business. Again, it is not an actionable tort, to set up a rival business and thereby reduce the profits of an established pro- prietor, or even drive him out of trade. This has been the settled rule of English law for five centuries. In 1410, two masters of a grammar school at Gloucester " brought a writ of trespass against another master, and counted that the defendant had started a school in the same town, so that whereas the plaintiffs had formerly re- ceived 4od. or two shillings a quarter from each child, now they got only i2d. to their damage &c." But the Court of Common Pleas were unanimous in holding that the plaintiffs should take nothing by this writ. Said Hill, J. '. " There is no ground to main- tain this action, since the plaintiffs have no estate, but a ministry for the time; and though another equally competent with the plain- tiffs comes to teach the children, this is a virtuous and charitable thing, and an ease to the people, for which he cannot be punished by our law." '*' In other words, English law has encouraged free competition, holding that it is worth more to society than it costs."" Mogul Steamship Case, this is brought out very clearly in a modern English case."^ An associated body of traders endeav- ored to get the whole of a limited trade (the tea carriage from cer- tain Chinese ports) into their own hands, by offering exceptional and against a person for maliciously ter, 167 Mass. 92, 44 N. E. 1077, 57 persuading another to break any Am. S. R. 443, 35 L. R. A. 722 contract with plaintiff. (1896), citing Comm. v. Hunter, 4 '''National Protective Associa- Met. (Mass.) Ill, 134 (1842). tion V. Gumming, 170 N. Y-. 315, 63 »' Mogul Steamship Co. v. McGre- N. B. 369, 88 Am. St. R. 648, 58 L. gor, 15 Q. B. D. 476, 54 L. J. Q. B. R. A. 135 (1902). This is admitted 540, S. C. Again 21 Q. B. D. 544, in the dissenting opinion. 57 L. J. Q. B. 541, S. C; again 23 "» Anonymous, Y. B. 11 H. 4, f. Q. B. D. 598, 58 L. J. Q. B. 465; *''■ Pl- 21. still again (1892), A. C. 25, 61 L. J. ™ Holmes, J., in Vegelahn v. Gun- Q. B. 295, 66 L. T. 1, 40, W. R. 337. Harms That Are Not Torts. 6g vefy favorable terms to customers who would deal exclusively with them; so favorable that but for the object of keeping the trade to themselves they would not offer such terms ; and if their trading were confined to one particular period they would be trading at a loss, but in the belief that by such competition they would prevent the plaintiffs, as rival traders, competing with them, and so receive the whole profits of the trade to themselves.^"- The plaintiffs, who were thus driven out of the tea carrying trade \\'ith China, insisted that the associated traders had actetl unlawfully toward them and should respond in damages. Lord Chief Justice Coleridge, before whom the case was tried, ruled against the plaintiffs, and his view was sustained by the successive appellate tribunals. In the Court of Appeal, Lord Justice Bowen,^*^ after calling at- tention to the fact that the case presented an apparent conflict be- tween two rights that are equall\- regarded by the law — the right of the plaintiffs to be protected in the legitimate exercise of their trade, and the right of the defendants to carry on their business as seems best to them, provided they commit no wrong to others, said. " The acts of the defendants which are complained of here were in- tentional, and were also calculated, no doubt, to do the plaintiffs damage in this trade. But in order to see whether they were wrongful we have still to discuss the question whether they were done without any just cause or excuse. * * * They have done nothing more against the plaintiffs than pursue to the bitter end a war of competition waged in the interest of their own trade. * * * I' can find no authority for the doctrine that such a commercial motive deprives of just cause or excuse, acts done in the course of trade, which would, but for such motive, be justifiable. So to hold would be to convert into an illegal motive the instinct of self-ad- vancement and self-protection, wliich is the very incentive of all trade. To say that a man is to trade freely, but to say that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract business to his own shop, would be a strange and impossible course of perfection. But we are told '"See Lord Chancellor Halsbury's ""L. R. 23 Q. B. 598 (1889). This statement of facts, (1892), A. C. at opinion received the express ap- p. 35. This offer of low freights is proval of Lord Chancellor Halsbury, popularly styled " smashing rates." in the House of Lords. See Bowen, L. J., in 23 Q. B. D. at p. 611. 70- The Law of Torts. that competition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been unfair. This seems to assume that, apart from the fraud, intimidation, molesta- tion, or obstruction of some other personal right in rem or in per- sonam, there is some natural standard of 'fairness' or "reason- ableness ' (to be determined by the internal consciousness of juries) beyond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no suffi- cient reason, for such a proposition. It would impose a novel fetter upon trade." Unfair Competition. In the same Court, Lord Justice Fry declared: "To draw a line between fair and imfair competition, between what is reasonable and unreasonable, passes the power of the courts. Competition 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 another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition." When the case was before the House of Lords, one learned Lord ^°* asserted that " there is no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself." Another ^'^ expressed the opinion that all trade competition is " fair," which is " neither forcible nor fraud- ulent." The Lord Chancellor ^'^ declared : " The whole matter comes around to the original proposition, whether a combination to trade, and to offer, in respect of prices, discounts, and other trade facilities, such terms as to render it unprofitable for rival custo- mers to pursue the trade is unlawful, and I am clearly of the opin- ion that it is not." Fraudulent Injury to Business. This case has been cited fre- quently by American judges "' and carefully followed by a number of courts.^*' '"Lord Hannen, (1892), A. C. p. J. L. 284, 10 L. R. A. 184, 20 At. 485 59. (1890); Barr v. Essex Trades Coun- "» Lord Bramwell, Ibid., p. 47. ell, 53 N. J. Eq. 101, 30 At. 881, "«J6t 748, 9 So. 823, 13 L. R. A. 859, and note, 24 Am. St. R. 300 (1891); Connell v. W. U. T. Co., 116 Mo. 34, 22 S. W. 345, 20 L. R. A. 172, 38 Am. St. R. 575 (1893); Morton v. W. U. T. Co., 53 Ohio St. 431, 41 N. B. 689, 32 L. R. A. 735, 53 Am. St. R. 648 (1896); Butner v. W. U. T. Co., 2 Okl. 234, 37 Pac. 1087 (1894); Connelly v. W. U. T. Co., 100 Va. 51, 40 S. E. 618, 56 L. R. A. 663 (1902); Davis v. W. U. T. Co., 46 W. Va. 48, 32 S. B. 1026 (1899); Summerfleld v. W. U. T. Co., 87 Wis. 1, 57 N. W. 973, 41 Am. St. R. 17 (1894); W. U. T. Co. v. Wood, 57 Fed. 471, 13 U. S. App. 317, 6 C. C. A. 432, 21 L. R. A. 706 (1893) ; Stansell v. W. U. T. Co., 107 Fed. 668 (1901); Western U. T. Co. V. Sklar, 126 Fed. 295 (1903), a case containing a valuable collection of authorities on this top'ic. CHAPTER IV. PARTIES TO TORT ACTIONS. § I. Corporations. The State May be Plaintiff. We have seen that an action of tort cannot be maintained against the State, nor against the sovereign or diplomatic representative of a foreign State, without its permission.^ Such action may be brought by the State, however, in its corporate capacity. Accordingly, if timber is wrongfully taken from its land, it may prosecute the wrongdoers criminally, or it may proceed against them in trover.^ It may also sue another State or a public corporation created by another State for diverting or fouling streams accustomed to flow through its territory.' Political Subdivisions of the State. At present, these are, as a rule, public corporations, with power to acquire, hold and use property, as well as to sue and be sued. It does not follow from this, ' ^-^ however, that they are liable to tort actions for injuries done by their officials or employees to individuals. Whether they are so liable depends upon two questions : Fjrst : What functions are they performing through their wrongdoing representatives? Second: To what extent has their common-law liability been modified by statute ? * 'SMpra, 38; Bigbyv. U.S. 188 U. S. County Law (ch. 686 L. 892), a 400, 23 Sup. Ct. 468 (1902). county is declared to be a " munlol- *Wooden Ware Co. v. U. S., 106 pal corporation " and " an action • U. S. 432, 1 Sup. Ct. 398 (1882). * to enforce any liability • * shall ' Missouri v. Illinois, 180 U. S. 208, be in the name of the County." 21 Sup. Ct. 331 (1900); Kansas v. School District v. Williams, 38 Ark. Colorado, 185 U. S. 126, 22 Sup. 454 (1882). Ct. 552 (1901). *For an excellent discussion of "-"Markey v. County of Queens, this topic, see Goodnow, Municipal 154 N. y. 675, 49 N. E. 71, 39 L. R. Home Rule, Chaps, vji "nd viii. A. 46, with note (1898). By the (New York, 1895). I05 1 06 ■ The Law of Torts. Government and Private Functions. Most modern municipal corporations possess " two kinds of powers ; one governmental and public, and, to the extent they are held and exercised, the corpora- tion is clothed with sovereignty ; the other private, and, to the extent they are held and exercised, it is a legal individual. The former are given and used for public purposes; the latter for private pur- poses. While in the exercise of the -former the corporation is a municipal government, and while in the exercise of the latter it is a corporate legal individual."" When the corporation is exercising a power of the first class — is performing a purely political function — it is entitled, at common law, to the same exemption from suit that is enjoyed by the State in the performance of the same function. It is a mere " instrumentality of government," ' an " agency of the State," ' and the same reasons which prevent recovery from the State for injuries inflicted in its behalf by its officers or agents, should save the public corporation from actionable liability. Counties, Parishes, Townships, School Districts, and similar subdivisions of the State are rarely liable for the misconduct of their officers or servants. This freedom from tort liability has been declared by some courts ' to rest upon the genesis of these corpora- tions. They are " created by the sovereign power of the State, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The organi- zation is superimposed by a sovereign and permanent authority." Being such " involuntary incorporations organized as political sub- divisions of the State for governmental purposes, they are not liable for the negligence of their officers or servants any more than the State would be liable." Quasi-Municipal Corporations : Other courts have preferred to rest the non-liability of these corporations solely upon the nature of their functions. At first, these were exclusively political, or governmental. The county,' the township,^" and the parish ** were ' Lloyd V. The Mayor, 5 N. Y. 369, Board, etc. v. Dailey, 132 Ind. 73, 55 Am. Dec. 347 (1851). 31 N. E. 531 (1892) ; Bailey v. Law- ' Summers v. Daviess County, 103 rence County, 5 S. D. 393, 59 N. W. Ind. 262, 2 N. E. 725 (1885). 219, 49 Am. St. R. 881 (1894). ' Jones V. City of Williamsburg, » Markey v. County of Queens, 154 97 Va. 722, 34 S. E. 883 (1900). N. Y. 675, 49 N. E. 71, 39 L. R. A. 46 "Commissioners of Ham. Co. v. (1898), containing an excellent Mighels, 7 Ohio St. 109 (1857) ; sketch of the legal status of conn- Parties to Tort Actions. 107 established for the more convenient administration of government. Their duties were public/- and were apportioned among them by the State with a view to the convenience and benefit of its citizens. Although certain officers were chosen by the electors of each sub- division, they were not its servants or special representatives, but officers of the public at large, and were charged with the perform- ance of public duties, not with the conduct of the corporate affairs of the county, or the township, or the parish. Accordingly, injuries inflicted by them, in the performance of their duties, did not render the quasi corporations liable as their master.^* In many of our States, privileges and powers have been granted to these political subdivisions to be exercised by them for their corporate advantage. For injuries inflicted by their representatives in the exercise of such powers and privileges, their liability is that of a private corporation.^* It is to be noted, too, that modern statutes impose upon the county, the parish, and the township a duty of responding for the torts of their officers and servants, which was not imposed by common law.^' Such statutory provisions. ties In New York. Lefrois v. County of Monroe, 162 N. Y. 563, 57 N. E. 185, 50 L. R. A. 206 (1900). '"Hill V. Boston, 122 Mass. 344 (1877). On p. 349, Gray J., says: " At the first settlement of the colony, towns consisted of clusters of inhabitants dwelling near each other, which by the effect of legisla- tive acts, designating them by name, and conferring upon them the pow- ers of managing their own pruden- tial affairs, electing representatives and town-ofiBcers and making by- laws, and disposing, subject to the paramount control of the Legisla- ture, of unoccupied lands within their territory, became in effect mu- nicipal or quasi corporations, with- out any formal act of incorpora- tion." On p. 351 he declares: "A private action cannot be maintained against a town or other quasi cor- poration for a neglect of corporate duty, unless the action be given by statute." " Sherman v. Parish of Vermilion, 51 La. Ann. 880, 25 So. 538 (1899), tracing the history of the parish in La. "Russell V. The Men of Devon, 2 Durn. & E. 667 (1788). "Cases cited in the last seven notes; also, Prichard v. Commis- sioners of Morganton, 126 N. C. 908, 36 S. E. 353 (1900). " Moulton V. Scarborough, 71 Me. 267, 36 Am. R. 308 (1880); Waldron V. Haverhill, 143 Mass. 582, 10 N. E. 481 (1887); Collins v. Greenfield. 172 Mass. 78, 51 N. E. 454 (1898); Butman v. Newton, 179 Mass. 16, 60 N. E. 401 (1901); Hannon v. St. Louis Co., 62 Mo. 313 (1876). "Hill v. Boston, 122 Mass. 344 (1877) ; Medina v. Perkins, 48 Mich. 67 (1882) ; Bryant v. Town of Ran- dolph, 133 N. Y. 70, 30 N. E. 657 (1892); McCalla v. Multunoah Co., 3 Or. 424 (1869). 108 The Law of Torts. however, are generally subjected by the courts to a strict con- struction.^" Cities, Villages, and Specially Incorporated Towns. These are often described by judges and text-writers as true municipal corporations, in contra-distinction to the quasi corporations, which we have just been dealing with. They possess political or govern- mental powers, it is true ; but they possess also many of the powers of a private corporation. As a rule, their organization is solicited by their inhabitants> for the promotion of local interests and the betterment of community conditions, quite as much as for the dis- charge of governmental functions. Accordingly, it is held that they are subject to an implied liability for the torts of their representa- tives, which does not attach to the quasi corporation. If those torts are inflicted in connection with the business affairs of the munici- pality, the persons harmed are not required to show a statute expressly imposing liability upon it : they are entitled to recover against it, whenever a recovery would be allowed against a private corporation. For example, a city engages in carrying on gas works,^' or water works,^' or in the ownership and management of wharves,'" or in the towing of vessels,^" for profit. It must respond in damages for the wrongs of its ofificers, agents or servants, provided these wrong- doers were acting within the scope of their apparent authority, or their misconduct has been ratified by the municipality. In other words, their liability depends upon the rules relating to master and servant, which we shall consider hereafter. While this doctrine is generally accepted by the courts, they have experienced no little difficulty in applying it. Many activities of " Bartram v. Sharon, 71 Conn. 686, Boston, 149 Mass. 410, 21 N. E. 871. 43 At. 143, 46 L. R. A. 144 (1899); 14 Am. St. R. 430 (1889); Bailey v. Spencer v. Freeholders of Hudson, Mayor, 3 Hill (N. Y.) 531, 38 Am. 66 N. J. L. 301, 306, 49 At. 483 Dec. 669 (1842); Aldrich v. Tripp, (1901); Chick v. Newberry Co., 27 11 R. I. 141, 23 Am. R. 434 (1875). S. C. 419 (1887); Schaefer v. Fond "Kennedy v. Mayor, etc., of New du Lac, 99 Wis. 333, 74 N. W. 810, York, 73 N. Y. 365 (1878) ; Willey 41L. R. A. 287 (1898). v. Alleghany, 118 Pa. 490 (1888); " Scott V. Manchester, 2 H. & N. City of Petersburg v. Applegart, 28 204 (1857); Shuter v. The City, 3 Gratt. (Va.), 321, 26 Am. R. 387 Phil. (Pa.), 228 (1858). (1877). "Logansport v. Dick, 70 Ind. 65, '"City of Philadelphia v. Gavag- 36 Am. R. 308 (1880); Stock v. nin, 62 Fed. 617 (1894). Parties to Tort Actions. 109 the modern municipality have at once a private and a public charac- ter. They minister to the public welfare as well as contribute to the private benefit of the corporation. In conducting them, the city or village is discharging a governmental function as a deputy of the State, while it is also relieving the inhabitants of the locality of a burden they would otherwise be compelled to bear as individuals. An example of this class is the work of the street cleaning depart- ment. In view of its mixed character, it is not surprising that some courts hold the municipality liable ^'^ for the torts of this depart- ment's officers and servants, while other courts hold that it is not liable." Non-Liability of City. There is substantial agreement that it is not liable for the torts of its fire ^' or police ^* departments, nor for those of its boards of health "^ or of education ; '" nor for those " Barney Dumping Boat Co. v. New York, 40 Fed. 50 (1889); Quill V. Mayor, etc., 55 N. Y. Supp. 889, 36 App. Div. 476 (1899); Missano V. Mayor, 160 N. Y. 123, 54 N. B. 744 (1899). ==Love V. Atlanta, 95 Ga. 129, 22 S. E. 29 (1894); McFadden v. Jewell, 119 la. 321, 93 N. "W. 302 (1903) ; Condict v. Jersy City, 46 N. J. L. 157 (1884); Conelly v. Nash- ville, 100 Tenn. 262, 46 S. W. 565 (1898). =' Wilcox V. Chicago, 107 111. 334, 47 Am. R. 434 (1883); Saunders v. City of Ft. Madison, 111 la. 102, 82 N. W. 428 (1900) ; Davis v. Lebanon, 108 Ky. 698, 57 S. W. 471 (1900); Burrill v. Augusta, 78 Me. 118, 3 At. 177 (1886); Grube v. St. Paul, 34' Minn. 402, 26 N. W. 228 (1886); HeUer v. Sedalia, 53 Mo. 159, 14 Am. R. 444 (1873); Alexander v. Vicks- burg, 68 Miss. 564, 10 So. 62 (1891) ; Gillespie v. Lliicoln, 35 Neb. 34, 52 N. W. 811, 16 L. R. A. 349 (1892) ; Smith V. Rochester, 76 N. Y. 506 (1879); Frederick v. Columbus, 58 Ohio St. 538, 51 N. E. 35 (1898); Fire Ins, Patrol v, Boyd, 120 Pa, 624, 15 At. 553, 1 I>. R. A. 417 (1888); Lawson v. Seattle, 6 Wash. 184, 33 Pac. 347 (1893). In Work- man V. Mayor, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. EJd. 314 (1900), the Supreme Court of the United States held the City liable in an admiralty proceeding, although admitting that the City was not liable at common law. Both the prevailing and dis- senting opinions are worthy of care- ful study. " Masters v. Bowling Green, 101 Fed. 101 (1899); Bartlett v. City of Columbus, 101 Ga. 300, 28 S. E. 599, 44 L. R. A. 795, with note (1897); Lahner v. Williams, 112 la. 428, 84 N. W. 506 (1900); Craig v. City of Charleston, 180 111. 154, 54 N. B. 184 (1899); Butterick v. Lowell, 1 Al- len (Mass.) 172, 79 Am. Dec. 721 (1861); Tomlin v. Hildreth, 65 N. J. L. 438, 47 At. 649 (1900); Peters- field v. Vickers, 3 Cold. (43 Tenn.) 205 (1866). " Nicholson v. City of Detroit, 129 Mich. 246, 88 N. W. 695 (1902) ; City of Richmond v. Long, 17 Grat. 375, 94 Am. Dec. 461, (1867). ™Hill v. Boston, 122 Mass. 344 no The Law of Torts. of any other officers, agents oV servants in the discharge of func- tions, .which primarily belong to the State, but the performance of which it has delegated to the municipality. Neglect of officers in guarding prisoners," or in caring for jurymen,^' or in keeping court houses, town houses, jails and other public buildings in repair,^' will not subject the corporation to legal liability. Nor will the negligence of an employee of a charity hospital render the city, which maintains it, liable to damages.^" Legislative, Judicial and Quasi-Judcial Powers. As a rule, a municipality is not liable in tort for the nonfeasance or the mis- feasance of its officers, in the exercise of these powers. Hence, the failure of a city council to pass ordinances prohibiting the use of sidewalks by bicycles,'^ or the use of streets for coasting,^^ or pro- viding for the suppression of nuisances,'^ will not subject the city to a tort action. Nor will it be liable for injuries done to individuals by the enforcement of unconstitutional and void ordinances,^* except where these are enacted for the private benefit of the corporation." The blunders or even the willful misconduct of its judicial officers (1887); Ford v. School District, 121 Pa. 543, 15 At. 812, 1 L. R. A. 60T (1888) ; Wixon v. Newport, 13 R. I. 454 (1881); Folk v. City of Mil- waukee, 108 Wis. 359, 84 N. W. 420 (1900). " Davis V. Knoxville, 90 Tenn. 599, 18 S. W. 254 (1891). " Sherman v. Parish of Vermil- lion, 51 La. Ann. 880, 25 So. 538 (1899). ""Kincaid v. Harden Co., 53 la. 430, 5 N. W. 589 (1880); Eastman V. Meredith, 36 N. H. 284, 72 Am. Dec. 302 (1858). J° Maxmillian v. Mayor, etc., 62 N. Y. IfO, 20 Am. R. 468 (1876); Tar- button V. Tenville, 110 Ga. 90, 35 S. E. 282 (1899). " Jones V. City of Williamsburg, 87 Va. 722, 34 S. E. 883, 47 L. R. A. r94 (1900), contra, Hagerstown v. '''otz, 93 Md. 437, 49 At. 836, 54 U R. A. 910 (1901). == City of Lafayette v. Timberlake, 88 Ind. 330 (1882), contra, Taylor V. Mayor, 64 Md. 68, 54 Am. R. 759 (1885) ; Cochrane v. Mayor of Frost- burg, 81 Md. 54, 31 At. 703, 48 Am. St. R. 479, 27 L. R. A. 728 (1895). These cases proceed upon the theory that the duty to prevent nuisances is imperative, not legislative or dis- cretionary. "James v. Harrodsburg, 85 Ky. 191, 3 S. W. 135 (1887); Cain v. Syracuse, 95 N. Y. 83 (1884); Leo- nard V. Hornellsville, 41 App. Div. 106, 58 N. Y. Supp. 266 (1899); Mc- Dade v. Chester City, 117 Pa. 414, 12 At. 421, 2 Am. St. R. 681 (1888); Smith V. Selings-grove Borough, 199 Pa. 615, 49 At. 213 (1901); Hubbell V. City of Viroqua, 67 Wis. 343, 30 N. W. 847 (1886). " Taylor v. City of Owensboro, 98 Ky. 271, 32 S. W. 948 (1895). ■" McGraw v. Town of Marion, 98 Ky. 673, 34 S. W. 18, 47 L. R. A. 593 (1896). Parties to Tort Actions. i i i cannot be charged to its account :"" nor will it be made to respond in dainages for injuries caused by mistaken plans for street sewers and similar works." Moreover, it is not responsible for an abuse by its ofificers of a discretionary power vested in them by law, such as the appointment of unfit men to office.^* Statutory Liability of Municipal Corporations. In the ab- sence of constitutional prohibitions, the State may impose upon public corporations of every kind, any of the liabilities from which they are free at common law. Whether such a liability has been imposed in a particular case depends upon the existence and the construction of statutory enactments. If the terms of the statute are clear and unequivocal, there is no difficulty; but oftentimes the legislature does not impose a liability in express terms, while its language indicates an intent to impose it. The canon of construc- tion to be applied in such a case in England has been judicially stated as follows : " In the absence of something to show a con- trary intention, the legislature intends that the body, the creature of the statute, shall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same thing." '° In this country, various canons of construction have been sug- gested,'" but that which seems to be sustained by the weight of authority, as well as by sound legal principle, is this : In the absence of an express statement of its intention, the legislature must be presumed to impose upon a public corporation liability for injuries inflicted by its officers or servants, within the scope of their author- ity, when the authority given or the duty enjoined by statute relates " Duke V. Rome, 20 Ga. 635 that the duty of devising a proper (1856); Gray v. Griffin, 111 Ga. 361, plan Is quasi judicial. 30 S. E. 792, 51 L. R. A. 131 (1900). "Craig v. City of Charleston, 180 "City of Chicago v. Seben, 165 111., 154, 54 N. B. 184 (}889). 111. 37, 46 N. E. 244 (1897); Mills "Blackburn, J., in Mersey Dock V. City of Brooklyn, 32 N. Y. 489 Trustees V. Gibbs, L. R. I. H. L. 93. (1865); Hughes v. City of Auburn, 110, 35 L. J. Exch. 225 (1866). ICl N. Y. 96, 55 N. E. 389 (1899); "See Hill v. Boston, 122 Mass. Cf. Stone V. City of Seattle, 30 244, 23 Am. R. 332 (1877); Detroit Wash. 65, 70 Pac. 249 (1902), hold- v. Blackeby, 21 Mich. 84 (1870); Ing the city liable for damages Weet v. Brockport. 16 N. Y. 161 caused by defect in plan of side (1857). walk, and repudiating the doctrine 112 The Law of Torts. to the local or special interests of the corporation, and is ministerial or inq)erative, and ample means are provided for the exercise of the authority or the performance of the duty.*^ Liability of Municipality as Property Owner. For the wrongful use and management of property which it holds and enjoys in its private corporate capacity, or for the proper manage- ment of which it is made liable by statute, it is subject to the same liability that attaches to individual ownership.*'' Such is not the rule, however, in the case of property acquired and controlled by it for the public, or in the discharge of governmental functions.*' Still, if such property is so used as to become a private nuisance to adjoining property owners, the corporation may be liable for the damages inflicted,** unless its conduct is constitutionally authorized by the State.*" It seems to be well settled in most jurisdictions that a public corporation may be liable for trespass and other injuries directly inflicted, while not liable for consequential damages.*' Liability of Municipal Officers and Servants. In many cases where the municipal corporation escapes liability, under the rules which we have been considering, the injured party is not without redress. If the wrongdoing ofiiicers or servants were per- forming executive or ministerial functions, as distinguished from those that are judicial, or gwoji- judicial, they are personally liable to those who have sustained legal harm.*' " 2 Dillon, Municipal Corpora- N. J. Eq. 361, 45 At. 985, 48 L. R. A. tions, (4 Ed.) § 967, 980-983, and 722 (1900); Valparaiso v. Hagen, authorities cited. 153 Ind. 337, 54 N. E. 1062, 48 L. R. "Brown v. Atlanta, 66 Ga. 71 A. 707 (1899); Lefrois v. County of (1880); Moulton v. Scarborough, 71 Monroe, 162 N. Y. 563, 57 N. E. 183 Me. 267 (1880); Thayer v. Boston, (1900); Smith v. Sedalia, 152 Mo. 19 Pick (Mass.) 511 (1837); Mackey 283, 53 S. W. 907 (1899). The con- V. Vicksburg, 64 Miss. 777, 2 So. 178 stitution of Missouri prohibits the (1887); Carrington v. St. Louis, 89 taking or damaging of private prop- Mo. 208, 1 S. "W. 240 (1886). erty for public use, without compen- "Hill V. Boston, 122 Mass. 344, sation. Hence the city was held 23 Am. R. 332 (1887), and cases liable, cited supra, p. 106. "Hughes v. City of Auburn, 161 "Piatt Brothers & Co. v. Water- N. Y. 96, 55 N. E. 389, 46 L. R. A. bury, 72 Conn. 531, 45 At. 154, 48 630 (1892); 2 Dillon Mun. Corp. L. R. A. 691, and note (1900); Win- (4 Ed.) § 987. chell V. Waukesha, 110 Wis. 101, 85 " School District v. Williams, 38 N. W. 668 (1901). Ark. 454 (1882); Tomlin v. Hll- « Marcus Sayre Co. v. Newark, 60 dreth, 65 N. J. L. 438, 47 At. 649 Parties to Tort Actions. 113 Charitable Corporations. When these institutions are a part of the governmental machinery of the State, or of one of its political subdivisions, they are not liable for the torts of their officers or servants. The same reasons which exempt the municipality exempt them." Frequently, however, they are founded by the gifts of individuals, and are not in any sense State institutions. In such circumstances, what is their liability ? It must be admitted that the judicial answers are quite at variance.*' They fall into three classes, in this country. According to one class, the liability is that of the ordinary private corporation. '" According to another class, there is no corporate liability for the negligence of the officers or servants. If there were, say these courts, the trust funds of the corporation would be diverted from the purposes to which they were devoted by the donors. Charitable bequests would be thwarted, and trustees, by their negligence, or other wrongdoing, would be able to waste the funds which have been dedicated to charitable purposes. Those who accept the ministrations of such establishments, it is declared, assent to the condition imposed by law, that they shall look to the individual wrongdoers for redress of wrongs done to them by the (1900); Bennett v. Whitney, 94 N. y. 302 (1884) ; Lefrols v. County of Monroe, 162 N. Y. 563, 57 N. E. 185 (1900); semble. Workman v. New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314 (1900). "Williamson v. Louisville Indus. School, 95 Ky. 251, 24 S. W. 1065, 23 L. R. A. 200, 44 Am. St. R. 243 (1894); Perry v. House of Refuge, 63 Md. 20, 52 Am. R. 495 (1885); MacDonald v. Massachusetts Hospi- tal, 120 Mass. 432, 21 Am. R. 529 (1876); Overholser v. Nat. Home, etc., 68 Ohio St. 286, 67 N. E. 487 (1903); Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160 (1875) ; Richmond v. Long, 17 Grat. (Va.) 375, 94 Am. Dec. 461 (1867). " In England, the question has not received an authoritative an- swer. 1 Seven on Negligence (2 Ed.) 290. 8 ™ Donaldson v. Commissioners, 30 New Brunswick, 279 (1890); Glavin V. Rhode Island Hospital, 12 R. I. 411, 34 Am. R. 675, (1879). In the last cited case, Durfee, C. J., in re- ply to the argument that if such corporations are held liable for the negligence of their physicians or at- tendants, people will be discouraged from contributing to their support, says; " The public is doubtless in- terested in the maintenance of a great public charity, such as the Rhode Island Hospital is; but it is also interested in obliging- every person and every corporation which undertakes the performance of a duty to perform it carefully, and therefore it has an interest against exempting any such person or cor- poration from liability for its neg- ligence." 114 The Law of Torts. officers, agents or employees. The wrongdoer, but not the trust fund, must respond in damages.^^ The intermediate view, and that which seems to be supported by the weight of authority as well as by the weight of argument, is, that a charitable organization is not liable in tort for injuries done by physicians, employees or servants, when it has exercised due care in their selection,^'' but that it is liable for corporate misconduct or negligence.^' What Organizations are Charitable ? The distinguishing characteristics of these institutions are: First: Their origin, in the donations of benevolent persons or in grants from the State. Second — the manner in which they are conducted — not for the pecuniary profit of their managers or owners, but for the promotion of the welfare of others."* A railroad or steamship company, which main- tains a hospital for the gratuitous treatment of its injured or sick employees, or provides a surgeon for the gratuitous treatment of passengers, is subject to the rule governing charitable corporations. It is liable only for failure to use reasonable care in selecting sur- geons, nurses, and other assistants.^' The fact that those receiving treatment make contributions to the hospital or similar institution, will not change its character,"' unless these contributions are re- quired and received as a source of profit to the proprietors."' It- " Downes v. Harper Hospital, 101 would not deplete the funds, al- Mich. 555, 45 Am. St. R. 427, 60 N. though damages, it was said, should W. 42 (1894) ; Insurance Patrol v. not be awarded. Boyd, 120 Pa. 624, 15 At. 553, 6 Am. " Sherman v. Cong. Miss. Soc. 176 St. R. 745 (1888). Mass. 349, 57 N. E. 702 (1900); Cor- "'Hearns t. Waterbury Hospital, bett v. St. Vincent's Industrial 66 Conn. 98, 33 At. 595, 31 L. R. A. School, 79 App. Div. (N. T.) 334 224 (1895); Powers v. Mass. Hos- (1903). pital, 109 Fed. 294, 47 C. C. A. 122, "'Eighmy v. Ry. Co., 93 la. 538, and note (1901) ; Conner v. Sisters 61 N. W. 1056, 27 L. R. A. 296 of the Poor, 10 Ohio S. C. P. Dec. (1895) ; Galveston, etc., Ry. v. 86, 7 Ohio N. P. 514 (1900) ; Corbett Hanway (Tex. Civ. App.) 57 S. W. V. St Vincent's Industrial School, 695 (1900) ; Laubheim v. DeKoning- 79 App. Div. (N. Y.) 334 (1903). lyke, etc., Co., 107 N. Y. 228, 13 N. "The first two cases in the pre- B. 781, 1 Am. St. R. 815 (1887). ceding note. In Herr v. Central Ky. ™ Richardson v. Coal Co., 10 Asylum, 97 Ky. 458, 30 S. W. 971, 28 Wash. 648, 39 Pac. 95 (1895). L. R. A. 394 (1895), an Injunction "Hanway v. Galveston, etc., Ry., was granted against a charitable 94 Tex. 76, 58 S. W. 724 (1900). corporation for a nuisance as this Parties to Tort Actions. i i 5 has been held that a Young Men's Christian Association is not a pubhc charitable organization. " The report shows," said the court, " that while much of the work of the defendant corporation is of a charitable nature, its purposes are also social, and include the giving of lectures, and of theatrical and other entertainments for the benefit of its members." Hence, the Court declared, it was not entitled to exemption from liability for the negligence of its servants."' Private Corporations. These may sue and be sued for torts, and the rules which govern such actions are substantially those which apply to like actions by or against natural persons."* Such corporation is entitled to sue for damages inflicted by a libel, provided the defamation is against it as an artificial person,'" and not against its officers or agents as individuals.*^ Its liability for torts was formerly denied, or confined to narrow limits. This denial appears to rest upon a dictum of Thorpe, C. J.,*^ which was misunderstood. " In terms it applied to municipal cor- porations only," but many writers and judges treated it as applicable to all corporations aggregate.*' It is now well settled, however, that if a corporation has no body to be seized by capias or exigent, it has property which may be attached or levied upon.** Some eminent judges have declared that it is not liable for a tort which Involves actual malice.*" Their view is that a corporation aggregate has not a " mind," and, therefore, cannot entertain malice. " If malice in law," said an English judge in rejecting this view, " were synonymou^ with malice in French — a sort of esprit tinged with ill-nature, I should entirely agree. In such a sense a corporation would be as incapable of malice as of wit. But of actual malice in " Chapln V. Holyoke Y. M. C. A., Bro. Abr. Corporations, 43. 165 Mass. 280, 42 N. E. 1130 (1896). "See note by Serj. Manning, in =» Phil. W. & B. Ry. v. Quigley, 21 4 Man & G. at pp. 453--455. How. (U. S.) 202 (1858). '* Maund v. Monmouthshire Canal "Martin County Bank v. Day, 73 Co., 4 Man. & G. 452 (1842); Tres- Minn. 195, 75 N. W. 1115 (1898); pass for breaking and entering Trenton Mutual Life, etc., Co. v. locks on a canal ; Central of Ga. Ry. Perrlne, 23 N. J. L. 402 (1852) ; v. Brown, 113 Ga. 414, 38 S. B. 989, Morrison Jewell Co. v. Lingane, 19 84 Am. St. R. 250 (1901). R. I. 316, 33 At. 452 (1895). "^ Baron Alderson, in Stevens v. "Mayor of Manchester v. Will- Midland Counties Ry., 10 Ex. 352 iams (1891), 1 Q. B. 94, 60 L. J. Q. (1854); Lord Bramwell, in Abrath B. 23. V. N. E. Ry., 11 App. Cas. 247 "^29 Ass. f. 100, PI. 67 quoted in (1886). u6 The Law of Torts. a legal sense, I think a corporation is capable." "" This is the pre- vailing view both in England and in this country. Accordingly, a corporation is liable for malicious prosecution,"^ or for libel,"' or for fraud,"° although the malicious acts were done, as of course they could only be done, by its agent or servant; provided, those acts were done in the course and within the apparent scope of his authority in the business of his principal ; and provided further, that, if the acts were not strictly within the corporate powers, they were assumed to be performed for the corporation, and by one who was competent to employ the corporate powers actually exercised.'" Liability for Slander. The suggestion has been made that a corporation is not liable for slander spoken by its agents.'^ It is believed that there is no judicial decision declaring such doctrine, while there are numerous judicial dicta to the contrary.'^ The view seems to rest upon the idea that as a corporation has no voice it cannot commit slander. Such a notion belongs to the same category with those which have been exploded: that a corporation has no body, and hence cannot commit a trespass ; that it has no mind, and hence can entertain no malice. It can speak only through its agents ; and their voice, when used in compliance with its orders, or with its "Cornford v. Carlton Bank § 265, citing Mahoney v. Hartley, 3. (1899), 1 Q. B. 392. Camp. 210 (1812), and Toll v. "'Cornford v. Carlton Bank Thomas, 15 How. Pr. 314 (1857). (1901), 1 Q. B. 22, 68 L. J. Q. B. Neither case deals with this ques- 1020. Hussey v. Norfolk, etc., Ry., tion. The holding of each is that if 98 N. C. 34, 3 S. E. 923, 2 Am. St. R. an agent publishes a libel or a slan- 312 (1887), semble. der he is personally liable therefor. " Fogg V. Boston, etc., Ry., 148 To infer from these decisions, that Mass. 513, 20 N. E. 100, 12 Am. St. a corporation is not liable for slan- R. 583 (1889); Hussey v. Norfolk, der uttered by Its authorized agents, etc., Ry., 98 N. C. 34, 3 S. E. 923, 2 is warranted only upon the theory. Am. St. R. 312 (1887); Miss. Pac. that a principal Is never liable in Ry. V. Richmond, 73 Tex. 568, 11 S. tort for his agent's acts, if the agent W. 555, 4 L. R. A. 280 (1889). is personally liable. «= Fitzgerald v. Fitzgerald Co., 41 " Palmerl v. Man. Ry. Co., 133 N. Neb. 374, 59 N. W. 838 (1894); Erie Y. 261, 30 N. E. 1001 (1892). Ac- City Iron Works v. Barber, 106 Pa. tion was for false imprisonment ac- 125 (1884). companied by slanderous words, •"Washington Gas Light Co. v. and recovery was sustained. Hns- Lansden, 172 U. S. 534, 19 Sup. Ct. sey v. Norfolk, etc., Ry.. 98 N. C. 296 (1898). 34, 3 S. E. &23, 2 Am. St. R. 312 ''Townshend, Slander and Libel (1887). Parties to Tort Actions. 117 approval/' or, it is submitted, within the scope of their authority as its agents, is its voice. Married Women. The common law did not permit a married woman to sue or be sued alone. If she were a proper party to the action, her husband must be joined with her. For torts committed by her in his presence or by his order, '^ or at leaat under his coer- cion, '° he alone was responsible, and suit was properly brought against him alone. The rule, requiring him to be joined as a party with the wife, in other tort actions, rested upon the fact that he was entitled to her property. Unless he could be made a party defend- ant, one who had suffered wrong at the hands of the wife would be ^\'ithout remedy."* On the other hand, any recovery for injury to his wife's person or estate would belong to the husband, and should be prosecuted by him," either as sole plaintiff,"* or joined with his "Behre v. National Cash Reg. Co., 100 Ga. 213. 27 S. E. 986, 62 Am. St. R. 320 (1896), dictum adopting statement of Odgers on Libel & Slander (1 Am. Ed. 368, 3 Eng. Ed. 435), that a corporation is not lia- ble for slander uttered by its ofiB- cers, unless the corporation ordered and directed the utterance of the very words. "*2 Kent's Commentaries, 149; Dailey v. Houston, 58 Mo. 361 f]874); Edwards v. Wessinger, 65 S. C. 161, 43 S. E. 518 (1903). '•Marshall v. Oakes, 51 Me. S08 (1864); Handy v. Foley, 121 Mass. 259 (1876); Kosminsky v. Goldberg, 44 Ark. 401 (1884). "Hawk V. Harman. 5 Binney (Pa.) 43 (1812); Head v. Briscoe, 5 Car. & P. 484 (1833); Capel v. Powell, 17 C. B. N. S. 743 (1864), Eaid Erie, C. J., at p. 748: "Seeing that all her personal property is vested in the husband it would be idle to sue the wife alone, the ac- tion would be fruitless." In some cases the view has been expressed that the common law re- quired the husband to be joined, be- cause the wife had in law no sepa- rate existence, and torts committed by her were his torts. Flesh v. Lindsay. 115 Mo. 1, 21 S. W. 907. 37 Am. St R. 374 (1892) ; Wainford v. Heyl, L. R. 20 Eq. 321, 324 (1875). But this is inconsistent with the es- tablished doctrine that after di- vorce, the husband cannot be sued for torts of the wife during cover- ture, Capel V. Powell, 17 C. B. N. S. 743 (1864), as well as with the doctrine, that for her personal torts. " such as assault and battery, libel, slander and the like," judg- ment could be rendered against her jointly with her husband. Flesh v. Lindsay, supra (115 Mo. at p. 13. 14 and cases cited). ''Pollock, Torts (6 Ed.) p. 56. " Smith V. City of St. Joseph, 55 Mo. 456 (1874). ii8 The Law of Torts. wife.'" If the cause of action were one which would die with the person, the death of the wife, even after action brought by the husband with her, was good ground for arresting judgment in his favor.*" The husband could not join a cause of action in his own right for a tort to himself, with one as co-plaintiff with his wife for a tort to her. Accordingly, if A slandered both husband and wife, the husband was required to bring an action in his own behalf, and a distinct action as co-plaintiff with the wife for the slander to her,'* Modern Legislation. In nearly every jurisdiction, statutes have been passed modifying the husband's common law rights to his wife's property and his marital authority. As a rule, this legisla- tion has been strictly construed, so far as its effect upon the doc- trines which we have been considering is concerned. Its primary object was to exempt the wife's property from the husband's control and from liability for his debts, not to exempt him from his common law liability for her torts.*" Hence, his liability continues, save where the statute expressly changes it, as by declaring that he shall not be liable for her wrongful or tortious acts.*' "Laughlin v. Eaton, 54 Me. 156 (1866). ™Stroop V. Swarts, 12 Ser. & R. (Pa.) 76 (1824). So, if the action were brought against the husband and wife for her tort, his death would not abate the action, Douge V. Pearce, 13 Ala. 127 (1845) ; Smith V. Taylor, 11 Ga. 20 (1852); Baker V. Braslin, 16 R. I. 635; but her death would. Willis, J., in Wright V. Leonard, 11 C. B. N. S. 258 at p. 266 (1861); Rapallo, J., in Rowing V. Manly, 49 N. Y. 192, at p. 201, 10 Am. R. 346 (1872). '• Ebersoll v. Krug, 3 6inne> (Pa.) 555 (1811). On the other hand, if the husband and wife slan- dered plaintiff, he could not join the action against the husband for his slander with that against hus- band and wife for her slander. Penters v. England, 1 McCord Law (S. C.) 14 (1821); Malone v. Stll- well, 15 Abb. Pr. 421 (1863). "^ Seroka v. Kaltenburg, 17 Q. B. D. 177 (1886); Henley v. Wilson, 137 Cal. 273, 70 Pac. 21, 58 L. R. A. 941, 92 Am. St. R. 160 and note (1902); McElfresh v. Kerkendall, 36 la. 224 (1872); Wolf v. Banerels, 72 Md. 481 (1890). Such legisla- tion does not relieve the wife from the necessity of joining her husband as plaintiff in a suit for injuries to her person. Hill v. Duncan, 110 Mass. 238 (1872); Morgan v. Ken- nedy, 62 Minn. 348, 64 N. W. 912, 54 Am. St. R. 647, 30 L. R. A. 521 and note (1895); Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 907, 37 Am. St. R. 374 (1893); Fitzgerald v. Quann, 109 N. Y. 441, 17 N. E. 354 (1888). =" Strouse v. Leiff, 101 Al. 433, 14 So. 667, 46 Am. St. R. 122 (1S9C1;' Austin V. Cox, 118 Mass. 58 (1S7:V applying c. 312, St. of 1871, that a husband shall not be held liable for a wife'e tort, unless he aided or en- couraged it; Burt V. McBain, 29 Parties to Tort Actions. 119 A different view of these statutes obtains in some States, and they have been held to abolish by implication the common law rule of a husband's liability for his wife's torts. As they have destroyed the common-law theory of legal unity of husband and wife, have secured to her the full control and sole ownership of her property, have enabled her to carry on a separate business, and accorded her " the right to control her own time," courts have declared that they have destroyed the reason for the husband's liability for her mis- deeds.'* Double Action for Injury to Wife. When the wife sustains a personal injury through the tort of another, two distinct rights of action may accrue against the wrongdoer; one to the wife,*' and one to the husband. TTie gist of the former is the injury itself, including her "potentiality to earn for herself and her expectation of life." '° The gist of the latter is, " the consequence of the injury, in depriving the husband of his common-law right to her society or services, or in imposing on him the common-law duty to care for her." «' Mich. 260 (1874); Mason v. Mason, 66 Hun (N. Y.) 386 (1892), apply- ing statute now embodied in Domes- tic Relations Law, ch. 272, L., 896 § 27: "A married woman has a right of action for an injury to her per- son, property or character, or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts: her husband is not liable for such acts unless they were done by his actual coercion or instigation: and such coercion or instigation shall not be presumed, but must be proved." Vocht v. Kenklence, 119 Pa. 365, 13 At. 198 (1888); Story v. Downey, 62 Vt. 243, 20 At. 321 (1890). "Martin v. Robson, 65 111. 132, 16 Am. R. 578 (1872); Norris v. Corkill, 32 Ks. 409, 4 Pac. 862, 49 Am. R. 489 (1884); Lane v. Bryant, 100 Ky. 138, 37 S. W. 584, 36 L. R. A. 709 (1896); Calmer v. Wilson, 13 Utah, 129, 44 Pac. 833, 57 Am. St. R. 713 (1896). "At common law, this action must be brought in the names of the wife and husband. Such is still the rule in some jurisdictions: Wolf V. BauerelB, 72 Md. 481 (1890). In others, the wife may sue alone. See cases in next note. "■Texas, etc., Ry. v. Humble, 181 U. S. 57, 63, 21 Sup. Ct. 526 (1900); Atlantic, etc., Ry. v. Dorsey, 73 Ga. 479 (1884); Chic, etc., Ry. v. Dunn, 52 III. 260 (1869); Pancoast v. Bur- nell, 32 la. 394 (1871) ; Townsdin v. Nutt, 19 Ks. 282 (1877); Harmon V. Old Col. Ry., 165 Mass. 100, 42 N. E. 505 (1896); Omaha, etc., Ry. V. Doolittle, 7 Neb. 481 (1878); Norfolk, etc., Ry. v. Dougherty, 92 Va. 372, 23 S. B. 777 (1895) ; Steven- son V. Morris, 37 O. St. 10, 41 Am. R. 481 (1881). " Skoglund V. Minn. Street Ry., 45 Minn. 330. 47 N. W. 1071 (1891); 120 The Law of Torts. In some States the damages recovered for personal injuries to the wife are " community property of the husband and wife, of which the husband has the management, control and absolute power of disposition other than testamentary." *' Tort Actions between Husband and Wife. At common law, neither spouse could maintain a tori action against the other. This rule is sometimes said to be based on the doctrine that husband arid wife " being one person, one cannot sue the other."'* At other times, it is declared to rest upon considerations of public policy. Unless " marriage acts as a perpetually operating discharge of all wrongs between man and wife," it is said, each party will be tempted to take all petty domestic difficulties into court. It is thought to be wiser " to draw the curtain, shut out the public gaze, leave the parties to forget and forgive." *'' The Injured Spouse is not without Remedy, however. In case of a serious assault and battery, the wrongdoer may be pun- ished criminally.'^ If unlawfully deprived of liberty, the victim is entitled to a writ of habeas corpus.^^ There is also the resort of divorce, with the right to alimony in case of an abused ^i^ife. Modern Statutes give a Right of Action in Tort Between Husband and Wife in some Cases. The English Married Woman's Property Act permits the wife to sue her husband for a tort to her separate estate,"' but does not accord the reciprocal privi- lege to him. The statutes of Iowa and Illinois authorize an action by either spouse to recover his or her property from the other.'* Such legislation has not given rise to many reported decisions, and is generally subjected to a strict construction."^ The prevailing Smith V. City of St. Joseph, 55 Mo. Am. R. 27 (1877); Bandfield v. 456 (1874); Kelly v. N. Y., etc., Ry., Bandfield, 117 Mich. 80, 75 N. W. 1G8 Mass. 308, 46 N. B. 1063 (1897); 287, 40 L. R. A. 757 (1898). Hyatt V. Adams, 16 Mich. 180 »' State v. Oliver, 70 N. C. 60 (1867); Shanahan v. City of Madl- (1874). son, 57 Wis. 276 (1883); Southern "^Reg. v. Jackson (1891), 1 Q. B. Ry. Co. V. Crowden, 135 Al. 417, 671, 60 L. J. Q. B. 346. 33 So. 335 (1902). "345 & 46 Vict. c. 75, § 12 (1882). ''McFadden v. Santa Anna Ry., "Porter v. Goble, 88 la. 565, 55 87 Cal. 464 (1891). N. W. 530 (1893); Larison v. Lari- " Blackburn, J., in Phillips v. son, 9 Brad. (111. App.) 27 (1881). Quarnet, 1 Q..B. D. 435, 45 L. J. Q. "Johnson v. Johnson, 72 111. 489 B. 277 (1876). (1874); Chestnut v. Chestnut, 77 ■"Abbott V. Abbott, 67 Me. 304, 24 111. 347 (1875). Parties to Tort Actions. 121 view is that all disabilities which the common law imposes upon husband and wife by reason of the marriage status still exist, except in so far as they have been modified or changed by express statutory enactment.'" Still, when the statutes secure to the wife the ownership and control of her separate estate, and give her the right to sue and be sued with respect to such property, as though she were a feme sole, it would seem that she should be accorded all actions, both equitable and legal, which are necessary to secure her in the possession or recovery of her property, even though her husband has to be made a party defendant, and thereby becomes liable to a judgment for money. And such seems to be the doctrine of the best considered cases."' Tort Liability of Infants. It has never been doubted in English law that an infant is answerable for his torts, which are unconnected with his contracts."' If he is very young, however, his harmful acts may fall within the category of accident, instead of that of tort." The command of his parents to commit a tort will not absolve him from liability,^"" although it will render the parent also liable.i"^ "Heacock v. Heacock, 108 la. 540, 130, 26 Am. R. 81 and note (1877); 79 N. W. 353 (1899). Cf. Abbe v. Shaw v. Coffin, 58 Me. 254, 4 Am. Abbe, 22 App. Div. 483, 48 N. Y. R. 290 (1870); Slkes v. Johnson, 16 Supp. 25 (1897); State ex rel. Las- Mass. 389 <1820); McCabe v. O'Con- serre v. Michel, 105 La. Ann. 741, 30 ner, 4 App. Div. 354, 38 N. Y. Supp. So. 122 (1901). 572 (1896), affd. 162 N. Y. 600, 57 "Crater v. Crater, 118 Ind. 521 N. E. 1116 (1900); Pry v. Leslie, 87 (1888); White v. White, 58 Mich. Va. 269, 12 S. E. 671 (1891); Hum- 546, 25 N. W. 490 (1885); Whitney phrey v. Douglass, 10 Vt. 71, 33 Am. V. Whitney, 49 Barb. (N. Y.) 319 Dec. 180 and note (1838); Hutching (1867); Berdell v. Parkhurst, 19 v. Engel, 17 Wis. 230 (1863). Hun (N. Y.) 358 (1879); Wood v. ""Harvey v. Dunlop, Hill & Den. Wood, 83 N. Y. 575 (1881); McKen- (N. Y.) 193 (1843). dry V. McKendry, 131 Pa. 24, 18 At. "» Scott v. Watson, 46 Me. 362, 74 1078, 6 L. R. A. 506 and note (1890). Am. Dec. 457 (1819) ; School Dist. "Y. B. 35 Hen. VI. f. 11, pi. 18 v. Bragdon, 23 N. H. 507, 516 (1456), holding an infant four (1851); Humphrey v. Douglas, 10 years old liable for putting out an Vt., 71, 33 Am. Dec. 180 and note eye: Hodsman v. Grisell, Noy, 129; (1838). Barnard v. Haggis, 14 C. N. B. S. 45 "' Teagarden v. McLaughlin, 86 (1863); Neal v. Gillett, 23 Conn. 437 Ind. 476 (1882); Hower v. Ulrich, (1855); Peterson v. Haffner, 59 Ind. 156 Pa. 410, 27 At. 37 (1893). 122 The Law of Torts. Even when his tort is connected with a contract, it ought not to be difficult to determine whether a tort action will lie against him : and yet judicial decisions are quite in conflict on this point. Un- doubtedly, the courts ought not to permit a plaintiff to turn a contract obligation into a tort liability by a mere trick of pleading, and thus recover against an infant in an action ex delicto for what is in reality the breach of a contract, which the law permits him to repudiate. For example, an infant contracts to act as plaintiff's agent,^"^ or as bailee of his property.'"' He comes under a common-law duty to obey instructions and to exercise due skill and care in the perform- ance of his contract. For a breach of such duty an adult may be sued in an action ex delicto; but if the infant is so sued, his infancy is a defense. The same proof, which would establish the cause of action in the tort suit, would have established a cause of action in a suit for breach of the contract. A release of the infant's liability for breach of the contract would operate as a release from the tort.'"* Hence the rule of law which releases the infant from liability upon the contract must operate to release him from the alternative liability for the tort. The same doctrine has been applied in cases for false warranty by infants on the sale of goods. It has been declared that " the sub- stantial ground of action rests on promises ; " that " the assumpsit " in such cases " is clearly the foundation of the action." ""* If the warranty is an engagement collateral to the sale contract, and proof of damage cannot be made without referring to and proving the contract, then the courts are right in holding that the infant cannot be made liable by framing the action for damages in tort.'"* Deceit by Infant. If, on the other hand, the false statement ""Vasse V. Smith, 6 Cranch (TJ. was "for fraud in the sale of a S.) 226 (1810). horse; " plea, that defendant was ""Young V. Muhling, 48 App. Div. under age when the sale was made: 617, 63 N. Y. Supp. 181 (1900). reply, that defendant had the ap- «* Bishop, Non-Contract Law, § pearance of a man of full age and S^^- was allowed by his father to trade. ""Green v. Greenbank, 2 Marsh. Judgment— " The defendant being 485, 4 E. C. L. 375 (1816). This a minor under the care of his was a special action on the case, parent, was incapable of making a In Howlett v. Haswell, 4 Camp. 118 contract, therefore could not be (1814), the action was assumpsit, guilty of fraud in contracting." In Brown v. Dunham, 1 Root '"Gilson v. Spear, 38 Vt. 311, 88 (Conn.) 272 (1791), the declaration Am. Dec. 659 (1865). Parties to Tort Actions. 123 as to the quality, condition or title of the article is made by the infant with knowledge of its falsity and with the intention to induce the buyer to act upon it, and the latter does act upon it to his dam- age, we have the common-law tort of deceit, and the infant should be held liable in a tort action for damages.*"' Certainly, the weight of authority in this country is in favor of holding the infant liable for damages caused by inducing the plain- tiff to sell him goods upon credit, by false representations that he was of age,*"* or that he intended to pay for the goods, when he did not,*"® or by inducing the seller to deliver to him goods sold for cash by giving a check for the price, which he knew to be worth- less.**" The doctrine of these authorities is, that an infant is liable for his tort, to the extent of the loss actually sustained, although it be connected with his contract, where a recovery can be had without giving effect to his contract. " The test," it is declared, " is supplied by answer to the question: Can the infant be held liable without directly or indirectly enforcing his promise? There is no enforce- ment of a promise where an infant, who has been guilty of a positive fraud, is made to answer for the actual loss his wrong has caused to one who has dealt with him in good faith and has exercised due diligence- Nor does such a rule open the way for a designing man to take advantage of an infant, for it holds him to the exercise of good faith and reasonable diligence, and does not enable him to make any profit out of the transaction with the infant, because it allows him compensation only for actual loss sustained." *** False Representations as to Age. In England, and in some of our States,**'' false representations as to his age by an infant "" The following language in a re- "" Fitts v. Hall, 9 N. H. 441 cent decision is applicable, it is sub- (1838); Wallace v. Morss, 5 Hill mitted: " The right not to be led by (N. Y.) 391 (1843). fraud to change one's situation is "•Ashlock v. Vivell, 29 111. App. anterior to and independent of the 388 (1888). contract. The fraud is a tort. Its ""Mathews v. Cowan, 59 111. 341 usual consequence is that as be- (1871). tween the parties, the one who is '"Rice v. Boyer, 108 Ind. 472, 9 defrauded has a right, if possible, N. E. 420, 58 Am. R. 53 (1886). to be restored to his former posi- '"Johnson v. Pie, 1 Lev. 169, 1 tion." Nat. Bank Loan Co. v. Sid. 258, 1 Keb. 965 (1665); Bart- Petrie, 189 V. S. 423, 425, 23 Sup. lett v. Wells, 1 B. & S. 836, 31 L. J. Ct. 512 (1902). The bank had not Q. B. 57 (1862); Monumental Build- legal capacity to sell in this case. ing Assoc, v. Herman, 33 Md. 128 124 Thk Law of Torts. do not subject him to a tort action by one who has been damaged thereby. The rule that infants are liable for their torts, it is said, " is to be applied with due regard to the other equally well settled rule that, with certain exceptions, they are not liable on their con- tracts ; and the dominant consideration is not that of liability for their torts, but of protection from their contracts." '" Accordingly, in the case just cited, it was held that one who had been induced to sell goods to a minor, by his false and fraudulent representation that he was of age, could not recover either for deceit or trover, although the infant had refused to pay the agreed price because of his infancy, and had disposed of the goods to third persons unknown to plaintiff. The court declared that plaintiff could not maintain his action with- out showing that there was a contract, which he was induced to enter into by the defendant's fraudulent representations in regard to his capacity to contract, and that pursuant to that contract there was a sale and delivery of the goods in question. This reasoning ignores the fundamental doctrine that an agree- ment which has been procured by fraud may be treated by the defrauded party as void.^^* Liability of Infant for Trover. The reasoning appears to ignore, also, previous decisions of the same court. As early as 1819,*" that court declared in a case where the infant had induced the plaintiff to sell and deliver goods, by the misrepresentation that he was of age, and when sued for the price successfully interposed the defense of infancy : " The basis of this contract has failed from (1870); Nash v. Jewett, 61 Vt. 501, fancy and defeated the action. 18 At. 47, 4 L. R. A. 561, 15 Am. St. Then plaintiff sued the infant for R. 931 (1889). the conversion of the cow, and re- "' Slayton v. Barry, 175 Mass. covered. Said the Court: " If the 513, 56 N. E. 574, 49 L. R. A. 560 defence to the action on the con- (1900). tract had been one, which admitted '"Nolan V. Jones, 53 la. 387, 5 N. its validity and then sought to dis- W. 572 (1880); Kilgore v. Jordan, charge it, the judgment in the case 17 Tex. 341, 350 (1856). would have concluded the parties"; >" Badger v. Phinney, 15 Mass. but the defendant in the original 359, 8 Am. Dec. 105. See Walker v. action on the note having elected Davis, 1 Gray, 506 (1854), where to avoid the contract, " the contract the Infant got plaintiff drunk and never became complete: the title to bought from him a cow for $26, the cow did not pass. The tort was giving his note for the price. When not waived." sued on the note, he pleaded his in- Parties to Tort Actions. 125 the fault, if not the fraud, of the infant; and on that ground, the property may be considered as never having passed from, or as having revested in, the plaintiff." Accordingly, the plaintiif was allowed to maintain an action for replevin of the property."" Again, in Hall v. Corcoran,^*' the court ruled that an action of tort for the conversion of property is not founded on the contract under which the defendant obtained possession. It would seem to follow from those decisions, that when an infant is sued for conversion, in such a case as Slayton v. Barry,"' his false representations and avoidance of his contract are such a fraud upon the adult, as enables him to treat the contract as void, and to reclaim the property if it is still in the infant's hands, or if he has disposed of it to sue him in trover. Such is the right generally accorded in this country. ^^* The same right is accorded in almost every jurisdiction, when an infant bailee does a positive and willfvil act to the property bailed, which amounts to a disaffirmance of the contract of bailment.^^" Hence, if an infant has money or property in his hands which he is bound to return to plaintiff, but which he willfully converts to his "' Similar actions of replevin were sustained in Bennett v. Mc- Laughlin, 13 111. App. 349 (1883); Nolan V. Jones, 53 la. 387, 5 N. W. 572 (1880) ; Wheeler & Wilson Co. v. Jacobs, 2 Misc. 236, 21 N. Y. Supp. 1006 (1893); Robinson v. Berry, 93 Me. 320, 45 At. 34 (1899) ; Neff V. Landis, 110 Pa. 204, 1 At. 177 (1885). "'107 Mass. 251 (1871). '" Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560 (1900). "•Ashlock V. Vivell, 29 111. App. 388 (1888); Eckstein v. Frank, 1 Daly (N. Y.) 335 (1863). In some States, infants are prohibited by statute from disaffirming contracts induced by their false representa- tions that they are of age. See Iowa Code (1897), § 3190; Kansas Gen. St. (1901) S 4184; Utah R. S. (1898) § 1543: Wash. Ballinger's Codes and Statutes § 4582. ™ Fumes v. Smith Rolls Abr. 530 (1635) ; Burnard v. Haggis, 14 C. B. N. S. 45 (1863); Vasse v. Smith, 6 Cranch (U. S.) 226 (1810); Homer V. Thwing, 3 Pick (Mass.) 492 (1826); Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561 (1828); Churchill v. White, 58 Neb. 22, 78 N. W. 369 (1899); Peigne v. Sut- cliff, 4 McCord L. (S. C.) 387, 17 Am. Dec. 340 (1827); Freeman v. Boland, 14 R. I. 39, 51 Am. R. 340 (1882); Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85 (1851). Contra, Penrose v. Curren, 3 Rawle (Pa.) 351 (1832); Wilt v. Welsh, 6 Watts (Pa.) 9 (1837). In Schlnk v. Strong, 4 N. J. L. 87 (1818), plain- tiff counted on the contract and de- fendant's willful breach, and was defeated. A similar blunder in the nature of his action defeated plain- tiff in Studwell v. Shapter, 54 N. Y. 249 (1873), a case of fraudulent representation by defendant induc- ing credit. 126 The Law of Torts. own use, he is liable in tort ; "^ while if, by the transaction, he be- comes a debtor only to the plaintiif,^^' or his loss of the property is due to negligence or disobedience of orders and not to willful misconduct,^^' a tort action is not maintainable. Infant's Liability for Negligence. As soon as a minor be- comes capable of exercising care towards others, he is liable for negligence,^^* although regard is always to be had for the rule that a child is to be held to such care and prudence only, as is usual among children of his age, experience and capacity.*^' When the negligence of the minor amounts to a breach of contract, and subjects him to legal liability only because of the contract rela- tion, his infancy is a defense, as we have seen, whether the form of action be in contract or in tort. In a recent Tennessee case,^''* this doctrine was held to exempt an infant from liability in the following circumstances : He had contracted to thresh a quantity of grain for the plaintiff, and while engaged in performing the contract he negli- gently set fire to certain of plaintiff's property, whereby it was destroyed. When sued for the damage, he pleaded his infancy. The trial court struck out the plea, and plaintiff had a verdict. On appeal, the Supreme Court reversed the judgment, holding that " the gravamen of the action is that the defendant's negligence constituted a breach of the contract." It is submitted that the view of the trial court is not only preferable to that of the Supreme Court, but is in entire accord with the test laid down by the latter tribunal for such cases, viz. : " Whether a liability can be made out without taking notice of the contract." It was immaterial whether the defendant was running an engine pursuant to a contract with plain- "" Bristow V. Eastman, 1 Bsp. 172, naugh, 67 N. H. 149, 30 At 350 Peake 223 (1794); Re Seager: See- (1891); Saum v. Cofflet, 79 Va. 510 ley V. Brlggs, 60 L. T. N. S. 665 (1884). (1889); Mills V. Graham, 1 N. R. '=* Neal v. Gillet, 23 Conn. 437 140 (1804) ; Lewis v. Littlefield, 15 (1855) ; Baker v. Morris, 33 Ks. 580, Me. 233 (1839); Catts v. Phalen, 2 7 Pac. 267 (1885); Conway v. Reed, How. (U. S.) 376 (1844); Baxter v. 66 Mo. 346, 27 Am. R. 354 (1877). Bush, 29 Vt. 465, 70 Am. Dec. 429 >= Haynes v. Gas Co., 114 N. C. 203, (1857). 19 S. E. 344, 26 L. R. A. 810, 41 Am. '="Root V. Stevenson, 24 Ind. 115 St. R. 786 (1894); Lexington Ry. v. (1865); Munger v. Hess, 28 Barb. Fain, — Ky. — , 71 S. W. 628 (1903). (N. Y.) 75 (1858). "• Lowry v. Gate, 108 Tenn. 54. 64 ""Caswell V. Parker, 96 Me. 39, S. W. IOCS, 57 L. R. A. 673 with 61 At. 238 (1901); Stack v. Cava- valuable note (1901). Parties TO Tort Actions. 127 tiff or not. Being upon plaintiff's land with this dangerous instru- ment, he was under a common-law duty to use due care to prevent the escape of sparks and resulting injury to plaintiff's property. The plaintiff does not sue for injury to his grain from improper threshing, but for injury to property wholly disconnected with the contract. It was not necessary for him to show any contract between himself and the defendant, and if proved by the defendant, upon cross- examination of plaintiff's witnesses or otherwise, it had nothing to do with plaintiff's cause of action, save as a bit of history.^ ^^ Parent's Liability for the Child's Tort. Allusion has al- ready been made to the fact, that a parent is liable for a tort which he directs his child to com'mit.'-*. He is also liable for torts com- mitted by his children as his agents or servants ; ^^° and, it has been held, that he must answer for damage resulting from the discharge of firearms by his young children and other misconduct on their part, on his premises and with his permission.^'" He is answerable, also, for a child's tort, when the circumstances warrant the inference that he was a party to it, either by precedent approval or by con- tinuing to enjoy its fruits with knowledge of the material facts. ^'^ Beyond this, his liability does not extend. The mere relationship of parent does not subject him to legal responsibility for his child's torts.^'^ If a parent puts a dangerous instrument into the hands of his young child, and " encourages, countenances and consents to its negligent use " by him, he may well be held liable for the injurious consequences.'*' But he would have been equally liable ""Hall V. Corcoran, 107 Mass. 251, Pa. 410, 27 At. 37 (1893). 257 (1871). ''"Moon v. Tower, 8 C. B. N. S. ""Supra, p. 121. 611, 98 B. C. L. 611 (1860); Hagerty "• Teagarden v. McLaughlin, 86 v. Powers, 66 Cal. 368, 56 Am. R. 101 Ind. 476, 44 Am. R. 332 (1882); (1885); Smith v. Davenport, 45 Ks. Lashbrook v. Patten, 1 Duv. (Ky.), 423, 25 Pac. 851, 11 L. R. A. 429, 23 317 (1864) ; Strohl v. Levan, 39 Pa. Am. St. R. 737 (1891) ; Paul v. Hum- 177 (1861) ; Andrus v. Howard, 36 mell, 43 Mo. 119, 97 Am. Dec. 381 Vt. 248, 84 Am. Dec. 680 (1863); (1868); McCalla v. Wood, 1 Pen. (2 Schaefer v. Osterbrink, 67 Wis. 495, N. J. L.) 85 (1806); Tifft v. Tifft, 4 58 Am. R. 875 (1886). Den. 175 (1847); Kumba v. Gilham, '"Hoverson v. Noker, 60 Wis. 511, 103 Wis. 312, 79 N. W. 325 (1899). 50 Am. R. 381 (1884). "'' Johnson v. Glldden, 11 S. Dak. "> Dunks V. Grey, 3 Fed. 862 237, 76 N. W. 232, 74 Am. St. R. 795 (1880); Beedy v. Reding, 16 Me. with note (1898). 362 (1839); Hower v. TJlrich, 156 128 The Law of Torts. had the youngster been the child of another person.^'* In other words, his Hability in such cases turns not upon his relationship to the minor, but upon his own exercise of due care.^'° Parent's Right to Sue for Injury to his Child. The rule in this country upon this subject has been judicially declared as follows : " A parent, whose infant child has been injured by the tort of a third person, has a right of recovery to the extent of his own loss. He cannot recover for the immediate injury to the child. His action rests upon his right to the child's services, and upon his duty of maintenance. When he is deprived of the right or put to extra expense in fulfilling the duty, in reason and justice he ought to be permitted to have recourse to the wrongdoer for indemnity." ^^° In England, this right of recovery does not exist, unless the child is old enough to render some act of service.^" The loss of service is the very gist of the action there. It follows from the American rule, that a recovery by the parent, as guardian or next friend of the child, for damages to the latter, will not bar the parent's action on his own behalf.^^ It follows also from the rule, that the tort to the child, in order to be actionable by the parent, must be harmful to him in one of two ways : it must diminish the child's ability to render service, or it must cause extra expense to the parent.^^" In case the tort consists in the seduction and debauchment of a female child, the parent may recover more than compensatory damages. In fact, the action is now treated, both in England and in this country, as " one to redress a moral outrage and punish libertinism under the form of a remedy for the "" Dixon V. Bell, 5 M. & S. 198, 17 show that, if a jury chose to find R. R. 308 (1816). that a very young child was capable '" Chaddock v. Plummer, 88 Mich, of service, their verdict would be 225, 50 N. W. 135, 26 Am. St. R. 283, 'disturbed." Pollock, Torts (6 Ed.) 14 L. R. A. 675 (1891); Harris v. 228n. (b). Cameron, 81 Wis. 239, 51 N. W. 437, >" Wilton v. Middlesex Ry. Co., 125 29 Am. St. R. 891 (1892). Mass. 130 (1878); McGarr v. Nat. '" Nederlandsch, etc., Co. v. Hoi- & Prov. Mills, 24 R. I. 447, 53 At. lander, 20 U. S. App. 225, 59 Fed. 320, 60 L. R. A. 122 (1902). 417 (1894). '"Donahoe v. Richards, 38 Me. >" Hall V. Hollander, 4 B. & C. 600, 376 (1854) ; Dennis v. Clark, 2 Cush. 10 E. C. I.. 436, 7 D. & R. 133, 28 R. (Mass.) 347, 48 Am. Dec. 671 R. 437 (1825); Sir Frederick Pol- (1848); Cuming v. Brooklyn Ry.. lock notes that " this case does not 109 N. Y. 95, 16 N. E. 65 (1888). Parties to Tort Actions. 129 loss of manual services." '*" The jury, in assessing damages, " may consider not only that the plaintiff has a daughter disgraced in the eyes of the neighbors, but that there is a living memorial of the disgrace" (where such is the fact) "in a bastard grandchild."'*^ \\'hile the father is the only parent '*- ordinarily entitled to main- tain an action for a tort to a child, if he is dead,'*' or, if he relin- quishes liis duty to support and provide for his children,"* the widow or the wife, as the case may be, may bring the action, in most of our jurisdictions. So, a person standing in loco parentis may recover for expenses and loss of service resulting to him from tort to a minor.'*" Tort Actions by Child against Parent. The law imposes upon the parent the duty of caring for, guiding, and controlling his children, and clothes him with the power of enforcing discipline in a reasonable manner. If he exercises this authority with cruelty, he may subject himself to criminal punishment,'*® and forfeit his right to the custody and services of the maltreated child.'*' There is some authority for the proposition that the cruel parent may be sued in a tort action by the injured child;'*' but the better view- seems to be that " the peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families, and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent." '*" »" Llpe V. Eisenlerd, 32 N. T. 229 '" McCarr v. Nat. & Prov. Mills, 24 (1865). Verdict for $1,000, sus- R. I. 447. 53 At. 329, 60 L. R. A. 122 tained. (1902). i« Terry v. Hutchinson L. R. 3 Q. '" Manvel v. Thompson, 2 Car. & B. 559. 603 (1868). Verdict for P. 303 (1826) ; Whitaker v. Warren, £150 sustained. 60 N. H. 20. 49 Am. R. 302 (1880). '« Geraghty V. New, 27 N. Y. Supp. ""Hinkle v. State. 127 Ind. 490, 403, 7 Misc. 30 (1899); Worcester v. 26 N. E. 777 (1890); State v. Jones, Marchant, 14 Pick. (Mass.) 510 95 N. C. 588 (1886). (1833). '"Cunningham's Case, 61 N. J. Eq. '" Morgan v. Pacific Mills, 158 454, 48 At. 341 (1901) ; Farnham v. Mass. 402, 33 N. E. 581, 35 Am. St. Pierce, 141 Mass. 203 (1886). R. 504 (1893); Gray v. Durland, 50 '"Reeve's Domestic Relations (4 Barb. 100, 211 (1867); Aff'd. 51 N. Ed.) 357; Treschman v. Treschman, Y. 424 (1873); Furman V. Van Sise, 28 Ind. App. 206, 61 N. E. 961 56 N. Y. 435. 15 Am. R. 441 (1874); (1901); Clasen v. Pruhs, 69 Neb. Villepigue v. Shular 3 Strobh. L. 278. 95 N. W. 640 (1903). (S. C.) 462 (1849). •« Foley v. Foley, 61 HI. App, .577 9 130 The Law of Torts. The parental power of discipline may be delegated, either ex- pressly to a specified person,"" or impliedly, as to schoolmasters.'"' Such persons, however, are liable in tort to the child, if they exercise their delegated power in an unreasonable manner, or with malice."^ § 3. ACTIONS INVOLVING THE RELATION OF MASTER AND SERVANT. Terms Used in their Generic Sense. The terms master and servant, in this connection, will be used in their early and generic sense,'"* and not with the specific signification which differentiates them from principal and agent. While the agent as distinguished from the servant, is employed to represent his principal in creating contract obligations,"* many, perhaps most, agents are also employed to do acts for their principal which are not to subject him to con- tract liability, but may make him answerable in tort."" And it is the liability to a tort action, growing out of the relation of employer and employed, that we are to consider in this section. The Master's Liability for the Servant's Tort. Its Basis. The liability of a master extends beyond those wrongs done by his authority, or on his behalf and ratified by him. Speaking generally, he is answerable also for the wrongs of his servant, whether author- ized or ratified by him or not, which are done in the course of the servant's employment and of the master's business."". (1895) ; Hewlette V. George, 68 Miss, ters of ships, merchants and fac- 703, 9 So. 885, 13 L. R. A. 682 tors." Bacon has no topic of (1891); McKelvey v. McKelvey, 111 "Principal and Agent." Tenn. 388. 77 S. W. 664, 64 L. R. A. Hlackstone divides servants into 991 (1903). four classes: Menial Servants; ""Harris v. State, 115 Ga. 578, 41 Apprentices; Laborers, and a S. E. 983 (1902). "fourth species such as Stewards, "' Heritage v. Dodge, 64 N. H. 297 factors and bailiffs, whom the law (1886); Cleary v. Booth (1893) 1 Q. considers as servants pro tempore, B. 465. with regard to such of their acts as '"Lander v. Seaver, 32 Vt. 114 affect their master's or employer's (1859). property." Vol. 1, pp. 425-428. ■"In Bacon's Abridgment, under ""Dwight, Persons and Personal the title of Master and Servant, it Property, p. 323. Huffcut on is said: "The relationship between Agency, Chap. 1 (2d Ed.), a master and a servant is in many >" Singer Manufacturing C!o. v. respects applicable to other relation- Rahn, 132 U. S. 518, 10 Sup. Ct 175 ships, such as lord and bailiff, prin- (1889). cipal and attorney, owners and mas- ^ Pollock on Torts (6th Ed.), pp. Parties to Tort Actions. 131 Doubt has been expressed by a learned author and judge,"' whether, if we were contriving a new code to-day, we would impose so extensive a liability on the master. He finds it hard to explain why the master is subjected to this liability, save upon the theory that it is a survival from the far-off time when the servant was a slave,^^* and, by a fiction of law, he and his master were " feigned to be all one person." ^°° Different Historical Stages of Liability. This theory does not seem to accord with the facts of English legal history. They indicate that the master's liability for his servant's torts has passed through distinct stages of development, and that the present rule rests not on grounds of policy which belonged to a different state of society, nor does it result from " a fiction which is an echo of f atria potestas and the English frank-pledge," ""• but was slowly and cautiously evolved, and did not take its present form until the nineteenth century.^"^ It was deliberately based upon considera- tions of practical expediency ; and upon such considerations its con- tinuance has been repeatedly rested. Lord Brougham declared that the reason for the master's liability for his servant's torts is, that by emplo}ing him, the master " sets the whole thing in motion." ^"^ Chief Justice Shaw defended the rule as " obviously founded on the great principle of social duty that every man in the management of his ov/n affairs, whether by himself or by 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." ^** Judge Grier, writing for the Supreme Court of the United States, said : " \\'e find no case which asserts the doctrine that a master 573, 574. Huffcut on Agency (2d Harv. L. Rev. 315, 383, 441; Helms Kd.) 295. V. Nor. Pac. Ry., 120 Fed. 389 ■"Holmes, J., in Dempsey v. (1903). Chambers, 154 Mass. 330, 28 N. B. "" Duncan v. Flndlater, 6 CI. & F. 279, 13 L. R. A. 219, 26 Am. St. R. 894, 910 (1839). 249 (1891). "^Ot course. If the harm done by "» Holmes Common Law, p. 228. the servant is the result of inevit- "'•Ibid. Lect. 1: 4 Harvard L. able accident, as when the servant Rev. 350. stumbles, without negligence, and '" Dempsey v. Chambers, 154 knocks plaintiff down, the master is Mass. 330, 28 N. E. 279, 13 L. R. A. not liable. . Wall v. Lit. 195 Pa. 375, 219, 26 Am. St. R. 249 (1891). 46 At. 4 (1900). '"Responsibility for Tortious '"Farwell v. Boston, etc., Ry., 4 Acts, by Prof. John H. Wigmore, 7 Met. (Mass.) 49 (1842). 132 ^ The Law of Torts. is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. * * * If such disobedience could be set up by a railroad company as a defense, when charged with negligence, the remedy of the injured party would in most cases be illusive, discipline would be relaxed and the danger to life and limb of the traveler greatly enhanced. Any relaxation of the stringent policy and principles of the law affecting such cases, would be highly detrimental to the public safety." ^°* Who is a Servant? The rule stated above assumes that the relation of master and servant exists between the defendant and the wrongdoer. Ordinarily, the question whether this relation exists in a particular case is not a difficult one, for it results from the voluntary agreement of the parties. We have seen that the hus- band was liable at common law for his wife's torts, but that his liability in such a case was not that of a master for his servant's wrongdoing.^"" To subject him to responsibility in that character, it was necessary to show that she was in fact a servant or agent of her husband in the particular transaction.^"^ We have also seen that similar proof was necessary to render the parent liable for his child's torts.i"^ Compulsory Pilot. Again, a person is not liable at common law for the wrongdoing of one whose services are forced upon him by the State. If a pilot is employed by the master or owner of a ship, we have the ordinary case of master and servant ; ^"" but if the law compels the employment of a particular pilot, or takes from the shipowner 'or master the right of choosing his pilot, the relation of master and servant does not exist, and for the fault of such a pilot the shipmaster or owner is not responsible.^'^" Such is also '" Philadelphia, etc., Ry. v. Derby, his pleasure." Story on Agency 14 How. (U. S.) 468, 487, (1852). (2d Ed.) § 456a. Cf. Consolidated '"Supra, 118. Coal Co. v. Seniger, 179 111. 370, 53 "'Taylor v. Green, 8 C. & P. 316 N. E. 733 (1899), and Durkin v. (1837). Kingston Coal Co., 171 Pa. 193, 33 '"Supra, 127. At 237 (1895). "•"And it will make no differ- '""Homer Ramsdell Tr. Co. v. La ence in the case that the pilot, if Compagnie Trans., 182 tJ. S. 406, 21 any is employed, is required to be a Sup. Ct. 831 (1901); The Halley h. licensed pilot; provided the master R. 2 P. C. 193 (1868). is at liberty to take a pilot or not at Parties TO Tort Actions. ■ *-i33- the English rule in Admiralty, but in this country, the Admiralty doctrine is ^'^ that the vessel " is in some sense herself a principal, and anyone having lawful command of her is, for the time being, her agent, for whose conduct she is herself responsible, both in contract and in tort." Hence in a proceeding in rem the vessel may be held liable for the consequences of a collision through the negligence of a pilot compulsorily taken on board. Independent Contractors. The liability of a master for the torts of his servant rests, as we have seen, upon considerations of practical expediency. A man is bound to manage his affairs with a due regard for the safety of the persons and property of his fellows. But suppose he turns over the management of certain of his transactions to persons, who undertake to accomplish a prescribed result, but who are not otherwise subject to his control. Must he answer for their torts which are incident to the transaction ? He does, indeed, " set the whole thing in motion ; " but such persons are not his servants in the ordinary sense of that term. He does not direct and control their acts, and has no right to command obedience from them. They are the principals in the work which they have in hand. For damages inflicted by their misconduct, or the misconduct of those under their control, they are liable, and the law does not permit the injured person to go back of them in the line of causation,^'- save in exceptional cases, to be noted hereafter. Who are Independent Contractors ? The test generally applied in answering this question is " independence of control in employing workmen and in selecting the means of doing the work." "' H the employer retains the right to determine and direct the manner in which the work is to be done, to point out the "'The China, 7 Wall. (U. S.) 53, and make the employer of that per- 19 L. Ed. 67 (1868); Ralli v. Troop, son liable." In Painter v. Mayor, 157 U. S. 386, 15 Sup. Ct. 657, 39 L. 46 Pa. 213 (1863), and Heidenaag v. Ed. 742 (1894). City of Philadelphia, 168 Pa. 72, 31 "=In Murray v. Currie, L. R. 6 C. At. 1063 (1895), it is said: "There P. 24, 40 L. J. C. P. 26 (1870), cannot be more than one superior Wllles, J., said: "In ascertaining legally responsible." who is liable for the act of a wrong- '" Uppington v. City of New York, doer, you must look to the wrong- 165 N. Y. 222, 59 N. E. 91, 53 L. R. doer himself, or to the first person A. 550 (1901) ; Wright v. Big in the ascending line, who is the Rapids Co., 124 Mich. 91, 82 N. W. employer and has control over the 829, 50 L. R. A. 495 (1900). work. You cannot go further back 134 ■ The Law oi- Torts, dangers to be avoided and to fix the extent to which the work shall be carried on, it does not matter that the work is let out by the job to one who supplies laborers and materials. The principal is the employer, and not the contractor, and the latter and his laborers are the servants of the former.'^* It is not necessary in such a case, that the employer should actually guide and control the contractor. It is enough that the contract vests him with the right of guidance and control.^'' On tha other hand, an independent contractor is not converted into a servant by provisions in the contract which reserve to the employer certain rights of supervision and approval, during the progress of the work.'^° If these stipulations are for the purpose of securing faithful compliance with the specifications on the part of the contractor, the relation remains that of employer and inde- pendent contractor, though the stipulations give the employer the right to reject work or material which does not conform to the specifications, or to stop the work,^'' or even to insist upon the dismissal of incompetent workmen."* Determined by the Contract. It is apparent from what has been said, that whether the relation in a particular case is that of employer and independent contractor, or of master and servant, depends upon the terms of the contract, in the absence of legisla- tion."" If this is in writing, or though it be oral, if but one infer- ence can be drawn from the evidence, the question is presented for the court ; ^*° while if more than one inference can fairly be drawn, "'Atlantic Transport Co. v. (1876); Vosbeck v. Kellogg, 78 Coneys, 82 Fed. 177, 51 U. S. App. Minn. 176, 80 N. W. 957 (1899); 570 (1897); Railroad Co. v. Han- Blumb v. City of Kansas, 84 Mo. 112 ning, 15 Wall. (U. S.) 649 (1872). (1884). "» Linnehan v. Rollins, 137 Mass. "« Uppington v. City of New York, 123 (1884); Barg v. Bonsfleld, 65 165 N. Y. 222, 59 N. E. 91, 53 L. R. Minn. 355, 68 N. W. 45 (1896); Con- A. 550 (1901); Reedie v. London, gregation v. Smith, 163 Pa. 561, 30 etc., Ry., 4 Exch. (W. H. & G.) 244 At. 279 (1894). (1849). ™ Steel V. Southeastern Ry., 16 C. "» Cargill v. Duffy, 123 Fed. 721 B. 550 (1855); Casement v. Brown, (1903). The driver of a licensed 148 U. S. 615, 13 Sup. Ct. 672 (1893). cab in New York city, is the servant Thomas v. Altoona, etc., Ry., 191 Pa. of the owner, towards the public, al- 361, 43 At. 215 (1899). _ though a bailee of the horse and "'Stephen v. Commissioners, 3 vehicle. Sess. Cases (4th Series) 535, 542 >™ Sadler v. Henlock, 4 E. & B. Parties to Tort Actions. 135 the question should go to the jury.'^' A physician whose services are supplied by a common carrier to an employee,^"- or to a passen- ger.i** or by another physician to the latter's patient,'** or who is sent by one who has injured the plaintiff to examine the latter,'*^ is an independent contractor. " There is no more distinct calling than that of the doctor," said Holmes, C. J., in the last cited case, " and none in which the employee is more distinctly free from the control of his employer." The only duty, resting upon the one who supplies the physician, is to use proper care in selecting him. A mason, a carpenter, or other mechanic, whose business is recognized as a distinct trade,'^*" or a truckman ^" or livery stable 570 (1855) ; Adams Express Co. v. Schofleld, 111 Ky., 832, 64 S. W. 903 (1901); Leavltt v. Bangor, etc., Ry., 89 Me. 509, 36 At. 998, 36 L. R. A. 382 (1897); Boomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004, 53 L. R. A. 172 (1899); Vosbeek v. Kellogg, 78 Minn. 176, 80 N. W. 957 (1899) ; Al- len V. Willard, 57 Pa. 374 (1868); Sanford v. Pawtucket, etc., Ry., 19 R. I. 537, 35 At. 67, 33 L. R. A. 564 (1896); Singer Manufacturing Co. V. Rahn, 132 U. S. 518, 10 Sup. Ct. 175 (1889). "> Driscoll V. Towle, 181 Mass. 416, 63 N. E. 922 (1902). In Button v. Amesbury Nat. Bank, 181 Mass. 154, 62 N. E. 405 (1902), the majority thought but one inference was warrantable, while one judge thought two could be drawn; Klages V Gillette-Herzog Co., 86 Minn. 458, 90 N. W. 1116 (1902); Howard v. Ludwlg, 171 N. Y. 507, 64 N. E. 172 (1902); Wallace v. South- ern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399 (1897); Emerson v. Fay, 94 Va. 60, 26 S. E. 386 (1896). "^ York V. Chicago, etc., Ry., 98 la. 544, 67 N. W. 574 (1896). •■'Obrien v. Cunard, S. S. Co., 154 Mass. 272, 28 N. B. 266 (1891); Al- lan V. State Steamship Co., 132 N. Y. 91, 30 N. E. 482, 15 L. R. A. 166, 28 Am. St. R. 556 (1892). '** Myers v. Holborn, 58 N. J. L. 193, 33 At. 389 (1895). >*> Pearl v. West End Ry., 176 Mass. 177, 57 N. E. 339, 49 L. R. A. 826, 79 Am. St. R. 309 (1900). i*« Lawrence v. Shipman, 39 Conn. 586 (1873). '"Murray v. Dwight, 161 N. Y. 301, 55 N. B. 901, 48 L. R. A. 673 (1900). The prevailing opinion says : " The relation of master and servant Is often confused with some other relation. The mere fact that some person renders some serv- ice to another for compensation, expressed or implied, does not nec- essarily create the legal relation of master and servant. There are many kinds of employment which are peculiar and special, where one person may render service to an- other without becoming his servant in the legal sense. A servant is one who is employed to render personal services to his employer, otherwise than in the pursuit of an indepen- dent calling. The truckman who transports the traveler's baggage or the merchant's goods to the railroad station, though hired and paid for the service by the owner of the bag- 1^6 The Law of Torts. proprietor,'** renders service to his employer, ordinarily, as an inde- pendent contractor and not as a servant. However, the employer may estop himself from showing that such a mechanic is an inde- pendent contractor, when he holds himself out as the master."* A Servant with Two Masters. It often happens that a man is hired and paid by A, and thus becomes his servant, but, for certain transactions is transferred by A to the service of B. While thus engaged about B's affairs, he tortiously injures a third person. Is A or B to respond as master for the damage? Upon principle, the answer would seem not to be difficult, and that A or B should be liable, according as the one or the other had the right to control the act or omission which caused the harm. And such seems to be the answer given by the best considered cases. Accordingly, if A lends "° or leases '"' his servant to B, or places him upon B's premises,'"^ pursuant to an arrangement by which B is to have the right to direct the acts or control the conduct of the servant, B must respond for the torts of the servant, while thus engaged. On the gage or the goods, is not the servant of the person who thus employs him. He is exercising an indepen- dent and quasi public employment in the nature of a common carrier, and his customers, whether few or many, are not generally responsible for his negligent or wrongful acts, as they may be for those of other persons In their regular employ- ment as servants. A contract, whether express or implied, under which such special jobs are done or such special services rendered, is not that of master and servant, within the law of negligence." ""Quarman v. Burnett, 6 M. & "W. 499 (1840); Jones v. Corpora- tion, 14 Q. B. D. 890 (1885); Joslin V. Grand Rapids Ice Co., 50 Mich. 516 (1883); Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922 (1902); Little V. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 23 L. Ed. 655 (1885). "" Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 60 N. E. 597, 52 L. R. A. 429 (1901).— Defendant held it- self out as practicing dentistry, in one of the departments of its store, and was declared liable for the mal- practice of the dentists, although they were in fact practicing on their own account. """Rourke v. White Moss Col- liery Co., 2 C. P. D. 205, 46 L. J. C. P. 283 (1877); Grace & Hyde Co. V. Probst, 208 111., 147, 70 N. E. 12 (1904). "'Donovan v. Lang (1893), 1 Q. B. 629, 63 L. J. Q. B. 25; Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078, 64 L. R. A. 114 (1904); Roe v. Winston, 86 Minn. 77,- 90 N. W. 122 (1902); Mclnerney v. Del. & Hud. Ry., 151 N. Y. 411, 45 N. E. 848 (1897); HIggins v. West Un. Tel. Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. R. 537 (1898). "^ Atwood V. Chicago, etc., Ry., 7^ Fed. 447 (1896); Brady v. Chicago, etc., Ry., 114 Fed. 100, 52 C. C. A. 48 (1902). Parties to Tort Actions. 137 other hand, if, in the transaction, A sustains the relation of inde- pendent contractor to B, so that the latter's right of control is limited to indicating the work to be done, and does not extend to directing how it shall be done, then A and not B is answerable for the servant's torts. ^"^ It often happens that there is a sort of duality of service."* With respect to certain acts, A retains the right of control, while with respect to others, the right of control is vested in B. In such cases A or B will be liable according as the negligent act belongs to the one or the other class. For example, if A lets his horses, wagon and driver to a city which is engaged in paving a street, and through the negligence of the driver, in looking after the shoeing of the horses and driving them, a horse kicks a loose shoe through the plaintiff's plate glass window, A and not the city is liable."'' Had the plaintiff been injured, however, by the negligent manner in •"Jones V. Mayor, etc., of Liver- pool, 14 Q. B. D. 890, 54 L. J. Q. B. 345 (1885) ; Cameron v. Nystrom (1893), A. C. 308, 62 L. J. P. C. 85; Stewart v. Calif. Imp. Co., 131 Cal. 125, 63 Pac. 177 (1900); Wood v. Cobb, 13 Allen (95 Mass.) 58 (1866); Murray v. Dwight, 161 N. Y. 301, 55 N. E. 901, 48 L. R. A. 673 (1900). The dissenting opinion in this case is based upon the view that the servant of the contractor was subject to the control of the de- fendant; Quinn v. Complete Elec- tric Company, 46 Fed. 506 (1891). '" D. L. & W. Ry. V. Hardy, 59 N. J. L. 35, 37, 34 At. 986 (1896).— " Doubtless, no man can serve two masters, yet the law recognizes a sort of duality of service. A gen- eral servant of one person may, for a particular work, or for a particu- lar occasion become, pro hac vice, the servant of another person." In Atwood V. Chicago, etc., Ry., 72 Fed. 447, 454 (1896), Phillips, J., said: " It is a doctrine as old as the Bible itself, and the common law of the land follows it, that a man cannot serve two masters at the same time- he will obey the one, and betray the other. He cannot be subject to two controlling forces which may at the time be divergent. So the English courts, which are generally apt to hit the blot in the application of fundamental rules, hold that there can be no application of the doc- trine of respondeat superior in its application to two distinct masters; that the servant must be subject to the jurisdiction of one master at one time." Of course the same per- son may be acting in a particular transaction as the servant of two masters, as when the affairs of two corporations are carried on at the same place and by the same em- ployees. If it is found as a matter of fact that the tort was committed by one while rendering service to both corporations, both will be lia- ble. Dieters v. St. Paul Gas Light Co., 86 Minn. 474, 91 N. W. 15 (1902). '""Huff V. Ford, 126 Mass. 24, 30 Am. R. 645 (1878); Delory v. Blod- gett, 185 Mass. 126, 69 N. E. 1078, 64 138 The Law of Torts. which the servant carried out an order which the city had a right to give him, the city would have been liable.^"* Temporary Transfer of Service : An admirable statement )i the principles applicable to these cases of temporary transfer of service, is found in a recent Massachusetts decision ■}" " In such cases the party who employs the contractor indicates the work to be done, and in that sense controls the servant, as he would control the contractor if he were present. But the person who receives such orders is not subject to the general orders of the party who gives them. He does his own business in his own way, and the orders which he receives simply point out to him the work which he or his master has undertaken to do. There is not that degree of intimacy and generality in the subjection of one to the other which is necessary in order to identify the two and to make the employer liable under the fiction that the act of the employed is his act. " Of course the chances are that some orders will be given which are not strictly within the contract of the master. That is to be expected from the relative positions of the servant and the other party. If the latter has something that he wants done and sees a working man at hand, he is likely to ask him to do it, and if it is within the penumbra of his business the servant is likely to obey. While he thus goes outside his master's undertaking and his own contract with his master, he ceases to represent him,^" and he may make the other liable for his acts,^°° but he does not on that account become the servant of his master's contractee for all purposes, or when he returns to the work which his master agreed to perform." If the evidence does not show clearly that A's servant has been put, for the time being, under B's control, a question of fact for the jury as to whether A or B is the master seems to be presented ,-'"' L. R. A. 114 (1904); Consolidated 605, 55 Am. St. Rep. 382 (1896); Fireworks Co. v. Koehl, 190 111., 145, Wyllie v. Palmer, 137 N. Y. 248, 33 60 N. B. 87 (1901). N. E. 381, 19 L. R. A. 285 (1893). ""•Donovan v. Lang (1893), 1 Q. '"Kimball v. Cushman, 103 Mass. B. 629; Driscoll v. Towle, 181 Mass. 194, 4 Am. Rep. 528 (1869). 416, 63 N. E. 922 (1902); Roe v. ^^ Howard v. Ludwlg, 171 N. Y. Winston, 86 Minn. 77, 86, 90 N. W. 507, 64 N. E. 172 (1902). The 122 (1902). minority of the court thought the "' Driscoll V. Towle, 181 Mass. 416, evidence in this case did not war- 63 N. E. 922 (1902). rant the inference that the wrong- '" Brown v. Engineering Co., 166 doer was the servant of the defend- Mass. 75, 43 N. E. 1118, 32 L. R. A. ant, but showed clearly that he re- Parties TO Tort Actions. 139 although the burden seems to be on B of showing that one who is rendering service to him. is not his servant, but the servant of A.""^ Right of Selecting and Discharging Servant: In some cases the test of liability for the servant's torts, in such cases as we have been considering, has been declared to be. Who has the right of selecting and discharging him? If this test is applied, the lia- bility will be thrown in almost every case upon the general master.^"- But it is submitted that the true test is that set forth in a preceding paragraph, and tersely stated by an eminent English judge: "The true principle of law is that if I lend my servant to a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the servant while so employed. The ser- vant is doing, not my work, but the work of the independent contractor. -"' Exceptional Liability of Employer for Torts of Indepen- dent Contractor : In some cases, as already noted, a person harmed b}' the tort of an independent contractor is allowed to go beyond this principal, and seek redress from the contractor's employer. The extent of this exceptional liability is a question upon which the courts of this country are not agreed. Its narrowest limits are those fixed by the New York decisions. " Where the employer personally interferes with the work and the acts performed by him occasion the injury; where the thing contracted to be done mained the servant of his general uniform, it would seem that this, master, the University Express Co.; the power of substitution of one Ward v. New England Fibre Co., man for another, is the most satis- 154 Mass. 419, 28 N. E. 299 (1891). factory. It may not in all cases be 201 Taylor, etc., Ry. Co. v. Warner, as apparent as it is in this one that 88 Tex. 642, 648, 32 S. W. 868 B. has no power to remove or differ- (1895). ently employ the individual whom '"^ New Orleans, etc., Ry. v. Nor- A. has selected and assigned to a wood, 62 Miss. 565 (1885); Michael special line of work, but when it v. Stanton, 3 Hun (N. Y.) 462 does appear, the amount of control (1875); Burton v. Galveston, etc., which B. exercises over the Individ- Ry., 61 Tex. 526 (1884); The Slings- ual is surely insufficient to estab- ley, 120 Fed. 748 (1903). In this lish, even pro hac vice, the relation case the court said : " Of all the of master and servant." tests which have been suggested, =" Brett, J., in Murray v. Currle, and the authorities are far from L. R. 6 C. P. 24 (1870). 140 The Law of Torts. is unlawful ; ^°* where the acts performed create a public nuisance f^ and where an employer is bound by a statute to do a thing effi- ciently, and an injury results from its inefficiency," ^°° are the only cases " where a person employing a contractor " is liable for his torts.^o' On the other hand, the broadest statement of this exceptional liability is found in a recent Ohio decision,™' as follows : " The weight of reason and authority is to the effect that, where a party is under a duty to the public or third person to see that work he is about to do, or have done, is carefully performed, so as to avoid injury to others, he cannot by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another." ™ Ellis V. Sheffield Gas Co., 2 E. & B. 767, 23 L. J. Q. B. 42 (1853) ; Spence v. Schultz, 103 Cal. 208, 37 Pac. 220 (1894); McDonnell v. Rifle Boom Co., 71 Mich. 61, 38 N. W. 681 (1888); Crisler v. Ott, 72 Miss. 166, 16 So. 416 (1894); Ketcham v. New- man, 141 N. Y. 205, 209, 36 N. E. 197, 24 L. R. A. 102 (1894). "» Hole V. Railway Co., 6 H. & N. 488 (1861); Deford v. State, Use of Keyser, 30 Md. 179 (1863); Wood- man V. Met. Ry., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213 (1889; Thomas v. Harrington, 72 N. H. 45, 54 At. 285 (1903). 2" Smith V. Milwaukee, etc.. Ex- change, 91 Wis. 360, 64 N. W. 1041, 51 Am. St. R. 912, 30 L. R. A. 504 (1895). "" Berg V. Parsons, 156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. R. 542 (1898). The New Jersey courts seem to hold this view. See CufC V. Newark, etc., Ry., 35 N. J. L. 1, 10 Am. R. 205 (1870); Schutte v. United Electric Co., 68 N. J. L. 435, 53 At. 204 (1902). See Hoff v. Shockley, 122 la. 720, 98 N. W. 573, 64 L. R. A. 538 (1904). ™ Covington, etc., Co. v. Stein- bock, 61 Ohio St. 215, 55 N. B. 618, 76 Am. St. R. 375 (1899), with note citing: " Bower v. Peate, 1 Q. B. D. 321; Tarry v. Ash ton. Id. 314 (1876); Hughes v. Percivatl, 8 App. Cas. 443 (1883); Dalton v. Angus, 6 App. Cas. 829 (1881); Hole v. Railway Co., 6 Hurl. & N. 488 (1861); Gray v. Pullen, 5 Best & S. 970 (1864); Hardaker v. Idle Dist. (1896), 1 Q. B. 335; Storrs v. City of Utiea, 17 N. Y. 104 (1858); Spence v. Schultz, 103 Cal. 208, 37 Pac. 220 (1894); Sturges v. Society, 130 Mass. 414 (1881); Gorham v. Gross, 125 Mass. 232 (1878); Me chem, Ag. § 747, 748; Whart. Neg. § 185; Wood, Mast. & Serv. § 316; Shear. & R. Neg. § 176; Pickard v Smith, 10 C. B. (N. S.) 470 (1861); Penny v. Council (1898), 2 Q. B. 212, 217; Halliday v. Telephone Co., (1899) 2 Q. B. 392; Lawrence v. Shipman, 39 Conn. 586, 589 (1873); Stevenson v. Wallace, 27 Grat. (Va.) 77 (1876); Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485 (1872); Black v. Finance Co. (1894), App. Cas. 48."; Pittsfield, etc., Co. V. Shoe Co.. 71 N. H. 522, 53 At. 807, 60 L. R. A. 116 (1902); Davis V. Summerfield, 133 N. C. 325, 45 S. E. 654, 63 L. R. A. 492 (1903). Parties to Tort Actions. 141 It will be bbserved' that the New York doctrine recognizes and expresses such a duty — a duty which the employer cannot assign to a contractor — in' three classes of cases : ( i ) where the work con- tracted for is unlawful, (2) where it amounts to a public nuisance, and (3) where a statute imposes the duty. To this extent, then, all authorities are agreed. Undoubtedly, the weight of authority favors the recognition and enforcement of such a duty, also, when " accord- ing to previous knowledge and experience the work to be done is in its nature dangerous to others, however carefully performed." ^°' The negligence of the contractor or his servants, in such a case, is often spoken of as not collateral to the work, but directly involved in it."" Collateral and Direct Negligence : Two recent cases well illustrate the distinction between " collateral " and " direct " negli- gence above referred to. In one case,-" the owner of property employed an independent contractor to repair certain chimne3s, by taking off a few feet and relaying the brick. Such work, the court declared, was not such as would necessarily endanger persons in the street. It did not involve throwing brick into the street, or causing or allowing them to fall so as to endanger persons traveling therein. The negligence of the contractor's servants in handling bricks, was a mere detail of the work. The work itself could not be classed as dangerous. Any negligence of the contractor's serv- ^ Cf. Ridgeway v. Downing Co., or control the time and manner of 109 Ga. 591, 34 S. E. 1028 (1900), executing the work; or interferes applying the following § 3819 of the and assumes control, so as to create Civil Code: "The employer is lia- the relation of master and servant, ble for the negligence of the con- or so that an injury results which tractor; (1) when the work is is traceable to his interference; (6) wrongful in itself, or, if done in the or, if the employer ratifies the un- ordinary manner, would result in a authorized wrong of the independ- nuisance; (2) or, if according to ent contractor." previous knowledge and experience, '^° Hole v. Ry. Co., 6 H. & N. 488 the work to be done is in its nature (1861); Bower v. Peate, 1 Q. B. D. dangerous to others, however care- 321, 45 L. J. Q. B. 446 (1876); Pye fully performed; (3) or, if the v. Faxon, 156 Mass. 471, 31 N. E. wrongful act is in violation of a 640 (1892); Water Co. v. Ware, 16 duty imposed by express contract Wall. (U. S.) 566 (1872). upon the employer; (4) or, if the "'Boomer v. Wilbur, 176 Mass. wrongful act is violation of a duty 482, 57 N. E. 1004, 53 L. R, A, X72 imposed by statute; (5) or, if the (1900). employer retains the right to direct- r42 The Law of Torts. ants was merely " collateral " to the work, and did not render the owner of the chimneys liable. In the other case, the owner of property, who had been ordered by the inspector of buildings to remove the walls of a ruined build- ing, as a nuisance to the public as well as to adjoining property, let the job of removal to an independent contractor, who had agreed to save the owner harmless for injuries done to others in the per- formance of the contract. Plaintiff was injured, through the negli- gence of the contractor and his servants. The court held the owner liable for the injury, on the ground that " the doing of the work necessarily involved danger to others, unless great care was used, and the injury resulted from negligence in doing the work. It was not collateral to the employment, as would have been the case had a servant of the contractor, while at work, negligently let fall a brick upon a person passing by." ^" In reply to the argument that it is " unreasonable that one who has work to perform, that he himself cannot perform from want of knowledge or skill, should be held liable for the negligence of one whom he employed to do it, since, if he did reserve control, it would avail nothing, from his own want of knowledge and skill," the court said : " There is seeming force in this, but only so. It is not agreeable to the principles of distributive justice; for it is equally a hardship that one should suffer loss by the negligent performance of work which another procured t6 be done for his own benefit, and which he in no way promoted and over which he had no control. Hence, where work is to be done that may endanger others, there is no real hardship in holding the party, for whom it is done, responsible for neglect in doing it. Though he may not be able to do it himself, or intelli- gently supervise it, he will nevertheless be the more careful in selecting an agent to act for him. This is a duty which arises in all cases where an agent is employed, and no harm can come from stimulating its exercise, in the employment of an independent con- tractor, where the rights of others are concerned." "^ =" Covington, etc., Co. v. Stein- owner of a chimney was held liable b-ock, 61 Ohio St. 215, 55 N. E. 618, for Its fall, although he ^ad hired TT Am. St. R. 375 and note (1899). an independent contractor to in- '" Cf. Cork V. Blossom, 162 Mass. spect it, who had pronounced it 330. 38 N. E. 495, 26 L. R. A. 256, 44 safe. Am. St. R. 362 (1894), where the .''aRties to Tort Actions. H3 What Work is Intrinsically Dangerous ? This is a question ■s'hich has proved troublesome even for the courts whicli recognize and enforce the distinction taken in the cases last cited. A contract to burn brush on the defendant's land calls for the doing of intrin- sically dangerous work,^^* in the opinion of some courts, while others entertain a contrary opinion. ^^° Blasting with dynamite,''^'' or excavating adjoining land,'*' or digging trenches in highways or across foot-paths,''*' is considered by most courts so dangerous an undertaking, as to impose upon the landowner or employer the non- assignable duty of seeing that the work is carefully conducted ; while some courts refuse to recognize such a duty, unless the work is unlawful, or a nuisance, pr the duty is imposed by statute.''*" There is substantial unanimity in the view, that when a valid statute or municipal ordinance commands the observance of certain precautions in doing particular work, the work is to be deemed inherently dangerous, unless those precautions are taken. In such cases the employer is bound to see that the precautions are taken, and cannot escape responsibility by letting the work to ever so skillful or careful a contractor."" The same result follows, in "* Black V. Christchurch Finance Co. (1894) A. C. 48; Cameron v. Oberlin, 19 Ind. App. 142, 48 N. E. 386 (1897). =^= St. Louis Iron Mt. Ry. v. Yonly, 53 Ark. 503, 14 S. W. 800, 9 L. R. A. 604 (1900). The court intimated that such a work might be intrin- sically dangerous in some circum- stances; but that the burden ot showing that it was so dangerous was on the plaintiff. '"Norwalk Gaslight Co. v. Bor- ough of Norwalk, 63 Conn. 495, 28 At. 32 (1893) ; Juliet v. Harwood, 86 111., 110, 29 Am. R. 17 (1877). Dissenting opinion of Dwight C, in McCafferty v. Spuyten Duyvil, etc., Ry., 61 N. Y. 178, 185 (1874). '" Bonaparte v. Wiseman, 89 Md. ' ^ 42 At. 918, 44 L. R. A. 482 (1899). "* Spence v. Sohlutz, 103 Cal. 208, 9.7 Pac. 220 (1894); Curtis v. Kiley, 1.53 Mass. 123, 26 N. E. 421 (1891); McCarrier v. Hollister, 15 S. D. 366, 89 N. W. 862, 91 Am. St. R. 695 (1902). «'Myer v. Hobbs, 57 Al. 175 (1876); Mayor of Birmingham v. McCary, 84 Ala. 469, 4 So. 630 (1887); Scammon v. Chicago, 25 111., 424, 79 Am. Dec. 334 (1861); Kepperly v. Ramsden, 83 111., 354 (1876); Tibbetts v. Knox, etc., Ry., 62 Me. 437 (1873); Blumb v. City of Kansas, 84 Mo. 112 (1884); Cuff V. Newark, etc., Ry., 35 N. J. L. 17, 10 Am. R. 205 (1870); Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304 (1851); Hackett v. West. Tn. Tel. Co., 80 Wis. 187, 49 N. W. 822 (1891). «°Gray v. Pullen, 5 B. & S. 970 (1864) ; Wilson v. White, 71 Ga. 506, 51 Am. R. 269 (1883); Atlanta, etc., Ry. V. Kimberley, 87 Ga. 161, 13 S. E. 277, 27 Am. St. R. 231 (1891); Hinde v. Wabash, etc.,-Ry.T 15 111., 144 The Law of Tort^. ■^very case where the law, whether statute or common law, imposes a special duty on the employer; such as the duty of municipal cor- porations to keep their streets in a reasonably safe condition for those entitled to use them,'"'^ or the duty of common carriers to transport safely their passengers or freight,--^ or the duty of a party to a contract to take agreed precautions in doing certain work,^^^ or the duty of the owner of highly dangerous things to see that they are properly used.^^* Incompetent or Unfit Contractor. There are many dicta to the effect that the employer is under a legal duty to exercise due care in selecting a contractor, and that he will be answerable for the contractor's .torts if the latter is known to him to be unfit or incompetent for the proper execution of the work in hand, or if his manner of doing the work is known to the employer to be negli- gent.^^" This doctrine has received the express approval of at least one court of last resort,""* but appears to have been rejected by another.""' 72 (1853); Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451 (1892); Hous- ton, etc., Ry. V. Meador, 50 Tex. 77 (1878); Smith v. Milwaukee Buil- ders, etc., Bxch. 91 Wis. 360, 64 N. W. 1041, 51 Am. St. R. 912 (1895). '''■ Mayor of Birmingham v. Mc- Cary, 84 Ala. 469, 4 So. 630 (1887); Wiggin V. St. Louis, 135 Mo. 558, 37 S. W. 528 (1896) ; Omaha v. Jensen, 35 Neb. 68, 37 Am. St. R. 432 (1892). -™ Barrow Steamship Co. v. Kane, 88 Fed. 197, 59 U. S. App. 574 (1898). The carrier's "obligation to transport • the passenger safely cannot be shifted from himself by delegation to an independent con- tractor, and it extends to all agen- cies employed, and Includes the duty of protecting the passenger from any injury caused by the act of any subordinate or third person, engaged in any part of the service required by the contract of trans- portation. The present case is quite analogous to those in which It has been held that a railroad com- pany is responsible for the neglect or misconduct of the servants of a sleeping-car company, whereby a passenger sustains loss or injury, while being transported under a contract with the railroad company. Pennsylvania Company v. Roy, 102 U. S. 451 ; Dwinelle v. N. Y. Central & Hud. Riv. R. Co., 120 N. Y. 117; Railroad Co. v. Walrath, 38 Ohio St. 461; Kinsley v. Lake Shore and Michigan Southern Railroad Com- pany, 125 Mass. 54." ^^ Water Co. v. Ware, 16 Wall. (U. S.) 566 (1872). =^ Salisbury v. Erie Ry., 66 N. J L. 233, 50 At. 117, 88 Am. St. R. 480 (1901). ''''Dillon V. Hunt, 82 Mo. 155 (1884) ; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451 (1892), and authorities there cited. ™Norwalk Gaslight Co. v. Nor- walk, 63 Conn. 495. 28 At. 32 (1893). "' Berg v. Parsons, 156 N. Y, 109, Parties to Tort Actions. 145 Sub-Contractor's Torts. These are governed by the rules appli- cable to the original contractor. The sub-contractor becomes the principal in the execution of that part of the work committed to him, and for his torts, neither the original contractor, nor his em- ployer, is liable save in the excepted cases already discussed.^^^ Adoption of Torts done on One's Behalf. Although the relation of master and servant does not exist when a particular tort occurs, that tort may be adopted by a third person, on whose behalf it is committed, so that he will be answerable therefor, precisely as though he had previously commanded it.''^" But the tort must have been committed on the adopting person's behalf, '''" or he must have received and retained the profits of it, with knowledge of all the material facts,^''^ or with an intention to adopt it at all events,''*^ in order to subject him to liability therefor. It is not necessary, how- ever, that the ratification be directed specifically to the tort in ques- tion, nor that the tort taken by itself be beneficial to the adopting party. ^'^ In the case last cited, one McCullock took upon himself to deliver a load of defendant's coal to plaintiff, but without author- ity from defendant. By McCuUock's carelessness in driving, a light of plate glass in plaintiff's window was broken. There- after, with knowledge of these facts, defendant presented a bill for the coal to the plaintiff and claimed that the plaintiff owed him for the same. This conduct, it was held, amounted to a ratification of McCullock's employment; established the relation of master and 50 N. E. 957, 41 L. R. A. 391, 66 Am. of Webster City, 115 la. 511, 88 N. St. R. 542 (1898), reversing S. C. in "W. 1070 (1902). 84 Hun. 60, 51 N. Y. Supp. 1091 ==° Anonymous, Y. B. 7 H. IV, 34, (1895), where it was expressly held pi. 1 (1405-6); Wilson v. Tumman, that the employer is bound to select 6 M. & G. 236 (1843); Hyde v. a suitable and competent contrac- Cooper, 26 Vt. 552 (1854). tor for blasting. '"Dunn. v. Hartford, etc., Ry., 43 "=* Overton v. Freeman, 11 C. B. Conn. 434 (1876); Beberick v. 867, 21 L. J. C. P. 52 (1852); Hebe- Ebach, 131 Pa. 165, 18 At. 1008 rick v. Ebach, 131 Pa. 165, 18 At. (1890); Singer Man'fg. Co. v. 1008 (1890) ; Powell V. Construction Stephens, (Ky.), 53 S. W. 525 Co., 88 Tenn. 692, 13 S. W. 691, 17 (1899). Am. St. R. 925 (1890). ^Freeman v. Rosher, 13 Q. B. ^Serle De JLanlarazon's Case, Y. 780 (1849); Lewis v. Read, 13 M. B. 30 Ed. 1, (Roll's Series) 129 & W. 834 (1845. (1302); Anonymous, Godbolt, 109 ™ Dempsey v. Chambers, 154 pi. 129 (1586) ; Foster v. Bates, 12 Mass. 330, 28 N. E. 279, 13 L. R. A. M. & W. 226 (1843); Brown v. City 219, 26 Am. St. R. 249 (1891). lO 146 Th!e Law of Torts. servant from the beginning, with all its incidents, and rendered the defendant liable for McCuUock's negligence. Evidence of Ratification. It is sometimes said that but slight evidence will be required to establish the ratification of a tort.^'* The statement does not seem to be a very helpful one, for the courts, which are responsible for it, have held that the retention of a servant, with knowledge of his misconduct, does not amount to an adoption" of that misconduct, if it was not such as to render the master liable when it occurred.^'^ Scope of Servant's Authority. We have stated that the master is generally answerable, not orjly for the wrongs done by his express authority, or on his behalf and ratified by him, but also for the wrongs of his servant which are done in the course of the servant's employment and of the master's business, whether author- ized or not. Let us now consider these two phrases, " course of employment " and " the master's business." In many cases, the servant's acts are so clearly within the rule that the courts have no trouble in deciding them. For example, he is sent by his master to a certain place at a certain time to kill a beef. Finding but one animal there, he kills it. The animal turns out to be a valuable thoroughbred Shorthorn bull owned by plaintiff, which the master knew nothing about. The latter had no reason to believe that this particular animal was at the place in question, but supposed a different animal would be there. Still, as the servant " killed this bull while in the execution of his master's business, and within the scope of his employment," the master is liable to the plaintiff.^''" On the other hand, many acts of the servant fall so far outside the rule as to occasion the courts little if any trouble. Clearly a team- ster is not acting in the course of his employment, or in his master's businesSj when he invites a boy nine years old, to ride with him and 2" Perkins v. Mo., etc., Ry., 55 Mo. the intention to ratify. 201, 214 (1874); Brown v. City o£ ""Bidelmann v. St. Louis Co., 3 "Webster City, 115 la. 511, 88 N. W. Up. App. 503 (1877); Gulf, etc., Ry. 1071 (1902) ; Contra, Williams v. v. Kirkbride, 79 Tex. 457, 15 S. W. Pullman Palace Car Co., 40 La. Ann. 495 (1891). 87, 3 So. 631, 8 Am. St. R. 512 "'Maier v. Randolph, 33 Ks., 340 (1888), holding that ratification can (1885); Moir v. Hopkins, 16 111., only be inferred from acts which 313 (1855); Wilson v. Noonan, 27 clearly and unequivocally evince Wis. 598 (1871), accord. Parties to Tort Actions. 147 take the reins, while he goes to sleep; and the master is not liable for injuries sustained by the boy while thus assisting the teamster.''^^ Nor is a car conductor so acting when he leaves his car and assaults one with whom he has had an altercation, but who is no longer a passenger,^^* or assaults boys at a distance from the road, who have placed obstructions on the track. ^^° Nor is the janitor of a build- ing,^*" or the watchman of an ice-factory,^*^ or the fireman of a railroad crew,^*^ so acting, when playing a practical joke on other employees of his master, or on persons invited to the premises by the servant.^*' Not quite so clear a case is presented, where a servant, who is set to guard property and furnished With firearms by the master, shoots without legal excuse a person who is near the property. If the person shot is not molesting the property,^** or if he is retreating from it,-*^ or if the shooting occurs after the property has been injured and not with a view to protecting or regaining it,"° the master is not liable. On the other hand, if the shooting is incident to measures taken by the servant for the protection of property "^'Driscoll V. Scanlon, 165 Mass. 348, 43 N. E. 100, 52 Am. St. R. 523 (1896). Houston, etc., Ry. Co. v. Boiling, 59 Ark. 395, 27 S. W. 492, 27 L. R. A. 190, 43 Am. St. R. 38 (1894); Keating v. Mich. Cent. Ry., 97 Mich. 154, 56 N. W. 346, 37 Am. St. R. 28 (1893) ; Schulwltz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075 (1901); Parent v. Nashua Mfg. Co., 70 N. H. 199, 47 At. 261 (1900); Faust V. Phila. & Reading Ry., 191 Pa. 420, 43 At. 329 (1899,) occorrf. Had the boy negligently injured a third person, while driving for the teamster, such negligence might properly be deemed the teamster's negligence in the course of his em- ployment. See Bnglehart v. Far- rant & Co. (1897), 1 Q. B. 240, 6fi L. J. Q. B. 122; Tuller v. Talbot, 23 111. 357, 76 Am. Dec. 695 <1860). ''■-" Palmer v. Winston-Salem Elec- tric Ry., 131 N. C. 250, 42 S. E. 604 (1902). -■" Dolan V. J. C. Hubbinger Co., 109 la. 108, 80 N. W. 514 (1899). ""Gibson v. International Trust Co., 177 Mass. 100, 58 N. E. 278, 52 L. R. A. 928 (1900). "'Canton Cotton Warehouse Co. V. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. R. 620 (1900). "^ Sullivan v. Louisville & N. Ry. 115 Ky. 447, 74 S. W. 171 (1903). "' Western Ry. of Ala. v. Milligan, 135 Ala. 205, 33 So. 438 (1902). "* Davis v. Houghtellin, 33 Neb. 582, 50 N. W. 765, 14 L. R. A. 737 (1891); Holler v. P. Sanford Ross, 68 N. J. L. 324, 53 At. 472 (1902). "»Turley v. Boston Ry., 70 N. H. 348, 47 At. 261 (1900); Golden v. Newbrand, 52 la. 59, 2 N. W. 537, 35 Am. R. 257 (1819). ="'QandifC v. Louisville, etc., Ry., 42 La. Ann. 477, 7 So. 601 (1890). 148 The Law of Torts. against the person shot, the master may be liable, though the servant acted recklessly or maliciously in shooting.^*^ A Question for the Jury. Whether the tortious conduct of a servant is within the scope of his employment and in his master's business is a question of fact, a question at times so clear and easy as to admit of but one. answer. It is then disposed of by the court, as we have seen in the last paragraph.^*' Generally, however, the evidence is conflicting, or warrants more than one inference, and the question is then to be submitted to the jury with proper instruc- tions.^** In the Pennsylvania case, cited in the last note, " a boy eight years of age climbed on a moving wagon belonging to defendant and held on to the standard. Defendant's driver struck the boy with his whip on the hand which grasped the standard and the boy fell and was injured." The trial court nonsuited the plaintiff, on the ground that whipping the boy was an unauthorized act of de- fendant's servant. On appeal the judgment was reversed, the court saying: " It was for the jury to determine, under proper instructions, whether the act of the driver in causing the boy to fall from the wagon was negligent, and whether it was in the line of his duty and within the scope of his employment, so as to render his employer responsible for the act. At the time of the accident, Larkins had the custody and management of the wagon, and was driving it for the owner, the defendant company. The driver's control of the wagon carried with it the employer's authority to protect it and to prevent persons from getting on it, as well as to remove persons from it. It was not only the right of ■ the driver to remove tres- passers from the wagon, but also his duty to his employer to do so. He therefore was authorized to eject the boy from the wagon, and could use the necessary force for that purpose. If his act in striking =" Railway Co. V. Hackett, 58 Ark. Pa. 258, 54 At. 891 (1903); and 381, 24 S. W. 881 (1894); Haehl v. cases in last preceding note: Berg- Wabash Ry., 119 Mo. 325, 24 S. W. man v. Hendrldtson, 106 Wis. 434, 737 (1893). 82 N. W. 304, 80 Am. St. R. 47 ™ Steele v. May, 135 Ala. 483, 33 (1900); Rounds v. D. L. & W. Ry., So. 30 (1902); Simonton v. Lorlng, 64 N. Y. 129, 21 Am. R. 597 (1876); 68 Me. 164, 28 Am. R. 29 (1878); Baltimore Consol. Ry. v. Pierce, 89 Marshall v. Cohen, 44 Ga. 489, 9 Am. Md. 495, 43 At. 940, 45 L. R. A. 527 R. 170 (1871). . (1899). '" Brennan v. Merchant & Co., 205 Parties to Tort Actions. 149 the boy was intended to remove him by force from the wagon, it would be the act of his employer, for which the latter would be responsible. If, on the other hand, the purpose of the driver was not to cause the boy to leave the wagon, but to inflict punishment upon him, to gratify the ill will of the driver, the defendant com-- pany is not responsible for the wrongful or tortious act. It would not be an act done by the employee in the execution of his employer's business, although it was performed while he was in the service of the employer. It would be an act of the employee directed against the boy, independently of the driver's contract of service, and in no way connected with or necessary for the accomplishment of the purpose for which the driver was employed. The negligent per- formance of the act, therefore, would impose no liability on the employer." -"" Acts not Within the Particular Servant's Course of Em- ployment. Rarely does a servant's employment extend to every branch and ramification of his master's business. Ordinarily, it is limited to a specific class of acts or line of work.''^^ A " barman and cellarman in a public house," in England, is not the general manager of the master's business there carried on, and is not acting in the course of his employment in causing the arrest of one whom he suspects of having stolen whisky from the cellar.^^- Nor, it has been held, is a clerk in a store so acting, when he orders the arrest of a customer on suspicion of theft.^^^ The prevailing view in this country, however, is that, if the master's manner of conducting his business justifies the jury in believing that the servant, in causin'^ the arrest, was acting within the scope of his employment, and dis- ™ Pierce v. N. C. Ry. Co., 124 N. See Western U. Tel. Co. v. Mullins, C. 83, 32 S. C. 399, 44 L. R. A. 316 44 Neb. 733, 62 N. W. 880 (1895); (1899); Cook v. Southern Ry., 128 Western U. T. Co. v. Foster, 64 Tex. N. C. 333, 38 S. E. 925 (1901), ac- 220, 53 Am. R. 754 (1895); Baker v. cord. Kinsey, 38 Cal. 631, 99 Am. Dec. 438 ^'Graham v. St. Charles, etc., Ry., (1869); Weldon v. Harlem Ry. Co.. 47 La. Ann. 1656, 49 Am. St. R. 436, 5 Bosw. (N. Y.) 57« (1859) ; Aldrich 18 So. 707 (1895). A foreman of a v. Boston, etc., Ry., 100 Mass. 31, 1 railroad company, employed to hire. Am. R. 76 (1868). oversee and discharge laborers, is ^'^ Hanson v. Waller (1901), 1 Q. not acting in the course of his em- B. 390, 70 L. J. Q. B. 231. ployment in inducing employees to ^" Mali v. Lord, 39 N. Y. 381, 100 withdraw their trade from plaintiff. Am. Dec. 448 (1868). J 50 The Law of Torts. charging the ordinary duties imposed upon him, the master is liable.^" It has also been held that the section foreman of a railway company is not acting within the scope of his employment in lending a hand-car to boys, for the purpose of going along the track to a swimming place, and hence the company is not liable for injuries sustained by the boys while using it.-'^' Had a third person been run over by the car through the boys' negligence, the company might well have been held liable; for guarding such an instrument of danger and -keeping it from the hands of untrained boys was within the course of the foreman's employment.^^" Again, a person's servant is not acting within the scope of his employment when lighting a pipe which he is accustomed to smoke while working; and for damage caused by the servant's negligence in lighting his pipe, the master is not answerable.-^' Acts not Done in the Master's Business. Harm is often inflicted upon third persons by acts of a servant, which are within the course of his particular employment, and yet for this harm the master is not answerable. For example, A is the coachman of defendant. It is therefore within the course of his employment to drive defendant's horses. PlaintiflF is injured by reason of A's neg- ligent driving of defendant's horses. Whether he has a cause of action against defendant for the damages depends upon whether A was engaged in defendant's business at the time. If it appears that A took the horses out and was driving them for his own purposes, "* Craven v. Bloomingdale, 171 N. it under his own supervision until , Y. 439, 64 N. E. 169 (1902); Penn- it was returned. * * * * The obli- sylvania Co. v. Weddle, 100 Ind. 138 gation to see that this duty is per- (1884); Staples v. Schmid, 18 R. I. formed is cast upon the railroad." 225, 26 At. 193, 19 L. R. A. 824 ^'Williams v. Jones, 3 H. & C. (1893). 256, 602, 33 L. J. Exch. 297, 13 L. '"Robinson v. McNeil, 18 Wash. T. N. S. 300 (1864). S. P., Walton 163, 51 Pac. 355 (1897). v. N. Y., etc., Co., 139 Mass. 556 ™ Erie Ry. Co. V. Salisbury, 66 N. (1885). Defendant not liable for J. L. 233, 50 At. 187, 55 L. R. A. damages done to a person who was 578 (1901). "When the company hit by a bundle thrown by a car placed the push car in the hands of porter; the bundle belonging to the the foreman, it was the duty of the porter and being thrown for his own foreman to use it with reasonable purposes. S. P., Walker v. Hanni- care to prevent injury to anyone bal, etc., Ry., 121 Mo. 575, 26 S. W. lawfully on the tracks, and to keep 360, 42 Am. St. R. 547 (1894). Parties to Tort Actions. 151 and without authority from defendant, the latter is not liable to plaintiff.^"' If, on the other hand, A was driving them,-'"' or charged with their custody,^"" in the business of defendant,^*' the latter is liable, although the particular conduct of A, causing the harm, was in violation of the defendant's orders,^"- or was even willful and malicious.-"^ The principles laid down in the decisions just referred to, are applicable to all cases involving the liability of the master for the wrongful and unauthorized acts of his servant. Although those acts are done while the actor is engaged in the master's employ- ment, they will not render the master liable, unless they were done in his business. A few examples will suffice to illustrate this propo- sition. A railroad conductor strikes a passenger unnecessarily as he is attempting to board the train. If the force is used in the management of the passengers in leaving and entering the train, the master will be liable,^** although, by mis judgment or violence '^'Rayner v. Mitchell, 2 C. P. D. 357 (1877); Fiske v. Enders, 73 Conn. 338, 47 At. 681 (1900); Mad- dox V. Brown, 71 Me. 432, 36 Am. R. 336 (1880) ; Campbell v. Providence, 9 R. I. 262 (1869); Way v. Powers, 57 Vt. 135 (1884). ="" Ritchie V. Waller, 63 Conn. 156, 28 At. 29, 27 L. R. A. 161, 38 Am. St. R. 361 (1893). Cf. Stone v. Hills, 45 Conn. 44, 29 Am. R. 635 (1877), where the servant, after driving to the destination named by the master, took new directions from a third party, and, while do- ing the business of such third party, negligently injured plaintiff. The master was not liable therefor. "° Whatman v. Pearson, L. R. 3 C. P. 422, 37 L. J. C. P. 156 (1868); Englehart v. Farrant & Co. (1897), 1 Q. B. 240, 66 L. J. Q. B. 122. "' In some jurisdictions, a tem- porary departure from the master's business, such as driving to a saloon for a drink, instead of returning to the master's stable, relieves the master from liability for the driv- er's negligence, during such period. McCarty v. Timmins, 178 Mass 378, 59 N. E. 1038, 86 Am. St. R. 490 (1901); Perlstein v. Am. Ex. Co., 177 Mass. 530, 59 N. E. 184, 52 L. R. A. 959 (1901); Sheridan v. Charlick, 4 Daly (N. Y.) 338 (1872); Cava- nagh V. Dinsmore, 12 Hun (N. Y.) 465 (1878). ^ Limpus V. London, etc., Co., 1 H. & C. 526, 32 L. J. Exch. 34 (1862). "-'" Cohen v. Dry Dock Ry., Co., 69 N. Y. 170 (1877) ; Baltimore Consol. Ry. v. Pierce, 89 Md. 495, 43 At. 940, 45 L. R. A. 527; Southern Bell Tel. Co. V. Francis, 109 Ala. 224, 231-235, 19 So. 1, 31 L. R. A. 193, 55 Am. St. R. 930 (1895); City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389 (1903). '" McFarlan v. Penn. Ry., 199 Pa. 408, 49 At. 270 (1901). He may be liable though the assault is upon a trespasser. Rowell v. Boston, etc., Ry., 68 N. H. 358, 44 At. 486 (1895). 152 The Law of Torts. of temper, the servant goes beyond the necessity of the occasion.*" On the other hand, if force is applied as an incident to reckless horse-play between the conductor and a third person, the master will not be liable.^"" Again, the ticket agent of a railroad company causes the arrest of a ticket purchaser, for passing counterfeit money for the ticket. It turns out that the money was genuine. The railroad company will be liable if the arrest is made in the prosecution of the master's business,-"' but not if it is made for the purpose of aiding the public authorities in bringing a supposed criminal to justice.''** The same doctrine applies to assaults made by servants while in the defend- ant's employ. If committed in prosecuting the defendant's busi- ness, he is liable, although he may. have forbidden such conduct, and although the servant's dominant motive at the moment of assault was to inflict harm on the plaintiff, rather than to benefit the defendant.-"" But if the servant commit the assault to redress a personal grievance, or to save himself from loss, the master will not be liable.^™ =•= Rounds V. D. L. & W. Ry., 64 N. Y. 129, 21 Am. 8. 597 (1876). S. P., Evans V. Davidson, 53 Md. 245, 36 Am. R. 300 (1880) ; Nelson Business College V. Lloyd, 60 Ohio St. 448, 54 N. E. 471, 71 Am. St. R. 729, 46 L. R. A. 314 (1899). ^^ Goodloe V. Memphis, etc., Ry., 107 Ala. 233, 18 So. 166, 29 L. R. A. 729, 54 Am. St. R. 67 (1894) : S. P., Lynch v. Florida Central Ry., 113 Ga. 1105, 39 S. E. 411, 54 L. R. A. 810 (1901). A quarrel between plaintiff and defendant's station agent grew out of, but was directly connected with the agent's dis- charge of his duties to the defend- ant; Little Miami Ry. Co. v. West- more, 19 Ohio St. 110, 2 Am. R? 373 (1869). ^"'Palmer! v. Manhattan Ry. Co., 133 N. Y. 261, 30 N. B. 1001, 28 Am. St. R., 632, 16 L. R. A. 136 (1892); McDonald v. Pranchere Brothers, 102 la. 496, 71 N. W. 427 (1897). ^"'Mulligan V. N. Y., etc., Ry., 129 N. Y. 506, 29 N. E. 952, 26 Am. St. R. 539, 14 L. R. A. 791 (1892); Tol- chester, etc., Co. v. Steinmeir, 72 Md. 313, 20 At. 189, 8 L. R. A. 846 (1890) ; Lafltte v. New Orleans, etc., Ry., 43 La. Ann. 34, 8 So. 701, 12 L. R. A. 337 (1891). ^Williams Adm'r. v. Southern Ry. Co., 115 Ky. 320, 73 S. W. 779 (1903). " The instructions were er- roneous and misleading in the use of the words ' not done In the Inter- est and business of the defendant,' instead of the words ' not done in the line of his employment,' and while acting within the scope of his authority.' " Smith v. L. & N. Ry., 95 Ky. 11, 23 S. W. 652, 22 L. R. A. 72 (1893); Dorsey v. Kansas, etc., Ry., 104 La. 478, 29 So. 177, 52 L. R. A. 92 (1900) ; Girvin v. N. Y. C, etc., Ry., 166 N. Y. 289, 59 N. E. 921 (1901); Bergman v. Hendrlckson, 106 Wis. 434, 82 N. W. 304, 80 Am. St. R. 47 (1900). ™ McDermott v. Am. Brewing Co., Parties to Tort Actions. 153 Willful, Malicious and Fraudulent Acts of Servant. There is much authority in the earlier cases for the view, that such acts do not subject the master to liability. Lord Kenyon declared "^ that "■ when a servant quits sight of the object for which he is employed, and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such act." Judge Cowen asserted,-'- " all the cases agree that a master is not liable for the willful mischief of his servant, though he be at the time, in other respects, engaged in the service of the former." The tendency of later decisions, both in England and in this country, has been to discard this doctrine, and to hold the master answerable for the servant's willful, malicious and fraudu- lent misconduct, provided it was in the course of his employment and in the master's business. -'' The foundation of the modern doctrine is the principle that " if one of two innocent persons must 105 La. 124, 29 So. 498, 83 Am. St. R. 428 (1901) ; Williams v. Pullman Car Co., 40 La. Ann. 89, 3 So. 635, 8 Am. St. R. 512 (1888). ^"McManus v. Crickett, 1 East 106, 5 R. R. 518 (1800). =« Wright V. Wilcox, 19 '.i^end. (N. Y.) 343, 32 Am. Dec. 507 (1838). ="This has appeared in the pre- ceeding pages. Additional cases might be cited in great numbers. In the following, the topic is well discussed: Strang v. Bradner, 114 U. S. 555, 29 L. Ed. 248, 5 Sup. Ct. 1038 (1884), innocent partner liable in deceit for fraudulent misrepre- sentations of a co-partner. For other cases in accord, see Burdick on Partnership, pp. 203-214; Bank of Cal. V. West. U. Tel. Co., 52 Cal. 280 (1877) ; McCord v. W. U. T. Co., 39 Minn. 181, 39 N. W. 315, 1 L. R. A. 143, 12 Am. St. R. 637 (1888) ; El- wood V. W. U. T. Co., 45 N. Y. 549, 6 Am. R. 140 (1871); Bank of Palo Alto V. Pac. Postal Tel. Co., 103 Fed. 841, holding the telegraph company liable for willful and frau- dulent acts of its servant in sending telegrams; Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894); McAr- thur V. Home Life Assurance, 73 la. 36, 35 N. W. 540, 5 Am. St. R. 684 (1887) ; Rhoda v. Annis, 75 Me. 17, 46 Am. R. 354 (1883); Haskell v. Starbird, 152 Mass. 117, 25 N. B. 14, 23 Am. St. R. 809 (1890) ; Busch v. Wilcox, 82 Mich. 336, 47 N. W. 328, 21 Am. St. R. 563 (1890), innocent master held liable in tort for fraud- ulent misrepresentations of ser- vant; Stranahan Bros. Catering Co. V. Colt, 55 Ohio St. 398, 45 N. E. 634 (1896), holding the master liable for the servant's adulteration of milk, although the latter adulter- ated it to gratify his malice against the master and to injure him. This decision is rested in part upon the fact, that the master had contracted with the plaintiff to supply pure milk; Dyer v. Munday (1895), 1 Q. B. 742, 64 L. J. Q. B. 448, holding master liable for servant's assault, although the latter had been pun- ished as 3 criminal offense. 154 The Law of Torts. suffer loss by the act of a third, he who put it in the power of the third person to do such act should be compelled to sustain the loss occasioned by its commission." "* False Imprisonment and Malicious Prosecution by Servant. Applying the doctrine in the foregoing paragraph, the master has been held liable for the false imprisonment of persons by his ser- vant, and for the malicious prosecution instituted in his name by his servant, not only when such proceedings were expressly authorized or ratified, but also when the servant's authority to act was fairly inferable from the nature and scope of his employment.^"' On the other hand, the master has escaped liability, where it appeared that the servant was not acting in the course of his employment, or in a manner ordinarily conducive to his master's interests, but was per- tcjrming the functions of a citizen in seeking to bring the criminals to n' nishment.-'" Master's Liability for Torts of Servant, which are not in the Course of His Employment. This exceptional liability of the master results from a special legal duty resting upon him, in certain circumstances. In some cases, that duty is imposed upon him by contract. A master who contracts to deliver pure milk to a cheese and butter factory, is liable in damages to the factory pro- prietor for the adulteration of the milk by a servant, although the latter adulterated it for the sole purpose of gratifying his spite against the master.^''' A common carrier contracts not only to ='*Pac. Postal Tel. Co. v. Bank of 463, with valuable note (1900); Tol- Palo Alto, 109 Fed. 369, 48 C. C. A. chaster Co. v. Steinmeir, 72 Md. 413 (1901). 313, 20 At. 188, 8 L. R. A. 846 ™Krulevitz v. Eastern Ry., 140 (1890); Mulligan v. N. Y. & R. Ry., Mass. 573, 5 N. E. 500 (1886); Pal- 129 N. Y. 506, 29 N. E. 952, 14 L. R. merl v. Manhattan Ry., 133 N. Y. A. 791, 26 Am. St. R. 539 (1892); 261, 30 N. e; 1001, 16 L. R. A. 136, Croasdale v. Van Boyneburg, 206 54 Am. St. 632 (1892); Kelly v. Pa. 15, 55 At. 770 (1903); Markley Traction Co., 132 N. C. 368, 43 S. E. v. Snow, 207 Pa. 447, 56 At. 999 923 (1903); Staples v. Schmid, 18 (1904); Abraham v. Deakln (1891), R. I. 224, 26 At. 193, 19 L. R. A. 824 1 Q. B. 516, 60 L. J. Q. B. 238. (1893); Eichengreen v. Louisville ""Stranahan Bros. Co. v. Coit, 55 Ry., 96 Tenn. 229, 34 S. W..219, 31 Ohio St. 398, 45 N. B. 634 (1896). L. R. A. 702, 54 Am. St. R. 833 The court expressed the opinion (1896); Moore v. Met. Ry. L. R. 8 that the servant's act in adulterat- Q. B. 36, 42 L. J. Q. B. 23 (1872). ing the milk was within the scope ™Page v. Citizens Banking Co., of his employment; but it also de- 111 Ga. 73, 36 S. E. 418, 51 L. R. A. clared that the master's contractual Parties to Tort Actions. 155 transport his passengers, but to use every reasonable effort to trans- port them safely. This contract, and the common law duty incident thereto, often render the carrier liable for his servant's torts, which are committed without a shadow of authority, and wholly outside of the master's business. Nothing could be further removed from the course of a railroad conductor's employment, or from the car- rier's business, than the kissing of female passengers, and yet the carrier must answer in tort for the assault and battery of a conductor who kisses a female passenger against her will.^" So he must answer for any tortious conduct of his servants towards passengers, which violates his duty towards thenL^'" This duty extends to the exercise of a high degree of care in guarding them against the assaults of strangers.-^" He is not an insurer of their safety^'^ against other passengers, or outsiders, nor even against his servants, but he is bound to use every reasonable effort to maintain order and discipline among his servants, as well as among passengers and those who are upon his premises and conveyances. '''^ relations with plaintiff determined the scope of the employment. Pitts- field Cottonware Co. v. Pittsfield Shoe Co., 71 N. H. 522, 53 At. 807, 60 L. R. A. 116 (1902); Steele v. May, 135 Ala. 483, 33 So. 30 (1902). =™ Craker v. Chicago & N. W. Ry., 36 Wis. 657, 17 Am. R. 504 (1875). "' Birmingham Ry. v. Baird, 130 Ala. 334, 30 So. 456, 89 Am. St. R. 43 (1901) ; Savannah, etc., Ry. v. Quo, 103 Ga. 125, 29 S. E. 607, 68 Am. St. R. 85 (1897) ; Keokuk, etc., Co. V. True, 88 111., 608 (1878); Chi- cago, etc., Ry. V. Flexman, 103 111., 546, 42 Am. R. 33 and note (1882); McKinley v. Chicago & N. W. Ry., 44 la. 314, 24 Am. R. 748 (1876); Wabash Ry. v. Savage, 110 Ind. 156, 9 N. E. 85 (1886); Missouri Pac. Ry. V. Divinney, 66 Ks. 776, 71 Pac. 855 (1903); Spangler v. St. Joseph, etc., Ry., 68 Ks. 46, 74 Pac. 607, 63 L. R. A. 634 (1903); Shirley v. Bil- lings, 8 Bush (71 Ky.) 147, 8 Am. R. 451 (1871); Goddard v. Grand Tk. Ry., 57 Me. 202, 2 Am. R. 39 (1869); Bryant v. Rich, 106 Mass. 180, 8 Am. R. 311 (1870) ; New Or- leans, etc., Ry. V. Burke, 50 Miss. 200 (1874); Dwinell v. N. Y. C. Ry., 120 N. Y. 117, 24 N. E. 319, 8 U R. A. 224, 17 Am. St. R. 611 (1890); Haver v. Cent. Ry., 62 N. J. L. 282, 41 At. 916, 43 L. R. A. 84, 72 Am. St. R. 647 (1898); White v. Nor- folk, etc., Ry., 115 N. C. 631, 20 S. E. 191, 44 Am. St. R. 489 (1894); Seawell v. Car. Cent. Ry., 133 N. C. 515, 44 S. E. 610 (1903); Dilling- ham v. Russell, 73 Tex. 47, 11 S. W. 139, 15 Am. St. R. 753, 3 L. R. A. 634 (1889); Knoxville Traction Co. V. Lane, 103 Tenn. 376, 53 S. W. 557, 46 L. R. A. 549 (1899). ™ Chic. & A. Ry. v. Pillsbery, 123 111., 9, 14 N. E. 22, 5 Am. St. R. 483 (1887) ; Snow v. Pitchburg Ry., 136 Mass. 552, 49 Am. R. 40 (1884) ; Car- penter v. Boston & A. Ry., 97 N. Y. 494, 49 Am. R. 540 (1884). ™ Fritz V. Southern Ry., 133 N. C. 725, 44 S. E. 613 (1903). =="Mullan v. Wis. Ry. Co., 46 156 The Law of Torts. A similar duty rests upon the proprietor of a liquor saloon, or other place where intoxicants are publicly sold."^^ He has "' the undoubted right to exclude therefrom drunken and disorderly per- sons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power, a corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law." "** Again, a person who puts into the hands of a servant a dangerous instrumentality, is under a common-law duty to see that the servant properly guards or uses it.^'^ A parent is under a similar duty when he places dangerous instruments in the hands of his children, although they are not his servants in dealing with them.^*" Tort Liability of Master to Servant. This is measured by the master's legal duty towards his servant. For any unjustifiable invasion of the servant's personal rights, the master is answerable precisely as he would be to a stranger.^*^ In some cases, — rather Minn. 475, 49 N. W. 249 (1891); New Orleans, etc., Ry. v. Burke, 53 Miss. 200, 24 Am. R. 689 (1876). "=^Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733 (1903). "^ Mastad v. Sweedish Brethren, 83 Minn. 40, 85 N. W. 913, 53 L. R. A. 803 (1901); Rommel v. Scham- backer, 120 Pa. 579, 11 At. 779 (1887). Contra Belding v. John- son, 86 Ga. 177, 12 S. B. 304, 11 L. R. A. 53 (1890). ^'^Tex., etc., Ry. v. Scoville, 62 Fed. 730, 23 U. S. App. 506, 10 C. C. A. 479, 27 L. R. A. 179 (1894); Al- sever v. Minn., etc., Ry., 115 la. 338, 88 N. W. 841, 56 L. R. A. 748 (1902) ; Pittsburg, etc., Ry. v. Shields, 47 O. St. 387, 24 N. B. 658, 8 L. R. A. 464. 21 Am. St. R. 840 (1890); Cobb v. Columbia, etc., Ry., 37 S. C. 194, 15 S. B. 878 (1892); Erie Ry. Co. v. Salisbury, 66 N. J. L. 233, 50 At. 117, 55 L. R. A. 578 (1901); Buting y. Chic. & N. W. Ry., 116 Wis. 13, 42 N. W. 358, 60 L. R. A. 158 (1902), holding master liable for servant's misconduct with torpedos, locomo- tive whistle, with push-car, etc. Contra, Stephen v. So. Pac. Ry., 93 Cal. 558, 29 Pac. 234, 27 Am. St. R. 223 (1892). And when the servant takes possession of such dangerous instrumentality and uses it without the master's authority, the latter is not liable: Sullivan v. Louisville & Nashville Ry., 115 Ky. 447, 74 S. W. 171 (1903). =^ Chaddock v. Plummer, 88 Mich. 225, 50 N. W. 135, 14 L. R. A. 675 with note (1891). ^ Loveless v. Standard Gold Min. Co., 116 Ga. 427, 42 S. B. 741 (1902) ; Odin Coal Co. v. Denman, 185 111., 413, 57 N. E. 192, 76 Am. St. R. 45 (1900) ; Lorentz v. Robinson, 61 Md. 64 (1883); Troxler V. Sou. Ry., 124 N. C. 189, 32 S. E. 550, 44 L. R. A. 313, 70 Am. St. R. 580 (1899); Rus- sell V. Dayton Coal Co., 109 Tenn. 43, 70 S. W. 1 (1902) ; Norfolk, etc., Ry. Parties TO Tort Actions. 157 rare at the present time, — the master is entitled to discipHne a servant.^^" and, within certain Hmits,.to defame him.'*' But, as a rule, a master is under the same legal duty to refrain from harming his servant that rests upon him towards strangers.'^"" SPECIAL DUTIES OF MASTER TOWARDS SERVANT. (i) To Employ Suitable Fellow Servants. The relation- ship between them imposes upon the master certain special duties towards the servant, which may be classified as follows: First, to use reasonable care in selecting suitable and sufficient co-servants, including superintendents. «He is not a guarantor of their compe- tency and fitness. He is bound to exercise due care, however, in securing a sufficient number of competent servants ; '"^ but if, after such due care, injury happen to a servant through the unfitness or negligence of a fellow servant, the master is not liable therefor."'" Of course, if the master is informed of a servant's incompetency, and thereafter retains him, he is violating his duty towards other servants and may be liable to them in damages'; ""' provided, the injury is due to the incompetence or unfitness of the servant in V. Houchins, 95 Va. 398, 28 S. E. 578, 91 Ala. 487, 8 So. 552 (1890) ; Kelly 46 L. R. A. 359, 64 Am. St. R. 791 v. New Haven Steamboat Co., 74 (1897). Conn. 343, 50 At. 871 (1902); Louis- ^The Agincourt, 1 Hagg. 271 ville, etc., Ry. v. Semonis, (Ky.), 51 (1824); Butler v. McClellan, 1 Ware S. W. 612 (1899); Cheney v. Ocean (U. S.) 220 (1831); The Stacy Steamship Co., 92 Ga. 726, 19 S. E. Clarke, 54 Fed. 533 (1892). See 33, 44 Am. St. R. 113 (1893); Por- Masters of Vessels, 20 Am. & Eng. tance v. Lehigh Valley Co., 101 Wis. Enc. of Law, pp. 203-207 (2d Ed.). 574, 579, 77 N. W. 875, 70 Am. St. R. =^ Child V. Affleck, 9 B. & C. 403 932 (1899). (1829). ""The Antonio Zambrana, 89 Fed. ^° In some cases, the fact of an ac- 60 (1898); Weeks v. Sharer, 111 cident carries with it no presump- Fed. 330, 49 C. C. A. 372 (1901); tion of negligence on the part of the Relyea v. Kansas City Ry., 112 Mo. master towards his injured servant, 86, 20 S. W. 480 (1892); Reichel v. although it would towards certain N. Y. Cent. Ry., 130 N. Y. 682, 29 N. others, such as passengers, in whose E. 763, 42 N. Y. St. R. 510 (1892). behalf there is prima facie a breach =»= Metropolitan, etc., Co. v. Fortin, of his contract to carry safely. Pat- 203 111., 454, 67 N. E. 977 (1903); ton V. Texas, etc.. Ry., 179 U. S. G58, Brown v. Levy, 108 Ky. 163, 55 S. W, 21 Sup. Ct. 275 (1900). 1079 (1900); Norfolk & W. Ry. v, »" Louisville, etc., Ry. Co. v. Davis, Hoover, 79 Md. 253, 29 At. 994, 25 L. iS8 The Law qf Torts. question.^"* The burden of proof, however, is upon the plaintiff to show the master's neghgence in selecting or continuing incom- petent servants. The mere fact that they turn out to be incompetent does not tend to establish a prima facie case of negligence on the master's part.^°° (2) Duty to Establish and Promulgate Proper Rules. That this duty rests upon the master, whenever such rules are feasible and will serve to minimize the risk of a hazardous employ- ment, is well settled. If the business involves no exercise of peculiar skill, nor the use of dangerous machinery, nor extra hazard to the servant, rules for the performance of the work are unnecessary.^"" In other lines of business it may be a question for the jury, whether rules and regfulations should be made and enforced.^"' In still others, the conditions may be so complex and the hazard to the servant so great, that the master's failure to establish proper rules and to insist upon their observance will amount to a clear violation of his legal duty.^'* Perhaps no better statement of the principles, defining and regulating this duty, has been made than the follow- ing : ^"^ " The duty of a master in making rules is measured by the law of ordinary diligence. That law varies with the situation, for what would be ordinary diligence under one set of facts would be negligence in another. If, however, under the circumstances of a R. A. 710 and note, 47 Am. St. R. Ford v. Lake Shore, etc., Ry., 124 392 (1894); Lamb v. Littman, 128 N. Y. 493, 26 N. B. 1101, 12 L. R. A. N. C. 361, 38 S. B. 911, 53 L. R. A. 454 (1891). 852 (1901). «» Kansas City Ry. v. Hammond, '»" Norfolk, etc., Ry. v. Phillips, 58 Ark. 324, 24 S. W. 723 (1894); 100 Va. 362, 41 S. E. 726 (1902). Judklns v. Maine Central Ry., 80 »" Stafford V. Chicago B. & T. Ry., Me. 417, 14 At. 735 (1888); Lake 114 III., 244 (1885); Roblln v. Kan- Shore, etc., Ry. v. Lavalley, 36 0. sas City, etc., Ry., 119 Mo. 476, 24 S. St. 221 (1880) ; Hartvig v. Nor. Pac. W. 1011 (1894). L. Co., 19 Or. 522, 25 Pac. 358 ="■ Texas, etc., Ry. v. Echos, 87 (1890); Lewis v. Seifert, 116 Pa. Tex. 339, 27 S. W. 60 (1894); Olsen 628, 647, 11 At. 514, 2 Am. St. R. 631 V. Nor. Pac. L. Co., 40 C. C. A. 427, (1887) ; Madden v. Cheseapeake Ry., 100 Fed. 384 (1900); Gila Valley. 28 W. Va. 610, 57 Am. R. 695 etc., Ry. V. Lyon (Ariz.), 71 Pac. (1886); Smith v. Baker (1891), A. 957 (1903); Morgan V. Hudson, etc., c. 325. Ore Co., 133 N. Y. 666. 31 N. E. 234 '=» Devoe v. New York, etc., Ry., <^*^^^- 174 N. Y. 1, 66 N. E. 568 (1903). "'McGovern v. Central Vt. Ry., Consult also Nolan v. N. Y. & C. Ry., 123 N. Y. 280, 25 N. E. 373 (1890) ; 70 Conn. 159, 39 At. 115, 43 L. R. A. Parties TO Tort Actions. 159 particular case, the master has met the obligation of ordinary dili- gence in making and enforcing a rule, he is free from liability,'"" even if some other rule would have been safer and better. The law requires him to make and promulgate reasonably safe and proper rules, and if he does so he is not liable, even if he might have made safer and more effective rules." Test of SufJficiency of Rules : If a rule is actually made, the question still remains whether it is proper and sufficient under the circumstances, for due diligence is not satisfied by an insufficient and inadequate rule.'"^ " There is an essential difference between rules made by a master for his own protection and the regulation of his business in his own interest, and those made for the protection of his servants ; for, in the one case, the sufficiency affects no one but himself, while in the other, the lives and limbs of his servants are involved. * * * It may be that where the situation is simple and entirely free from complications the sufficiency of the rules made even to protect employees would be a question of law. When, how- ever, the situation is complicated, the question of sufficiency " of the rules, as well as of the manner of their promulgation, " is for the jury. * * * What is reasonable and proper under a complicated state of facts permitting diverse inferences, is a question of fact." For Court or Jury ? It must be confessed, that the diversity of judicial opinion upon the last point in the foregoing extract is irreconcilable. In the case quoted from, a minority of the court dissented, holding ^"^ that " the question as to whether a rule is reasonable and proper is a question for the court, and not for the jury." " Of course," said the dissenting judges, " in cases where the facts with reference to the nature and contents of the rule are not clearly established, or are to be determined from controverted 305 with full note (1898), and Hill (1902); Willis v. Atlantic, etc., Ry., V. Boston & M. Ry., 72 N. H. 578, 57 122 N. C. 905, 29 S. B. 941 (1898). At. 924 (1904). Nor is the master protected if he ^ Smith V. Chic, etc., Ry., 91 Wis. sanctions the habitual disregard of 503, 65 N. W. 183 (1895); Ball v. the rules by his servants. Hunn v. Hauser, 129 Mich. 397, 89 N. W. 49 Mich. Cent. Ry., 78 Mich. 513, 526, (1902). 44 N. W. 502, 7 L. R. A. 500 (1889) ; "• Vose V. Lancashire, etc., Ry., 2 McNee v, Coburn, etc., Co., 170 Mass. H. & N. 728 (1858); Memphis, etc., 283, 49 N. B. 437 (1898). Ry. V. Graham. 94 Ala. 545, 10 So. "" Devoe v. N. Y., etc., Ry., 174 N. 283 (1891); Dowd v. N. Y. O. & W. Y. pp. 12, 13. Ry., 170 N. Y. 459, 63 N. B. 541 i6o The Law of Torts. facts, the question must be submitted to the jury as to what the rule promulgated was, under proper instructions from the court as to what is necessary to constitute a reasonable and proper rule." The minority view seems to be supported by the weight of authority in other jurisdictions.^"^ Some courts have declared that the reason- ableness of the master's rules is a question for the court, while their sufficiency is for the jury.'"* vVhether rules have been fairly brought to the notice of the servant is generally a question of fact.'"' The presumption is that necessary rules have been made and duly pro- mulgated.'"" (3) Duty to Provide a Safe Place to Work. Closely connected with the master's duty, which we have just discussed, is his duty to provide a reasonably safe place for the servant while prosecuting his work. It is not to be understood that a master who carries on an extra-hazardous business is an insurer of his servants' safety. When they enter such employment they assume its neces- sary risks; but risks which can be obviated by reasonable care on the part of the master are not necessary risks.'"' A master main- taining electrical wires over which A high voltage of electricity is conveyed, rendering them highly dangerous, is bound to inspect such wires with a care commensurate with the risk, and to use proportionate efforts to keep them properly insulated and to prevent their doing harm to his servants.' 308 "'Little Rock, etc., Ry. v. Barry, Chicago, etc., Ry., 114 Fed. 100, 52 84 Fed. 949, 56 U. S. App. 37 (1898), C. C. A. 48, 57 L. R. A. 712 (1902). approving and following Kansas, =" Rockport Granite Co. v. Bjorn- etc, Ry. V. Dye, 36 U. S. App. 23, 70 holm, 115 Fed. 947, 53 C. C. A. 429 Fed. 24, 16 C. C. A. 604 (1895); St. (1902). Louis, etc., Ry. v. Adcock, 52 Ark. "^ Myhan v. Louisiana, etc., Co., 406, 12 S. W. 874 (1889) ; South Fla. 41 La. Ann. 964, 11 So. 51, 16 L..R. Ry. V. Rhodes, 25 Fla. 40, 5 So. 633, A. 43, 32 Am. St. R. 348 (1889). In 23 Am. St. R. 506, 3 L. R. A. 733 Union Pac. Ry. v. Jarvl, 53 Fed. 66, (1889); Reagan v. St. Louis, etc., 3 C. C. A. 433 (1892), it is said: Ry., 93 Mo. 348, 6 S. W. 371, 3 Am. " The care and diligence required of St. R. 542 (1887). the master is such as a reasonably ""Chicago B. & Q. Ry. v. McLal- prudent man would exercise under len, 84 111., 109 (1876). like circumstances, in order to pro- =»»McNee v. Coburn Trolley Co., tect his servants from injury. It 170 Mass. 283, 49 N. E. 437 (1898). must be commensurate with the ™ Hill V. Boston & ^e. Ry., 72 N. character of the service required, H. 518, 57 At. 924 (1904); Brady v. and with the dangers that a reason- Parties to Tort Actions. i6i At the other extreme, is the master whose business involves no unusual hazard to the servant, such as the ordinary householder or farmer. Here, the duty to provide a safe place to work reaches its lowest limit, extending no farther, probably, than the use of reason- able care to prevent harm to the servant from unusual danger, which the master knows or ought to know.'"" In deciding cases which fall between these extremes, the greatest source of difficulty has been, in determining whether the servant's harm was due to the master's fault, in not providing a safe place to work, or to a fellow servant's fault in carrying on the work. The principles to be applied in such cases have been well stated in a recent decision ^^^ as follows : " It is the master's duty to exercise reasonable care in furnishing those things which go to make up the plant and appliances, so as to have them at the outset reasonably safe for the work of the servants who are engaged in the general employ- ment, and further, to exercise reasonable care, by means of inspec- tions and repairs, when needed, to keep the plant and appliances reasonably safe. These duties the master cannot avoid by employ- ing others for their performance. If the negligence of those who are charged with such performance results in injury to one of those servants for whose safety the precautions are required, the master is liable, unless by reason of the obvious character of the consequent risk, or otherwise, it is assumed by the injured employee, or unless the injury is brought about by contributory negligence." It will be observed that the master, who has provided a safe plant for his workmen, is not bound absolutely to keep it safe. He is under a legal duty to properly inspect it,'^^ and, if such inspection ably prudent man would apprehend "° Smith v. Erie Ry. Co., 67 N. J. under the circumstances of each par- L. 636, 52 At. 634 (1902). Master ticular case." held liable to servant for injuries ™ Indemauer v. Dames, L. R. 1 caused by defective roadbed, negli- C. P. 274, 35 L. J. C. P. 184, L. R. 2 gently allowed to remain in bad re- C. P. 311, 36 L. J. C. P. 181 (1867) ; pair; Potter v. Detroit, etc., Ry., 122 Eastland v. Clarke, 165 N. Y. 420, Mich. 179, 81 N. W. 80 (1899), ac- 428, 59 N. E. 202 (1901). In Collins cord. V. Harrison, 25 R. I. 489, 56 At. 678, '" Chicago, etc., Ry. v. Kneirin, 64 L. R. A. 156 (1903), it is held to 152 111., 458, 39 N. B. 324, 43 Am. St. be the duty of the employer to fur- R. 259 (1894); Simone v. Kirk, 173 nish the domestic servant with a N. Y. 7, 65 N. B. 739 (1902). It is lodging room in such repair as not the duty of a master whose servants to endanger his health, are excavating materials from a II l62 The Law of Torts. disclosed or would have disclosed defects or dangers, to use reason- able effort to repair, or remove, or warn against them.'^^ Safety of Place Dependent upon Co-Servants. At times, the safety of the place where the servants are employed does not depend upon the plant furnished by the employer, but upon the conduct of the employees.^" The conditions of the place are con- stantly changing. " The work and the place of working are coinci- dent." ^^* In such cases, if the master has supplied a reasonably safe plant, with appliances for working and repairing it ; has made, promulgated and enforced reasonable rules, and has exercised due care in selecting and continuing fellow servants, he has discharged his entire legal duty. For the negligence or misconduct of servants in carrying on the work — in executing a detail of operation — ^the master is not answerable to a fellow servant. That is an ordinary risk of the employment.'^' It must be admitted, however, that bank of ashes, where lumps, parti- ally undermined are liable to fall, to so inspect the place as to keep it reasonably safe. Three judges dis- sented on the ground that the negli- gence of the foreman related to a matter of detail. "'^Hanley v. California, etc., Co., 127 Cal. 232, 59 Pac. 577, 47 L. R. A. 597 (1899). Defective roof of tun- nel in which plaintiff was working; Toledo Brewing, etc., Co. v. Bosch, 101 Fed. 530, 41 C. C. A. 482 (1899). Defect caused by independent con- tractor, but reasonable inspection would have disclosed it; Belleville Stone Co. v. Mooney, 60 N. J. L. 323, 38 At. 835, 61 N. J. L. 253, 39 At. 764, 39 L. R. A. 834 (1897); Kelly v. Fourth of July Co., 16 Mon. 484, 41 Pac. 273 (1895). ""Coal Mining Co. v. Clay, 51 Ohio St. 542, 38 N. E. 610 (1894). "* Curley v. Hoff, 62 N. J. L. 758, 42 At. 731 (1899). ™ Callan v. Bull, 113 Cal. 593, 604, 45 Pac. 1017 (1896). "The making of this bent was a part of the work to be done by the laborers them- selves," not a " place furnished by their employer; " Angel v. Jellico Coal Co., 115 Ky. 728, 74 S. W. 714 (1903). "The negligence of fellow servants who placed dynamite be- fore the furnace fire " was held a breach of the master's duty to pro- vide a safe place to work; Holden V. Fitchburg Ry., 129 Mass. 268, 37 Am. R. 343 (1880); O'Connor v. Rich, 164 Mass. 560, 42 N. B. Ill, 40 Am. St. R. 486 (1895). A scaffold made by servant in prosecuting the work is a detail of operation; Lind- vall V. Woods, 41 Minn. 212, 42 N. W. 1020, 4 L. R. A. 793 (1889); Mc- Laughlin V. Camden Iron Works, 60 N. J. L. 557, 38 At. 677 (1897); Loughlin v. State, 105 N. Y. 159, 11 N. E. 371 (1887); Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905 (1891); Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021 (1899); Capasso v. Wool- folk, 163 N. Y. 472, 57 N. E. 760 (1900); Lambert v. Missisquoi Co., 72 Vt. 278, 47 At. 1085 (1900); Ok- ODski V. Penn., etc., Co., 114 Wis. Pasties to' Tort Actions. 163 courts are not agreed as to what fs a detail of operation, as distin- guished from an act which renders the working plant unsafe.'" ' Court and Jury. Nor are they agreed as to whether the question of what constitutes a reasonably safe place to work is one for the court or for the jury. The weight of authority favors the view, that it is not proper to submit to a jury the question whether a particular place of work was reasonably safe. To do that, it is said, would be to substitute the varying opinion of juries, as to how a business should be conducted, for the lawful judgment of the employer, and would prevent the formation of a rule of law upon the subject.'^' " Reasonably safe," it has been judicially declared, " means safe according to the usages, habits and ordinary risks of the business. * * * No jury can be permitted to say that the usual and ordinary way " of preparing a place of work is an unsafe way.'^* In a recent New Hampshire case the majority of the court declared that " when the danger arises, not from the place itself, but from the use of it for the work, and no special skill or experience beyond that involved in doing the work is required to maintain the safety of the place, the maintenance of such safety is the duty of the servant, because it is a part of the work." '^° (4) Duty to Furnish Safe Appliances. By some courts the term " safe appliances " is used in a very extensive sense, includ- 448, 90 N. W. 429 (1902); Wilson v. "'Titus v. Bradford, etc., Ry., 136 Merry, L. R. 1 Sc. & D. 326, 19 L. Pa. 618, 20 At. 517, 20 Am. St. R. T. R. 30 (1868). 944 (1890). ™ With cases In the last note, Cf. "° McLaine v. Head & Dowst Co., Chic, etc., Ry. v. Maroney, 170 111., 71 N. H. 294, 52 At. 545, 58 L. R. A. 520, 48 N. E. 953, 62 Am. St. R. 396 462, 93 Am. St. R. 522 (1902). The (1897); McBeath v. Rawle, 192 111., dissenting opinion will repay a care- 626, 61 N. E. 847 (1901), holding ful examination. This declares that that a scaffold used in prosecuting "the law now is, that the. master by the woiTi is a " place to work," not the contract of employment assumes a detail of operation. The New certain personal duties to the serv- York I abor Law (Chap. 415 L„ ant, not only in respect to original 1897) has adopted the Illinois rule, equipment, but subsequent mainte- and imroses upon the master the nance and management, and that duty of providing safe scaffolding whoever represents him in the dis- for employees; Stewart v. Ferguson, charge of any of these duties, what- 164 N. Y. 553, 58 N. E. C62 (1900). ever his title pr rank, is to that ex- =" Bethlehem Iron Co, v. Weiss, tent the master's agent, for whose 100 Fe:l. 45, 40 C. C. A. 270 (1900). negligence the master is responsible 1 64; The Law of Torts. ing a safe place in which to work.'^" It will be employed in this section to designate machinery, tools and contrivances, which do not form part of the employer's permanent plant, but are used in the business there carried on. The employer's duty with respect to appliances is substantially the same as his duty with respect to a safe place in which to work. It is not absolute, in the sense that he is an insurer of their perfec- tion.'^^ On the other hand, it is a duty which he cannot assign or delegate so as to free himself from liability for its non-perform- ance.*^^ The degree of care, which this duty imposes upon the employer, varies with the character of the appliances. Some kinds are much more dangerous than others, and require greater skill in selecting and installing, as well as greater watchfulness of their condition. If the master exercises such care and skill in furnishing to the servant, just as he would be responsible if the negligence were directly his own." '" Hess V. Rosenthal, 160 111., 621, 43 N. E. 743 (1896). ^ In Hough V. Texas, etc., Ry. Co., 100 U. S. 213 (1879), it Is said: " To guard against the misapplica- tion of these principles, we should say that the corporation is not to be held as guarantying or warrant- ing the absolute safety, under all circumstances, or the perfection in all its parts, of the machinery or apparatus which may be provided for the use of employees. Its duty in that respect to its employees is discharged when, but only when, its agents whose business it is to sup- ply such instrumentalities exercise due care, as well in their purchase originally, as in keeping and main- taining them in such condition as to be reasonably and adequately sa'a for use by employees." The gtii- eral rule is that a master is not liable for a mere error of judgment in selecting appliances. Negligence, or culpable ignorance, must be shown. O'Neill v. Chic, etc., Ry., 62 Neb. 358, 86 N. W. 1098, 60 L. R. A. 443 (1901), and cases cited therein. =^ In Bait. & Ohio Ry. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914 (1893), the court said : " That positive duty does not go to the extent of a guaranty of safety, but it does re- quire that reasonable precautions be taken to secure safety, and it mat- ters not to the employee by whom that safety is secured, or the reason- able precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it at- tended to by others, that does not change the measure of obligation to the employee, or the latter's right to insist that reasonable precaution shall be taken to secure safety in these respects." Noble v. Bessemer Co., 127 Mich. 103, 86 N. W. 520, 89 Am. St. R. 461 (1901); Orr v. Sou. Tel. Co., 132 N. C. 691, 44 S. B. 401 (1903); Port Makely Mill Co. v. Garrett, 97 Fed. 537 (1899); Ry. Co. V. Peterson, 162 U. S. 353, 16 Sup. Ct. 842 (1896), accord. Parttes to Tort Acttons. 165 applianc"-. and in inspecting and repairing them,"-' he has performed his whole duty in this respect towards his servants ; and for any injury sustained by one servant, through the negligent use or care of such appliances by a fellow servant, the master is not answer- able.'-* In some jurisdictions, however, the master's duty seems to extend to securing the proper use of safe appliances,''-" but this view does not appear to accord either with sound principle or the weight of authority."-" Safety of Appliances and Fellow Servants. When the master does not personally superintend and direct the selection, repair and custody of appliances, the extent of his liibiHty for injuries due to their defects„unfitness or dangerous condition, is a a matter upon which the courts are not agreed. In England, the master appears to discharge his full duty towards servants, in such cases, when he uses due care in selecting proper representatives to act in his stead, and supplies them with adequate materials and resources."-" Such is not the doctrine in any of our jurisdictions. Almost without exception, our courts declare that a master cannot escape liability for injuries to a servant by unsafe appliances, by showing that he delegated their selection to a thoroughly competent and experienced agent. The duty of selecting them with reasonable care — a care proportionate to their dangerous character — cannot be shifted to a delegate. It remains upon the master, no matter who is employed by him to perform it.''-^ To be sure, the agent is under =^ Byrne v. Eastmans Co., 1C3 N. N. E. 581 (1893); Anderson v. Erie Y. 461, 57 N. E. 738 (1900); Kelly Co., 68 N. J. L. 647, 54 At. 830 V. N. H. Steamboat Co.. 74 Conn. (1903); car of another railroad, 343, 50 At. 871, 92 Am. St. R. 220 whose defects were not discoverable (1902). by ordinary inspection. ^' Trimbie v. Whltln Mach. Wks., -^ John S. Metcalf Co. v. Nystedt, 172 Mass. 150, 51 N. E. 403 (1898); 203 111., 333, 67 N. E. 764 (1903). master furnished a suitable gang- ==« Jennings v. Iron Bay Co., 47 plank which was improperly placed Minn. Ill, 49 N. W. 685 (1891); by a fellow servant; following Ro- Steamship Co. v. Ingebregsten, 57 binson v. Blake Mnfg. Co., 143 Mass. N. J. L. 400, 31 At. 619 (1895). 528, 10 N. E. 314 (1887); Ashley v. =«' Wilson v. Merry, L. R. 1 Sc. & Hart, 147 Mass. 573, 18 N. E. 416 D. 326, 19 L. T. R. 30 (1868). This (1888) ; Thyng v. Fitchburg Ry., seems to be the rule in Maryland. 156 Mass. 13, 30 N. B. 169 (1892); Nat. Enam. Co. v. Cornell, 95 Md. Carroll v. W. U. T. Co., 160 Mass. 524, 52 At. 588 (1902). 152, 35 N. E. 456 (1893); Allen v. "^ In addition to cases cited in Smith Iron Co., 160 Mass. 557, 36 previous notes, see Nor. Pac. Ry. v. 1 66 The Law of Torts. no greater duty of care than his employer. He is not bound to select the very best appliances discoverable. It is enough that he selects such as are in ordinary use, and are reasonably safe.'^" But if he fails to do this, his negligence is that of his employer.^^" Keeping Appliances Safe. After the master has selected and installed reasonably safe appliances, what is his duty with respect to keeping them safe?''^ It must be confessed that the judicial answers are not harmonious. In a recent case,''^ after allusion to the " incongruous decisions " upon this topic, the court suggested, that " a rational distinction would seem to be that, when the em- ployee's duty to inspect or repair the apparatus is incidental to his duty to use the apparatus in the common employment, then he is not intrusted with the master's duty to his fellow servant, and the master is not responsible to his fellow servant for his Jault, but Herbert, 116 U. S. 642, 6 Sup. Ct. 590 (1885); Cincinnati, etc., Ry. v. McMullen, 117 Ind. 439, 29 N. B. 287, 10 Am. St. R. 67 (1888); Toy v. U. S. Cartridge Co., 159 Mass. 313, 34 N. B. 461 (1893); Morton v. De- troit Ry. Co., 81 Mich. 423, 46 N. W. Ill (1890); Bailey v. R. W. & O. Ry., 139 N. Y. 302, 34 N. E. 918 (1893); Ell V. Nor. Pac. Ry., 1 N. Dak. 336, 26 Am. St. R. 621 with note, 48 N. W. 222 (1891); Gunter V. Graniteville Co., 18 S. C. 262 (1882). '""'Louisville, etc., Ry. v. Hall, 91 Ala. 112, 8 So, 371, 24 Am. St. R. 863 (1891); Little Rock, e;:c., Ry. V. Bubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. R. 245 (1886); Gur- neau, etc., Co. v. Palmer, 28 Neb. 207 (1889); Bohn v. Chicago, etc., Ry., 106 Mo. 429, 17 S. W. 580 (1891); Carlson v. Phoenix, etc., Co., 132 N. Y. 273, 30 N. B. 750 (1892); Nix v. Tex. Pac. Ry., 82 Tex. 473, 18 S. W. 571, 27 Am. St. R. 897 (1891); Humphreys v. New- port, etc., Ry., 33 W. Va. 135, 10 S. E. 39 (1889); Keeler v. Schwenk, 144 Pa. 348, 22 At. 910, 27 Am. St. R. 633 (1891). ""Myers v. Hudson Iron Co., 150 Mass. 125, 29 N. B. 631, 15 Am. St. R. 176 (1889); Johnson v. Spear, 76 Mich. 139, 42 N. W. 1092, 15 Am. St. R. 298 (1889); Carter v. Oliver Oil Co., 34 S. C. 211, 13 S. E. 419, 27 Am. St. R. 815 (1891); Galveston, etc., Ry. v. Garrett, 73 Tex. 262, 13 S. W. 62, 15 Am. St. R. 781 (1889). ""■ Trigg W. R. Co. v. Lindsay, 101 Va. 193, 43 S. B. 349 (1903). " Though a master is liable for fail- ure to use ordinary care to provide reasonably safe machinery, he is not liable for unsafe conditions ex- isting while the machinery is in pro- cess of erection; and where an em- ery wheel exploded because of the improper arrangement of the pul- leys, resulting from the fault of a fellow servant of plaintiff, who was injured thereby before the machine was ready for operation, the master was not liable." ™ Steamship Co. v. Ingebregsten, 57 N. J. L. 400, 31 At. 619 (1895). Parties to Tort Actions. 167 that, if the master has cast a duty of inspection or repair upon an employee, who is not engaged in using the apparatus in a common employment with his fellow servant, then that employee, in that duty, ••presents the master, and the master is chargeable with his default." Although this distinction has been recognized and fol- lowed in other jurisdictions,'"^ it has not found acceptance in all.""* And even the courts which have adopted the distinction do not seem to apply it consistently. The inspection of cars which the servants of a railroad company are to handle, is a task allotted to employees who are not engaged in using them. For their negligent inspection, the master should be held liable ; ""' but in Alabama, Massachusetts and Michigmi, such inspectors are deemed fellow servants of those managing the cars, for the faithful performance of whose duty the employer is not liable.""" (5) Duty to Warn of Danger. Still a fifth duty, which the law imposes upon the master towards his servant, is that of warning him of danger in certain circumstances. It does not rest upon every master, nor does it exist in favor of every servant. If the danger is one of which the master, without negligence, is ignorant, there can be no obligation on his part to disclose it.""^ A "= Moynihan v. Hills Co., 146 Mass, ™ Smoot v. Mobile, etc., Ry., 67 586, 16 N. E. 574 (1888); Drum v. Ala. 13 (1880); Mackin v. B. & A. New England Co., 180 Mass. 113, 61 Ry., 135 Mass. 201, 46 Am. R. 201 N. E. 812 (1901); Cregan v. Mars- (1883); Lellls v. Mich. Cent. Ry., ton, 126 N. Y. 568, 27 N. B. 952, 22 124 Mich. 37, 82 N. W. 828 (1900) ; Am. St. R. 851 (1891). Dewey v. Detroit, etc., Ry., 97 Mich. ""Buck V. New Jersey Zinc Co., 334, 52 N. W. 942, 22 L. R. A. 294, 204 Pa. 132, 53 At. 740, 60 L. R. A. 37 Am. St. R. 348 (1893). 453 (1902); Wachsumth v. Shaw ="Walkowskl v. Penokee, etc., Co., 118 Mich. 275, 76 N. W. 497 Mines, 115 Mich. 629, 73 N. W. 895, (1898). 41 L. R. A. 33, with note (1898); ^Baltimore & P. Ry. v. Mackay, Burns v. Pethcal, 75 Hun (N. Y.) 157 U. S. 72, 15 Sup. Ct. 491, 39 L. 437 (1894). "The master must Ed. 624 (1895); Felton v. BuUard, warn his servants of all dangers to 94 Fed. 781, 37 C. C. A. 1 (1899); which they will be exposed in his Eaton V. N. Y. C. Ry., 163 N. Y. 391, employment, * * * except such as 57 N. E. 609, 79 Am. St. R. 600 he cannot be deemed to have fore- (1900); Anderson v. Erie Co., 68 N. seen: " Wagner v. Jayne Chem. Co., J. L. 647, 54 At. 830 (1903) ; Dooner 147 Pa. 475, 479, 23 At. 772, 30 Am. V. D. & H. Canal Co., 164 Pa. 17, 30 St. R. 745 (1892) ; Gay v. So. Ry., At. 269 (1894); Jones v. N. Y., etc., 101 Va. 466, 44 S. E. 707 (1903). Ry., 20 R. I. 210, 37 At. 1033 (1897). 1 68 The Law of Torts. servant who knows and appreciates the danger attending his mas- ter's business is not entitled to be warned of its existence.^** The law does not command impossibilities nor stipulate for superfluities. In cases, however, where the master knows, or, had he used due care, would have discovered, that the employment is dangerous, and has reason to believe that his servant does not know the danger and will not discover it in time to protect himself from injury, he is under a legal duty to give proper warning '" and instructions to the servant.'*" The warning should be unequivocal,'*^ and the instructions should be such as are suited to the circumstances of the particular case.''*- If the servant is young and inexperienced, the instructions should be more minute than in case of an adult, and especial care should be taken to make them intelligible.'*' Still, even toward minors, the master is " only required to do what a prudent master would naturally do under like circumstances." '** Court and Jury : — Whether the warning and instructions in ^Rooney v. Sewall, etc., Co., 161 Mass. 153, 36 N. B. 789 (1894); Yeager v. Burlington, etc., Ry., 93 la. 1, 61 N. W. 215 (1894) ; Reynolds V. Boston, etc., Ry., 64 Vt. 66, 24 At. 134, 33 Am. St. R. 908 (1891). ""Baxter v. Roberts, 44 Cal. 187, 13 Am. R. 160 (1872); Holshouser V. Denver Gas Co., 18 Col. App. 431, 72 Pac. 289 (1903). Danger of be- ing shot by neighbors or strikers. •■"" Tedford v. Los Angelos Co., 134 Cal. 76, CO Pac. 76 (1901); Inger- man v. Moore, 90 Cal. 410, 27 Pac. 306, 25 Am. St. R. 138 (1891); Daly V. Kiel, 106 La. 170, 30 So. 254 (1901) ; Stuart v. West End Ry., 163 Mats. 391, 393, 40 N. B. 180 (1895). "'Myhan v. La. Elec. Co., 41 La. Ann. 964, 6 So. 799, 7 L. R. A. 172, 17 Am. St. R. 436 (1889). "= Tagg V. McGeorge, 155 Pa. 368, 26 At. 671, 35 Am. St. R. 889 (1893). " It is the duty of the em- ployer to give suitable instructions as to the manner of using danger- ous machines." Davis v. Augusta Factory, 92 Ga. 712, 18 S. E. 974 (1893): "much depends upon the nature of the machinery, the age, capacity, intelligence and expe- rience of the employee, as well as all the surounding circumstances and facts: " Davis Coal Co. v. Pol- land, 158 Ind. 607, 62 N. B. 492, 92 Am. St. R. 319 (1901). ^O'Connor v. (Jolden Gate Co., 135 Cal. 537, 67 Pac. 966, 87 Am. St. R. 127 (1902); Newburg v. Getchel, etc., Co., 100 la. 441, 69 N. W. 743, 62 Am. St. R. 582 (1896); Chicago etc., Co. v. Relnneiger, 140 111. 334, 29 N. E. 1106, 33 Am. St. R. 249 (1892); Brazil Block Co. v. Young, 117 Ind. 520, 20 N. B. 423, 12 Am. S. R. 422 (1889); James v. Rapides Lumber Co., 50 La Ann. 717, 23 So. 469, 44 L. R. A. 33, with full note (1898); Bohn Mn'fg Co. v. Erickson, 55 Fed. 943, 12 U. S. App. 260, 5 C. C. A. 341 (1893). '"Omaha Bottling Co. v. Theller, 59 Neb. 257, 80 N. W. 821, 80 Am. St. R. 673. Parties to Tort Actions. 169 a particular case are those which a prudent master would naturally give, is generally a question for the jury;"' although, if the evi- dence is undisputed, and fairly warrants but one inference, it will be disposed of by the court.'*" And wherever it clearly appears that the servant was fully aware of the dangers of his employment, and fully informed as to his proper course of conduct, the master, as we have seen, is under no duty to give warning or instruction. The servant takes the risk of the situation.'*' Moreover, even when the master has violated his duty of warning and instructing the servant, the latter has no right of action, unless such violation was the proximate cause of his injury.'** Assumption of Risk aad Contributory Negligence of Serv- ant : The master who has performed the various duties enumer- ated above, is not chargeable at common law '*^ for the injuries sustained by a servant in his employment. They are to be ascribed to the risks of the business, which the servant impliedly engages to assume, or to his contributory negligence. Either is a perfect de- fense for the master when sued by the servant, but they ought not to be confused. Assumption of risk is an affirmative defense which must be »» Hartrich v. Hawes, 202 111. 334, Belden, 167 N. Y. 307, 60 N. E. 645, 67 N. B. 13 (1903); James v. 54 L. R. A. 52 (1901); Drake v. Rapides Lumber Co., 50 La Ann. Auburn City Ry., 173 N. Y. 466, 66 717, 23 So. 469, 44 L. R. A. 33, with N. E. 121 (1903) ; Erdman v. 111. note (1898); De Costa v. Har- Steel Co., 95 Wis. 6, 69 N. W. 993, graves Mills, 170 Mass. 375, 49 N. 60 Am. St. R. 66 (1897); Anderson E. 735 (1898); Addicks v. Cristoph, v. C. N. Nelson Lumber Co., 67 62 N. J. L. 786, 43 At. 196, 72 Am. Minn. 79, 69 N. W. 630 (1896); St. R. 687 (1899); Dresser Em- Lally v. Crockston Lumber Co., 82 ployer's Liability, p. 470. Minn. 407, 85 N. W. 187 (1901). "" Carrigan v. Washburn, etc., "" Henderson v. Williams, 66 N. H. Co., 170 Mass. 79, 48 N. E. 1079 405, 23 At. 365 (1891); Buckley v. (1898); Juchatz v. Michigan Al- Gutta Percha Co., 113 N. Y. 540, 21 kali Co., 120 Mich. 645, 79 N. W. N. B. 717 (1889); Same principle 907 (1899). Morrison v. Whittier Mach. Co., 184 «'Staldter v. City of Huntington, Mass. 39, 67 N. B. 646 (1903). 153 Ind. 354, 55 N. B. 88 (1899); "'The most important statutory McClusky V. Garfield Co., 180 Mass. changes upon this topic will be 115, 61 N. E. 804 (1901); Roberts noted hereafter. V. Missouri Tel. Co., 166 Mo. 370, 66. S. W. 155 (1901); Maltbie v. I/O The Law OF Torts. pleaded ''"' and proved ^" by the defendant. Moreover, it rests upon a valid contract of the plaintiff, while contributory negligence is a question of plaintiff's conduct in particular circumstances. The distinctions have been stated very satisfactorily in a recent Indiana decision.^"'' The plaintiff sued his employer, a coal mining com- pany, for damages sustained by the falling of slate from the roof of the mine. Defendant claimed that plaintiff had not only assumed the risk of employment in the mine in question, but was also guilty of contributory negligence. Referring to the arguments in defend- ant's behalf, the court said : " Counsel are confusing the doctrines of contributory negligence and assumption of risk. Assumption of risk is a matter of contract. Contributory negligence is a question of conduct. If appellee were to be defeated by the rule of assumed risk, it would be because he agreed, long before the accident hap- pened, that he would assume the very risk from which his injury arose. If appellee were to be defeated by the rule of contributory negligence, it would be because his conduct, at the time of the accident, under all the attendant circumstances, fell short of ordi- nary care. If the one circumstance of the employee's knowledge of the employer's failure to provide the statutory safeguards were held, as a matter of law, always to overcome the other circumstances characterizing the employee's conduct at the time of the accident, assumption of risk would be successfully masquerading in the guise of contributory negligence. If the assumption of risk is the is.sue, knowledge of defective conditions and acquiescence therein are fatal. If contributory negligence is the issue, knowledge of defect- ==° Oregon, etc., Ry. v. Tracy, 66 De Calr v. Mainstee Ry., 133 Mich. Fed. 931, 14 C. C. A. 199 1895); 578. 95 N. W. 726 (1903). Nicholaus v. Chicago, etc., Ry., 90 ==' Dowd v. N. Y., etc., Ry., 170 N. la. 85, 57 N. W. 694 (1894); Faulk- Y. 459, 63 N. E. 541 (1902), "We ner v. Mammoth Min. Co., 23 Utah th,ink that the burden of showing 437, 66 Pac. 799 (1901): "As as- that the servant assumed the risk sumed risk is an affirmative de- of obvious dangers rests upon the fense, essentially different in its master." Welle v. Celluloid Co., 175 character from the defense of con- N Y. 401, 67 N. E. 609 (1903). tributory negligence, it should ^^ Davis Coal Co. v. Polland, 158 therefore be treated as an implied Ind. 607, 62 N. E. 492, 92 Am. St. R. contract in bar and as a waiver 319 (1901). It was held in this of the plaintiif's right to recover." case, that the risks, arising from Cf. Miller v. Detroit, etc., Ry., 133 an employer's disregard of specific Mich. 564, 95 N. W. 718 (1903); and statutory requirements for the safe- Parties to Tort Actions. 17 1 ive conditions and acquiescence therein may be fatal, or may not be, depending upon whether a person of ordinary prudence, under all the circumstances, would have done what the injured person did. If the risk is so great and immediately threatening that a person of ordinary prudence, under all the circumstances, would not take it, contributory negligence is established. If the risk is not so great and immediately threatening but that a person of ordinary prudence, under all the circumstances, would take it, contributory negligence is not established." ^°' Servant Remaining after Knowledge of Danger ; — When a servant is fully aware that his master has violated any of his duties towards him, and appreciates, or should appreciate, the attend- ant risks, he is entitled to leave the employment. If he voluntarily remains and continues, in the hazardous work, he assumes the risk, or may even be guilty of contributory negligence,^'^ as we have seen. Nor will it avail him, that he continued in the hazardous position through fear of being dismissed if he protested against his master's negligence. But a different situation exists, when he is ty of employees, cannot be assumed by the servant. See supra, p. 83. ==' Similar views are maintained in the following cases: LImberg v. Glenwood Lumber Co., 127 Cal. 598, 60 Pac. 176, 49 L. R. A. 33, with ex- tensive note (1900); O'Maley v. So. Boston Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161 with note (1893); Fitzgerald v. Conn. Co., 155 Mass. 155, 29 N. B. 464, 31 Am. St. R. 537 (1891); Meunler v. Chemical Co., 180 Mass. 109, 61 N. E. 810 (1901), plaintiff held guilty of con- tributory negligence upon his own evidence; St. Louis, etc., Ry. v. Irwin, 37 Ks. 701, 16 Pac. 146, 1 Am. St. R. 266 (1887) ; Atchinson, etc., Ry. V. Bancord, 66 Ks. 81, 71 Pac. 253 (1903); Alcorn v. Chic, etc., Ry. 108 Mo. 81, 18 S. W. 188 (1891); Dowd v. N. Y. etc., Ry., 170 N. Y. 459, 63 N. E. 541 1902); Texas, etc., Ry. v. Con- roy, 83 Tex. 214, 18 S. W. 609; Faulkner v. Mammoth Mln. Co., 23 Utah 437, 66, Pac. 799 (1901); Tut- tle V. Detroit etc., Ry., 122 U. S. 189, 7 Sup. Ct. 1116, 30 L. Ed. 1114 (1887), assumption of risk; South- ern Pac. Ry. V. Seley, 152 U. S. 145, 14 Sup. Ct, 530, 38 L. Ed. 391 (1894), both assumption of risk and contributory negligence involved. ^ In some jurisdictions, as we have seen (supra p. 83) when the negligence of the master consists in the violation of a statutory duty of care, there can be no contribu- tory negligence by the servant, " because the continuing negligence of the defendant up to the moment of the injury is subsequent to the plaintiff's negligence, if any, and is the proximate cause of the injury." Troxler v. Southern Ry. 124 N. C. 189, 32 S. B. 550, 44 L. R. A. 313, 70 Am. St. R. 580 (1899. 172 Thk Law of Torts. induced to go on by the master's promise to remove the danger. In such a case, " the risk during the running of the promise and for a reasonable time thereafter is that of the master and not of the servant," ^°° according to the weight of authority in this country.^" The Risk from Fellow-Servant's Misconduct :— This is one of the most important risks which a servant assumes. The general rule applicable to it may be stated briefly in these terms : " One who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment." ^^^ ^-- The earliest case in which the existence of this rule was suggested, is that of Priestly v. Fowler,"'' although " all the case actually decided was that a master does not warrant to his servant the sufficiency and safety of a carriage in which he sends him out." ^'' A few years later, it was formally announced by a divided court in South Carolina,^'^" and, a year there- "'Rlce V. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979 (1903); Dowd V. Erie Ry., 70 N. J. L. , 57 At. 248 (1904). »^ Hough V. Texas, etc^ Ry., 100 U. S. 213, 225, 25 L. Ed. 612 (1879); Birmingham Ry. v. Allen, 99 Al. 359, 13 So: 8, 12, 20 L. R. A. 457 (1892); Standard Oil Co. v. Hel- miclc, 148 Ind. 460, 47 N. E. 14 (1897), servant was induced by the promise, as detect was not to be remedied until after the injury hap- pened; Swift V. O'Neill, 187 111. 337, 58 N. E. 416 (1900); Illinois Steel Co. v. Mann, 170 111. 200. 48 N. E. 417, 62 Am. St. R. 370, 40 L. R. A. 781 (1897); Stoutenburgh v. Dow, Oilman, etc., Co., 82 la. 179, 47 N. W. 1039 (1891) ; Brown v. Levy, 108 Ky. 163, 55 S. W. 1079 (1900) Roux v. Blodgett, etc., Co., 85 Mich. 519, 48 N. W. 1092, 24 Am. St. R. 102, 13 L. R. A. 728 (1891); Snowberg v. Nelson-Spencer Co., 43 Minn. 532, 45 N. W. 1131 (1890); Conroy v. Vulcan Iron Works, 62 Mo. 35 (1876); Manufacturing Co, v. Mor- rissey, 40 Oh. St. 148, 48 Am. R. 069 (1883); Patterson v. Pittsburgh etc., Ry., 76 Pa. 389, 18 Am. R. 412 (1874); Gulf, etc., Ry. v: Donnelly, 70 Tex. 371, 8 S. W. 52, 8 Am. St. R. 608, (1888); Dresser, Employer's Liability § 115. ^ '-^ Randall v. Hal. & 0. Ry., 109 U. S. 478, 483 (1883). ='3 M. & W. 1, 49 R. R. 495 (1837). ==» Pollock on Torts (6 Ed.) p. 95 note. ™ Murray v. South Car. Ry.,1 Mc- Mullan Law, 385, 36 Am. Dec. 268 (1841); Evans, J., said: "If this plaintiff is entitled to recover, a new class of liabilities would arise, which I do not think has ever here- tofore been supposed to exist. It is admitted no case like the present has been found, nor is there any precedent suited to the plaintiff's case. . . With the plaintiff, the de- fendants contracted to pay for his services. Is it incident to this con- tract that the company should guarantee him against the negli- gence of his co-servant? It is ad- mitted he takes upon himself the Parties to Tort Actions. 173 after, received a statement and exposition by Chief Justice Shaw, which have become classical.^"" In each of the cases named above, stress was laid upon the fact, that no precedent could be found for an action, by a servant against his master, for injuries due to the misconduct of a fellow-servant. From this admitted lack of precedent, different conclusions have been drawn. It has been inferred, on the one hand, that these decisions " ingrafted into English law a new rule." '"^ On the other hand, the inference has been drawn that the law had always been in accordance with these decisions, and that not until these actions were brought had an attempt been made to hold the master liable to a servant for harm due to a co-servant.'"- Whichever inference may be the correct one, the rule established by these cases was accepted with a unanimity quite unusual, and has been enforced in a manner which shows that not only the legal profession, but the community at large, agree with Chief Justice Shaw in the convic- tion, that the rule results " from considerations as well of justice as of policy." The statutory modifications, whether in England or ordinary risks of his vocation; why not the extraordinary ones? Neither are within his contract." '" Farwell v. Boston, etc., Ry., ' 4 Met. (Mass.) 49, 38 Am. Dec. 389 (1842). "' See note on this topic in 75 Am. St. R. 584 et. seq. This seems to be Sir Frederick Pollock's view. " Our law," he writes, " can show no more curious instance of a rapid modem development. The first evidence of any such rule is in Priestly v. Fowler, decided in 1837. * * It was not only adopted by the House of Lords for England, but forced by th^m on the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform." Torts, (6 Ed.), pp. 95, 97. Referring to the rule, in an- other connection he writes: " Its history is certainly not a favorable one. It appears to be rejected by continental jurisprudence, and re- cent legislation in Germany has de- liberately increased employers' lia- bilities in the case of railways and other specified industries. In Eng- land and the United States, it is modern." Essays in Jurisprudence pp. 114, 115. It does not exist in Mexico, Mexican Cent. Ry. v. Sprague, 114 Fed. 544, 52 C. C. A. 318 (1902). ="= Pollock, C. B., in Vose v. Lan- cashire, etc., Ry., 2 H. & N. 728, 734 (1858), said: "the law must have been the same long before it was enunciated in Priestly v. Fowler. If not, such actions would have been of frequent occurrence. No such action appears to have been brought before that case. We ought not to allow so important a decision to be frittered away by minute distinctions or the ingenu- ity of advocates." Similar views are expressed by Judge Dillon, in 21 Am. L. Rev. 180. 174 TlHE Law of Torts. in this country, do not evince a disposition, to abolish the rule, although they show dissatisfaction with some of its consequences. Reasons for the Rule : — In the Farwell case, plaintiff's counsel based his claim on the ground of contract — an implied contract of indemnity arising out of the relation of master and serv- ant. The existence of such a contract was repudiated by the court, which declared that " the rule resulting from considerations as well of justice as of policy is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accordingly. And we are not aware of any principle which should except those perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as effectually guard, as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any others." Not a True Contract Provision : — This form of statement, that the master's exemption from liability in these cases rests upon the implied contract between servant and master, has been adopted by most courts.'"^ It is open to criticism,'"* perhaps, unless we ™In Hutchinson v. York, etc., self and his master, the natural Ry., 5 Exch. 343, 19 L. J. Exch. 296 risks and perils incident to the per- (1850), it is said: "The principle formance of such services: the pre- is that a servant when he engages sumption of law being that the com- to serve a master undertakes, as pensation was adjusted accordingly, between himself and his master, to or in other words, that these risks run all the ordinary risks of the are considered in the wages." In service, and this includes the risk Bbswell v. Barnhoot, 96 Ga. 521, of negligence upon the part of a 23 S. E. 414 (1895), the court said: fellow-servant, when he is acting in " The ground upon which a master the discharge of his duty as serv- is relieved from liability to a serv- ant of him who is the common mas- ant for injuries resulting from neg- ter of both." In Mwrgan v. Vale of ligence of a fellow-servant is that Neath Ry., 5 B. & S. 570, 578, 33 L. the servant, when he enters the J. Q. B. 260 (1866), Lord Blackburn employment of the master, implied- used this language: "A servant ly contracts to assume the risk of who engages for the performance of negligence, as one of the risks in- Kfrvioes for compensation does, as cident to the service, and that his an implied part of the contract, compensation is fixed with refer- take upon himself, as between him- ence to this-: and, clearly, this reas- "*See note, next page. Parties to Tort Actions. 175 bear in mind that the contract here referred to is not a true consen- sual agreement, but an obligation imposed by law. That this is the sense in which Chief Justice Shaw employed the term is apparent from the following extract : " In considering the rights and obliga- tions arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical appli- cation, best promote the safety and security of all parties concerned. This is, in truth, the basis on which implied promises are raised, being duties legally inferred from a consideration of what is best adapted to promote the benefit of all persons concerned, under given circumstances." If a true contract were necessary to exempt the master, he would be liable to one who voluntarily " associates himself with a master's servants in the performance of his work ; " but he is not so liable. ^"^ Moreover, if the exemption of the master rested upon an actual stipulation in the contract of hiring, a servant who hired to a master, in a jurisdiction where the fellow-servants rule existed, would be barred from recovery, although he was injured in a jurisdiction where the rule did not obtain ; but he is not so barred. ^'"' Who Are Fellow-Servants ? Various Tests : While the rule of exemption, which we have been considering, seems a simple on cannot apply in the case of one ities of the parties were fixed by not voluntarily in the service, but law." merely a prisoner, serving out his "" Potter v. Faulkner, 1 B. & S. sentence for a violation of the law. 800, 31 L. J. Q. B. 30 (1861); Indeed, it can hardly be seriously Swainson v. North B. Ry., 3 Exch. contended that a chain-gang boss is Div. 341, 47 L. J. Exch. 372 (1877); in any sense a fellow-servant of a Stevens v. Chamberlain, 100 Fed. prisoner working under him. The 384, 40 C. C. A. 421, 51 L. R. A. 513 boss, while acting in that capacity, (1900); Osborne v. Knox, etc., Ry., is the alter ego of his employer, 68 Me. 49 (1877); Barstow v. Old and the latter Is responsible for Col. Ry., 143 Mass. 535 (1887). any wrongful or negligent acts on "^ Boston, etc., Ry. v. McDuffy, the part of such employee by which 79 Fed. 934 (1897). The contract a prisoner is deprived of his life." of hiring was in Vermont, where "' In 24 Am. L. Rev., p. 180, the fellow-servant rule existed, Judge Dillon, after quoting the Ian- while the injury happened in Lower ruage of Chief Justice Shaw, adds: Canada, where the rule did not ob- " A modern jurist would probably tain; and recovery was allowed in prefer to say that the relation was the U. S. court for the district of one wherein the duties and liabil*- Vermont. h/6 The Law of ToUts. one, the cotJrts have experienced no little difficulty in discovering the true test of fellow-service, within the meaning of this rule, as well as in determining the proper limits of the rule itself. " Speaking generally," to quote from a recent decision, " two rules, applied as tests in questions of this kind, have obtained a wide acceptance. Under one, the test is whether the duty violated by the offending servant was one resting upon the master, or solely upon the offending servant; while under the other, the test is whether the offending servant, in what he did or omitted to do, was or was not pro hac vice the master. Under the first rule, the test is mainly the nature and character of the duty vio- lated by the offending servant. If it* was a duty resting upon the master, he is liable to th^ injured servant for the negligence of the offending servant; if it was not such a duty, he is not. Under this rule, the rank or grade of the offending servant in the master's business or the department of it in which he is employed, as com- pared with that of the injured servant, is not of primary importance in determining the master's liability. Under the second rule, the test is mainly the relation of the offending servant to the master and to the injured servant. If in what he does he acts for and repre- sents the master, and therefore pro hac vice is the master, then his negligence is the master's negligence. Under this rule, the rank or grade of the offending servant in his master's business and the department in which he works are regarded as of primary import- ance in determining the master's liability." "*' It may be noted in passing that the burden is upon the plaintiff to prove that he and the servant, by whose negligence he was injured, were not fellow- servants.^"' Nature and Character of the Negligent Act. In juris- dictions where this test prevails, a servant may occupy a dual posi- tion. If employed to perform an act, incident to any of the five classes of duties which the law imposes upon the master, and which we have considered at length, he is, as to that act, a vice-principal— a true representative of his master — and his negligence is the mas- ter's negligence. If employed to do any other act, he is a mere servant, no matter what his rank, and for injuries resulting to fellow- '" Kelley v. New Haven Steam- »«» Chicago City Ry:, v. Leach, 208 boat Co., 75 Conn. 42, 50 At. 871 111., 198, 70 N. E. 222 (1904). (1902). Parties to Tort Actions. 177 servants from his misconduct, the master is not liable. Accordingly, the superintendent of a manufactory was held a fellow-servant, in letting on steam on an engine and starting a wheel, which other servants were at the moment lifting off its centre.'""' On the other hand, the storekeeper of a steamship line was held a vice-principal, in providing apparatus for use in putting the stores on board the ship."" Nature of the Act : — The test adopted in the foregoing cases, that the responsibility of the master to a servant for mis- conduct of another servant is determined by the nature of the act in question, and not by the rank or grade of the actor, has been accepted by the United States Supreme Court,^^^ after some hesita- tion,^''' and by most of the state courts.^' "•Crispin v. Babbitt, 81 N. Y. 516, 37 Am. R. 521 (1880); S. P. McLaine v. Head, etc., Co., 71 N. H. 294, 52 At. 545, 58 L. R. A. 462 (1902); ONeil v. Great Nor. Ry., 80 Minn. 27, 82 N. W. 1086, 51 L. R. A. 532 (1900). ""Nordt Deutscher Co. v. Inge- bregsten, 57 N. J. L. 400, 31 At. 619 (1895); S. P. Olney v. Boston, etc., Ry., 71 N. H. 427, 52 At 1097 (1902). '"Baltimore, etc., Hy. v. Baugh, 149 V. S. 368, 13 Sup. Ct 914, 37 L. Ed. 772 (1893); New Eng. Ry. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181 (1899) ; Weeks v. Schorer, 111 Fed. 330, 49 C. C. A. 372 (1901); Lafayette Bridge Co. v. Olsen. 108 Fed. 335, 54 L. R. A. 33, with full note (1901). "" Chicago, etc., Ry. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787 (1884). ""Mobile, etc., Ry. v. Smith, 59 Al. 245 (1877), modified by Statute. See Civil Code of 1896, S§ 1749- 1751; Nixon v. Selby Smelting Co., 102 Cal. 458, 36 Pac. 803 (1894); Kelley v. New Haven Steamboat Co., 74 Conn. 343, 50 At. 871 (1902) ; McElligott V. Randolph, €1 Conn. 157, 22 At. 1094. 29 Am. St. R. 181 (1891); Carleton Mining Co. v. Ryan, 29 Col. 401, 68 Pac. 279 (1902); Camp & Bros. v. Hall, 39 Fla. 535, 22 So. 492 (1897), modified by Chap. 4071 L. 1891; New Pitts- burgh Co. V. Peterson, 136 Ind. 398, 35 N. E. 7, 43 Am. St. R. 327 (1893); Peterson v. Whitebreast Coal Co., 50 la. 673, 32 Am. R. 143 (1879), modified by § 1307 of Code; Blake v. Maine C. Ry., 70 Me. 60, 35 Am. R. 297 (1879); Norfolk v. Hoo- ver, 79 Md. 263, 29 At. 994, 47 Am. St. R. 392, 25 L. R. A. 770 (1894); Moody V. Hamilton Mn'fg Co., 159 Mass. 70, 34 N. E. 185, 38 Am. Bt. R. 396 (1893); Schroeder v. Flint, 103 Mich. 213, 61 N. W. 663, 50 Am. St. R. 354, 29 L. R. A. 321 (1894); Brown v. Winona Ry., 2V Min. 162, 38 Am. R. 285, 6 N. W. 484 (1880), modified by Chap. 13 L. 1887, and i 2701 Gen'l. St. 1894; McMaster V. 111. C. Ry., 65 Miss. 264, 4 So. 59, 7 Am. R. 653 (1887), modified by § 193 Const, of 1890, and §3559 Code of 1892; Goodwell v. Mont, etc., Ry., 12 178 The Law of Torts. Superior Servant Test : This test has been applied by the Ohio courts from the beginning; those courts characterizing the test which prevails generally in this country as " contrary to the general principles of law and justice." *"* According to these tribunals: " The implied obligation of the servant to assume all risk incident to the employment, including that of injury occasioned by the negli- gence of a fellow-servant, has no application where the servant, by whose negligent conduct or act the injury is inflicted, sustains a relation of superior in authority to the one receiving the injury;" but the true rule is, " that where one servant is placed by his em- ployer in a position of subordination to, and subject to the orders and control of another, and such inferior servant, without fault, and while in the discharge of his duties, is injured by the negligence of the superior servant, the master is liable for such injury." '"* This test, with varying modifications, has been adopted by the courts of several states,^'* and by legislation in others.''^ 18 Mont. 293, 45 Pac. 210 (1896); Galvin v. Pierce. 72 N. H. 79, 54 At. 1014 (1903); Knutter v. N. Y., etc., Tel. Co., 67 N. J. L. 646, 52 At. 565 (1902); Hanklns v. N. Y., etc., Ry., 142 N. Y. 416, 37 N. E. 466, 40 Am. St. R. 616, 25 L. R. A. 396 (1894); Ell V. Nor. Pac. Ry., 1 N. Dak. 336, 48 N. W. 222, 26 Am. St. R. 621, 12 L. R. A. 97 (1891); Mast V. Kern, 34 Or. 247, 54 Pac. 950, 75 Am. St. 580, ■with extensive note (1898); Casey v. Penn. Asphalt Co., 198 Pa. 348, 47 At. 1128 (1901); Mllhench v. E. Jenckes Mn'fg. Co., 24 R. I. 131, 52 At. 687 (1902); Davis V. Cent. Vt. Ry., 55 Vt. 84, 45 Am. R. 590 (1883); Norfolk, etc., Ry. V. Phillips, 100 Va. 362, 41 S. E. 726 (1902); Trigg W. R. Co. v. Lindsay, 101 Va. 193, 43 S. E. 349 (1903); Jackson v. Norfolk, etc., Ry., 43 W. Va. 280, 27 S. B. 278, 31 Id. 258, 46 L. R. A. 337 (1897); Wiskie v. Montello Granite Co., Ill Wis. 443, 87 N. W. 461, 87 Am. St. R. 885 (1901). '"Little Miami Ry. v. Stevens,. 20 Ohio 415 (1851). '"Berea Stone Co. v. Kraft, 31 Ohio St. 287, 27 Am. R. 510 (1877). "'Fort Smith Oil Co. v. Slover, 58 Ark. 168, 24 S. W. 106 (1893); St. Louis, etc., Ry. v. Thurmond, 70 Ark. 411, 68 S. W. 488 (1902). See Const. 1874, Art. 17, § 12 and § 6247 Sand & H. Dig.; Taylor v. Geo. Marble Co., 99 Ga. 512. 27 S. B. 768, 59 Am. S. R.238, (1896).. See Code of 1882, §§ 2083, 2202, 3033, 3036; Chicago, etc., Ry. v. Kelly, 127 111. 637, 21 N. B. 203 (1889); St. Louis, etc., Ry. V. Weaver, 35 Ks. 412, 11 Pac. 408 (1886); Volz v. Chesa- peake Ry., 95 Ky. 188, 24 S. W. 119 (1893); Edmonson v. Ken. Cen. Ry., 105 Ky. 479, 49 S. W. 200 (1899); Illinois Cent. Ry. v. Josey, 110 Ky. 342, 61 S. W. 703, 54 L. R. A. 78 (1901); Dobson v.N. O., etc., Ry., 52 La. Ann. 1127, 27 So. 670 (1900); Shervin v. St. Jos., etc., Ry., 103 Mo. 378, 15 S. W. 442, 23 Am. St. R. 881 (1890); New Omaha '"See note, next page. Parties to Tort Actions. 179 Injuries Due to Negligence of Master and Fellow-Ser- vant: Whenever a servant's injury is legally traceable to the master's negligence, the latter cannot escape liability by showing that the harm was -due in part to the negligence of a fellow-serv- ant?" If, however, the master's negligence has only a remote connection with the harm, while the efficient, proximate negligence is wholly that of a fellow-servant, the master will not be liable.'" Limitations of the Fellow-Servant Rule. It is quite apparent from the statement of the rule and the reasons in support of it, that it does not apply to a servant who, at the time of the injury, is not serving his master, or at least is not in a position of danger by reason of his contract of service. Accordingly, a railroad employee, who has finished his day's work, and is moving along a highway near his employer's road, is not subject to the fellow- servant" rule when hurt by the careless throwing of wood from the train by a trainman.^*" Nor is such an employee, when riding as Co. V. Baldwin, 62 Neb. 180, 87 N. W. 27 (1901). " Our court has said the satisfactory evidence of vice prlnclpalship is his supervision, control and subjection to his orders and directions." Mason v. Rich- mond, etc., Ry., Ill N. C. 482, 16 S. E. 698, 18 L. R. A. 845, 32 Am. St. R. 814 (1892); Lamb v. Littman, 131 N. C. 978, 44 S. E. 646 (1903); Jenkins v. Richmond, etc., Ry., 39 S. C. 507, 18 S. E. 182, 39 Am. St. R. 750 (1893); Illinois Cent. Ry. v. Spence, 93 Tenn. 173, 23 S. W. 211 (1893); Sweeny v. Gulf, etc., Ry., 84 Tex. 433, 19 S. W. 555, 31 Am. St. R. 71 (1892); Reddon v. Union Pac. Ry., 5 Utah, 344, 15 Pac. 262 (1887); Pool v. Southern Pac, 20 Utah 210, 58 Pac. 326 (1899); Keat- ing V. Pac. Steamship Co., 21 Wash. 415, 58 Pac. 224 (1899); AUend v. Spokane Falls Ry., 21 Wash. 324, 58 Pac. 244 (1899). "' Several of these statutes have been referred to in previous notes. See also Mass. R. L. 1901, ch. 106; Colorado Sess. L. 1901 ch. 67, Sess. L. N. Y. 1902, ch. 600. Bailey, Per- sonal Injuries Relating to Master and Servant (Chicago, 1897) ; Dres- ser, Employer's Liability i,St. Paul 1902). "' Grand Trunk Ry. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493 (1883); Loveless v. Standard Gold Co., Ill Ga. 427, 42 S. E. 741 (1902); Chi- cago, etc., Ry. v. GilUson, 173 111. 264, 50 N. E. 657, 64 Am. St. 117 (1898); Towns v. Vlcksburg, etc., Ry., 37 La. Ann. 630, 55 Am. R. 508 (1885); Ellis v. N. Y., etc., Ry., 95 N. Y. 546 (1884); Bodle v. Charles-' ton, etc., Ry., 66 S. C. 302, 44 S. E. 943 (1903); Sroufe v. Moran Bros. Co., 28 Wash. 381, 68 Pac. 896, 92 Am. St. R. 847 (1902). '™ Carter v. Lockey Piano Case Co., 177 Mass. 91, 58 N. E. 476 (1900); Philadelphia Iron Co. v. Davis, 111 Pa. 597, 56 Am. R. 305 (188G); Fowler v. Chicago, etc., Ry., 61 Wis. 159 (1884). 3S0 Fletcher v. Baltimore, etc., Ry., i8o The Law of Torts. a gratuitous passenger, after his working hours."*^ If, however, the employee is a passenger, or otherwise upon the master's vehicles or premises, in the course of his employment, he is subject to the fellow-servant rule.'*^ Which of these positions a servant occupies, at a particular time, is a question of fact, and if the evidence war- rants more than one inference, the question is for the jury.^'* There Must be a Common Master: This is quite appa- rent from the very terms of the fellow-servant rule. In the language of Lord Herschell : " It is obvious that if the exemption results, as it does according to the authorities, from the injured person having undertaken, as between himself and the person he serves, to bear the risks of his fellow-servant's negligence, it can never be appli- cable when there is no relation between the parties from which such an undertaking can be implied." '** Hence, the employees of an independent contractor are not the fellow-servants of the employee of him for whom the contractor is working ; ^^^ nor are palace-car company employees fellow-servants with the trainmen of the rail- road company hauling the cars ; ^'° nor are the employees of different 168 U. S. 135, 18 Sup. Ct. 35 (1897). =»' Dickinson v. West End Ry., 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 328 (1900); McNulty v. Penn. Ry., 182 Pa. 479, 38 At. 524, 38 L. R. A. 376, 61 Am. St. R. 721 (1897) ; Chatanooga, etc., Co. v. Venable, 105 Tenn. 460, 58 S. W. 861, 51 L. R. A. 886 (1900); Peterson v. Seattle Co., 23 Wash. 615, 63 Pac. 539, 53 L. R. A. 586, containing a full review of the authorities (1900). Contra, lonnonev. N. Y., etc., Ry., 21 R. I. 452, 44 At. 592, 79 Am. St. R. 812 (1899). =^ Gillshannon v. Stony Brook Ry., 10 Cush (64 Mass.) 228 (1852) ; Boyle v. Columbian, etc., Co., 182 Mass. 93, 102, 64 N. E. 726 (1902) ; Russell v. Hudson Ry., 17 N. Y. (1858); Wright v. Northamp- ton, etc., Ry., 122 N. C. 852, 29 S. E. 100 (1898); Holmes v. Great Nor. Ry. (1900), 2 Q. B. 409, 69 h. J. Q. B. 854. See 3 Col. L. Rev. 49-51, note on Orman v. Salvo, 117 Fed. 233 (1902). '^ Northwestern Pack. Co. v. Mc- Cue, 17 Wall (U. S.) 508 (1873). ■^ Johnson v. Lindsay (1891), A. C. 371, 65 L. T. 97. ""'Cameron v. Nystrom (1893), A. C. 308, 63 L. J. P. C. 85; The Vic- toria, 69 Fed. 160 (1895); Louthan V. Hewes, 138 Cal. 116, 70 Pac. 1065 (1902); Cruselle v. Pugh, 67 Geo. 430, 44 Am. R. 724 (1881); Lake Super. Co. v. Brickson, 39 Mich. 492, 33 Am. R. 423 (1878); Jansen v. Mayor Jersey City, 61 N. J. L. 243, 39 At. 1025 (1898); Hal- lett V. N. Y. C. Ry., 167 N. Y. 543, 60 N. E. 653 (1901); Noll v. Phil. Ry., 163 Pa. 504, 30 At. 157 (1894); Cunningham v. Int. Ry., 51 Tex. 503, 32 Am. R. 632 (1879)^ »«» Jones V. St. Louis, etc., Ry., 125 Mo. 666, 28 S. W. 883, 46 Am. St. R. Parties to Tort Actions. i8i railroad companies using the same track or premises.*'' When the servant of A is put under the temporary control of B, in order to render him subject to the fellow-servant rule, it must appear that the servant has assented to the transfer of his services to B, and that he has in fact submitted himself to the direction and control of this new master. " This assent may be established by direct proof that he agreed to accept the new master and to submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent. Such evidence may be strong enough to justify a court in removing the question from the jury, or it may require to be submitted to the jury." "*" The Servants Must be Engaged in a Common Employ- men : It is not enough to bring employees within the fellow- servant rule that they have a common master. They must be so associated in his employment, " that the safety of the one servant must in the ordinary and natural course of things depend on the skill and care of the other." ^'^ Accordingly, it has been held that the crews of different vessels of the same owner are not necessarily within the fellow-servant rule.'''" Whether they are subject to it, depends upon the question, Does the safety of one crew depend upon the skill and care of the other? Or, to put it in another way. Is injury by the riegligence of one crew an ordinary risk of the service of the other ? Applying the same test, there can be no doubt that a telegraph operator who transmits the orders for trains is a fellow-servant with a trainman ; '"* nor that the crews of different 514, 26 L. R. A. 718 (1894), S. P. N. J. L. 35, 38, 34 At. 986 (1896); applied to an express agent, Yeo- Morgan v. Smith, 159 Mass. 570, 35 mans v. Contra Costa Co., 44 Cal. N. E. 101 (1893). Cf. Ewan v. Llp- 71 (1872); Blair v. Erie Ry., 66 N. pincott, 47 N. J. L. 192, 54 Am. K. Y. 313, 23 Am. R. 65 (1876). 148 (1885); Murray v. Dwiglit, 161 "^Zeigher v. Danbury, etc., Ry., N. Y. 301, 55 N. E. 901, 48 L. R. A. 52 Conn. 543 (1885); Wabash, etc., 673 (1900); Union Steamship Co. Ry. V. Peyton, 106 111. 534, 46 Am.* v. Claridge (1894), A. C. 185, 63 L. R. 705 (1883); Phil., etc., Ry. v. J. P. C. 56. State, 58 Md. 372 (1882); Penn. Ry. ^Blackburn, J., in Morgan v. V. Gallagher, 40 Ohio St. 637, 48 Vale of Neath Ry., 5 B. & S. 736, I . Am. R. 689 (1884); Phillips v. Chic, R. I Q. B. 149, 35 L. J. Q. B. 22 etc., Ry., 64 Wis. 475 (1885); Bos- (1864). worth V. Rogers, 82 Fed. 975 ™The Petrel (1893), P. 320, 62 (1897). L. J. P- 92, 1 R. 651. »" Del. L. & W. Ry. v. Hardy, 59 =»' Slater v. Jewett, 85 N. Y. 61, 1 82 The Law of Torts. trains are fellow-servants, whenever the safety of the one depends upon the conduct of the other ; ^'^ nor that the mate of a vessel is a fellow-servant of a table-waiter ; ^°' nor that a railroad track laborer is a fellow-servant of a conductor on a train going over the same track ; ^^* nor that a carpenter at work on an elevator shaft is a fellow-servant of the one operating the elevator.*®" Difterent Department Doctrine ; Habitual Association :— In a few States, the fellow-servant rule is subject to what is known as the " different department limitation." Where this doctrine pre- vails, " in order that one servant should be a fellow-servant of another, their duties must be such as to bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution," ^°'' or they must be actually co-operating with each other in the line of employment.'"' The Servant's Liability for his Torts. Although the mas- ter is liable for his servant's torts, .within the limits heretofore described, and is the one against whom the injured party ordinarily proceeds, the servant is also liable. The law does not permit a tort-feasor to shield himself behind the command of his master.**"* In a limited class of cases, it is true, a servant's or agent's conduct is not treated as a tort, although it assists the principal or master 4n perpetrating an actionable wrong; as where .the servant receives ■property from the master, honestly believing that it belongs to the 39 Am. R. 627 (1881). Contra, v. Collins, 2 Duv. (63 Ky.) 114, 87 East Tenn. Ry. v. De Armond, 86 Am. Dec. 486 (1865); Angel v. Jel- Tenn. 73, 5 S. W. 600, 6 Am. S. R. llco Coal Co., 115 Ky. 728, 74 S. W. 816 (1887), applying the different 714 (1903); Cooper v. Mullins, 30 department test. Ga. 146, 76 Am. Dec. 638 (1860) ; "'' Cakes v. Mase, 165 U. S. 363, 17 Krogg v. Atlantic, etc., Ry., 77 Ga. Sup. Ct. 345 (1897); Van Avery v. 202, 4 Am. St. R. 79 (1886); Coal Union Pac. Ry., 35 Fed. 40 (1888). Creek Mining Co. v. Davis, 90 Tenn. "= Livingston v. Kodlak Packing 711, 18 S. W. 387 (1891). Co., 103 Cal. 263, 37 Pac. 149 (1894). »=' Illinois Steel Co. v. Bauman, ^Fagundes v. Cent. Pac. Ry., 79 ' 178 111. 351, 53 N. E. 107, 69 Am. Cal. 97, 21 Pac. 437 (1889). St. R. 316 (1899). "»" Mann v. O'Sullivan, 126 Cal. 61, *" Perkins v. Smith. 1 Wil. 328 58 Pac. 375 (1899). (1752); Stephens v. Elwall, 4 M. & '»» Edward Hines Lumber Co. v. S. 259 (1815): "It is no answer Ligas, 172 111. 315, 50 N. B. 225, 64 that he acted under authority from Am. St. R. 38 (1898); Chic, etc., another who had no authority to Ry. v. Moranda, 93 111., 302, 34 Am. bestow." Rice v. Yocum, 155 Pa. R. 168 (1879); Louisville, etc., Ry. 538, 26 At. 698 (1893). Parties to Tort Actions. 183 latter, and delivers it to another without notice that the master has no right to it.^** As a rule, however, the servant is liable ex delicto (for conversion, trespass, or other tort) when he invades a legal right of the true owner or other person, though his act be innocent of intentional wrong, and be done under the master's command.*"" Again, a servant whose willful or negHgent misconduct causes injury to a fellow-servant is liable to the latter therefor, although the victim may not be able to recover from the master, because of the fellow-servant rule.*"^ Servant's Liability for Non-Feasance. While the authorities are agreed that an agent or servant is individually responsible for his misfeasance, they are at variance regarding his liability for non- feasance. The theory that he is not liable seems to have been first suggested in an argument by Coke,*"^ and to have received the first judicial sanction in a dictum of Lord Holt.*"' It was accepted by Judge Story, who urged in its support, that the agent's or servant's liability in such " cases is solely to his principal, there being no »"Burditt V. Hunt, 25 Me. 419 (1845); Gurley v. Armstead, 148 Mass. 267, 19 N. E. 389 (1889); Leu- thold V. Fairchild, 35 Minn. 99, 27 N. W. 503, 28 N. W. 218 (1886); Walker v. First Nat. Bank, 43 Ore. 102, 72 Pac. 635 (1903); Hodgson v. St. Paul Plow Co., 78 Minn. 172, 80 N. W. 956, 50 L. R. A. 644, with valuable note (1899). "° Swim V Wilson, 90 Cal. 126, 27 Pac. 33, 13 L. R. A. 605, 25 Am. St. R. 110 (1891); Kimball v. Billings, 55 Me. 147 (1867); Robinson v. Bird, 158 Mass. 357, 33 N. B. 391 (1893).; Bercich v. Marye, 9 Nev. 312 (1874); Donahue v. Shippee, 15 R. I. 453 (1887); DolifE v. Rob- bins, 83 Minn. 498, 86 N. W. 772, 85 Am. St. R. 464 (1901); Johnson V. Martin, 87 Minn. 370, 92 N. W. 221 (1902).. "' Daves v. Southern Pac. Ry., 98 Cal. 19, 32 Pac. 708 (1893); Miller V. Staples, 3 Col. App. 93, 32 Pac. 81 (1893); Hinds v. Harbou, 58 Ind. 121 (1877); Martin v. Louisville, etc., Ry., 95 Ky. 612, 26 S. W. 801 (1894); Osborne v. Morgan, 137 Mass. 1 (1884); Steinhauser v. Spraul, 114 Mo. 551, 21 S. W. 515 (1892); Schumpertv. Southern Ry., 65 S. C. 332, 43 S. E. 813 (1903); Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, 63 N. W. 93, 28 L. R. A. 439, 48 Am. St. R. 911 (1895); Warax v. Cincinnati, etc., Ry., 72 Fed. 637 (1896) ; Helms v. Nor. Pac. Ry., 120 Fed. 389 (1903). ""Marsh v. Astry Cro. Eliz. 175 (1590). "' Lane v. Cotton, 12 Mod. 472, 488 (1701): "A servant or deputy, as such, cannot be charged for neglect, but the principal only shall be charged for it; but for a misfeas- ance, an action will lie against a servant or deputy, but not as a de- puty or servant, but as a wrong- doer." 1 84 The Laav of Torts. privity between him and such persons, but the privity exists only between him and his principal." *"* Undoubtedly, when the servant or agent owes no legal duty to a third person, such person cannot make out a cause of action in tort against him, by showing that his neglect to perform a duty, owing to the master, has been followed by injury to himself, the third person.*"" If the master owed such person a duty, his neglect to perform it would render him answerable for injury caused thereby; and such liability is all that the injured party needs or can claim. But when the servant or agent has taken full possession of his master's or principal's property, and has agreed to keep it in repair, or to do other acts upon or about it, whose performance is necessary to the safety of third persons, it would seem that he has voluntarily assumed a duty towards such persons, as well as towards his em- ployer; and must respond accordingly for its non-perfofttiance. This view is sustained by the weight of modern authority,*"* although some courts have felt constrained to characterize such misconduct of the agent or servant as misfeasance *"' rather than non-feasance. Other courts prefer the views of Holt and Story, that agents or servants are not liable to third persons for mere omissions of duty, but only for the actual commission .of some positive wrong.*"' Tort Liability of Servant to Master. If the agent or servant unjustifiably assaults his employer, or wrongfully injures*"' '" Story on Agency, § 308. Lottman v. Barnett, 62 Mo. 159 '■^Hlll V. Caverly, 7 N. H. 215 (1876); Horner v. Lawrence, 37 N. (1834); Calvin v. Holbrook, 2 N. Y. J. L. 46 (1874). 126 (1848). *«Dean v. Brock, 11 Ind. App. *"■ Mayer v. Thompson-Hutchin- 507, 38 N. E. 829 (1894); DeLaney son Co., 104 Al. 611, 16 So. 620, 28 v. Rochereau, 34 La. Ann. 1123, 44 L. R. A. 433, 53 Am. St. R. 88 Am. R. 456 (1882) ; Peltus v. Swan, (1894); Baird v. Shipman, 132 111. 62 Miss. 415 (1884); Denny v. Man- 16, 23 N. B. 384, 7 L. R. A. 128, 22 hattan Ry., 5 Den. (N. Y.) 639 Am. St. R. 504 (1890); Lough v. (1848); Van Antwerp v. Linton, 89 John Davis, etc., Co., 30 Wash. 204, Hun. 417 (1895); Drake v. Hogan, 70 Pac. 491 (1902). See 3 Col. Law 108 Tenn. 265, 67 S. W. 470 (1902); Rev. 116-118, for an excellent dis- Lobadie v. Hawley, 61 Tex. 177, 48 cussion of this topic. Am. R. 278 (1884); Carey v. Roche- "" Osborne v. Morgan, 130 Mass. reau, 16 Fed. 87 (1883); Bryce v. 102, 39 Am. R. 437 (1881); Ellis v. Southern Ry., 125 Fed. 958 (1903). McNaughtOn, 76 Mich. 237, 42 N. W. «• Mobile, etc., Ry. v. Clanton, 59 1113, 15 Am. St. R. 308 (1889); Al. 392, 31 Am. R. 15 (1877); Zul- PARTTES TO TORT ACTIONS. 185 or converts **" his property, he is Uable to him in tort, precisely as he would be to any other person. But in many cases, the master has the option to proceed against the servant or agent in tort, when but for the relationship between them he would be limited to an action for a breach of contract. Even in the absence of an express stipu- lation on the subject, it is an implied term of the contract of employ- ment, that the employee will be loyal to his employer, and abstain from misconduct harmful to him. For a breach of these engage- ments, the master has a remedv either in a contract "^ or a tort action,*'- as he may prefer.*'* Ordinarily, he prefers the latter; and if his property has been damaged by the servant's misconduct,*'* or if he has been compeHed to pay damages to third persons,*" because of such misconduct, he proceeds in tort against the servant. Joint Actions Against Master and Servant. Whenever the master is an active participant with the servant in the commis- sion of a tort, or has actually authorized, commanded or ratified it, he may be joined with the servant in a tort action for redress.*'* Thus far, all authorities are agreed. If, however, the servant is the kee V. Wing, 20 Wis. 498, 91 Am. Dec. 425 (1866). ""Scott V. Rogers, 31 N. Y. 676 (1864); Laverty v. Sneathen, 68 N. Y. 522, 23 Am. R. 184 (1877). *" Bixby V. Parsons, 49 Conn. 483, 489, 44 Am. R. 246 (1882) : " The plaintiff seeks to recover the wages on the contract of hiring. The cases show that the seducer of de- fendant's daughter broke that con- tract, and these damages resulted to the defendant in consequence of the breach. This- gives the defen- dant the same right to recoup the damages that he would have had, if the servant (the plaintiff) had in- tentionally killed the defendant's horse, or burned his dwelling, for in such cases the contract of hiring would be broken." '"Greenfield Savings Bank v. Simons, 133 Mass. 415 (1882). "• See supra, p. 17 and Industrial & Gen. Trust v. Tod, 170 N. Y. 233, 63 N. B. 285 (1902), holding the agent liable only for breach of con- tract. *" Mobile, etc., Ry. v. Clanton, 59 Al. 392, 31 Am. R. 15 (1877); Odd Fellows' Assoc, 63 Cal. 598, 49 Am. R. 107 (1883); Zulkee v. Wing, 20 Wis. 408, 91 Am. Dec. 425 (1866). "'Smith V. Poran, 43 Conn. 244, 21 Am. R. 647 (1875); Georgia Southern Ry. v. Jossey, 105 Ga. 271, 31 S. E. 179 (1898); Grand Trunk Ry. V. Latham, 63 Me. 177 (1874) ; Costa V. Yoachim, 104 La. 170, 28 So. 932 (1900). "'Petrie v. Lamont, 1 Car. & M. 93, 96 (1841); Hill v. Caverly, 7 N. H. 215, 26 Am. Dec. 735 (1834); Caldwell v. Sacra, Llttell's Select Cases (Ky.) 118, 12 Am. Dec. 285, and cases cited in note thereto (1811); Hewlett v. Swift, 3 Allen (85 Mass.) 420 (1862). i86 The Law of Torts. only actual wrongdoer, and the master's liability is due solely to his position as master, the right of the injured party to join them as defendants is a question upon which the authorities differ. In England, this right seems to be unquestioned,*^' although a -learned writer has suggested that " it is better generally to sue only the master." *^^ The weight of authority in this country seems to accord with the English decisions. In the leading case on this side of the controversy, the learned judge said:*^* "In a case of strict negligence by a servant while employed in the service of his master, I see no reason why an action will not lie against both jointly. They are both guilty of the same negligence, at the same time, and under the same circumstances ; the servant in fact, and the master constructively, by the servant, his agent." This doctrine has been repeatedly approved in New York,*-" and has been accepted in many other jurisdictions.*^^ The Opposite View. The leading case, in opposition to this view, is that of Parsons v. Winchell.*'^ According to this decision, " the act of the servant is not the act of the master, even in legal intendment," in cases such as we are now considering. " The mas- "' Michael v. Alestree, 2 Lev. 172, v. 111. Cent. Ry., Ill Ky. 954, 65 S. S. C. su6 noTO. Mitchell V. Alestree, W. 13, 55 L. R. A. 603, (1901); 1 Vent. 295; Mitchell v. Alestry, 3 Wright v. Compton, 53 Ind. 337 Keb. 650 (1687); Moreton v. Hov- (1876); Schumpert v. Southern Ry., dern, 4 B. & C. 223, 10 B. C. L. 316 65 S. C. 332, 43 S. B. 813 (1903) : (1825); Steel v. Lester, 3 C. P. D. "Both are liable jointly, because 121 (1877). from the relation of master and "'Smith, Master and Servant servant they are united or identi- (5 Ed.), 285, note t. fied in the same tortious act result- "' Cowen, J., in Wright v. Wilcox, ing in the same injury." Howe v. 19 Wend (N. Y.) 343, 32 Am. Dec. Northern Pac. Ry., 30 Wash. 569, 70 507 (1838). Pac. 1100, 60 L. R. A. 949 (1902); "" Suydam v. Moore, 8 Barb. (N. McHugh v. Nor. Pac. Ry., 32 Wash. Y.) 358 (1850); Montfort v. Hughes, 30, 72 Pac. 450 (1903); Greenherg 3 B. D. Smith (N. Y.) 591 (1854); v. Whitcomb Lumber Co., 90 Wis. Phelps V. Wait, 30 N. Y. 78 (1864). 225, 63 N. W. 93, 28 L. R. A. 439, •"Chicago & A. Ry. v. Wise, 206 48 Am. S. R. 911 (1895); Charman 111. 453, 69 N. E. 500, 503, (1903); v. Lake Erie Ry., 105 Fed. 449 Chesapeake & 0. Ry. v. Dixon, 104 (1900); Riser v. Southern Ry., 116 Ky. 608, 47 S. W. 615 (1898); S. C. Fed. 215 (1902). in 179 U. S. 131, 21 Sup. Ct. (1900), «»5 Gush. (59 Mass.) 592, B2 Am. but this point left undecided by the Dec. 745 (1850). Supreme Court. Winston's Adm'r. Parties to Tort Actions. 187 ter is liable not as if the acts were done by himself, but because the law makes him liable," while the servant is liable because of his personal act in doing the wrong. Liabilities created on two such wholly different grounds, it is declared, cannot and ought not to be joint.^-' Moreover, it is urged, " if the master and servant were jointly liable to an action, the judgment and execution would be against them jointly as joint wrongdoers, and the master, if he alone should satisfy the execution, could not call on the servant for reimbursement, nor even for contribution." *'* The last objection seems to be without force ; for the master could certainly obtain reimbursement from the negligent servant if him- self free from actual fault. • Even as between joint tort-feasors, contribution is allowed, if they are not intentional wrongdoers.*-' '='Warax v. Cincin., etc., Ry., 72 Co., 62 Me. 553, 16 Am. R. 503 Fed. 637 (1896) ; Helms v. Nor. Pac. (1873) ; Page v. Parker, 40 N. H. 47 Ry., 120 Fed. 389 (1903); Mulchey (1860). -y. Methodist Relig. Soc, 125 Mass. "' Palmer v. Wick, etc., Co. 487 (1878); Clark V. Fry, 8 Ohio St. (1894), A. C. 318; Armstrong 385 (1858). County v. Clarion County, 66 Pa. "•Camphell v. PorUand Sugar 218 (1870). CHAPTER V. REMEDIES. § I. Development of Remedies. Historical Sketch. — The history of remedies for torts presents four stages of development. In primitive ages, the law, so far as it deals at all with this topic, throws upon the victim the duty of redressing his injuries — it " expects men to help themselves when they have been wronged." ' It is true that " self-help " of this sort more frequently resulted in punishing the wrongdoer than in com- pensating the party who had been wronged. It took the form of the right of " feud," or private warfare, to revenge an injury, rather than the right of distraining property of the wrongdoer as a means of coercing him to pay money or do an act. And yet, the right of " distress " is probably as old as the right of " feud." ^ Undoubtedly, this policy of early law is due, in part, to the weak- ness of the primitive state. As government becomes more powerful, and as experience discloses the wastefulness and inefficiency of " self- help," courts of justice are opened for the settlement of private disputes, and the law-suit is offered to the disputants as " an alterna- tive to private reprisals, a mode of stanching personal or heredi- tary blood-feuds other than slaughter or plunder." ^ During this second stage of legal development, the law-suit is only an alterna- tive. The person harmed is not bound to seek redress in a court of justice. Private warfare may still be waged. Even if the wrong- doer is brought into court and a judgment rendered against him, he can refuse to abide by the decision. The court, at that time, " had no power of directly enforcing its decrees. The man who disobeyed the order of the court went out of the law : his kinsmen 'Pollock and Maltland, History v. Fisher, 16 Phil. (Pa.) 170 (1883). of English Law (1st Ed.), 572. » Maine, Early Law and Custom, 'Ibid., p. 573; Markby, Elements p. 381. of Law (5 Ed.), 826-830; Furbush 1 88 Remedies. 189 ceased to be responsible for his acts, and the kinsmen of those who injured him became also irresponsible; and thus he carried his life in his hand." The earliest service of courts of justice " to man- kind was to furnish an alternative to savagery, not to suppress it wholly. * The third stage of development is marked by a stringent prohibi- tion of " self-help " in almost every direction. It is thought of as " an enemy of the law, a contempt of the King and his court. * * * The man who is not enjoying what he ought to enjoy should bring an action ; he must not disturb an existing seizure, be it of land, of chattels, or of incorporeal things, be it of liberty, of serfage or of the marital relationship.'" ' • During the later middle ages, according to the authority just quoted, the law became laxer on this topic, and at present is " per- manently lax. * * * j^ Q^j. own day, our law allows an amount of quiet self-help that would have shocked Bracton. It can safely allow this, for it has mastered the kind of self-help that is lawless." § 2. Self-Help. Defense of Self and Property. This form of self-help, which the early common law discountenanced, but which the law now tolerates, has been considered to some extent already," and will be referred to hereafter, in connection with trespass to person and to property. It is sufficient, at this time, to state very briefly the rules relating to forcible re-entry upon lands, and to forcible recap- tion of chattels. Forcible Entry and Detainer. Prior to 1381, the common law permitted a man to regain by force lands of which he was forcibly disseized. Under pretense of enforcing this right, powerful men forcibly ejected their weaker neighbors and retained possession of lands thus acquired. To remedy this evil, statutes were enacted in the latter part of the fourteenth century, prohibiting, under pain of criminal punishment, the forcible entry into ^ and the detainer of ' lands, except in cases where the entry or detainer was given by law. These statutes, as subsequently amended in England,' have become •Ibid., p. 387. ' 5 Ric. 11, c. 7 (1381). 'Pollock & Maitland, History of » 15 Ric. 11, c. 2 (1391). Eng. Law (1 Ed.), p. 572. "Hen. VI. c. 9 (1430); 31 Eliz. c. »Ante, ch. Ill, pp. 51-61. H (1589); 21 Jac. I. c. 15 (1623). 190 The Law fop Torts. a part of the common or statute law of most of our States. Their object, it has been declared, is " to prevent any and all persons, with or without title, from assuming to right themselves with the strong hand, after feudal fashion, when peaceable possession cannot be obtained, and to compel them to the more pacific course of suits in court, where the weak and strong stand upon equal terms." '" The statute of Henry VI provided that the person forcibly turned out or kept out, in violation of the statutes of Richard II, should be restored to his possession. It followed, therefore, that if a per- son, rightfully entitled to possession, gained such possession by forcible entry, he should be punished for the breach of the peace by a fine to the King, and by losing the possession thus illegally ac- quired ; ^^ but he was not liable in damages to the wrongful occu- pant whom he had forcibly ejected or repelled,'^ except " for an independent wrong; some act which could be justified only if he was in lawful possession." " In this country, neither the statutes nor the decisions are uniform upon these points. Some States punish forcible entry and detainer as crimes, but do not give a civil action against one guilty of these offenses, if he was entitled to possession, either for trespass, quare clausum f regit, or for damages to the wrongful occupant.^* ' But, in " Vinson v. Plynn, 64 Ark. 453, 43 right of possession, thought it S. W. 146, 39 L. R. A. 415 (1897). better to provide that those only "Polloclc, Torts (6 Ed.), p. 370. who had a right of possession "Ihid., Clerk and Lindsell, Torts should be put in by the courts, and (2 Ed.), 286-8. Harvey v. Brydges. to leave to the criminal law the acts 14 M. & W. 437 (1845). of one who, being entitled to posses- "Beddall v. Maitland, 17 Ch. D. sion, takes it by prohibited force." 174, 50 L. J. Ch. 401 (1881), hold- Low v. Elwell, 121 Mass. 309, 23 ing that the wrongful occupant Am. R. 272 (1876), "landlord not could not recover damages for fore- liable for force upon person of ible eviction, but could for injury tenant necessary to effect his re- to his furniture which was put out moval, after the termination of his of the house. . tenancy." Mugford v. Richardson, "Page V. Dwight, "170 Mass. 29, 6 Allen (88 Mass.) 76 (1863), land- 48 N. E. 850, 39 L. R. A. 418 (1897) : lord is not liable for assault and "Upon the whole, we think the battery, who uses only such force better view is that the legislature, as is necessary to subdue resisting after making first trial of the an- tenant who is wrongfully in posses- cient system under which a posses- sion. See Sterling v. Warden, 51 sion ended by force might be re- N. H. 217, 12 Am. R. 80 (1871); stored without regard to title or Gillespie v. Beecher, 85 Mich. 347, Remedies. 19; most jurisdictions, even the owner of land who is entitled to imme- diate possession is not allowed to take the law into his own hands, and gain possession by the exercise of force which amounts to a breach of the peace. If he acquires possession in that way, he may be compelled to restore it and pay damages for trespass upon the property, as well as for injuries inflicted upon the persons of the wrongful occupants who resist the wrongful entry." If, however, he can gain possession peaceably, he may resort to force to retain it, without being chargeable with wrongful detainer.^" Forcible Recaption of Chattels. In England, there seems to be no doubt that he who is entitled to the immediate possession of a chattel is legally justified in using whatever force is reasonably necessary to recover it, either from a trespasser, or from an innocent third person claiming under the trespasser.*' There is no statute relating to such forcible recapture, similar to those prohibiting forcible entry and detainer, in the case of lands ; and it has been judicially declared that, " if the owner was compelled by law to seek redress by action for a violation of his right of property, the remedy would be often worse than the mischief, and the law would aggravate the mischief instead of redressing it." *^ Many courts in this country have taken the same view.*' On the 48 N. W. 561 (1891); Allen v. " Blades v. Higgs, 10 C. B. N. S. Kelly, 17 R. I. 731, 24 At. 776, 16 713, 30 L. J. C. P. 347 (1861); L. R. A. 798 (1892); Stearns v. Anonymous, KeU. f. 92 pi. 4 (1506), Sampson, 59 Me. 568, 8 Am. R. 442 accord. (1871); Manning v. Brown, 47 Md. "Baldwin v. Hayden, 6 Conn. 453 506 (1877). (1827). In Hemlnway v. Hemln- " Denver, etc., Ry. v. Harris, 122 way, 58 Conn. 443,19 At. 766 (1890), U. S. 597, 607, 7 Sup. Ct. 1286 the right of forcible recaption (1886); Ely v. Yore, 71 Cal. 130 seems to be limited to cases of (1886); Larkin v. Avery, 23 Conn. "momentarily interrupted posses- 304 (1854); Reeder v. Purdy, 41 sion," cases where there is ground 111. 279 (1866); Bristor v. Burr, for saying that the recaptor is 120 N. Y. 427, 24 N. B. 937 (1890); virtually exercising the right of de- Sinclair V. Stanley, 69 Tex. 718 fense; Comm. v. Donahue, 148 Mass. (1888); Dustin v. Cowdry, 23 Vt. 529, 20 N. B. 171, 2 L. R. A. 623, 12 631 (1851). Am. S. R. 591 (1889); Same doc- " Bliss V. Johnson, 73 N. Y. 529, trine, Hopkins v. Dickson, 59 N. H 534 (1878). 235 (1879); Moore v. Shenk, 3 Pa. "Clerk and Lindsell, Torts (2 13, 45 Am. Dec. 618 (1846), semftZe, ■ Ed.), p. 124, Pollock, Torts (6 Bd.), Anderson v. State, 6 Baxt. (65 p. 372. Tenn.) 608 (1872); Hodgeden v. 192 The Law of Torts. other hand, it has been held that the use of force, amounting to a. breach of the peace, is justifiable in defending one's possession against a wrongdoer, but not in regaining a possession which he has lost. " There is no doubt," it is said by these courts, " that one having either the general or special right of property in personal chattels, may, if wrongfully dispossessed thereof, retake them wher- ever he can find them, provided he can obtain peaceable possession ; '" but the law more highly regards the public peace than the right of property of a private individual, and therefore forbids recaption to be made in a riotous or forcible manner." " Even in jurisdictions holding this doctrine, the right of the owner to forcibly rescue his property from a thief is recognized."'' Such force is employed, it is said, in defense of the owner's legal pos- session, and not to regain a possession which has been lost. And some of the authorities cited above, as following the English de- cisions, may not have been intended to stand for any broader doctrine than the right of defending legal possession, as distin- guished from physical custody."' Hubbard, 18 Vt. 504, 46 Am. Dec. 167 (1846); Hite v. Long, 6 Rand. 457 (Va.), 18 Am. Dec. 719 (1828); State V. Dooley, 121 Mo. 591, 26 S. W. 558 (1894). At p. 599, the court says: "Where one's property is taken with felonious intent * * * great force may be resorted to with propriety; but where there is clearly no felony, but mere dispute as to legal ownership, a resort to violence, disproportionate to the value of the property, and where peaceful remedies would prove equally efficacious, should not be sustained." '° Stanford v. Howard, 103 Tenn. 24, 52 S. W. 140 (1899); recapture of money lost at poker. "Bobb V. Boswqrth, 2 Llttell, (Ky.) 81, 12 Am. Dec. 273 (1808); Story V. State, 71 Al. 329, 338 (1882); Winter v. Atkinson, 92 111. App. 162 (1899); Andre v. Johnson, 6 Blackf. (Ind.) 375 (1843); Stuy- vesent y. Wilcox, 92 Mich. 233, 239, 52 N. W. 465, 31 Am. St. R. 580 (1892); Bowman v. Brown, 55 Vt. 184 (1882); Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670 (1862); Bliss V. Jonson, 73 N. Y. 529, 534 (1878); Davis v. Whitridge, 16 S. C. 575 (1881); Kirby v. Foster, 17 R. I. 437, 22 At. 1111, 14 L. R. A. 317, with note (1892); Sabre v. Mott, 88 Fed. 780 (1898). '^ Gyre v. Culver, 47 Barb. (N, Y.) 592 (1867). '^ In Johnson v. Perry. 56 Vt. 703., 48 Am. R. 826, (1884), the court said: "We should not be disposed to extend the law of the Hodgeden V. Hubbard case (18 Vt. 504). But we are not disposed to overrule it; or to adopt a rule, that when one man goes on to another's prem- ises, without leave or license, and Aindertakes to carry away his prop- RExMEDIES. 193 Entering Another's Premises to Retake Property. If A's chattels have been wrongfully placed by B, or with his consent, upon his premises, or if B has sold to A personal property thus located, the law creates a license in A's favor to enter and take the property.''* Such a license exists also in favor of the owner of cattle, driven along the highwa,y, when they wander upon adjoining lands without the owner's fault.^' As this license is created by the law, it cannot be revoked by the land owner.^" While, however, he has no legal authority to revoke, the license, if he does prohibit A from entering, the latter is not justified in resorting to force and violence to over- come B's opposition, but must resort to legal process,^^ except in those jurisdictions which permit one to use force in retaking his property.^' Distress as a Form of Self-Help. This ancient remedy of the common law, " whereby a party in certain cases is entitled to enforce a right or obtain redress for a wrong in a summary manner by seizing chattels and detaining them as a pledge until satisfaction is obtained," still exists ; -° but, in this country, its exercise is regu- lated with much particularity by statute.^" At present, therefore. erty, the latter cannot Interfere to stop it." " Chapman v. Thumblethorp, Croke Ellz. 329 (1594); Patrick v. Colerick, 3 M. & W. 483 (1838); Cuningham v. Yeomans, 7 Sup. Ct. Rep. (N. S. Wales) 149 (1868); Wheeldon v. Lowell, 50 Me. 499 (1862); McLeod v. Jones, 105 Mass. 403, 405 (1870); Chambers v. Bedell, 2 W. & S. (Pa.) 225 (1841). ^ Goodwyn v. Chevely, 4 H. & N. 631, 28 L. J. Ex. 298 (1859); Hart- ford V. Brady, 114 Mass. 466, 19 Am. R. 377 (1874). "»Wood V. Manley, 11 A. & B. 34 (1839); White v. Elwell, 48 Me. 360, 77 Am. Dec. 231 (1861); Emerson V. Shores, 95 Me. 237, 239, 49 At. 1051 (1901); McLeod v. Jones, 105 Mass. 403, 406 (1870). ""Herndon v. Bartlett, 4 Porter (Al.) 481, 494 (1837); Chase v. Jef- ferson, 1 Houst. (Del.) 257 (1856) ; 13 Blount V. Mitchell, 1 Taylor (N. C.) 131 (1798); Salisbury v. Green, 17 R. L 758, 24 At. 787 (1892); Roach V. Damon, 2 Humph. (21 Tenn.) 425 (1841). ^Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 Am. S. R. 326 (1894) ; " A person who has a right to enter upon the land of another, and there do an act, may use what force is required for that purpose, without being liable to an action. If he commits a breach of the peace, he is liable to the common- wealth. If he uses excessive force, he is liable to a personal action for an assault." Yale v. Seely, 15 Vt. 221 (1843); Mills v. Wooters, 59 111. 234 (1871). =» Clerk & Lindsell, Torts (2 ed) chap. 12; Stewart v. Benninger, 138 Pa. 437, 21 At. 159 (1891). =»See 9 Am. & Eng. Enc, of Law (2 ed.), title Distress, 194 The Law of Torts. it partakes far more of the nature of legal process than of " self- help." '^ In not a few jurisdictions, as a- means of collecting rent — its most important function at common law — it has been abolished by statute, or is treated as obsolete.''^ What has been said of dis- tress for rent is substantially true of the right to distrain trespassing cattle. It is in the main a statutory right.^^ Abatement of Nuisances. This is not only one of the most ancient '* forms of " self-help," but also one of the most important at the present time. If A permits trees to grow upon his land so near B's line that the boughs overhang, or the roots penetrate the soil of B's premises, the latter may abate the nuisance by cutting off the boughs and the roots.'° Some courts declare that B ought to content himself with this remedy, and, if he brings an action for damages, when the injury to his property is nominal, should be turned out of court because he is prosecuting a vexatious and ground- less suit.'" Such is not the prevailing view, however. He may "Flury V. Grimes, 52 Ga. 342 (1874) ; Patty v. Bogle, 59 Miss. 491, (1882). « Herr v. Johnson, 11 Col. 393, 18 Pac. 342 (1888); Garrett v. Hugh- lett, 1 Har. & J. (Md.) 3 (1800); Dutcher v. Culver, 24 Minn. 584, 594 (1877), referring to C. 140 L. 1877; Marye v. Dyche, 42 Miss. 347 (1869); Hosford v. Ballard, 39 N. Y. 150 (1868), referring to eh. ?74 L. 1846; Crocker v. Mann, 3 Mo. 472 (1834); Utah, Genl. Laws 1898, §§ 1407, 1408, substitute a landlord's lien on the tenant's prop- erty for the right of distress; Wis. Gen. Laws 1898, | 2181, abolishes distress for rent. "Oil V. Rowley, 69 111. 469 (1873); Frazier v. Nortinus, 34 la. 82 (1871); Northcote v. Smith, 4 Ohio C. C. R. 5«5 (1890) ; Mooney V. Maynard, 1 Vt. 470 (1829). "Bracton, DeLegibus Angllae, Lib. 3, f. 233: "But those things which have thus been raised to cause a tortious nuisance* * * may be immediately and recently, whilst the misdeed is flagrant (as in the case of other disseysines) demolish- ed and thrown down, • * if the com- plainant is sufficient to do it; but, if not, he must have recourse to him who protects rights." At p. 234 the learned author advises the victim of a nuisance to proceed by an assize of nuisance rather than by abatement by his own act. "Lemmon v. Webb, 63 L. J. Ch. 570 (1894), 3 ch. 1, 12, Lindley, L. J. " This has been declared to be the law for centuries," citing 2 Brooke Abrr. "Nuisances" p. 105, pi. 28 (1493) ; Norris v. Baker, 1 Roll. 293 (1617), and later authorities; S. C. affirmed (1895) A. C. 1, 64 L. J. Ch. 205; Hlckey v. Mich. Cen. Ry., 96 Mich 498, 55 N. W. 989, 21 L. R. A. 729, with note, 35 Am. S. R. 621 (1893). " Countryman v. Lighthill, 24 Hun. (N. Y.) 405 (1881) ct; Gran- dona V. Lovdal, 78 Cal. 611, 11 Pac. 623, 12 Am. St. R. 121 (1889). Remedies. 195 abate the action -by his own act ; but he is not bound to pursue this course.*' He is entitled to go into a court of justice for the recovery of damages. Risk of Abating. Indeed, a person takes no Httle risk when he ventures upon abating a nuisance by his own act.** While he is not bound to save the property which constitutes the nuisance,** he is bound to exercise a care, commensurate with the exigencies of the situation, and if valuable property is destroyed by reason of his failure to exercise such care, he is liable to its owner for damages.*" " The true theory of abatement of nuisance is that an individual citizen may abate a private nuisance injurious to him, when he could also bring an action ; *^ and ako when a common nuisance obstructs his individual right, he may remove it to enable him to enjoy that right, and he cannot be called in question for so doing. As in the case of obstruction across a highway, and an unauthorized bridge over a navigable watercourse, if he has occasion to use the way, he may remove the obstruction *- by way of abatement." But this prin- ciple does not justify private citizens in breaking into. a saloon where spirituous liquors are sold in violation of law, and destroying the liquors and saloon fixtures. The illegal business " is exclusively ^Buckingham v. Elliott, 62 Miss. Edwards, 17 Wis. 586, 86 Am. Dec. 296, 52 Am. R. 188 (1884); Missouri, 768 (1863). etc., Ry. V. Burt, (Tex. Civ. App.), "Gumbert v. Wood, 146 Pa. 370, 27 S. W. 948 (1894). 23 At. 404 (1891). =» People ex rel. Copcutt v. Board "Anonymous, Y. B. Ed. IV. f. 34, of Health, Yonkers, 140 N. Y. 1, 35 pi. 10 (1469); Amoskeag Mfg. Co. N. E. 320, 23 L. R. A. 481, 37 Am. S. v. Goodale, 46 N. H. 53 (1865) ; Cal- R. 522 (1893); Hicks v. Dorn, 42 ifornia Civil Code, §§ 3495, 3502, N. Y. 47 (1870.) Defendant, the modifying Gunter v. Geary, 1 Cal. state superintendent of canal re- 462 (1851). pairs, had to pay $1,856.14 and costs "James v. Hayward Croke, for destroying plaintiff's canal boat Charles, 184 (1631); Hubbard v. although it was an obstruction to Deming, 21 Conn. 356 (1851); canal navigation: Bowden v. Lewis, Marcy v. Taylor, 19 111. 634 (1858); 13 R. I. 189, 43 Am. R. 21 (1881). Brown v. DeGroff, 50 N. J. L. 409 '"McKeesport Sawmill Co. v. (1887); State v. Parrott, 71 N. C. Penn. Co., 122 Fed. 184 (1903); 311, 17 Am. R. 5 (1874); Lancaster Kendall v. Green, (N. H.) 42 At. T. Co. v. Rogers, 2 Pa. 114, 44 Am. 178, 183 (1896); Mark v. Hudson Dec. 179 (1845); Selman v. Wolfe, River Bridge Co., 103 N. Y. 28. 8 N. 27 Tex. 68 (1863); Larson v. Fur- E. 243 (1886); Philiber v. Matson, long, 63 Wis. 323, (1885). 14 Pa. 306 (1850); Harrington v. 196 The Law of ToRts. a public nuisance; and the fact that the husbands, wives, children, or servants of any persons do frequent such a place and get. intoxi- cating liquor there, does not make it a special nuisance or injury to their private rights, so as to authorize and justify such persons in " forcibly abating it.** Even when a public nuisance causes such special damage to indi- viduals as to give them a civil action against the wrongdoer, they must be careful, in attempting to abate it by their own acts, not to go further than is necessary to protect themselves. The fact that a nuisance is maintained in a particular building, does not authorize the destruction of the building,** unless that is essential to the abatement of the nuisance.*' Notce of intention to abate a nuisance is rarely necessary,*" except when entry must be made upon the wrongdoer's land to effect the abatement, or human life will be endangered if notice is not given.*' Vicious animals, whose continued existence endangers human life, may be killed by anyone without notice.** § 3. Damages. Action for Damages is the Ordinary Tort Remedy. Although the victim of a tort may resort to " self-help," as we have seen, and, in some cases, may appeal to a court of equity *" for relief, his ordinary remedy is a common-law action for damages. If the wrong is a maritime tort, that is, a wrong committed upon public navigable waters of the United States, but of such a character as had it been committed upon the land, it would have been remedi- " Brown V. Perkins, 12 Gray 119 N. Y. 226, at 236 (1890); Fields (78 Mass.) 89 (1858); Goodsell v. v. Stokely, 99 Pa. 306, 44 Am. R. 109 Fleming, 59 Wis. 52 (1883); Ely v. (1882). Supervisors, 36 N. Y. 297 (1867); "Jones v. Williams, 11 M. & W. Moody V. Supervisors, 46 Barb. (N. 176 (1843); Estes v. Kelsey, 8 Y.) 659 (1866); State v. Paul, 5 R. Wend. (N. Y.) 555 (1832). I. 185 (1858); State v. Keeran, 5 R. "Jones v. Jones, 1 H. & C. 1, 31 I. 497 (1858). L. J. Bxch. 506 (1845); Lane v. "Brightman v. Inhabitants of Copsey (1891), 3 Ch. 411; Cal. Civil Bristol, , 65 Me. 443, 20 Am. R. 711 Code § 3503. (1876); Clark v. Ice Co., 24 Mich. "Woolf v. Chalker, 31 Conn. 121, 508 (1872); GrifBth v. McCullum, 129 (1862); Brill v. Flagler, 23, 46 Barb. (N. Y.) 561 (1866). Wend. (N. Y.) ^54 (1840); Brown "Meeker v. VanRensselaer, 15 v. Carpenter, 26 Vt. 638 (1854). Wend. (N. Y.) 397 (1836), cited '» Keener's Cases on Equity Juris- with approval in Lawtou v. Steele, diction, Vol. 1, Chaps. 5, 6 and 7; Remedies. 197 able by a common-law action for damages,'"' it is within the jurisdic- tion of the Federal Admiralty Courts; although the injured party may have the option of bringing a common-law action." If he proceeds in admiralty, not only will the litigation be conducted in accordance with the rules of practice ''^ of that tribunal, but will be governed by the peculiar rules of the substantive law of admiralty. One of these is that admiralty will not entertain a suit for merely nominal damages for a personal tort.°^ Another is that a public corporation is answerable for the torts of the master and crew of a vessel which it owns, although it is employed in the performance of police duties; and, by the rule of the common law, in the juris- diction where the torts were committed, the doctrine of respondeat superior does not apply to such a corporation.'* On the other hand, if a valid claim for maritime tort exists, it may be pursued in admir- alty by proceedings /;( rem, and the claimant is not limited to an action in personam,^^ while, if the injured party goes into a common- law court for redress, his action must be in personam. Damages are of Three Sorts. The common law recognizes three species of damages in tort actions; (i) nominal, (2) compen- satory or ordinary, and (3) punitive or exemplary. In a few juris- dictions, the third class has been placed under statutory or judicial taboo. " It is not the province of the jury," according to the view prevailing in these jurisdictions, " after full damages have been found for the plaintiff, so that he is fully compensated for the wrong committed by the defendant, to mulct the defendant in an additional sum to be handed over to the plaintiff, as a punishment for the wrong he has done to the plaintiff." '^^ Pomeroy's Equity Juri«T)rudenre, C. 434 (1853) ; In re Calif. Nav. and §§1346-1358; Story's Equity, §§ 909- Imp. Co., 110 Fed. 670 (1901). 950. " Workman v. New York City, 179 ™ Holmes v. Oregon, etc., Ry., 5 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. Fed. 75 (1880); Waring v. Clarke, 314 (1900). 5 How. (U. S.) 451 (1847). ='The Albert Dumois, 177 U. S. "Schooner Robt. Lewis v. Keka- 240, 20 Sup. Ct. 595, 44 t,. Ed. 751 noha, 114 Fed. 849, 52 C. C. A. 483 (1900) ; The Northern Queen, 117 (1902). Fed. 906 (1902). =" Wm. Johnson & Co. v. Johansen, ''' Wilson v. Bowen, 64 Mich. 133, 86 Fed. 886 (1898); The Saginaw, 141 (1877); Lucas v. Mich. Cen. 95 Fed. 703 (1899); In re Cent. Ry. Ry., 98 Mich. 1, 56 N. W. 1039 of N. J. 95 Fed. 700 (1899). (1893); Barnard v. Poor, 21 Pick. '=Barnett v. Luther, 1 Curtis C. (38 Mass.) 378 (1838); Rlewe v. 198 The Law of Torts. Nominal Damages. Tort actions are often brought for the purpose of securing a judicial vindication of a right, rather than a money compensation. In such cases, the plaintiff claims and is awarded only nominal damages, such as a penny or a shilling, or six cents or a dollar. Actions for the diversion of a water course,"*' for the trespass ^* to person or to property, or for wrongful inter- ference with one's right to vote,^" are the most common examples. When " a clear legal right of a party is invaded, in consequence of another's breach of duty," the former is entitled to an action against the latter for at least nominal damages."" Nor can this action be defeated by proof that such invasion has actually benefited the plaintiff." In the foregoing cases, the trifling amount of damages awarded to the plaintiff casts no reflection upon hiin. When, however, his action is brought not simply for a judicial affirmance of his legal right which has been invaded, but for substantial money damages, and only a nominal sum is given, the verdict is clearly disparaging. A typical example of this kind is an action for defamation, where the wrongdoing is clearly established, but the jury award six cents damages. Clearly they believe that plaintiff's reputation was too bad to be appreciably injured by the utterance. They are forced to find in his favor,"^ for an absolute right — the right of reputation — McCormick, 11 Neb. 261 (1881); ""Clifton v. Hooper, 6 Ad. & B. Fay V. Parkpr, 53 N. H. 342 (1873) ; (N. S.) 468, 14 L. J. Q. B. 1 (1837); Spokane Truck Co. v. Hoefer, 2 Texarkana, etc., Ry. v. Anderson, Wash. 45, 25 Pac. 1072 (1891.) 67 Ark. 123, 53, S. W. 673 (1899), "Webb V. Portland -Manufactur- passenger negligently carried be- ing Co., 3 Sumn. (U. S. Cir. Ct.) yond her station, but no actual 189, Fed. Cases, No. 17, 322 (1838); damage shown; FuUman v. Stearns, Blodgett V. Stone, 60 N. H. 167 30 Vt. 454 (1858); Slingerland v. (1880). Int. Contg. Co., 169 N. Y. 60, 61 N. =" Leonard v. Castle, 78 Cal. 454 E. 995, 56 L. R. A. 499 (1901). (1889), dattiagfe fixed by jury at one " Jewett v. Whitney, 43 Me. 242 dollar; Wartman v. Swindell, 54 N. (1857); Stowell v. Lincoln, 11 Gray J. L. 589, 25 At. 356 (1892); Dixon (77 Mass.), 434 (1858); Jones v. V. Clow, 24 Wend. (N. Y.) 188 Hannovan, 55 Mo. 462 (1874); (1840); Casebeer V. Mowry, 55 Pa. Murphy v. Fond Du Lac, 23 Wis. 419, 93 Am. Dec. 766 (1867), jury 365, 99 Am. Dec. 181 (1868). assessed damages at three cents. " In Jones v. King, 33 Wis. 422 ""Ashby V. White, 2 Ld. Ray- (1873), the court admitted that the mond, 938 (1703). verdict should have been in plain- Remedies. 199 has been invaded without justification; but whether he shall receive nominal damages or a substantial sum is for them to decide."^ Ordinary or Compensatory Damages. In the ordinary tort action, damages are sought and awarded with a view of compen- sating the plaintiff for the pecuniary injury which he has sustained. If the sod or tillable soil of land has been wrongfully carried off, the owner is not entitled to the cost of actually replacing the sod or the soil, but to the difference between the value of the land before and after the injury." So, if fruit or shade trees or fences are destroyed, the wrongdoer is not bound to replace them, nor to pay the cost of planting like trees or of rebuilding the fences with the same sort of material, but to fairly compensate the injured owner for the damage done to his realty."^ It is true that this is not always measured by the difference in the market value of the land before and after the injury. " The owner of property has a right to hold it for his own use as well as to hold it for sale, and if he has elected the former, he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale." *° Punitive or Exemplary Damages. In some jurisdictions, as we have seen already, these damages are not awarded. " The aim of the law which gives redress for private wrongs is compensation to the injured, rather than the prevention of a recurrence of the wrong." And yet, say the courts, holding this view, " The law recognizes the fact that an injury may be intensified by the malice or willfulness or oppressiveness or recklessness of the act, and allows damages commensurate with the injury when these elements are present." "^ Hence any manifestation of malevolent motives on the tiff's favor, for nominal damages, , " Oilman v. Brown, 115 Wis. 1, 91 yet refused to set aside a verdict N. W. 227 (1902); Montgomery v. for the defendant. Lock, 72 Cal. 75, 13 Pac. 401 (1887) ; "Gray v. Times Publishing Co., Ohio & M. Ry. v. Trapp, 30 N. E. 74 Minn. 452, 77 N. W. 204 (1898). 812, 4 Ind. App. 69 (1891); Mc- "Witham v. Kershaw, 16 Q. B. Mahon v. City of Dubuque, 107 la. D. 613 (1885). 62, 77 N. W. 517, 70 Am. St. R. 143 "Dwight v. El. C. & N. Ry., 132 (1898). N. Y. 199, 30 N. B. 398, 15 L. R. A. "Lucas v. Michigan Cent. Ry., 98 612, 28 Am. St. R. 563 (1892); Nor- Mich. 1, 56 N. W. 1039 (1893); Peo- folk, etc., Ry. Co. v. Bohannon, 85 pie v. Pearl, 76 Mich. 207, 42 N. W. Va. 293, 297, 7 S. E. 236 (1888). 1109 (1889). 20O The Law of Torts. part of the defendant may enhance damages, not by way of punish- ing him, but as a compensation for the plaintiff's injured feelings.*' As damages of this sort are deemed punitive or exemplary by other courts,"" the results reached in the different jurisdictions are not very dissimilar. In a few States, the doctrine obtains, that, if the tort is one which is criminally punishable, punitive damages are not recoverable in a civil action,'" or that a criminal conviction and fine may be considered by the jury in mitigatioa of civil damages.''^ In support of this view it is said that " punishment for offenses should be inflicted only by public prosecution in due course of the law of the land, under those safeguards which are rooted and grounded in the maxims of the common law, and guaranteed by the constitution of our political government ; " that if punitive damages are recoverable in a civil action, in such cases, " the defendant might be punished twice for the same act." '" To this, it is answered, that the constitutional provision, that no person for the same offense shall twice be put in jeopardy, applies only to strictly criminal prosecutions ; that the judgrnent in the criminal action is for the wrong to the State, while the judgment in the civil suit is for the private wrong to the plaintiff; that if a criminal conviction and fine is a bar to the victim's claim to punitive damages, it is equally a bar to any tort action for the wrongdoing." "^ Morgan V. Kendall, 124 Ind. 454, "Austin v. Wilson, 4 Gush. (58 24 N. E. 143, 9 L. R. A. 445 (1890). Mass.) 273, 50 Am. Dec. 766 with Mahony v. Belford, 132 Mass. 393 note (1849); Boyer v. Barr, 8 Neb. (1882); Burt v. Advertiser Co., 154 68, 30 Am. R. 814 (1878); Riewe v. Mass. 238, 28 N. E. 1 (1891); Blxby McCormlck, 11 Neb. 264, 9 N. W. V. Dunlap, 56 N. H. 456, 22 Am. R. 88 (1881); Fdy v. Parker, 53 N. H. 475 (1875). 342, 16 Am. R. 270 (1873); Huber =°Chappell V. Ellis, 123 N. C. 259, v. Teuber, 3 McAr. (D. C.) 484, 36 31 S. E. 709, 68 Am. St. R. 822 Am. R. 110 (1879). (1898); In Runyan v. Cent. Ry. of "Smith v. Bagwell, 19 Pla. 117, N. J., 65 N. J. L. 228, 47 At. 422 45 Am. R. 12 (1882); Phillips v. (1900), damages for injured feel- Kelly, 29 Al. 628 (1857); Bundy v. ings are held compensatory. Maginess, 76 Cal. 532, 18 Pac. 668 "Wabash Printing Co. v. Crum- (1888); Hause v. Griffith, 102 la. rine, 123 Ind. 89, 2\ N. E. 904 215, 71 N. W. 223 (1897); Chiles v. (1889). Drake, 2 Met. (59 Ky.) 146 (1859); "Thamagan v. Womack, 54 Tex. Pike v. Dilling, 48 Me. 539 (1861); 45 (1880) ; Rhodes v. Rogers, 151 Boetcher v. Staples, 27 Minn. 308, Pa. 634, 24 At. 1044 (1892). 38 Am. R. 295 (1880); Cook v. Ellis, Remedies. 201 Against Whom Punitive Damages Allowable ? As these damages are given not by \\ay of compensation to the plaintiff, but bv way of punishment to the defendant, they are allowable, as a rule, against those only who have committed a tort, deliberately or recklessly. A wrong due to ordinary negligence merely will not justify the award of punitive damages.'* The defendant's conduct must have been actually malicious or wanton, displaying a spirit of mischief towards the plaintiff, or of criminal indifference to his rights. Examples of this class of torts are assault and battery of a brutal character, or attended with insulting or indecent language ; '^ false imprisonment, where the plaintiff has been improperly treated, or has been subjected to unnecessary indignity, or the defendant's motives were actually malicious ;'*' defamation of a serious character recklessly or wickedly uttered,'' and trespass to person or property where the injury is wanton and malicious, or the result of gross negligence, or of a reckless disregard of the rights of others.'* 6 Hill. (N. Y.) 466 (1844); Hoadly V. Watson, 45 Vt. 289, 12 Am. R. 197 (1872); Brown v. Swlneford, 44 Wis. 282, 28 Am. R. 582 (1878). "Walker v. Fuller, 29 Ark. 448 (1874) ; Chesapeake, etc., Ry. v. Judd, 106 Ky. 364, 50 S. W. 539 (1899); Louisville, etc., Ry. v. Creighton, 106 Ky. 42, 50 S. W. 227 (1899); Sinclair v. Tarbox, 2 N. H. 135 (1819); Hansley v. Jamesville, etc., Ry., 117 N. C. 565, 23 S. E. 443 (1895); Mil. etc., Ry. v. Arms, 91 U. S. 489, 23 L. Ed. 374 (1875). "Bundy v. Maginess, 76 Cal. 532, 18 Pac. 668 (1888); Smith v. Bag- well, 19 Fla. 117, 45 Am. R. 12 (1882); Berkner V. Dannenberg, 116 Ga. 954, 43 S. E. 463, 60 L. R. A. 559 (1903); Wood v. Young (Ky.^ 50 S. W. 541 (1899). "Raza V. Smith, 65 Fed. 592 (1895); Thorpe v. Wray, 68 Ga. 359 (1882); Hewlette v. George, 68 Miss. 703, 9 So. 885, 13 L. R. A. 682 (1891); Craven v. Bloomlngdale, 171 N. Y. 439, 64 N. E. 169 (1902) ; Lewis V. Clegg, 120 N. C. 292, 26 S. E. 772 (1897); Taylor v. Coolidge, 64 Vt. 506 24 At. 656 (1892); Bol- ton V. Vellines, 94 Va. 393, 26 S. E. 847 (1897); Penelon v. Butts, 53 Wis. 344 (1881); Spear v. Hiles, 67 Wis. 350, 30 N. W. 506 (1886). ■■ Morning Journal v. Rutherford, 51 Fed. 513, 1 U. S. App. 296, 2 C. C. A. 354, 16 L. R. A. 803 (1892); Cahill V. Murphy, 94 Cal. 29, 30 Pac. 195 (1892); Hintz v. Granpner, 138 111. 158, 27 N. E. 935 (1891); Leh- rer v. Elmore, 100 Ky. 56, 37 S. W. 292 (1896); Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020 (1894). "Sears v. Lyons, 2 Stark. 317 (1818); Emblem v. Myers, 6 H. & N. 54, 30 L. J. Ex. 71 (1860) ; Park- er V. Mise. 27 Al. 480 (1855); Mer- rills V. Tariff Mfg. Co., 10 Conn. 384, 27 Am. Dec. 682, with note (1835); Illinois C. Ry. v. Stewart, (Ky.) 63 S. W. 596 (1901); Smalley v. Smal- ley, 81 111. 70 (1876); Garland v. Wholeham, 26 la. 185 (1868); Storm V. Green, 51 Miss. 103 202 Thk Law of Torts. Damages Recoverable from Joint Wrong Doers. If several persons are engaged in committing a tort, the victim may bring one action against all. If he proceeds in this manner, and any of the defendants is not liable for punitive damages, his recovery in the action will be limited to compensatory damages. If he would obtain a judgment for punitive damages he must bring a several action against those wrongdoers whose misconduct renders them liable thereto.'" Whether a principal or master is liable to punitive damages for a malicious or wanton tort of his agent or servant, committed within the scope of the latter's authority, is a question upon which the decisions are not entirely agreed. If the principal or master takes an active part with the agent or servant in the commission of the tort, or if he orders or ratifies it, he is liable to punitive damages in every jurisdiction where such damages are recoverable.*" If, how- ever, he is not thus connected with the tort, and his liability therefor is due solely to his relationship to the tort-feasor, or, as it is often put, to the doctrine of respondeat superior, many courts hold that recovery against him must be limited to compensatory damages, and if the injured person would secure punitive damages, he must pro- ceed against the servant or agent alone. " Exemplary or punitive damages," it is said by these authorities,'^ " being awarded not by (1876); Wort v. Jenkins, 14 1146 (1887), the corporation was an Johns. (N. Y.) 352 (1817); Polk active wrong-doer, through its man- v. Pancher, 1 Head. (Tenn.) 336 aging agents; Wheeler & Wilson (1858); Thirkfleld v. Mountain Co. v. Boyce, 36 Kan. 350, 13 Pac. View Cemetery, 12 Utah, 76, 41 Pae, 609 (1887), similar to preceding 564 (1895); Day v. Woodworth, 13 case; Stevens v. O'Neill, 64 N. T. How. (U. S.) 363 (1851); Morgan Supp. 663 (1900) affd. 169 N. Y. 375, v. Barnhill, 118 Fed. 24 (1902). In 62 N. E. 424 (1902); Bingham v. the last cited case, the court charg- Lipman, Wolf & Co. 40 Or. 363, 67 ed the jury to return a verdict for Pac. 98 (1901), the wrong-doers both actual and exemplary damages, were the officers of the corporation, under sec. 26 of Art. 16 of the Texas " Lake Shore, etc., Ry. v. Pren- Const. and Arts. 3017, 3018 and tice, 147 U. S. 101, 13 Sup. Ct. 261, 3019 of the R. S. of Texas. 37 L. Ed. 97, with note (1893); '"Cunningham v. Underwood, 116 Maisenbacker v. Society Concordia, Fed. 803, 53 C. C. A. 99 (1902); 71 Conn. 369, 42 At. 67, 71 Am. St. Krug v. Pitass, 162 N. Y. 154, 56 N. R. 213 (1899); Trabing v. Cal. Nav. E. 526, 76 Am. St. R. 317 (1900). Co., 121 Cal. 137, 53 Pac. 644 (1898) ; "' Denver, etc., Ry. v. Harris, 122 Augusta Factory v. Barnes, 72 Ga. U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 217, 53 Am. R. 838 (1884); Detroit Remedies. 203^ way of compensation to the sufferer, but by way of punishment to the offender, and as a warning to others, can only be awarded against one who has participated in the offense. A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive, or malicious intent on the part of the agent. * * * Actual guilty intention on the part of the defendant is required to charge him with exemplary or punitive damages." *- The Majority View : — The weight of authority, however, or at least the ma.jority view, is in favor of according punitive damages against the principal or master, wherever the malicious or grossly negligent act of the agent or servant is within the scope of his authority. It is said by the courts and writers maintaining this doctrine, that the rule of punitive damages is not the result of' logic, but of public necessity; that such damages are- imposed to deter persons from gross misconduct towards others, and that where anyone, whether a natural or artificial person, transacts his business by agents or servants, the same considerations of public policy apply to him as to one who transacts his business in person. Either he or the injured person must take the risk of the infirmities of temper, the maliciousness and gross misconduct of his agent or servant, and it is but just that he should bear the risk. Especially, say these authorities, is this true in the case of passenger carriers, whose servants have unusual opportunities of abusing and insulting their passengers. Only by a strict enforcement of the rule of punitive damages, it is declared, can these great employers of servants be forced to exercise proper care in the choice, discipline and manage- ment of their representatives.*' Daily Post v. McArthur, 16 Mich. L. R. A. 354, 25 Am. St. R. 901 447 (1868); Forhmann v. Consoli- (1890); Bviston v. Cramer, 57 Wis. dated Trac. Co., 63 N. J. L. 391, 43 570, 15 Am. R. 560 (1883); Robin- At. 892 (1899); Krug v. Pitass, 162 con v. Superior Rapid Transit Ry. N. Y. 154, 56 N. E. 526, 76 Am. S. R. 94 "Wis. 345, 68 N. W. 961, 34 L. R. 317 (190O); Craven v. Blooming- A. 205 (1896). dale, 171 N. Y. 439, 64 N. E. 169 «= Northern Cen. Ry. v. Newman, (1902); Staples v. Schmid, 18 R. I. ""Md. 507, 56 At. 973 (1904). 224, 26 At. 196. 19 L. R. A. 824 ''Highland Ave. Ry. v. Robinson, (1893); Ricketts V. Chesapeake, etc., 125 Al. 483, 25 So. 28 (1900); St. Ry., 33 W. Va. 433, 10 S. E. 801, 7 Louis, etc., Ry. v. Wilson, 70 Ark. 204 The Law of Torts. Punitive Damages Against Municipal Corporations are rarely, if ever, allowed, even in jurisdictions where business cor- porations are amenable to such damages. Public policy, it is thought, does not require that they be punished for the misdeeds of their representatives."* Very large verdicts against them for personal injuries have been sustained, however, but upon the theory that they represented the honest estimate by a jury of the plaintiff's actual damages, including the pain and suffering incidental to physical injuries." Punitive Damages for Conversion of Property. The ordinary measure of damages for the conversion of property is its value, at the time and place of its conversion. This is all that can be recovered, where the conversion is due to an honest mistake of the defendant, or to his negligence.'" If, however, it is the result of the defendant's willful or dishonest conduct, he will be compelled, in most jurisdictions, to pay the value of the property at the time and place of the owner's demand for it, even though that has been greatly enhanced by the defendant's expenditure of labor and money 136, 66 S. W. 661 (1902); Chic. B. & Q. Ry. V. Bryan, 90 111. 126 (1878); Citizens, etc., Ry. v. WlUoe- by, 134 Ind. 563, 33 N. B. 627 (1892); Southern Kan. Ry. v. Rice, 38 Ks. 398, 16 Pac. 817 (1888); At- chlnson, etc., Ry. v. Hen-ry, 55 Ks. 715, 41 Pac. 952 (1895) ; Louisville, etc., Ry. V. Balard, 85 Ky. 307, 3 S. W. 530, 7 Am. St. R. 600 (1887); Lexington Ry. Co. v. Cozine (Ky.) 64 S. W. 848 (1901); Goddard v. Grand Trunk Ry., 57 Me. 202 (1869); Bait, etc., Ry. v. Blocher, 27 Md. 277 (1867); Pullman Palace Car Co. V. Lawrence, 74 Miss. 803, 22 So. 53 (1897) ; Hopkins v. Rail- road, 36 N. H. 9 (1857); Purcell v. Richmond, etc., Ry., 108 N. C. 414, 12 S. E. 954, 12 L. R. A. 113 (1891) ; At. & Great W. Ry. v. Dunn, 19 Ohio St. 162, 2 Am. Rep. 382 (1869); Phil. Tract. Co. v. Orbann, 119 Pa. 37, 12 At. 816 (1888); Mack v. South Bound Ry., 52 S. C. 323. 29 S. E. 905, 40 L. R. A. 679 (1898); Knoxville Tract. Co. v. Lane, 103 Tenn. 376, 53 S. E. 557 (1899). "Dillon Municipal Corporations (4 ed.) § 1020; Bennett v. City of Marion, 102 la. 425, 71 N. W. 360, 63 Am. St. R. 454 (1897); Wilson v. Wheeling, 19 W. Va. 350, 42 Am. R. 780 (1877); Costich v. City of Rochester, 68 App. Div. (N. Y.) 623, 73 N. Y. Supp. 835 (1902). «= Collins V. Council Bluft, 32 la. 324 (1871), verdict for $15,000; Shartle v. Minneapolis, 17 Minn. 308 (1871), verdict for $4,000. '"Central Coal Co. v. John Henry Shoe Co., 69 Ark. 302, 69 S. W. 49 (1901); Livingston v. Rawyards Coal Co., 5 App. Cas. 25, 42 L. T. N. S. 334 (1880) ; McLean County Coal Co. v. Long, 81 111. 359 (1876); Beede v. Lamprey, 64 N. H. 510, 15 At. 133 (1888); Forsyth v. Wells, 41 Pa. 291, 80 Am. Dec. 617 (1861). Remedies. 20S upon it.*' This rule is applied, by many courts, to an innocent pur- chaser from a fraudulent converter. He must pay the value of the property at the time he took title,** although, for expenditures subse- quently made upon the property, he is to be reimbursed, if the owner takes it from him ; *" and he is not to be charged with such enhance- ment of value, if sued for damages."" Conversion of Property of Fluctuating Value. The meas- ure of compensatory damages for the conversion of such property varies in different jurisdictions."^ Most of the cases fall within one of three classes. According to one class, the true measure of damages is the value of the property at the time of conversion, with interest from that date.'^ . According to a second class, " Where either party is to be injured by the casual rise or fall of converted property, it ought to be he who is in the wrong ; " "■'' hence the correct measure of damages is the highest market value to the time of trial.'* The rule laid down in a third class of cases is, that the converter " Martin v. Porter, 5 M. & W. 351 (1839); Trotter v. McLean, 13 Ch. D. 574, 42 L. T. N. S. 118 (1879); Ellis V. Wire, 33 Ind. 127, 5 Am. R. 189 (1870); Tuttle v. White, 46 Mich. 485, 41 Am. R. 175 (1881); Hughes V. United Pipe Lines, 119 N. Y. 423, 23 N. E. 1042 (1890); Benson Mining Co. v. Alta., etc., Co., 145 U. S. 428, 12 Sup. Ct. 877 (1892). *» Birmingham Min. Ry. v. Tenn. Co. 127 Al. 137, 28 So. 679 (1900)'; Belles Wooden Ware Co. v. United States, 106 U. S. 432, 1 Sup. Ct. 398 (1882); Tuttle v. White, 46 Mich. 487, 41 Am. R. 135 (1881); contra, Railroad Co. v. Hutchins, 32 Ohio St. 571, 30 Am. R. 629 (1877). "" Contra, Wing v. Milliken, 91 Me. 387, 40 At. 138, 64 Am. S. R. 238 (1898); "The law neither di- vests him of his property, nor re- quires him to pay for improvements made without his authority: " Gas- kins V. Davis, 115 N. C. 85, 20 S. E. 188, 44 Am. S. R. 439, 25 L. R. A. 813 (1894). " Fisher v. Brown, 70 Fed. 570, 17 C. C. A. 225 (1895). " For a full discussion of the cases, see Joyce on Damages, chap. 47. °" Peterson v. Gresham, 25 Ark. 380 (1869).; Continental Co. v. Bli- ley, 23 Col. 160, 46 Pac. 633 (1896); Sturgis V. Keith, 57 111. 451, 11 Am. R. 28 (1870); Gravel v. Clough, 81 la. 272, 46 N. W. 1092 (1890); Free- man V. Harwood, 49 Me. 195 (1859); Whitfield v. Whitfield, 40 Miss. 352 (1866); Walker v. Bor- land, 21 Mo. 289 (1855) Boylan v. Huguet, 8 Nev. 345 (1873); Penn- sylvania Co. v. Phil., etc., Ry. 153 Pa. 160, 25 At. 1043 (1893). «Kid v. Mitchell, 1 N. & Mc. C. (S. C), 202, 9 Am. Dec. 702 (1818). "Burks v. Hubbard, 69 Al. 384 (1884); Moody v. Caulk, 14 Fla. 50 (1872); Jaques v. Stewart, 81 Ga. 81, 6 S. E. 815 (1888); Stephenson V. Price; 30 Tex, 715 (1868), 2o6 The Law of Torts. is liable for the highest value of the property between the time of its conversion and a reasonable time after the owner has notice of it. This rule rests upon the theory that the owner, when notified of the conversion, is bound to use reasonable efforts to minimize his dam- ages. He is entitled, therefore, to only a reasonable time within which to replace the property.*'* Damages Against Independent but Concurrent Wrong- Doers. It often happens that the consequences of several inde- pendent torts are so mingled that it is quite impossible to measure accurately the damages caused by each. What are the injured person's rights in such cases? It is certainly unfair to leave him without redress, simply because he cannot disentangle the consequences of the several torts, and trace with exactness each line of causation. Accordingly, if either of the wrongdoers committed his tort in circumstances which would fairly apprise a reasonably careful person that it would co-operate with the tort of another, he is answerable for the entire damage."" Other- wise, the extent of liability will be left " to the good sense of the jury, as reasonable men, to form, from the evidence, the best esti- mate that can be made under the circumstances " of the damage caused by each wrcmgdoer.®' Interest as an Element of Damages in Tort Actions. This topic has received but little attention from the courts until quite recent times. It was assumed, formerly, that interest could be recoyered only when the defendant had expressly or impliedly "Galllgher v. Jones, 129 U. S. etc.. Else. Co., 8 N. D. 430, 79 N. 193, 9 Sup. Ct. 335, 32 L. ed. 658 W. 874 (1899); Golden Reward Co. (1888); Citizens Ry. v. Robbins, 144 v. Buxton Co., 97 Fed. 413, 38 C. C. Ind. 671, 42 N. B. 916 (1896); Di- A. 228 (1889). mock V. U. S. Nat. Bk., 55 N. J. L. "Byrne v. Wilson, 15 Ir. C. L. 296, 25 At. 926, 9 Am. St. R. 643 332 (1862); Kansas City v. Slang- (1893); Wright v. Bank of Met. strom, 53 Ks. 431, 36 Pac. 706 110 N. Y. 237, 18 N. E. 79, 6 Am. S. (1894); Slater v. Mersereau, 64 N. R. 356, 1 L. R. A. 289 (1888); Mor- Y. 138 (1876). rls V. Wood, (Tenn.) 35 S. W. 1013 "Jenkins v. Penn. Ry., 67 N. J. (1896); substantially the same rule L. 331, 334, 51 At. 704, 57 L. R. A. is laid down by statute in Call- 309 (1902); Ogden v. Lucas, 48 111. fornia. North Dakota, and South 492 (1868); Washburn v. Oilman, Dakota. See Ralston v. Bank of 64 Me. 163, 18 Am. R. 246 (1873); Cal. 112 Cal. 208, 44 Pac. 476 Auchmuty v. Ham. 1 Den. (N. Y.) (1896); First Nat. Bank v. Minn., 495 (1845). Remedies. 207 promised to pay it. In 1833, this doctrine was modified by a statute in England, which enacted that the jury might " give damages in the nature of interest, over and above the value of the goods at the time of die conversion or seizure, in all actions of trover, or trespass de bonis asportatis." "* In no other tort actions is interest recoverable in England."' In this country, the courts and legislatures have virtually dis- carded the common-law rule, and have adopted the principle " that wherever a claim for damages exists, no matter what the cause of action, if it represents a loss of pecuniary value ascertainable with reasonable certainty, as of a definite time, interest should be recover- able from that time. If th^ claim is at large and for the discretion of the jury ; if it is unliquidated, and involves non-pecuniary ele- ments, such as pain and suffering, it should not be allowed." ^"° Applying this principle, it is generally held in this country, that in actions for personal injury, such as assault and battery, defama- tion, false imprisonment, seduction, and the like, interest is not allowable as a separate item of damages.*"^ In such actions the jury are at liberty to award, as general damages, such sum as will fully compensate the plaintiff for the wrong inflicted. To supplement that with interest, would be " to add damages to damages." ^°- By statute, in a few states, interest is discretionary with the jury in such cases."" In actions for the conversion of personal property, as well as of trespass and replevin, where plaintiff's damages are easily ascer- tainable by reference to fairly fixed and well known values, interest is allowable as a matter of law, from the date of the injury.^"* In "Chap. 42, § 29, 3 & 4 W. 4. interest was held allowable on •* Mayne, On Damages, (7 ed. ) p. money expended by reason of a per- 174, 176. sonal injury. '°° Sedwick, Elements of Damages "" Louisville, etc., Ry. v. Wallace, p. 129. 91 Tenn. 35, 17 S. W. 882, 14 L. R. ""Western, etc., Ry. v. Young, 81 A. 548 (1891). Ga. 397, 7 S. E. 912 (1888); Pitts- '""King v. Southern Pac. Ry., 109 burg, etc., Ry. v. Taylor, 104 Pa. Cal. 96, 41 Pac. 786, 29 L. R. A. 755 306, 49 Am. R. 580 (1883); Texas, (1895), applying § 3288 of Civil etc., Ry. V. Carr, 91 Tex. 332, 43 S. Code; Ell v. Nor. Pac. Ry. 1 N. D. W. 18, (1897); Nichols v. Union 336, 48 N. W. 222, 12 ,L. R. A. 97, Pac. Ry., 7 Utah 570, 27 Pac. 693 26 Am. S. R. 631 (1891) applying (1891); in Wash. & Geo. Ry. v. § 4578 Comp. Laws. Hiokey, 12 App. (D. C.) 269 (1895), ""St. Louis, etc., Ry. v. Lyman, 2o8 The Law of Torts. admiralty cases, the rate allowed in this country is six per cent.^" In common-law actions, the local rate, at the time and place of the injury, is allowed.'"" Some courts do not recognize this right to interest as one definitely accorded by law, but as one depending upon the circumstances of each case, and thus determinable by the jury."" A third class of cases, according to the prevailing view, includes injuries to property which do not amount to conversion or destruc- tion. Here the jury, in assessing damages, are " to take into account the lapse of time, and put the plaintiff in as good a position in reference to the injury, as if the damages directly resulting from it had been paid immediately." If the circumstances are such as to show that interest at the legal rate is not necessary to fully compen- sate the plaintiff, the jury can withhold it.'°' In some jurisdictions, the power to give interest in this class of cases is denied to the jury."" Avoidable Damages. The law does not hold even a willful wrongdoer to liability for all the consequences of his misconduct. It compels him to answer only for the proximate result. It casts upon the injured party the duty of using reasonable care and effort to minimize his damages. He is not allowed to " stand by and suffer the injury to continue and increase without reasonable efforts to prevent further loss." '"" If A breaks down B's fence, thie latter 57 Ark. 512 22 S. W. 170 (1893); (1889); Miller v. Express Propeller Oviatt V. Pond, 29' Conn. 479 Line, 61 N. Y. 313 (1874). (1861); Ward v. Conn. Pipe Co., 71 ""Eddy v. Lafayette, 49 Fed. 807, Conn. 345, 41 At. 1057, 42 L. R. A. 4 U. S. App. 247 (1892); Frazer v. 706, 71 Am. S. R. 207 (1889); Union Bigelow Carpet Co., 141 Mass. 126. Pac. Ry. V. Ray, 46 Neb. 750, 65 N. 4 N. E. 620 (1886). W. 773 (1896); City of Allegheny '« Ainsworth v. Lakin, 180 Mass. V. Campbell, 107 Pa. 530 (1884); 397, 402, 62 N. E. 746 (1902); Wil- Watkins v. Junker, 90 Tex. 584, 40 son v. City of Troy, 135 N. Y. 96, S. W. 11 (1897) ; Sherwin v. McKie, 32 N. E. 44, 18 L. R. A. 449, 31 Am. 51 N. Y. 180 (1872). S. R. 817 (1892); Richards v. Citi- "»The Aleppo, 7 Ben. 120, Fed. zens Nat. Gas Co., 130 Pa. 37, 18 Cases, No. 158 (1874); The Oregon, ^.t. 600 (1889). 89 Fed. 520 (1898); U. S. v. Paquete i» Meyer v. A. & P. Ry., 64 Mo. Habana, 189 U. S. 453, 467, 23 Sup. 542 (1877); New York, etc., Ry. v. Ct. 593 (1903). Estill. 147 U. S. 591. 622, 13 Sup. ""Machette v. Wamless. 2 Col. 170 ct. 444, 37 L. Ed. 305 (1893). (1873) ; New Dunderburg Co. v, „. grant v. Gallup, 111 111. 487, 53 Old, 97 Fed., 150, 38 C. C. A. 89 Am. R. 638 (1888); Simpson v. Keo- Remedies. 209 cannot deliberately leave it unrepaired and recover from A the damages caused by cattle which get into his field through the open- ing. Such damage is too remote. It is the result of B's folly. ^^^ A person, who is unlawfully ejected from a train, or who is wrong- fully prevented from boarding it, is bound to act reasonably, although he has been wronged. If, instead of waiting for the next train, or hiring a conveyance, he walks to his destination in extremely cold weather and injures his health, such injury is chargeable to his imprudence and not to the railroad company's misconduct."^ Had he hired a conveyance, he would have been bound to act prudently in so doing.^'* In case of personal injury, the victim must exercise reasonable care in mitigating ihe consequences.^^* He is not bound, however, to engage the services of the most skillful physician ; ^^° and if he uses ordinary care in employing medical advisers, he is not chargeable with their errors.^^" In the case of willful torts, it kuk, 34 la. 568 (1872). "If the plaintiffs by the use of ordinary diligence and efforts, and at a mod- erate expense, might have prevented the damages, by filling in the lots near the alley, it seems to follow that their negligence contributed to the injury." "'Loker v. Damon, 17 Pick. (34 Mass.) 284, 288 (1835). "So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of dam- ages. But if the owner suffers the window to remain without repair- ing a great length of time after notice of the fact, and his furniture, or pictures, or other valuable arti- cles sustain damage, this damage would be too remote." "= Ind. B. & W. Ry. v. Birney, 71 ill. 391 (1847); Bader v. Southern Pac. Ry. 52 La Ann. 1060, 27 So. 584 (1900). "' LeBlanche V. Lon. & N. W. Ry. 1 C. P. D. 286, 45 L. J. C. P. 521 (1876). "The question then is, whether, acording to the ordinary 14 habits of society, a gentleman in the position of the plaintiff, who was going to Scarborough for the purpose of amusement, and who missed his train at York, would take a special train at York to Scarborough at his own cost, in order that hfe might arrive at Scar- borough an hour and a half sooner than he would do if he waited at York for the next train." "'Fullerton v. Fordyce, 144 Mo. 519, 44 S. W. 1053 (1898) ; Sullivan V. Tioga Ry., 112 N. Y. 643, 20 N. E. 569, 8 Am. S. R. 793 (1899); Salladay v. Dodgeville, 85 Wis. 318, 55 N. W. 696, 20 L. R. A. 541 (1893). "=Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. S. R. 906 (1898). "" McGarrahan, v. N. Y., etc., Ry., 171 Mass. 211, 50 N. E. 610 (1898) ; Reed v. Detriot, 108 Mich. 224, 65 N. W. 967 (1896); New York, etc.. Gov. Bennett. 62 N. J. L. 742, 42 At. 759 (1899); Sauter v. N. Y. C. Ry., 66 N. Y. SO, 23 Am. R. 18 (1876). 2IO The Law of Torts. has been held that ordinary negligence on the part of the victim will not bar a recovery.^*' The Functions of Court and Jury. To the court belongs the power of announcing and explaining the rule of law relating to damages in a particular case, while to the jury belongs the power of determining the facts. If the evidence is undisputed and warrants but one inference, the court may properly direct the jury to find a verdict in accordance with that inference. Accordingly, when a plaintiff, injured by the defendant's negligence, asks damages for loss of time, while confined to his house, but offers no evidence showing the character or extent of such damages, the court should direct the jury to bring in a verdict for nominal damages only.^^' When the evidence is undisputed, it is also a question for the court whether the plaintiff is entitled to exemplary damages or to com- pensatory damages.^^® And, generally, it is the duty of the court to state the rule which the jury are to apply in fixing the damages in the case before them.'^'"' Amount of Damages is Otdinarily for the Jury. While the amount of damages in a particular case is generally left to the discretion of a jury, their power, even here, is not arbitrary. It is subject to considerable supervision by the court. For a time after the institution of trial by jury was established, the answer of a jury to the question of damages appears to have been final,^^^ especially in cases of trespass to property, where the facts were within the per- sonal knowledge of the jurors ; ^'" or of defamation, where the injury sustained depended much upon the quality of the persons and the "'Chicago, etc., Co. v. Meech, 163 ™Balt. & Ohio Ry. v. Carr, 71 111. 305, 45 N. E. 290 (1896); Gal- Md. 135, 17 At. 1052 (1889); Knight veston, etc., Ry. v. Zantzinger, 92 v. Egerton, 7 Exch. 407 (1852). Tex. 365, 48 S. W. 563, 44 L. R. A. »" Sedgwick, Elements of Dam- 553, 71 Am. S. R. 859 (1898). ages p. 2. Sedgwick On Damages, "'Leeds v. Met. Gas Light Co., (8th J}d.) § 1316. 90 N. Y. 26 (1882). '^Delves v. Wyer, 1 Brownl. 204 ""Louisville, etc., Ry. v. Fox, 11 (1605); the jury assessed the dam- Bush. (74 Ky.) 495, 516 (1876); ages at £40 for cropping 200 pear Spokane Truck Co. v. Hoefer, 2 trees and 100 apple trees, and the Wash. 45; 25 Pac. 1072 (1891); court said it could not diminish Ward V. Blackwood, 41 Ark. 295 the " damages in trespass which (1883); Goldsmith's Adm'r. v. Joy, was local and therefore could not 61 Vt. 488; 17 At. 1010 (1889). appear to them." Remedies. 211 local situation.^'" But it is to be borne in mind that " courts existed before juries," and have never " allotted all questions of fact to the jury." "* Accordingly, when the matter of damages depends on a ■' cause which appears in sight of the court, so that they may judge of it as in mayhem, etc. ; "'^^ or upon undisputed evidence, which shows that if the plaintiff is entitled to recover anything he is entitled to recover a specific sum, or a sum much larger than the jury have awarded, the court has the right to set aside the verdict.^^" At present, therefore, the jury have not unlimited authority over the assessment of damages. As early as 1695, Lord Holt, in setting aside a verdict for £2,000 damages for false imprisonment, said : " The jury were very shy of giving a reason of their verdict, think- ing they have an absolute, despotic power ; but I did rectify that mistake, for the jury are to try causes with the assistance of the judges, and ought to give reasons when required, that if they go upon any mistake they may be set right." ^" Accordingly, if the verdict is the result of casting lots, or of any other improper prac- tice ; ^^' or if the jury have refused to apply the measure of damages properly stated to them by the court,^^" or if their verdict shows that they adopted an erroneous theory of liability, ^^^ or that their '^Hawkins v. Sciet, Palmer, 314 evidence showing that the plaintiff (1622). In this ease the court at as a physician had been earning first reduced the damages from £150 from £6,000 to £7,000 a year and was to £50, " but afterwards on great incapacitated for life. On a second consideration revolted this and re- trial, the verdict was for £16,000, solved to leave such matters to the and the court refused to disturb it, jury." Lord Townsend v. Hughes, as being excessive: Carter v. Wells, 2 Mod. 150 (1677). Verdict for Fargo £ Co., 64 Fed. 1005 (1894). £4,000 was left undisturbed. '"Ash v. Lady Ash, Com. 357; "•Thayer, '"Law and Fact in plaintiff was confined two or three Jury Trials," 4 Harv. L. Rev. 147; hours and forced to take physic. Cases on Evidence Ch. I, Sec. VI. '^Mellish v. Arnold Bunb. 51 '^Hawkins v. Sciet, Palmer 314 (1719); verdict set aside because (1622). "jury threw up cross or pile for '""Richards v. Sanford, 2 E. D. £300 or £500." Falvey v. Stanford Smith (N. Y.) 349 (1854); verdict L. R. 10 Q. B. 54, 44 L. J. Q. B. 7 for $10.00 was set aside and new (1874). trial ordered, unless defendant '*■ Limburg v. Germ. Fire. Ins. would consent to its being raised to Co., 90 la. 709; 57 N. W. 626 (1894). $100.00; Phillips v. Lon., etc., Ry., 5 ""Louisville, etc., Ry. v. Minogue, C. P. D. 78 (1874); verdict for £7,000 90 Ky. 369, 14 S. W. 357 (1890); was set aside as inadequate, the Moseley v. Jamieson, 68 Miss. 336 212- The Law of Torts. minds were influenced by some improper motives or feelings or bias,'^^ the court has the power and will not hesitate to set the verdict aside, unless the prevailing party assents to its reasonable modi- fication. Damages not to be Split Up. The victim of a tort is not allowed to bring a separate su'* for each item of damage which results from a single wrongdoing. " It is for the public good that there be an end of litigation," is an ancient and honored maxim of the common law.^'^ Accordingly, in a suit for personal injuries, the plaintiff not only may claim prospective damages, in addition to those already developed, but must claim them then, if he would recover them at all.*^° So, if the action is brought for injury to property, the plaintiff must unite all the items of damage both present and prospective.^"* Thus far, there is no difference of opinion and no difficulty. But suppose a single tortious act of the defendant invades distinct legal rights of the plaintiff, — does the common-law maxim apply ? Is the plaintiff bound to bring a single action for all the damages suffered? The answers are discordant. In England, and in some of our juris- dictions, the courts declare that the single act may result in more than one tort. If it causes harm to the plaintiff's person and also to his property, he has two causes of action, although the several injuries are inflicted at the same moment. His right to personal security, it is said, is wholly distinct from his right of property,*'' (1890). Church v. Ottawa, 25 Ont. Howell v. Goodrich, 69 III. 556 R. 298 (1894). (1873>; Richmond Gas. Co. v. '"Thurston v. Martin, 5 Mason Baker, 146 Ind. 600; 45 N. B. 1049, (U. S.), 497 (1830). 36 L.R. A. 683 (1897); Kansas, etc., '== Wichita, etc., Ry. v. Beebe, 39 Ry. v. Mihlman, 17 Ks. 224 (1876); Ks. 465, 18 Pac. 502 (1888). Thompson v. Ellsworth, 39 Mich. '^Fetter v. Veal, 1 Salk. 11. 12 719 (1878); Warner v. Bacon, 8 Mod. 542 1 Ld. Raymond, 339; Gray, (74 Mass.) 397 (1857); (1703); recovery had been had for Filer v. N. Y. C. Ry., 49 N. Y. 42 assault and battery. Upon reopening (1872); Goodhart v. Penn. Ry. 177 of wound, second action was Pa. 1; 35 At. 191 (1896); Whitney brought but held not to lie; Hodsoll v. Clarendon, 18 Vt. 252 (1846). V. Stallebrass, 11 Ad. & E. 301, 3 P. "* Wheeler Savings Bank v. Tracy, & D. 200, 9 C. & P. 63 (1839)t Fox 141 Mo. 252, 42 S. W. 446; 64 Am. V. St. John. 23 New Bruns. 244 S. R. 505 (1897), and cases cited in (1883); Stodghill v. Chic, etc., Ry., preceding note. 53 la. 341; 5 N. W. 495 (1880); '"Brunsden v. Humphrey, 14 Q. Remedies. 213 and " the essential difference between an injury to the person and an injury to property makes it impracticable, or at least very incon- venient in the administration of justice, to blend the two." ^^° This view seems to the writer correct. It must be admitted, how- ever, that the weight of judicial decision and dicta in this country is opposed to it. According to these authorities, " the cause of action consists of the wrongful act which produced the effect, rather than in the effect of the act in its application to different primary rights ; and the injury to the person and property, as a result of the original cause, gives rise to different items of damage." ^^" § 4. Local' Actions for Tort. Early Law : Modern Doctrine. Originally, all actions at common law were local, because the issue of fact in every common- law action was to be tried by a jury of the vicinage. This rule was modified by degrees, until the modern doctrine was established, " that actions are deemed transitory when the transactions on which they are founded might have taken place anywhere ; but are local when their cause is in its nature necessarily local." '^' The most common example of a local action for tort is that of trespass to land. As this tort can occur only in the country where the land is situated, B. D. 141, 53 L. J. Q. B. 476, 51 L. ""King v. Chic, etc., Ry., 80 T. R. 529, 31 A. L. J. 329 (1884): Minn. 83, 82 N. W. 1113, 81 Am. S. Watson V. Tex., etc., Ry.. 8 Tex. R. 238, 50 L. R. A. 161, with note C. App. 144, 27 S. W. 924 (1894). (1900); Seger v. Barkhamstead, 22 "°Reilly v. Sicilian Asphalt Co., Conn. 295 (1853). Cf. Boerum v. 170 N. Y. 40, 62 N. E. 772, 88 Am. Taylor, 19 Conn. 122 (1848), hold- S. R. 636, 57 L. R. A. 176 (1902). ing that plaintiff had two distinct In this case, stress was laid upon causes of action against defendant the fact that different periods of for putting poison in rum; one for limitation apply to the two injur- spoiling the rum, and another for ies; that the right of action for injury to the plaintiff from drink- injury to property is assignable, ing the rum; Doran v. Cohen, 147 and that for injury to person is Mass. 342, 17 N. E. 647 (1888) ; Hat- not; that the former is seizable by chell v .Kimbrough, 4 Jones L. (N. creditors and would pass to an as- C.) 163 (1856); Cox v. Crumley, 5 signee in bankruptcy, while the lat- Lea (Tenn.), 529 (1880); Hazzard ter is not seizable and would not Powder Co. v. Volger, 3 Wyo. 189, pass. This decision overruled S. C. 18 Pac. 636 (1888). in 31 App. Div. 302. 52 N. Y. Supp. "' Livingston v. Jefferson, 1 Brock. 817 (1898). (U. S. C. C.) 203. 209 (1811). 214 The Law of Torts. the action must be brought there. The court of no other country has jurisdiction of the cause of action. Although it is admitted that this doctrine is highly technical, and, at times, works a hardship to the injured party, it is still maintained in England and in most of our States.^'* Applying this doctrine, it has been held that an action for cutting and tapping trees is local, but one for slander of title to the land on which the trees stood is transitory.'*" An action for the conversion of timber which has been cut, or of oysters which have been taken " from their beds," is transitory.'*' It has been held that an action for damages caused by a nuisance may be brought in the jurisdiction where it is situated, although the damages are inflicted in a different jurisdiction.'*- If, however, the action is for injury to the land, the suit is to be brought there, although the act causing the injury, such as the diversion of a stream, takes place in another state.'*^ § 5. Conflict of Laws in Transitory Actions. What Actions are Transitory. For torts of a personal character, the victim is not limited to a local action. His right to a remedy is transitory, accompanying him into other " venues " of the same country, and oftentimes into foreign jurisdictions.'** In case he seeks redress in another country from that in which the injury was inflicted, various questions in the conflict of laws may arise. We shall not be able to discuss these questions with fullness •m this connection, but must be content with stating the leading '"» Doulson V. Matthews, 4 D. & E. '" Makely v. A. Boothe Co., 129 503 (1792); British South Africa N. C. 11, 39 S. E. 582 (1901). Co. V. Companhia de Mocambique '" Rundle v. Del. & Rarltan C. Co., (1893), A. C. 602, 63 L. J. Q. B. 70, 1 Wall. Jr. (U. S. C. 0.) 275 (1849). 69 L. T. 604; Allin v. Conn. Ry. Co., "= Thayer v. Brooks, 17 Ohio, 489, 150 Mass. 560, 23 N. E. 581, 6 L. R. 49 Am. Dec. 474 (1848). A. 416 (1890); Watts v. Kinney, 23 '"In Rafael v. Verelst, 2 W. HI. Wend. (N. Y.) 485, 6 Hill, 82 1055, 1058 (1776), De Gray, C. J., (1840); Cragin v. Lovell, 88 N. Y. said, "Crimes are In their nature 258 (1882) ; Ellenwood v. Marietta local, and the jurisdiction of crimes Co., 158 U. S. 105, 15 Sup. Ct 771, is local. And so as to the rights of 39 L. Ed. 913 (1895); Niles v. real property, the subject being Howe, 57 Vt. 388 (1885). fixed and immovable. But personal •"Dodge v. Colby, 108 N. Y. 445, injuries are of a transitory nature, 15 N. E. 703 (1888). and sequnter forum reV Remedies. 215 principles applicable to such cases, referring the reader to treatises upon the conflict of laws, for more detailed information. A Tort by Lex Loci and Lex Fori. When the wrong complained of is an actionable tort by the law of both jurisdictions, the suit will be sustained by any competent tribunal which has obtained jurisdiction of the defendant's person. This rule has been adopted as a matter of international comity and with a view to promote justice.'*" In this class of cases, the only question of diffi- culty relates to the measure of damages. Upon principle it would seem that this is determinable by the law of the place where the injury is done ; '** unless the lex fori limits the recovery to a fixed sum.'*' Injury which is not Tortious by the Lex Loci. If the act complained of was not wrongful by the law of the place where it occurred, it will not be actionable in any other jurisdiction, althot^h had the act occurred in the latter country it would have constituted a tort.'** " If no cause or right of action for which redress may be had exists in the country where the personal injury was received, then there is no cause of action to travel with the person claimed to be in fault, which may be enforced in the State where he may be found." "" In England, however, it is held that if the act is wrongful by the lex loci, although not remediable in a civil action ex delicto, but only '" Mexican Nat. Ry. V. Jackson, 89 Mass. 109, 19 Am. R. 400 (1875), Tex. 107, 33 S. W. 857, 31 L. R. A. action in Massachusetts, under stat- 276, 59 Am. St R. 28 (1896); Will- ute of that State, for injury done iams V. Pope Mfg. Co., 52 La. Ann. by a dog in New Hampshire, where 1417, 27 So. 861, 50 L. R. A. 816 no such statute was shown to exist, (1900); Morisette v. Canadian Pac. and the common law did not give Ry., 76 Vt. 267, 56 At. 1102 (1904). the right of action. (Such statute '*• Pullman Car Co. v. Lawrence, does now exist in New Hampshire; 74 Miss. 782, 22 So. 53 (1897). But Chiekering v. Lord, 67 N. H. 555, see Carson v. Smith, 133 Mo. 606, 32 Atl. 773 (1893), applying Pub. 34 S. W. 855 (1896). St. Ch. 118, § 10); Smith v. Con- »' Wooden v. Western, etc., Ry., dry, 1 How. (U. S.) 28 (1843); 126 N. Y. 10, 26 N. E. 1050, 13 L. R. Beacham v. Portsmouth Bridge, 68 A. 458. 22 Am. St. R. 803 (1891). N. H. 382, 40 Atl 1066 (1896); Phll- "« Carter v. Goode, 50 Ark. 155, 6 lips v. Eyre, L. R. 6 Q. B. 1, 40 L. S. W. 719 (1887); shooting a tres- J. Q- B. 28 (1870). passing mule was not a tort in the "° McLeod v. Conn., etc., Ry., 58 Indian Territory, under the circum- Vt. 727, 6 At. 648 (1886). stances; Le Forest v. Tolman, 117 2i6 The Law of Torts. by a criminal proceeding, it will sup'port a tort action, if it amounts to a tort b)' the le-v fori. This decision proceeds upon the theory that to support a tort action in England for an act committed abroad, two conditions must concur : First, the act must have been of such a character that it would have been actionable if it had been com- mitted in England. Second, it must not have been justifiable by the law of the place where it was done.^"" It is to be noted that if the plaintiff brings his action for a common- law tort, he need not allege that the wrong is actionable under the statutes or laws of the State where the wrong was inflicted. The common-law rule will be presumed to obtain there,^'^ if the legal system is based upon the common law. While, if he sues for a statutory tort, he must allege and prove the statute."'' Injury Which is not Tortious by the Lex Fori, The English courts refuse to entertain a suit for the redress of such an injury.^^^ In this country, however, it may be prosecuted, unless its primary object is the enforcement of a penal statute, or unless it is deemed by the courts repugnant to justice or to good morals, or calculated to injure the State where the action is brought, or its citizens.^^* This rule has been most frequently applied in suits ""Machado v. Fontes (1897), 2 Q. 85 (1867), and Davis v. N. Y. & N. B. 231. See Bvey v. Mex. C. Ry., E. Ry., 143 Mass. 301, 58 Am. R. 52 U. S. App. 118, 81 Fed. 294, 38 138 (1887), the latter dealing with L. R. A. 387 (1897). a penal statute of Conn.; Wooden v. «' Whitford v. Panama Ry. Co., 23 Western, etc., Ry., 126 N. Y. 10, 26 N. Y. 465, 468 (1861); 111. Cen. Ry. N. E. 1050, 13 L.R. A. 458, 22 Am. Co. V. Kuhn, 107 Tenn. 106, 64 S. W. S. R. 803 (1891); Williams v. Pope 202 (1901). Mfg. Co., 52 La. Ann. 1417, 27 So. '=^Kahl V. Memphis, etc., Ry., 95 851 (1900); Herriek v. Minn., etc., Ala. 337, 10 So. 661 (1891); Le For- Ry., 31 Minn. 11, 16 N. W. 413, 47 e-t V. Tolman, 117 Mass. 109, 19 Am. Am. R. 771 (1883); Chicago, etc., R. 400 (1875). Ry. v. Doyle, 60 Miss. 977 (1883); '■■ The Halley L. R., 2 P. C. 193, Knight v. West Jersey Ry., 108 Pa. 37 L. J. Ad. 33 (1868), holding a 250, 56 Am. R. 200 (1885); Hunt- shipowner not liable in England, ington v. Attrill, 146 U. S. 657, 13 for the negligence of pilot whom Sup. Ct. 224, 36 L. Ed. 1123 (1892); he was obliged to employ in Bel- Mexican Nat. Ry. v. Slater, 115 Fed. gium. . 593, 53 C. C. App. 239 (1902), at- '"Higgins v. Cent., etc., Ry., 155 ffirmed 194 U. S. 120, 24 Sup. Ct. Mass. 176, 29 N. E. 534, 31 Am. S. 581 (1904). See dissenting opinion R. 544, (1892), distinguishing of Fuller, C. J. Richardson v. N. Y. C. Ry., 98 Mass. Remedies. 217 for wrongful death. Such actions did not He at common law. For a time after the enactment of statutes, following Lord Campbell's Act in England,"' courts of States, where the common law had not been changed, were disposed to exclude suitors whose cause of action arose under a statute of this sort.'''"' At present, however, the tendency is to view these statutes as remedial — as " simply taking away a common-law obstacle to recovery for an admitted tort " — and to permit suits for such torts to be brought in any jurisdiction."' Defenses Generally Depend Upon the Lex Loci. This rule follows logically from the principles stated above. A cause of action may have come into existence, but may have been destroyed by subsequent legislation in the place where it arose ; '^' or by the operation of well-established rules of law, as in case of the death of the person to whom it belonged.^"' A vested right of defense, it is declared, is a property right, and available to its owner wherever he may be sued.^*" Accordingly, whether the defendant was negli- gent in a particular situation, and whether the plaintiff was guilty of contributory negligence ; "' whether plaintiff had assumed the risk of the peril which resulted in his injury ; '*^ whether the negli- ""/wfra. Chap. VI. >=« Richardson v. N. Y. C. Ry., 98 Mass. 85 (1867); Taylor v. Penn. Co., 78 Ky. 348, 39 Am. R. 244 (1880); Woodard v. Mich. So. Ry., 10 Oh. St. 121 (1859). '"Dennick v. Central Ry., 103 U. S. 11, 26 L. Ed. 439 (1880) ; Stewart V. B. & O. Ry., 168 U. S. 445, 18 Sup. Ct. 105, 42 L,. Ed. 537 (1897) ; Bruce v. Cln. Ry., 83 Ky. 174 (1885) ; Louisville & N. Ry. v. Whit- low. 105 Ky. 1, 43 S. W. 711, 41 L. R. A. 614 (1898). '"Phillips V. Eyre, L. R. 6 Q. B. 1, 40 L. J. Q. B. 28 (1870). Cf. Sawyer v. Davis, 136 Mass. 239 (1884). ""Higgins V. Cent. Ry. of N. E., 155 Mass. 176, 29 N. E. 534, 31 Am. S. R. 544 (1892); O'Reilly v. N. Y., etc., Ry., 16 R. I. 388. 17 At. 171, 906, 19 At. 244, 5 L. R. A. 364, 6 L. R. A. 719 (1899) ; " after a cause of action has become extinct where it accrued, it cannot survive else- where; " and the law of the place where it accrues determines whether it survives or is assign- able, or not. '"Pritchard v. Norton, 106 U. S. 124, 1 Sup. Ct. 102, 27 L. Ed. 104 (1882); Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215 (1896); Bal. £ O. Ry. v. Reed, 158 Ind. 25, 62 N. E. 488 (1902). '"' Louisville & N. Ry. v. Harmon (Ky.), 64 S. W. 640 (1901); Bridger v. Ashville Ry., 27 S. C. 456, 3 S. E. 860, 13 Am. S. R. 653 (1886). ""Northern Pac. Ry. v. Babcock, 154 U. S. 190, 14 Sup. Ct. 978, 38 L. Ed. 958 (1894). 2i8 The Law of Torts. gent actor was plaintiif's fellow-servant,"" and similar questions, are to be answered by the law of the place where the injury was inflicted. § 6. Indemnity Between Wrongdoers. If Free from Fault. We have seen that a master or prifi- cipal, who has been compelled to pay damages to a third person, because of his servant's or agent's misconduct, is entitled to indem- nity from his wrongdoing representative, if he is himself free from actual fault.^"* Accordingly, if a railroad company is forced to pay a passenger for a trunk, lost through the negligence of one of its baggage masters, it is " entitled to reimbursement at the hands of the baggage master for the amount which it had paid out." ^°' This principle applies to all cases where one person is liable in tort, as a constructive wrongdoer only, for the actual tortious misconduct of another. The fact that they are technically joint tort-feasors does not prevent the morally innocent one from obtaining indemnity from the actual wrongdoer.*** Indemnity to Agent or Servant. This principle operates, at times, to secure the agent or servant indemnity from his master or principal. " Every man, who employs another to do an act which the employer appears to have a FTght to authorize him to do, under- "^ Baltimore & O. Ry. v. Reed, Boston & M. Ry. v. Sargeant, 70 N. 158 Ind. 25, 62 N. E. 488 (1902); H. 299, 47 At. 605 (1900); s. c. again Turner v. St. Clair Tunnel Co., Ill in 72 N. H. 455. 57 At. 688 (1904); Mich. 578, 70 N. W. 146, 36 L. R. A. Boston & M. Ry. v. Brackett, 71 134, 66 Am. S. R. 397 (1897); Rick N. H. 494, 53 At. 304 (1902); "It is V. Saginaw Co., 132 Mich. 237, 93 only when the party, who is in fault N. W. 632 (1903): 111. Cen. Ry. v. as to the person injured, is with- Harris (Miss.), 29 So. 760 (1901); out fault as to the party whose ac- Alexander v. Penn. Co., 48 Ohio St. tual negligence is the cause of the 623, 30 N. E. 70 (1891). injury, that recovery over can be "* Supra, p. 184. had; " Brooklj-n v. Brooklyn, etc.. >■= Georgia So. Ry. v. Jossey, 105 Ry., 47 N. Y. 475, 7 Am. R. 409 Ga. 271, 31 S. E. 179 (1898). (1872); Gulf, etc., Ry. v. Galveston, "•Chesapeake & O. Co. v. County etc.. Ry., 83 Tex. 509, 18 S. W. 956 Comm'rs, 57 Md. 201, 40 Am. R. (1892); City of San Antonio v. 430 (1881); Boston v. Worthington, Smith, 94 Tex. 266, 59 S. W. 1109 10 Gray (76 Mass.) 496,71 Am. Dec. (1900); Culmer v. Wilson, 13 Utah, 678 (1858); Westfield v. Mayo, 122 129, 44 Pac. 833, 57 Am. S. R. 713 Mass. 100, 23 Am. R. 292 (1877); (1896). Remedies. 219 takes to indemnify him for all such acts as would be lawful, if the employer had the authority he pretends to have." ^" The principle has been invoked to secure indemnity, where the plaintiff has been led, by the defendant's misrepresentation of facts, to believe that a course of action was lawful, where it was in truth unlawful."" If not Free from Blame. Cases of the kind last referred to can rarely occur, for there can be no " valid claim to indemnity where the doer of the act which constitutes the offense has done it with knowledge of all the circumstances necessary to constitute the act an offense, but in ignorance that the act done under those circum- stances constituted an offense. A man is presumed to know the law." ^"^ A fortiori, whenever the plaintiff has intentionally com- mitted a tort in connection with or for the benefit of another, the courts will not entertain an action in his behalf for indemnity against the other, but leave him where his wrongful act places him.*^" § 7. Contribution Between Wrongdoers. When Wrong-Doing is Intentional. This is never allowed wherever the plaintiff's wrongdoing was deliberate and intentional. One who intends to violate the law, or even to do an act which the law conclusively presumes that he knew was wrongful, will be left where his act places him. Towards him the law imposes no obliga- tion of contribution upon his fellow tort-feasor.^'^ Where no Wrongful Intent. It often happens, however, that persons join in performing an act which they honestly believe '"Best, J., in Adamson v. Jarvis, public. Cf. Simpson v. Mercer, 4 Bing. 66, 72, 29 R. R. 503, 12 144 Mass. 413, 11 N. B. 720 (1887). Moore, 241 (1827). In this case, the '"Kennedy, J., in last cited Eng- plaintiff, an auctioneer, to whom de- lish case. See comments on this fendant had delivered cattle for case in 15 Law Quar. Rev. 236. Cf. sale, was obliged to pay to their Cumpston v. Lambert, 18 Ohio, 81, true owner for their conversion, 51 Am. Dec. 442 (1849). £1100 damages, £95 costs, and to '"Nelson v. Cook, 17 111. 443 pay £500 for his own expenses in (1856); Culmer v. Wilson, 1'3 Utah, the action. He sued for and recov- 129, 44 Pac. 833, 57 Am. St. R. 713 ered these sums as damages; Moore (1896). V. Appleton, 26 Ala. 633 (1855). "'Upton v. Times-Democrat, 104 ""Burrows v. Rhodes (1899), 1 Q. La. 141, 143, 28 So. 970, 971 (1900) ; B. 816, 68 L. J. Q. B. 545. Plaintiff Becker v. Farwell, 25 111. App. 432 claimed £3000 damages for being (1887); Sutton v. Morris, 102 Ky. induced to take part in the Jame- 613, 44 S. W. 127 (1898); Johnson son raid into the South African Re- v. Torpy, 35 Neb. 604, 53 N. W. 575, 220 The Law of Torts. to be lawful, but which turns out to be an invasion of the rights of some third party, who sues one of the tort-feasors to judgment and collects the entire damages from him. In this country, there is no doubt that he is entitled to contribution from those who joined him in the wrongdoing."'' The same rule applies between negligent, as distinguished from willful, tort-feasors.^'' Such is the rule in Scotland.*'* Torts of the kind involved in these cases are, as we have seen,*^' known as quasi delicts in Scotch law, and are sharply distinguished from delicts, or intentional torts. In England it is not clear whether the right of contribution exists in this class of torts. The rule laid down in the leading case of Merryweather v. Xixan,*^" seems to negative the right, as does a recent case in the Probate Division.*"' The views of text writers upon this point are not in accord.*'* 37 Am. S. R. 447 (1892); Torpy v. Johnson, 43 Neb. 882, 62 N. W. 253, 61 Am. S. R. 267; Cumston v. Lam- bert, 18 Ohio 81, 51 Am. Dec. 442 (1849); Boyer v. Bolender, 129 Pa. 324, 18 At. 127, 14 Am. S. R. 723 (1889); Spalding v. Oakes, 42 Vt. 343 (1869); plaintiff and defendant were joint owners of a vicious animal. '" Vandlver v. Pollak, 97 Ala. 467, 12 So. 473, 19 L. R. A. 628 (1893) ; s. c. again, 107 Ala. 547, 19 So. 180, 54 Am. S. R. 118 (1895); Bailey v. Bussing, 28 Conn. 455 (1859); Far- well V. Becker, 129 111. 261, 21 N. E. 792, 16 Am. S. R. 267, 6 L. R. A. 400 (1889); Ankeny v. Moffet, 37 Minn. 109, 33 N. W. 320 (1887); Achison v. Miller, 2 Ohio St. 203, 59 Am. Dec. 663 (1855); Bartle v. Nutt, 4 Pet. (U. S.) 184, 7 L. Ed. 825 (1830). "' Nickerson v. Wheeler, 118 Mass. 295 (1875); Ankeny v. Moffet, 37 Minn. 109, 33 N. W. 320 (1887); Armstrong Co. v. Clarion Co.. 66 Pa. 218. 5 Am. R. 368 (1870). •" Palmer v. Wick, etc., Co. (1894), A. C. 318, 71 U T. 163, 6 R. 245. ^^ Supra, Chap. 1. ■"S D. & E. 186, 16 R. R. 810 (1799). See criticism of this case in 17 Law Quar. Rev. 293. '"The Englishman and the Aus- tralia (1895), P. 212, 64 L. J. P. 74. '•'Pollock on Torts (6th Ed.), pp. 196, 197: "A negligent wrong-doer has no claim to contribution or in- demnity," but the author thinks such claim should be allowed be- tween persons undertaking in con- cert to abate an obstruction to a supposed highway, but who find themselves adjudged to be tres- passers. He adds: " I cannot find, however, that any decision has been given on facts of this kind." Clerk & Lindsell on Torts (2d Ed.) p. 56n; '"It is submitted that the view (in The Englishman and the Australia (1895), P. 212) cannot be sup- ported." These writers seem to treat Palmer v. Wick, etc., Co. (1894), A. C. 318, as establishing a rule for England, as well as an- nouncing a rule of Scotch law. CHAPTER VI. DISCHARGE OF TORTS. § I. Two Species of Discharge. By Act of Parties. A cause of action for a tort may be discharged either by the act of the parties, or by the operation of law. The most frequent examples of the first species of discharge are afforded by contracts between the parties, by waiver on the part of the injured person or by satisfaction of judgment on the part of the wrongdoer. The principal examples of the second species of discharge are connected with the death of one of the parties, or with the statute of limitations. Discharge by Contract. To a considerable extent, the law permits parties to contract in advance, that certain conduct by one, causing harm to the other, shall not be an actionable tort, although, but for the contract, the law would treat it as such. Thus, by con- tract with the shipper, a common carrier may relieve himself from tort liability for the loss of freight by accidental fire.^ And we have seen, in a former connection, that a servant may contract to take the risks of employment, which the law does not cast upon him, as well as exempt the master from duties of care which are imposed by common law.^ On the other hand, parties are not absolutely free to contract for exemption from tort liability. In the case of servants, we have seen that legislation has limited very much the 'Constable v. Nat. Steamship Co., Fire Ins. Co. v. Chic, M., etc., Ry., 154 U. S. 51, 14 Sup. Ct. 1032, 38 70 Fed. 201, 30 L. R. A. 193. 36 U. L. Ed. 903 (1894); Davis v. Cent. S. App. 152, 17 C. C. A. 62 (1895). Vt. Ry.. 66 Vt 290, 29 At. 313, 44 'Supra, Chap. iv. Fulton, etc.. Am. S. R. 852 (1893). Cf. Ste- Mills, v. Wilson, 89 Ga. 318, 15 S. phens V. So. Pac. Co., 109 Cal. 86, E. 322 (1892); New v. Southern Ry. 41 Pac. 783. 50 Am. S. R. 17. 29 L. 116 Ga. 147. 42 S. E. 391 (1902); R. A. 751 (1895); Griswold v. 111. Pittsburg, etc., Ry. v. Mahoney, 148 Cent. Ry., 90 la. 265, 57 N. W. 843. lud. 196, 47 N. E. 464, 40 L. R. A. 24 L. R. A. 647 (1892); Hartford 101, 62 Am. S. R. 503 (1897). 221 222 The Law of Torts. freedom of contract for the master's exemption.^ And in the case of carriers, considerations of public poHcy have led most courts to pronounce invalid most contracts exempting them from liability for their own negligence.* Similar considerations have- induced deci- sions annulling other contracts for exemption from the defendant's own negligence, or of those for whom he is personally responsible.' Even when contracts exempting tort-feasors from- liability are valid, the tendency of the courts is to construe them strictly, and to put upon the wrongdoer the burden of showing that his tort comes within the contract provisions." Agreement Subsequent to the Tort. After a cause of action has accrued to a person, he is not bound to enforce it. Sub- ject to the rights of his creditors, or of those having a legal interest in his claim, he is free to settle it upon such terms as suit him.'' If he is capable of binding himself by contract,* he may discharge the wrongdoer from tort liability by an agreement upon a valuable consideration, provided it is free from fraud or undue influence." '/Supra, Chap. iv. Kansas, etc., Ry. V. Peavey, 29 Kas. 169, 44 Am. R. 630 (1883). * Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 627 (1873) ; The New England, 110 Fed. 415 (1901); Louisville & N. Ry. v. Grant, 99 Ala. 325, 13 So. 599 (1892); Welch v. Boston & A. Ry., 41 Conn. 333 (1874); Candee v. N. Y. & H. Ry., 73 Conn. 667, 49 At. 17 (1901); Wabash Ry. v. Brown, 152 111. 484, 39 N. E. 273 (1894); Adams Ex. Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214, 16 Am. S. R. 315 (1889); Louisville & N. Ry. v. Owen, 93 Ky. 201, 19 S. W. 590, 7 L. R. A. 214 (1892); Atchison, etc., Ry. v^ Lawler, 40 Neb. 356, 58 N. W. 968 (1894); Wil- lock V. Penn. Ry., 166 Pa. 184, 30 At. 948, 45 Am. S. R. 674, 27 L. R. A. 228 (1895); Missouri Pac. v. Ivy, 71 Tex. 409, 9 S. W. 34fi. 10 Am. S. R. 758, 1 L. R. A. 500 (1888). ' Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467, 58 Am. R. 833 (1886); Johnson's Adm'z v. Rich- mond, etc., Ry., 86 Va. 975, 11 S. E. 829 (1890). 'St. Louis, etc., Ry. v. Weakly, 50 Ark. 397, 8 S. W. 134. 7 Am. S. R. 104 (1887); Wabash, etc., Ry. v. Brown, 152 111. 484, 39 N. E. 273 (1894) ; Adams Ex. Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214, 16 Am. S. R. 315 (1889); Baltimore & O. Ry. v. Brady, 32 Md. 333 (1868); Brewer v. New York, etc., Ry., 124 N. Y. 59, 26 N. E. 324. 21 Am. S. R. 647, 11 L. R. A. 483 (1891); Jennings v. Grand Trunk Ry., 127 N. Y. 438, 28 N. E. 394 (1891). 'Shaw V. Chic, etc., Ry., 82 la. 199, 47 N. W. 1004 (1891). ' Gibson v. Western N. Y. Ry., 164 Pa. 142, 30 At. 308, 33 Am. S. R. 586 (1894); Missouri Pac. Ry. v. Braz- zil, 72 Tex. 233, 10 S. W. 403 (1888). ' Pederson v. Seattle, etc., Ry., 6 Wash. 202, 33 Pac. 351, 34 Pac. 665 Discharge of Torts. 223 Even a voidable agreement may be validated by his subsequent ratification." Hence, a wrongdoer may successfully plead in bar of an action for the tort, a compromise,^^ or an accord and satis- faction/* provided the latter has been executed.'* At common law a release under seal, if free from fraud, operates to discharge a cause of action for which it is given and received,** even though not based on a valuable consideration." In some of our States, however, a " seal imports a consideration, and is prima facie evidence of it; but the validity of the instrument may be impeached for want of consideration." *' A Covenjint not to Sue a tort feasor has a different legal effect from a release under seal. The latter discharges the cause of action ; and if there are two or more joint tort-feasors, an unqualified release to one operates as satisfaction of the releasor's claim against each ; while the former does not discharge the cause of action. " A covenant not to sue a sole tort-feasor is, to avoid circuity of action, considered a bar to a suit against such tort-feasor." But where there are joint wrongdoers, the covenant is not a bar even in favor of the covenantee, who must resort to his suit for breach of cove- nant; and clearly the other wrongdoers cannot invoke the covenant as a bar to an action against them.*' (1893); Bussian v. Mil., etc., Ry., Rockwell, 14 Col. 459, 24 Pac. 556 56 Wis. 325 (1882) ; Albrecht v. Mil., (1890). etc., Ry., 94 Wis. 397, 69 N. W. 63 "Ogilvje v. Hallan, 58 la. 714. (1896). 12 N. W. 730 (1882); Burgess v. '° Drohan v. Lake Shore, etc., Ry., Denison Paper Co., 79 Me. 266, 9 162 Mass. 435, 38 N. E. 1116 (1894). At. 726 (1887); Hosier v. Hursh, "Shaw V. Chic, etc., Ry., 82 la. 151 Pa. 415. 25 At. 52 (1892). 199, 47 N. W. 1004 (1891); Plegal "Papke v. Hammond Co.. 192 111. V. Hoover. 156 Pa. 276, 27 At. 162 631. 61 N. E. 910 (1901); Spitze v. (1893). Baltimore & O. Ry., 75 Md. 162, 23 "Boosey v. Wood. 3 H. & C. 483, At. 307, 32 Am. S. R. 378 (1892). 34 L. H. Ex. 65 (1865); the plain- "Phillips v. Cloggett. 11 M. & W. tiff and defendant agreed to accept 84, 12 L. J. Ex. 275 (1843) ; Wain the publication of mutual apologies v. Wain, 53 N. J. L. 429, 22 At. 203 in satisfaction and discharge of (1891), s. c. 58 N. J. L. 640 (1896). plaintiff's cause of acton against de- " Hobbs v. Electric Light Co., 75 fendant for libel, and such apolo- Mich. 550, 42 N. W. 965 (1889); gies were published. This executed Torrey v. Black. 58 N. Y. 185 (1874). agreement was held a bar to an "Duck v. Mayeu (1892), 2 Q. B. action for libel; Oliver v. Phelps, 511, 62 L. J. Q. B. 69; City of Chic. 20 N. J. L. 180 (1843); Guldaker v. v. Babock, 143 111. 358, 32 N. E. 271 224 The Law of Torts. Discharge by Waiver. In a former chapter,^' attention was called to the right, accorded in certain cases to the victim of a tort, to sue the -wrongdoer in a contract action. As this remedy is not concurrent with that which he is entitled to seek in an action ex delicto, his final election to pursue it operates to discharge his claim in tort against the same defendant. Indeed, as was pointed out in the former chapter, some courts hold that this election of remedies discharges the tort in toto.^" But the better view is that the election "is not strictly a waiver of the tort, for the tort is the only basis of the contract action." It is a waiver of the damages for the tort and a suing for the value of the property^ wrongfully taken by the defendant. " It is simply an election between remedies for an act done, leaving the rights of the injured party against the wrongdoer unimpaired until he has obtained satisfaction." ^" The victim of a tort does not make a final election to limit himself to a contract remedy, by demanding a sum of money in satisfaction of the wrong, or even by receiving a sum in diminution of damages ; but his acceptance of money or other property to the full amount of his claim discharges his cause of action.^^ Bringing a suit in con- tract is evidence of election, but, until judgment is obtained, the election is not considered final.^^ Discharge by Judgment. When the victim of a tort sues the wrongdoer to judgment and obtains satisfaction thereof, his cause of action is discharged. Nemo debet bis vexari pro eadem causa.-^ (1892) ; Gilbert v. Finch, 173 N. Y. »» Terry v. Munger, 121 N. Y. 161, 455, 66 N. B. 133, 61 L. R. A. 807, 24 N. E. 272 (1891); Carroll v. 93 Am. S. R. 623 (1903). This case Fethers, 102 Wis. 436, 78 N. W. 604 also holds, as does Duck v. Mayeu, (1899). that a release to one joint wrong- =" Huffman v. Hughlett, 11 Lea doer, with a reservation of right to (Tenn.) 549 (1883); Keener, Quasi sue the others, is to be construed Contracts, chap. III. as a covenant not to sue, rather '^ Valpy v. Sanders, 5 C. B, 886, than as a technical release, in order 17 L. J. C. P. 249 (1848); Lythgoe to carry out the intention of the v. Vernon, 5 H. & N. 180, 29 L. J. parties. Contra on this point: Abb. Ex. 164 (1860); Smith v. Baker, L,. V. Nor. Pac. Ry., 28 Wash. 428, 68 R. 8 C. P. 350, 42 L. J. C. P. 155 Pac. 954, 58 L. R. A. 293, with valu- (1873); Bradley v. Brigham, 149 able note; 92 Am. S. R. 864, with Mass. 141 (1889). valuable note (1902); McBride v. »= Smith v. Baker, L. R. 8 C. P. Scott, 132 Mich. 176, 93 N. W. 243, 350. 42 L. J. C. P. 155 (1873). 61 L. R. A. 445 (1903). =» Kitchen v. Campbell, 3 Wils. 304 "Supra, Chap. II. (1772). Discharge of Torts. 225 This maxim does not apply, however, where the same conduct of the defendant inflicts two distinct torts upon the plaintiff, for example, false imprisonment and malicious prosecution.-* The maxim does apply to estop a plaintiff, against whom a judgment on the merits has passed in an action for an alleged tort, from suing again for the same cause.-' It also estops one, as we have seen in a former connection, from bringing repeated actions from day to day " as the diurnal effects of the one original wrong happen to mature." -" Judgment Against One of Several WrongDoers. When a number of persons join in committing a single tort, the victim has his election to sue all of them jointl}-, or ta proceed against each, separately, or to join some and sue the other or others singly. ^^ This is " because a tort is in its nature a separate act of each indi- vidual." ^^ It follows that one joint wrongdoer cannot plead the non-joinder of his fellows in abatement or in bar ; -" nor is it a defense that the plaintiff has another action pending against one of the other wrongdoers.^" It would seem to follow from this right to pursue each wrongdoer separately, that the victim is entitled to a judgment against each ; and that nothing short of the satisfaction of a judgment against one wrongdoer should bar his recovery against the others. And this view prevails generally in this coun- try.^' In England,^^ however, and in a few of our States,^' it is "Guest V. Warren, 9 Ex. 379, 23 =»McAvoy v. Wright, 137 Mass. L. J. Ex. 121 (1854). 207 (1884). '^ Darley Main Colliery Co. v. " Lovejoy v. Murray, 3 Wall. (U. Mitchell, 11 A. C. 127, 55 L. J. Q. B. S.) 1. 18 L. Ed. 129 (1865); Blann 529 (1885); Horton v. N. Y. C. Ry., v. Crocheron, 19 Ala. 647, 54 Am. 63 Fed. 897 (1894); St. Louis S. W. Dec. 203, with note (1851); Dawson Ry. V. Moss (Tex. Civ. App.), 28 S. v. Schloss, 93 Cal. 194, 29 Pac. 31 W. 1038 (1894); Blackman v. Simp- (1892); Grundel v. Union Iron son, 120 Mich. 377, 79 N. W. 573, Works, 127 Cal. 438, 59 Pac. 826, 58 L. R. A. 410 (1899). 78 Am. S. R. 75 (1899); Woodworth ^ Supra, Chap. V. § 3. v. Gorsline, 30 Col. 186, 69 Pac. 705, "Lovejoy v. Murray, 3 Wall. (U. 58 L. R. A. (with full note) 417 S.) 1, 18 L. Ed. 129 (1865); The (1902); Vincent v. McNamara, 70 Atlas, 93 U. S. 302, 23 L. Ed. 885 Conn. 332, 39 At. 444 (1898); Nor- (1876). folk Lumber Co. v. Simmons, 2 =»Low V. Mumford, 14 Johns. (N. Marv. (Del.) 317, 43 At. 163 (1897); Y.) 426 (1817). Warnack v. People. 187 111. 116, 58 » Rich V. Pilkington, Carthew, 171 N. E. 242 (1900); Elliot v. Porter, (1691); Mitchell v. Tarbutt, 5 D. & 5 Dana (Ky.), 299. 30 Am. Dec. G89 E. 649 (1794). (1837); Jones v. Lowell, 35 Me. 541 15 226 The Law of Torts. held that the election of the injured party to take judgment against one or more of the wrongdoers puts an end to his claim against the others. If such election were held not to be a defense it would encourage a multiplicity of vexatious actions, it is declared. In case of several joint wrongdoers, it is said, " an unprincipled attorney might be found willing enough to bring an action against each and every of them, and so accumulate a vast amount of useless costs." The maxim, " interest reipublicm ut sit finis litium," is invoked by these tribunals to compel the plaintiff to join all the wrongdoers in one suit, or elect which one he will cast in judgment. Election by Judgment Creditor. Under the generally pre- vailing rule, the plaintiff may take several judgments against the various joint tort-feasors, and then elect which judgment he will enforce. This right of election cannot be defeated by a tender of the amount by one of the judgment debtors, nor by a payment into court of the sum adjudged against him.'* Even after issuing exe- cution upon one judgment and collecting a part, if he fails to collect the whole, he may issue execution upon either of the other judg- ments, crediting thereon whatever he received under the former executions.^' (1852); Cleveland v. City of Ban- gor, 87 Me. 259, 32 At. 892, 47 Am. S. R. 326 (1895); Corey v. Havener, 182 Mass. 250, 65 N. E. 69 (1902); McReady v. Rogers, INeb. 124, 93 Am. Dec. 333 (1868); Fowler v. Owen, 68 N. H. 270, 39 At. 329, 73 Am. S. R. 588 (1895); Livingston V. Bishop, 1 Johns. (N. Y.) 290, 3 Am. Dec. 330 (1806); Russell v. Mc- Call, 141 N. Y. 437, 36 N. E. 498 (1894); Martin v. Buflaloe, 128 N. C. 305, 38 S. E. 902, 83 Am. S. R. 679 (1901); Maple v. Cin., H. & D. Ry., 40 Ohio St. 313, 48 Am. R. 685 (1883); Hawkins v. Hatton, 1 Nott & McC. 318, 9 Am. Dec. 700 (1818); Turner v. Brock, 6 Heisk (Tenn.), 50 (1871); Sanderson v. Caldwell, 2 Aik. (Vt.) 195 (1827); Griffin y. McClung, 5 W. Va. 131 (1872). "Brown v. Wotton, Cro. Jac. 73, YelT. 68, Moore, 762 (1606); King v. Hoare, 13 M. & W. 494, 14 L. J. Ex. 29 (1844) ; Brinsmead v. Harri- son, L. R. 7 C. P. 547, 41 L. J. C. P. 190 (1872). "Hunt V. Bates, 7 R. I. 217, 82 Am. Dec. 592 (1862), but see Par- menter v. Barstow, 21 R. I. 410, 43 At. 1035 (1899); Petticolas v. Rich- mond, 95 Va. 456, 28 S. E. 566 (1897). "Blann v. Crocheron, 20 Ala. 320 (1852); Power v. Baker, 27 Fed. 396 (1886). ■"Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. Ed. 129 (1865); Shain- wald V. Lewis, 46 Fed. 839 (1889); Ayer v. Ashmead, 31 Conn. 447, 83 Am. Dec. 154 (1863); McVey v. Ma- natt, 80 la. 132, 45 N. W. 548 (1890) ; U. S. of Shakers v. Underwood, 11 Bush. 265, 21 Am. R. 214 (1875); Discharge of Torts. 227 The Effect of Satisfying a Judgment for Conversion. ^^'hen a person, who has converted the property of another, satisfies a judgment against him therefor, he becomes the legal owner thereof. This title, as between the parties to the action, relates back to the date of conversion, inasmuch as that is the time at which the plaintiff has elected to treat the property as having passed from him.^^ Until the judgment is satisfied, however, it is held generally that the title remains in the plaintiff, and that he may replevy the property or maintain any other action for redress not inconsistent with his first suit." The doctrine of relation is adopted for the purpose of promoting justice, and will not be applied to render innocent third persons liable as trespassers,^* nor to hold the plaintiff in the trover action liable as indorser of negotiable paper, which he delivered to ihe converter for a purpose never accomplished by the latter.^" Cleveland v. City of Bangor, 87 Me. 259, 32 At. 892, 47 Am. S. R. 326 (1895); Woods v. Pangburn, 75 N. Y. 498 (1878) ; Brison v. Dougherty, 3 Baxt. (62 Tenn.) 93 (1873); San- derson V. Caldwell, 2 Aik. (Vt.) 195 (1827). Contra, Criner v. Brewer,- 18 Ark. 225 (1853); Ashcraft v. Knoblock, 146 Ind. 169, 174, 45 N. E. 69 (1896), holding that the judg- ment creditor makes a final election when he issues an execution against any one of the judgment debtors. "Hepburn v. Sewell, 5 Har. & J. 211, 9 Am. Dec. 512 (1821); Smith V. Smith, 51 N. H. 571 (1872), 50 N. H. 212 (1870); St. Louis, etc., Ry. V. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. S. R. 54 (1890). In the last case, it is said that the title relates to the date of the judg- ment ''Spivey v. Morris, 18 Ala. 254, 52 Am. Dec. 224 (1880); Woodworth V. GorsUne, 30 Col. 186. 69 Pac. 705, 58 L. R. A. 417, with note (1902); Miller v. Hyde, 161 Mass. 472, 37 N. E. 760. 42 Am. S. R. 424. with note; ■2o h. Ri A. 42 (1894). In this case there are two dissenting opinions. Holmes, J., declares that one whose property has been converted has an election between two courses; he may retake the property or secure a judgment for damages, but that he cannot do both; that his election ■ is determined by judgment. Knowl- ton, J., was of the opinion that a final election is not made by taking judgment, but is by proceeding to obtain satisfaction by a levy on the defendant's ■ property, especially where he levies on the very prop- erty for which he obtained judg- ment. In Ex parte Drake, 5 Ch. D. 866, 46 U J. Bk. 29 (1877), the court held that a man does not elect him- self out of his property by taking a judgment for its value against a converter, nor by proving the claim against the wrong-doer's estate in bankruptcy. Said James, L. J.: "I think it is not the business of any court of justice to find facilities for enabling one man to steal another man's property." "Bacon v. Kimmel, 14 Mich. 201 (1866). •■' Haas V. Sackett. 40 Minn. 53, 41 N. \V. 237, 2 L. R. A. 449 (1889). 228 The Law of Torts, § 2. Discharge by Operation of Law. Death of Either Party. The rule of the common law on this subject is stated by Blackstone *" in these words : "' In actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass, battery and slander, the rule is that actio personalis moritur cum persona; and it never shall be revived either by or against the executors or other representa- tives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury." The primitive rule was even broader than this. " The truth is," to quote the language of a learned judge, " that in the earliest times of English law, survival of causes of action was the rare exception, non-survival was the rule." *^ The first modification of this rule was made by a statute during the reign of Edward IH,*' which enacted that the executors, in case of trespass done to the goods and chattels of their testators, should have an action against the trespassers to recover damages, in like manner as the testators should have had, if they were living. This legislation was construed liberally, so as to give a remedy to the personal representatives of the injured party for all torts except those relating to freeholds, and those where the injury done is of a personal nature.*' During the early part of the last century,** statutory provision was made for suits to recover for injuries to '° Blackstone's Commentaries, Bk. the wrong.' " Newton, C. J., in T. Ill, p. 302. Sir Frederick Pollock B. 19 Hen. VI, 66, pi. 10 (1440- thinks the maxim actio personalis 1441). moritur cum persona may have been *' Bowen, L. J., in Finlay v. Chir- justified by the vindictive and quasi- ney, 20 Q. B. D. 494, 57 L. J. Q. B. criminal character of suits in prlmi- 247 (1888), holding that an action tive law for civil injuries. A pro- for breach of promise to marry does cess, he says, " which is still felt to not survive the death of the prom- be a substitute for private war, may isor. seem incapablbe of being continued *= 4 Ed. Ill, ch. 7 (1330); 25 Ed. on behalf of or against a dead man's III, ch. 5 (1351). estate. Some such policy seems to "Wilson v. Knubley, 7 East, 128, be implied in the dictum, ' If one 134 (1806); Twycross v. Grant, 4 doth a trespass to me, and dieth, C. P. D. 40, 48 L. J. C. P. 1 (1878); the action is dead also, because it Oakey v. Dalton, 35 Ch. D. 700, 56 should be inconvenient to recover L. J. Ch. 823 (1887). against one who was not party to "3 & 4 Will. IV, ch. 42 (1833). Discharge of Torts. 229 real property, if inflicted within six months before the death of the owner, or if the suit was brought within six months after the per- sonal representatives of the wrongdoer had qualified. Legislation in this Country. Similar legislation has been enacted in most of our States,^^ with the result, that where the cause of action is in substance an injury to the person, the death of either party will discharge the tort.*" If the wrong is done to the property rights or interests of another, the action will survive the deadi of the person wronged,*^ while it will not survive the death of the wrongdoer, unless " property is acquired by him, whereby his estate is benefited." *** Allowing an action against the personal representatives of the wrongdoer, where his estate has been in- creased by the tort, has been declared not to constitute an exception to the rule that private wrongs are to be buried with the offender. The executor, it is said, is not made liable for the tort of his testator, " but only for the implied promise which the law raises and allows the injured party to put in the place of the wrong." *" " See " Abatement and Revival," 1 Cyclopaedia of Law and Procedure, p. 52. This legislation has been liberally construed, as a rule. Hooper v. Gorham, 45 Me. 209 (1858); Aylesworth v. Curtis, 19 R. I. 517, 34 At. 1109, 61 Am. S. R. 785, 33 L. R. A. 110 (1896). In some States the statute in- cludes only those cases where the injury is occasioned to property by the direct wrongful act of a party upon real or personal property. Cut- ting v. Tower, 14 Gray (80 Mass.), 183 (1859); Stebbins v. Dean, 82 Mich. 385, 46 N. W. 778 (1890). "Feary v. Hamilton, 140 Ind. 45, 39 N. E. 516 (1894); Wade v. Kalb- fleisch, 58 N. Y. 282 (1874), holding that an action for breach of promise to marry does not survive the prom- isor. Cf. Pulling V. Great Eastern Ry., 9 Q. B. D. 110, 51 L. J. Q. B. 453 (1882) ; Webber v. St. Paul City Ry.. 97 Fed. 140, 38 C. C. A. 79 (1899). See note in 61 L. R. A. 352-393, on Effect of Death of Either Party after Judgment. " Cregin v. Brooklyn, etc.. Ry., 75 N. Y. 19« (1878), action by husband for negligent injuries to his wife, held to be for a wrong to his pecu- niary rights and interests and to survive his death; Gorden v. Strong, 158 N. Y. 40?, 53 N. E. 33 (1899); Petts V. Ison, 11 Ga. 153 (1852); Curry v. Mannington, 23 W. Va. 18 (1883). "Boor V. Lowry, 103 Ind. 468, 3 N. E. 151, 53 Am. R. 519 (1885), action for malpractice by surgeon does not survive him; Vittum v. Oilman. 48 N. H. 416 (1869); Ott v. Kaufman, 68 Md. 56, 11 At. 580 (1887), accord. In some States the statutes go farther than this. See Shafer v. Grimes, 23 la. 553 (1867) ; Hooper v. Gorham, 45 Me. 209, 214 (1858); Geyer v. Douglass, 85 la. 93, 52 N. W. Ill, (1892). "Mitchell V. Hotchkiss, 48 Conn. 9, 17, 40 Am. R. 146 (1880). 230 The Law of Torts. When the plaintiff brings his suit in a Federal court the survival of his action will depend ordinarily upon the common law, as modi- fied by the statutes of the State where the action is brought, or where it might have been brought at the death of the party in question.*" If, however, the action is founded upon penal pro- visions of a Federal statute, the question of its survival is determined by Federal Law.'^ The Dissolution of a Corporation works an abatement of suits against it and prevents the institution of new suits, unless its life is preserved by statute, for the purpose of prosecuting or defending suits, or of settling its affairs.*" It has been held, in Xew York, that the rule actio personalis moritur cum persona is not to be extended to the civil death of either natural persons or corpora- tions, and that a suit for libel, abated by the dissolution of the corporation, may be continued agfainst the former directors to reach corporation assets in their hands as trustees.*' Action for Causing Death. According to the common law, as interpreted by the courts of England and of this country, no civil action could be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for any damages suffered by any person, in consequence of such death. Various reasons have been assigned for this rule. In the earliest EngUsh cases, it is based upon the doctrine that the civil wrong is drowned or merged in the felony.** But we have seen, in a former connection, that this doctrine has never obtained in this country. Another reason has been sought in the maxim which we have been considering, actio personalis moritur cum persona.^^ This, it "> Martin v. Bal. & O. Ry., 151 U. 10 Cyclopasdia of Law and Proc. pp. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 1310, 1311. 311 (1893); BaL & O. Ry. v. Joy, '"Shaynev. Evening Post Pub. 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Co., Ib8 N. Y. 70. 61 N. E. 115, 85 Ed. 677 (1901) ; Webber v. St. Paul Am. S. R. 654, 55 L. R. A. 777, 10 City Ry., 97 Fed. 140, 38 C. C. A. 79 N. Y. Annot. Cases, 237 <1901), re- (1899). versing s. c. in 56 App. Div. 426, 101 " Schrelber v. Sharpless, 110 TJ. S. St. R. 937, 67 N. Y. Supp. 937, 9 76, 3 S. Ct. 423, 28 L. Ed. 65 (1883). N. Y. Ann. Cas. 51, with note (1900). '» Nelson v. Hubbard, 96 Ala. 238. " Higgins v. Butcher, Yelv. 89. 11 So. 428, 17 L. R. A. 375 (1892); Brownlow, 205 (1606). Marlon Phosphate Co. v. Perry, 74 "Green v. Hudson R. Ry., 28 Fed. 425, 20 C. C. A. 490, 41 U. S. Barb. (N. Y.) 9, 17 (1858), rejected App. 14, 33 L. R. A. 252 (1896); in s. c, when in the court of Ap- Discharge of Torts. 231 has been replied,"" " would furnish an adequate reason why no action could be brought by personal representatives, or others, for such damages as the deceased might have recovered for the injury, if death had not ensued, as the action for such damages would not survive. But this reason could have no application whatever to an action brought by a master for loss of services of his apprentice, or by a husband for the loss of his wife," or by a wife or child for the loss of husband or parent. Still another reason, which has been assigned, is that " the policy of the law refuses to recognize the interest of one person in the death of another," " — a reason, it has been replied, " which would make life insurance and leases for. life illegal. "°^ Others have professed to find the reason of the rule " in that natural and almost universal repugnance among enlightened nations, to setting a price upon human life, or any attempt to estimate its value by a pecuniary standard." Those holding this view, admit, however, that " the necessity which has grown out of the new modes of travel and business in modern times " of making railroad corporations and others, to whom passen- gers are compelled to trust for safety, more careful to secure a high degree of vigilance in protecting the lives intrusted to their control, has reconciled even the cultivated and enlightened mind of to-day to the idea of compensating the loss of human life in money .^' Attempt to Substitute the Scotch Rule. In view of the unsatisfactory character of the reasons assigned for the rule, it is a matter of regret and wonder that the courts of the last century did not reject the rule as barbarous, and, if they could not discover a princple of the common law which would justify them in allowing an action, that they did not borrow one from the law of Scotland."" A few judges did make this attempt,"^ but they were overruled by peals, 2 Keyes, 294, 303, 2 Abb. Dec. allowed by the civil law as under- 277 (1866). stood in Lower Canada; Ravary v. " Hyatt V. Adams, 16 Mich. 180, Grand Trunk Ry., 6 Lower Can. Jur. 189 (1867). 49 (1861); Can. Pac. Ry. v. Robin- "Osbom V. Gillett, L. R. 8 Ex. son, 14 Duval (Can. Sup. Ct), 105, 88, 42 L. J. Ex. 53 (1873). 117 (1887). "Pollock on Torts (6th Ed.), 63. "Bramwell, L. J., declared such ™ Hyatt V. Adams, 16 Mich. 180, a principle was found in the com- 192 (1867). nion law: "The general principle is "Cadell v. Black, 5 Raton's App. in the plaintiffs' favor, that injuria Cas. 567 (1812). A recovery was and damnuvi give a cause of action. 232 The Law of Torts. appellate tribunals or overwhelmed by the rising tide of opposing views.'^ The House of Lords in England,®' and the Supreme Court of the United States ^* carried the barbarous rule into admiralty jurisprudence. Perhaps, the rejection of the more humane and enlightened rule of Scotch jurisprudence was made by our courts with a lighter heart, because of the legislation which began with Lord Campbell's Act in England,"' giving a cause of action for wrongful death. Common Law Rule Modified by Statute. Lord Campbell's Act did not abolish the rule that a personal action dies with the per- son. It gave a totally new action against the person, who would have been responsible to the deceased had he lived.^° It is entitled, " An Act for compensating the families of persons killed by accidents," and declares that the action against the wrongdoer " shall be for the benefit of the wife, husband, parent (including grand-parent and step-parent) and child (including grand-child and step-child); ' that it shall be brought by the personal representative of the de- ceased ; that the jury may give such damages as they think the bene- It is for the defendant to show an exception to this rule when the in- juria causes death; " Osborn v. Gil- lett, L. R. 8 Ex. 88, 42 L. J. Ex. 53 (1873); Cross v. Guthery, 2 Root (Conn.), 90 (1794); Shields v. Younge, 15 Ga. 349, 60 Am. Dec. 698 (1854); James v. Christy, 18 Mo. 162 (1853); Ford v. Monroe, 20 Wend. (N. Y.) 210 (1838) ; Sullivan V. Union Pac. Ry., 3 Dillon (U. S. Cir. C), 335 (1874). In Hawaii, the attempt was successful; Kake V. Horton, 2 Hawaii, 209 (1860); Schooner Robert Lewers Co. t. Kekauoha, 114 Fed. 849 (1902). "^ Baker v. Bolton, 1 Camp. 493 (1808); Osborn v. Glllett, L. R. 8 Ex. 88, 42 L. J. Ex. 53 (1873); Goodsell V. Hart, etc., Ry., 33 Conn. 55 (1865); Carey v. Berkshire, etc., Ry., 1 Cush. (Mass.) 475 (1848); Hyatt V. Adams, 16 Mich. 180 (1867); Green v. Hudson R. Ry., 2 Keyes (N. Y.), 294 (1866); Insur- ance Co. V. Brame, 95 U. S. 754, 24 L. Ed. 580 (1877). ""Seward v. Vera Cruz, 10 App. Cas. 59 (1884). "The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358 (1886), overruling numerous decisions in the lower Federal courts, includ- ing: The Sea Gull, Chase's Deci- sions, 145; The Highland Light, Ibid. 150 (1867); Holmes v. Oregon, etc., Ry., 5 Fed. R. 75, 6 Sawyer, 262 (1880); The Columbia, 27 Fed. 704 (1886). " 9 & 10 Vict. c. 93. "Seward v. Vera Cruz, 10 App. Cas. 59 (1884). In this case, it is declared that the action will not lie, unless there is some person an- swering the description of the widow, parent or child, who suffers pecuniary loss. Discharge of Torts. 233 ficiaries have sustained by the death, and that the action shall be commenced within twelve calendar months after the death. Statutes fashioned after this Act have been passed in the District of Columbia and in most of our States and Territories. They differ in many respects, and no attempt will be made in this connection to deal with their provisions in detail. It must suffice, to state the most important principles which have been recognized by the courts in enforcing them. The Statutes Create a New Cause of Action. In this country, as in England, the legislation upon this topic has been con- strued by most courts as creating an entirely new cause of action,"' and not as transferring to the personal representative the right of action, which the deceased person would have had, if he had sur- vived the injury ; although the statutes of some states have been dif- ferently construed."* As the cause of action is thus purely statu- tory, the plaintiff is bound to show that he is the proper person to bring the action ; that at least one of the class named as beneficiaries is in existence and entitled to damages, and that the defendant comes within the class to whom the statute applies."' If there are no per- " Munroe v. Dredging Co., 84 Cal. statutes in this State. See Tiffany, 515, 24 Pac. 303, 18 Am. S. R. 248 Death by Wrongful Act, Chap. 2, (1890); Kansas Pac. Ry. v. Miller, for classification of different Ameri- 2 Colo. 442 (1874); Donaldson v. can statutes. Miss. Ry., 18 la. 280, 87 Am. Dec. °" Walker v. Vicksburg, etc., Ry., 391 (1865); McKay V. New England 110 La. 718, 34 So. 749 (1903); Dredging Co., 93 Me. 201, 43 At. 29 Wtooden v. Western N. Y. Ry., 126 (1899); Wooden v. Western N. Y. N. Y. 10, 26 N. E. 1050, 22 Am. S. R. Ry., 126 N. Y. 10, 26 N. E. 1050, 22 803, 13 L. R. A. 458 (1891); Myers Am. S. R. 803, 13 L. R. A. 458 v. Holborn, 58 N. J. L. 193, 33 At. (1891); Penn. Ry. v. Vandever, 36 389, 30 L. R. A. 345, 55 Am. S. R. Pa. 298 (1860); In re Estate of 606 (1895); Lewis v. Heulock's, ete,. Mayo, 60 S. C. 401, 38 S. E. 684, 54 Co., 203 Pa. 511, 53 At. 349, 93 Am. L. R. A. 660 (1901). S. R. 923 (1902); Lipscomb v. "Goodsell V. Hartford, etc., Ry., Houston, etc., Ry., 95 Tex. 5, 64 S. 33 Conn. 51 (1865); Hennessy v. W. 923, 93 Am. S. R. 804 (1901). Bavarian Brewing Co., 145 Mo. 104, The plaintiff must show that the 46 S. W. 966, 68 Am. S. R. 554, death was due to defendant's 41 L. R. A. 385 (1898); Legg v. wrongful act or omission, Ruther- Britton, 64 Vt. 652, 24 At. 1016 ford v. Foster, 125 Fed. 187, 60 C. C. (1890); Brown v. Chic, etc., Ry., A. 129 (1903); Nor. Pac. Ry. v. 102 Wis. 137, 77 N. W. 748, 44 L. Adams, 192 U. S. 440, 24 Sup. Ct. R. A. 579 (1899). Two classes of 408, 1904). 234 Th£ Law of Torts. sons in existence, who are entitled under the statute to take the pro- ceeds of the action as beneficiaries, the action will not lie,'" except in a few jurisdictions and under peculiar statutory provisions.'^ In case the sole beneficiary dies during the pendency of the action, the action will abate under some statutes,'- but not under others.'* The marriage of a widow, it has been held, does not affect the right of action in her behalf for the wrongful death of her former husband.'* Construction of the Statutes. While the courts are gener- ally agreed that the plaintiff must show, that the action which he brings is clearly authorized by the statute under which he claims, and, to this extent, insist upon a strict construction,'" the weight of authority favors the view that the " statutes are not penal but remed- ial, for the benefit of the persons injured by the death; that their substantial purpose is to do away with the obstacle to a recovery caused by the death." '" Damages Recoverable. Upon this topic the statutes are far from uniform. Most of them authorize the recovery of such dam- ages as will compensate the beneficiaries for the pecuniary harm which the evidence shows they have suffered," although a maximum is fixed beyond which the verdict shall not go. In some states, puni- tive damages are allowed.'* Generally, the fact that the statutory beneficiaries have received money on policies of insurance on the life of deceased, is inadmissible on the question of damages.'* Nor ™ Brown v. Chic, etc., Ry., 102 115 Wis. 332, 91 N. W. 979, 60 L. R. Wis. 137, 77 N. W. 748, 44 L. R. A. A. 589 (1902). 579 (1899); Webster V. Norwegian " Stewart v. Bal. & O. Ry., 168 U. Co., 137 Cal. 399, 70 Pac. 276, 92 Am. S. 445, 18 Sup. Ct. 106. 42 L. Ed. S. R. 181 (1902). 538 (1897); Vetaloro v. Perkins, "Florida Cent. Ry. v. Poxworth, 101 Fed. 393 (1900); Bonthron v. 41 Fla. 1, 25 So. 338, 79 Am. S. R. Phoenix Light Co., (Arizona), 71 149 (1899). Pac. 941, 61 L. R. A. 563 (1903). ^ Sanders' Admx. v. Louisville, " See Tiffany, Death by Wrongful etc., Ry., Ill Fed. 708, (1901). Act §§ 153-154, and authorities "Cooper V. Shore Elec. Co., 63 N. cited; McKay v. New England J. L. 558, 44 At. 633 (1899). But Dredging Co., 92 Me. 454, 43 At. 29 the death affects the quantum of (1899); May v. West Jersey Ry., 62 recovery, as his loss is limited to N. J. L. 63, 42 At. 163 (1899). his life-time. "See Hid, § 155; Louisville, etc., " Chic, etc., Ry. v. Lagerkraas, 65 Ry. v. Lansford, 102 Fed. 62 (1900). Neb. 566, 91 N. W. 358 (1902). "Sherlock v. Ailing, 44 Ind. 184 "McMillan v. Spider Lake Co., (1873); Althorf v. Wolfe, 22 N. Y. Discharge of Torts. 235 is the fact admissible that the beneficiaries have inherited a large estate from the deceased.^" Whether the plaintiff is entitled to recover nominal damages, in the absence of allegation and proof of special pecuniary harm, is a question upon which the courts are at variance. In England *^ and in some of our states *- a negative answer has been given. These authorities declare that " the law requires, in this class of cases, that the administrator must show that some -person has suffered some pecuniary injury by the death. The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear b\- the proper allegation in the declaration, and proof of fact." *' The weight of authority in this Country, however, appears to favor the view that pecuniary damage is presumed from the fact of death ; and that the plaintiff is entitled to nominal damages, even though he fails to allege and prove specific pecuniary harm.** Funeral expenses of the deceased are not recoverable under the Statute in England,*' but are generally in this country, if the law imposes upon any of the relatives, for whose benefit the suit is brought, the obligation to bear such expenses.** This is based upon the fact, that the sum, recoverable under the statutes, represents the entire pecuniary loss resulting from the death to each and all the persons mentioned in the statute. 355 (1860); Coulter v. Township, "Rouse v. Detroit Elec. Ry., 128 164 Pa. 543, 30 At. 490 (1894) ; Lips- Mich. 149, 87 N. W. 68 (1901). comb V. Houston, etc., Ry., 95 Tex. "North Chic. Street Ry. v. 5, 64 S. W. 923. 93 Am. S. R. 804, 55 Brodie, 156 111. 317, 40 N. E. 942 L. R. A. 869 (1901). (1895); Korrady v. Lake Shore, "Stabler v. Phila., etc.. Ry., 199 etc., Ry., 131 Ind. 261. 29 N. E. 1069 Pa. 383, 49 At. 273, 85 Am. S. R. 791 (1891); Chic, etc., Ry. v. Thomas, (1901). 155 Ind. 634, 55 N. E. 861 (1900); " Duckworth v. Johnson, 4 H. & Quinn v. Moore, 15 N. Y. 432 N. 653, 29 L. J. Ex. 25 (1859). (1857); Haug v. Great Nor. Ry., 8 ° Hurst V. Detroit City Ry., 84 N. Dak. 23, 77 N. W. 97, 42 L. R. A. Mich. 539, 48 N. W. 46 (1891); Or- 664, 73 Am S. R. 727 (1898); Peden gall V. Chic, etc., Ry., 46 Neb. 4, 64 v. Am. Bridge Co., 120 Fed. 523 N. W. 450 (1895); McGown v. In- (1903). ternational, etc.. Ry.. 85 Tex. 289, *> Dalton v. S. E. Ry.. 4 C. B. N. S. 20 S. W. 80 (1892); Regan v. Chic. 296, 27 L. J. C. P. 227 (1858). etc., Ry., 51 Wis. 599 (1881); In re "Owen v. Brockschmidt, 54 Mo. Calif. Nav. & Imp. Co., 110 Fed. 670 285 (1873) ; Murphy v. N. Y. C. Ry., (1901), a decision in admiralty. 88 N. Y. 445 (1882); Penn. Ry. Co. 2^6 The Law of Touts. Effect of Bankruptcy on Tort Actions. This depends upon whether the victim of the tort, or the tort-feasor becomes bankrupt. (a) If the bankruptcy is that of the victim, it does not operate as a bar to the tort action. In case the tort is a personal one, the bankrupt may bring or continue an action therefor, after bankruptcy, as he could before.'^ In case, however, the tort consists in an injury to property rights, as distinguished from a personal wrong, the right of action passes to the assignee or trustee in bankruptcy, and is to be prosecuted by him.'* (b) The bankruptcy of the tort-feasor, although followed by a decree or order of discharge, does not relieve him from liabilitv to an action therefor in England.*" In this country the language of the statute is not quite so sweeping on this topic. It is as follows: " A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (2) are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation; or (4) were created by his fraud embezzlement, misappropriation, or defalcation while acting as an officer or in fiduciary capacity." '" V. Bantonf, 54 Pa. 495 (1867); gan v. Steble L. R., 7 Q. B. 611, 41 Petrie v. Col., etc., Ry., 29 S. C. 303, L. J. Q. B. 260 (1872) ; Tiffany v. 7 S. B. 515 (1888). ' Boatman's Bank, 18 Wall. (U. S.) ''Howard v. Cruther, 8 M. & W. 375, 21 L. Ed. 868 (1873); Wheel- ed (1841). Action for seduction of ock v. Lee, 64 N. Y. 242 (1876); U. servant. On p. 604, Alderson B. S. Bankruptcy Act, 1898, § 70 (a) said: "Assignees can maintain no (b). action for libel, although the in- *■ Clerk & Lindsell on Torts, (2nd j 'ry occasioned thereby to the Ed.) 36; 46 and 47 Vict. ch. 52, § man's reputation may have been 37. the sole cause of his bankruptcy." ""U. S. Bankruptcy Act of 1898, In re Haensell, 91 Fed. 355 (1899), § 17, as amended 1903. For a dis- holding that a cause of action for cussion of this section see Collier a malicious prosecution and arrest on Bankruptcy (4th Ed.) 188-204. formed no part of the bankrupt vie- Audubon v. Shufeldt, 181 U. S. 575, tim's estate. Colwell v. Tinker, 169 21 Sup. Ct. R. 735; 45 L. Ed. 1009 N. Y. 536, 62 N. E. 668, 58 L. R. (1901); Dunbar v. Dunbar, 190 U. A. 531, 7 Am. B. R. 344 (1902). S. 340; 23 Sup. Ct. 757 (1903); "'Hodgson V. Sidney L. R., 1 Ex. Bryant v. Kinyon, 127 Mich. 152, 313, 35 L. J. Ex. 182 (1866) ; Mor- 86 N. W. 531, 53 L. R. A. 801 (1901). • Discharge of Torts. 237 Statute of Limitations. This statute provides that the various actions for torts shall not be be brought, after the expiration of vary- ing but definite periods. In England the statute °* divides tort actions into three classes, assigning to the first class a term of limitation of six years ; to the second class four years, and to the third class two years. These classes have been briefly described as follows : " Six years. Trespass to land and goods, conversion, and all other com- mon law wrongs (including libel), except slander by words action- able per se and injuries to the person. Four years. Injuries to the person (including imprisonment). Two Years. Slander by words actionable per sc." "- In this country, while legislation upon this topic has been fashioned upon the statute of James, the laws of each jurisdiction should be examined by the reader, for they differ in various respects. We can attempt, here, to deal only with the general principles underly- ing them. Exemptions from Statutory Bar. It is frequently provided that infants and other persons under legal disability, as well as per- sons absent from the State, shall be exempted from the running of the statute, during such period of disability or absence."'' At times, however, no such exemption is found in the statute, and it has been argued in behalf of the person under disability or absent, that he was entitled to exemption by reason of an inherent equity. But this argument has been pronounced unsound, and the rule declared that the exemptions, generally accorded to such persons, do not rest upon any general doctrine of the law that they cannot be subjected to the action of the statutes, but, in every instance, upon express lan- guage in those statutes giving them, after the expiration of disability or absence, a definite time to assert their rights.'* " And where the "Ch. 16, 21 James I, as amended (1901); Parker v. Kelly, 61 Wis. by ch. 3, 4 and 5 Anne, ch. 97, §12, 552 (1884). 19 and 20 Vict, and ch. 75, §1, 45 "Vance v. Vance, 108 U. S. 514, and 46 Vict 27 L. Ed. 808 (1882); Murray v. "= Pollock On Torts (6tli Ed.) 205. Chic, etc., Ry., 92 Fed. 868, 35 C. "McFarlane v. Grober, 70 Ark. C. A. 62 (1899); Garden v. Louls- 371, 69 S. W. 56, 91 Am. S. R. 84 ville, etc., Ry., 101 Ky. 113, 39 S. (1902): Jenkins v. Jensen, 24 Utah W. 1027 (1897); Bickle v. Chris- 108, 6fi Pac, 773, 91 Am. S. R. 783 man, 76 Va. C78 (1882); Jones v. Lemon, 26 W. Va. 629 (1885). 238 The Law of Torts. statute has created specific exceptions, all others must be deemed ex- cluded ; the courts are without authority to enlarge or change those specified, or establish others, though in particular cases the ends of justice might seem to be subserved, if it were done." °' As soon as the disability is removed, the statute begins to run, and the person has the statutory period thereafter within which to bring the action, although he is not precluded from suing, while the dis- ability lasts.*" If the statute of limitations once begins to run, how- ever, it does not cease to run on account of any subsequent disability, unless the statute expressly provides for interruption.*' Beginning of Statutory Period. The period of limitations dates from the accrual of the cause of action. Wherever the gist of the cause of action is the wrongdoing of the defendant, the date of the act is the beginning of the statutory period.** But where the damage to the victim, rather than the misconduct of the tort-feasor, is the gist of the action, the statute does not begin to run until the damage is suffered.** In case of seduction, the cause of action accrues at once, although the amount of recovery may be affected by subsequent events.^** In case of trespass to property, the right of action is com- " Powell V. Kohler, 52 Ohio St. (Person prevented from exercis- 103, 39 N. E. 195, 26 L. R. A. 480, ing his remedy by paramount au- 49 Am. S. R. 705 (1894) ; cf. Amy v. thority.) Watertown, 130 U. S. 320, 9 Sup. "Powell v. Kohler, supra and Ct. 537, 31 L. Ed. 953 (1888), for cases there cited, discussion of equity rule that the " Jenkins v. Jensen, 24 Utah 108, running of the statute is suspended 66 Pac. 773, 91 Am. S. R. 783 (1901). on the ground of fraud. In this "" Herreshoff v. Tripp, 15 R. I. 92, case it is said: " True, in a few in- 23 At. 104 (1885). stances, courts have apparently " Mitchell v. Darley Main Colliery made exceptions not found in the Co., 14 Q. B. D. 125; 53 L. J. Q. B. statute; but they are only such as 471 (1884) s. c, sub nam. Darley arise from a state of war, or other Main Colliery Co. v. Mitchell, 11 imperative necessity, as when App. Cas. 127, 55 L. J. Q. B. 529 courts are shut, or by the act of (1886); Lord Blackburn's dissent- law one party is forbidden to sue, ing opinion is worthy of a careful cr the other is rendered incapable perusal: St. Louis I. M. & S. Ry. v. of being sued." See Hangher v. Biggs, 52 Ark. 240, 12 S. W. 331, Abbott, 6 Wall. (U. S.) 532, 18 L. 20 Am. S. R.. 174, 6 L. R. A. 804 Ed. 939 (1867). (Courts in States (1889). in rebellion closed) ; St. Paul, etc., "» Hutcherson v. Burden, 113 Ga. Ry. V. Olson, 87 Minn. 117, 91 N. 987, 39 S. E. 495, 54 L. R. A. RTl W. 294, 94 Am. S. R. 693 (1902)'. (1901); Dunlap v. Linton, 144 Pa. Discharge of Torts. 239 plete, ordinarily, upon the doing of the act,"' but in the case of some forms of nuisance or other injury to property interests, there is no actionable wrong, until actual harm is done."- The cause of action against a physician or surgeon for mal-prac- tice accrues at the date of his unskillful act,'"' but if, after doing an improper act, he continues to care for the patient, and during such period continues the unskillful treatment, the statute does not begin to run until the termination of his employment.'"^ The cause of action for conversion accrues at the date of the wrongful asporta- tion.""' If a demand by the owner and refusal by the possessor are necessary to complete the conversion, of course the statute will not begin to run until such demand and refusal.'"" In other torts, a demand may be necessary before the cause of action accrues.'"" Conflict of Laws. As a rule, statutes of limitations constitute a part of the le.v fori. Whether the tort is one at common law or depends upon a statute of the jurisdiction where it is inflicted, if the action is brought in another jurisdiction, the statute of limitations ap- plicable to the case is that of the forum ; unless the local statute, which creates the right, also limits the duration of the right within a prescribed time.'"' 335, 22 At. 819 (1891). In Davis v. »°»Fadden v. Satterlee, 43 Fed. 568 Young, 90 Tenn. 303, 16 S. W. 473, (1890). it was held, that where the seduc- ""Gillette v. Tucker, 67 Ohio St. tion was effected by a fraudulent 106, 65 N. E. 865, 93 Am. S. R. 639 promise of marriage, and subse- (1902). But see dissenting opinion. quent acts of illicit intercourse were "" County Board of Education v. induced by continuation and renew- State Board of Education, 107 N. C. al of the promise, the statute be- 366, 12 S. E. 452 (1890). gan to run from thB last act of '"Haire v. Miller, 49 Ks. 270, 30 seduction. Pac. 482 (1892). '" St. Louis, etc., Ry. V. Anderson, ""In re Tidd: Tldd v. Overell, C2 Ark. 360, 35 S. W. 791 (1896). (1893) 3 Ch. 154; Quinn v. Gross, ""St. Louis, etc., Ry. v. Biggs, 52 24 Or. 147; 33 Pac. 535 (1893). Ark. 240 (1889); Sherlock v. Louis- ""Williams v. St. L., etc., Ry., 123 viUe, etc., Ry., 115 Ind. 22; 17 N. Mo. 573, 27 S. W. 387 (1894); E. 171 (1888). Minor's Conflict of Laws, §§ 202, 210. CHAPTER VII. PARTICULAR TORTS. § I. Oiu)ER OF Treatment. Having considered briefly the history of this branch of the law, and having discussed at length the general principles which deter- mine tort liability, as well as the remedies therefor, we proceed to the consideration of the most important classes of torts. These will be dealt with in the following order: First, torts which are directed principally against the person of the victim. Second, torts which are aimed at the property of the victim. Third, torts which are clear invasions of both the personal and property rights of another. § 2. False Imprisonment. Violates the Right of Personal Liberty; English law has always shown itself solicitous to guard the liberty of the individual. It, therefore, punishes false imprisonment as a crime, and gives to the person unlawfully imprisoned a civil action for damages. It is with the tort action only that we are now concerned. A person is said to be imprisoned " in any case where he is arrested by force and against his will, although it be on the high street or elsewhere, and not in a house." ^ What Constitutes Arrest. " Mere words will not constitute an arrest ; and if the officer says, ' I arrest you,' and the party runs away," ^ or having a weapon in his hand, keeps the officer from touch- ing him and so gets away.^" there is no arrest. If, however, the officer touches him, in the attempt to take him into custody, there is an 'Thorpe, C. J., in Year Book of ton v. Shultz, Harper Law (S. C.) Assisies f. 104. pi. 85 (1348). 452, 18 Am. Dec. 660 (1824). 'Russen v. Lucas, 1 C. & P. 153 » Genner v. Sparks, 1 Salk. 79, 6 (1824); Hill v. Taylor, 50 Mich. Mod. 173 (1704). 549, 15 N. W. 899 (1883); Hunting- 240 False Imprisonment. 241 arrest, though the officer may not succeed in stopping and holding him.* Neither touching a person, nor actually overpowering him by force is necessary to an arrest. If the officer, or one purporting to act as an officer gives another to understand either by words or acts that the latter is his prisoner, and the party acquiesces in the arrest and submits his will and surrenders his liberty to the officer, there is an imprisonment. One is not obliged to incur the risk of personal violence and insult by resisting.* It has even been held that one is imprisoned, while being shadowed by detectives, if it appears " he was in fact deprived of all freedom of action, and that whatever consent he gave to such restraint was an enforced consent." " How- ever, a person cannot be imprisoned, who is not cognizant of any re- straint,'' nor whose \#'ay is obstructed but who is at liberty to go anywhere else but over this particular way,' nor who is induced by false statements to go where he otherwise would not have gone," or to stay where he otherwise would not have remained,'" nor who voluntarily places himself in a situation where another may lawfully do what results in restraining his liberty. '^ •Whithead v. Keyes, 3 Allen, (85 Mass.) 495, 81 Am. Dec. 672 (1862); Anonymous, 7 Mod. 8 (1702). = Collins V. Fowler, 10 Al. 859 (1846); Courtoy v. Dozier, 20 Ga. 369 (1856); Simmons v. Richards, 171 Mass. 281, 50 N. E. 617 (1898); Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000 (1892); Pike v. Han- son, 9 N. H. 491 (1838); Browning V. Rittenhouse, 40 N. J. L. 230 (1878); Gold v. Bissel, 1 Wend. (N. Y.), 210, (1828); Mead v. Young, 2 Dev. & Batt. (19 N. C.) 521 (1837); McCracken v. Ansley, 4 Strob. L. (S. C.) 1 (1849); Smith v. State. 7 Humph. (Tenn.) 43 (1846); Soren- son T. Dundas, 50 Wis. 335 (1880); Wood V. Lane, 6 C. & P. 774 (1834) ; see note to Hawkins v, Comm. 14 a Mon. (Ky.) 395 (1854), in 61 Am. Dec. 151-164. ' Fotheringham v. Adams Ex. Co., 36 Fed. 252, 1 L. R. A. 474 (1888); 16 cf. Smith v. State, 7 Humph. (Tenn.) 43 (1846). •Herring v. Boyle, 1 C. M. & R. 377 (1834). = Bird V. Jones, 7 Q. B. 742, 15 h. J. Q. B. 82 (1845). See dissenting opinion of Lord Denman. The ma- jority opinion declares that impris- onment " includes the notion of re- straint within some limits defined by a will or power exterior to our own." " State V. Leunsford, 81 N. C. 528 (1879). Prosecutor voluntarily went with defendant as the result of a practical joke, induced by false statement. '" Payson v. Macomber, 3 Allen (85 Mass.) 69. Defendant induced plaintiff to go to Salem and stay there, so as not to be a witness\ against a third person, but no force or threat of force shown. 242 The Law of Torts. Imprisonment may be effected by one who is not an officer/' and who does not pretend to act in an official capacity. A person who is locked in a room and forced to stay there against his will,*' or who is kept in a building by threats of another to hurt him, if he ventures out, is imprisoned.** Unlawfulness of Imprisonment. Any imprisonment which is not legally justifiable is a false imprisonment, and subjects him who is responsible therefor, whether as principal or agent, to an action in tort for damages.*' The plaintiff in such action need not prove that the defendant acted maliciously or without probable cause, or with any wrongful intention, nor that actual harm of any sort was done to him.*' He makes out a prima facie case by showing the imprisonment, and it then devolves upon the defendant to prove that the imprisonment was lawful and that he was justified in what he did.*' Justification Under Legal Process. In a former chapter, it was shown that a ministerial officer is not liable in tort for en- forcing process fair on its face and issued by a court or magistrate of competent jurisdiction.*' Accordingly, if he arrests and im- prisons a person under such process, the victim cannot maintain an action for false imprisonment, althbugh he may be entitled to an action for malicious prosecution against someone else.*" If, however, "Moses V. DuBois, Dudley (S. (1877) ; Glazar v. Hubbard, 102 Ky. C. Law) 209 (1838); Spoor v. 68, 42 S. W. 1114, 80 Am. St. R. 340, Spooner, 12 Met. (53 Mass.) 281 39 L. R. A. 210 (1897). (1847). Defendant, in each case, "Floyd v. State, 12 Ark. 43, 54 carried plaintiff to sea, but the lat-- Am. Dec. 2S0; Mitchell v. State, 12 ter had ample opportunity to leave Ark. 50,' 54 Am. Dec. 253 (1851), befo)« the ship started. with note, pp.. 258-271; Jackson v. "Price V. Bailey, 66 111. 49 (1872); Knowlton,' 173 Mas.s. 94, 53 N. E. Hildebrand v. McCrum, 101 Ind. 61 134 (1899); Snead v. Bonnoil, 166 (1884)- N. Y. 325, 59 N. E. 899 (1901); "Woodward v. Washburn, 3 Den. Chase v. Ingalls, 97 Mass. 524 (N. Y.) 369 (1846). (1867). "McNay v. Stratton, 9 Bradw. « Supra, Chap. HI, O'Shaughnessy (111. App.) 215, 1881). V. Baxter, 121' Mass. 515 (1877); "Bergeron v. Peyton, 106 Wis. People v. Warren, 5 Hill (N. Y.) 377, 82 N. W. 291, 80 Am. St. R. 33 440 (1843). (1900). >»Ricli V. Mclnerny. 103 Ala. 345, "Rich V. Mclnerny, 103 Ala. 345, 15 So. 663, 49 Am. St. R. 32 (1893) 15 So. 663, 49 Am.. St. R. 32 (1893); Marks v. Townsend, 97 N. Y. 590 Comer v. Knowles, 17 Ks. 436 (1885) ; Tryon v. Pingree, 112 Mich. False Imprisonment. 243 the process is void it will protect no one who is responsible for its enforcement.-" Moreover, the protection of valid legal process may be lost by its abuse,^^ as when it is wrongfully employed to force the imprisoned person to pay a debt," or to pay illegal fees." In such cases, the one abusing the process is treated as though he were a trespasser ab initio. " When the law has given an authority," it is said, " it is reasonable that it should make void everything done by the abuse of that authority, and leave the abuser as if he had done everything without authority." ^* It is deemed to be against " sound public policy to permit a man to justify himself at all under a license or authority allowed him by law, after he has abused it, and used it for improper purposes. The presumption of law is, that he who thus abuses such authority, assumed the exercise of it in the first place for the purpose of abusing it." -' Process Under Unconstitutional Statute or Ordinance. An unconstitutional statute or ordinance is for all legar purposes, as if it had never been enacted.^* All proceedings under it, though nomi- nally conducted in a court of justice, are in truth coram non judice. Process issuing from legal tribunals in such circumstances is void, and should afford no defense, either to the parties setting the prO' ceedings in motion, or to the officers enforcing the process. Such 338, 70 N. W. 905, 37 U R. A. 222, Neimitz v. Conrad, 22 Or. 164, 29 a Am. St. R. 399 (1897), with note Pac. 548 (1892). pp. 408-427. -^ Wood v. Graves, 144 Mass. 365, ""Fkumoto V. Marsh, 130 Cal. 66, 11 N. E. 567, 59 Am. R. 365 (1887); 62 Pac. 303, 509, 80 Am. St. R. 73 Carelton v. Taylor, 50 Vt. 220 (1900); Clyma v. Kennedy, 64 (1877). Conn. 310, 29 At. 539, 42 Am. St. R. ^ Grainger v. Hill, 4 Bing. N. C. 194; Comm. v. Crotty, 10 Allen 212 (1838) ; Holley v. Mix, 3 Wend. (Mass.) 403 (1865); Wachsmith v. (N. Y.) 350, 20 Am. Dec. 702 Merch. Nat. Bk. 96 Mich. 427, 56 N. (1829); Baldwin v. Weed, 17 Wend. W. 9; 21 L. R. A. 278 (1893); West (N. Y.) 224, 234 (1837). V. Cabell, 153 U. S. 78; 14 Sup. Ct. =" Robbing v. Swift, 86 Me. 197, 29 752 (1894). For the distinction be- At. 981 (1894). •tv^en void process, irregular pro- "Allen v. Crofoot, 5 Wend. (N. cess and voidable process, see Y.) 506 (1830). Bryan v. Congdon, 86 Fed. 221 ; 57 ^' State v. Moore, 12 N. H. 42 U. S. App. 505. 29 C. C. A. C70 (1811). (1898); Everett v. Henderson, =' Cooley, Principles of Constilii- 146 Mass. 89, 14 N. E. 932, (1888); tional Law (1st Ed.) 155; Sumner v. Beeler, 50 Ind. 341 (1875). 244 The Law of Torts. is the holding in some jurisdictions.^' In others, however, it has been held that not only the judicial officers, who have sustained the constitutionality of the statutes or ordinances, are free from liability to tort actidns, as upon the principles, heretofore stated, they would be,-' but tmt ministerial officers, enforcing process in such cases, are also protected.-' • Even judicial officers are liable for false imprisonment, when they issue an order of arrest and procure its enforcement, without color of legal authority or jurisdiction.^" Arrest Without a Warrant — (a) By Peace Officers. In order to prevent the escape of criminals and to bring them to justice promptly, the law permits their arrest without a warrant. A per- son who is guilty of a breach of the peace, may be arrested by a peace officer, who is present, even though the latter is " the person ujwn whom the peace is broken." '* Generally speaking the arrest of one who has been guilty of a breach of the peace, is not justified after he has escaped from the place, or peace has been restored.'^ But so long as the conduct of the wrongdoer is such as to show that the public peace is likely to be endangered by his acts, his arrest with- out a warrant is justifiable.'" At common law, petty criminal offenders who are not guilty of a breach of the peace, are not subject to arrest without a warrant, =^Suiimer v. Beeler, 50 Ind. 341 122 (1829); Firestone v. Rice, 71 (1875); State v. Hunter, 106 N. C. Mich. 377, 38 N. W. 885 (1888); but 796, 11 S. E. 366, 8 L. R. A. 529 not in others, Oystead v. Shed, 12 (1890); Barling v. West, 29 Wis. Mass. 506, 511 (1815); Elder t. 307, 9 Am. R. 576 (1871); Campbell Morrison, 10 Wend. (N. Y.) 128 V. Sherman, 35 Wis. 103 (1874). (1833). » Supra, Chap. III. cf. Roth v. - Stephens v. Wilson, 115 Ky. 27, Shupp, 94 Md. 55, 50 At. 430 (1901). 72 S. W. 336 (1903). " Trammel v. Russellville, 34 Ark. » Anonymous Y. B. H. VII, f. 6, 105, 36 Am. R. 1 (1879); Brooks v. pi. 12 (1490). Mangan, 86 Mich. 576, 49 N. W. 633, = Regina v. Walker, Dearsley Cr. 24 Am. S. R. 137 (1891); Tillman Cas. 358 (1854); Wahl v. Walton, y. Beard, 121 Mich. 475. 80 N. W. 30 Minn. 506 (1883); Quinn t. Heis- 248 (1899). Persons, called upon el, 40 Mich. 576 (1879); State v. by an officer to assist him in en- L«wis, 50 Ohio St. 179, 33 N. E. forcing void process, and who do 405 (1893). assist in ignorance of the character ^Timothy v. Simpson, 1 C. M. & of the process, are protected in R. 757, 6 C. & P. 499, 5 Tyrr. 244 some states. Reed v. Rice, 2 J. J. (1835); Loggins v. Southern Ry., 64 Marshall (Ky.) 44; 19 Am. Dec. S. C. 321, 42 S. B. 163 (1902). False Imprisonment. H5 and a peace officer who so arrests them is Uable to an action for false imprisonment."* By statute, in some jurisdictions, a peace officer is authorized to arrest without a warrant for any crime or public offense committed or attempted in his presence. "° He is justified, at common law, in arresting, without a warrant, a person who has committed a felony, although not in his presence. The law goes even further and allows the officer " having reasonable ground to suspect that a felony has been committed, to detain the party suspected until inquiry can be made by the proper author- ities." "" In some states,"' legislature has limited the officer's author- ity in this respect to cases where a felony has in fact been com- mitted. At common law, even a peace officer is not justified in arresting without a warrant, upon suspicion of a misdemeanor,^* nor for a misdemeanor which was not committed in his presence.^" "Booth v. Hanley, 2 C. & P. 288 (1826), Plaintiff "was turning up to the wall for a particular occas- ion." Hardy v. Murphy, 1 Esp. 294 (1795), Plaintiff "was noisy in a public street," ■Wooding v. Oxley, 9 C. & P. 1 (1839). Plaintiff cried, " hear, hear," and asked questions of the speaker, in a public meeting: Palmer v. Maine C. Ry., 92 Me. 399. 42 At. 800, 44 L. R. A. 673, 69 Am. St. R. 513 (1899), Plaintiff charged with fraudulently evading the pay- ment of his fare; Boyleston v. Kerr, 2 Daly (N. Y.) 220 (1867), Plain- tiff fraudulently substituted a smaller check for the one first de- livered; Kurtz V. Moffit, 115 U. S. 487, 6 Sup. Ct. 148 (1885), A state peace officer has no right to arrest a deserter from the Federal army, as the latter's offence is a breach of the military law, not a felony or breach of the peace. Common law felony defined at p. 499. »Wahl V. Walton, 30 Minn. 506 (1883); New York Code of Crimi- nal Procedure, §177 (1); Claiborne V. Chesapeake & O. Ry., 46 W. Va. 363, 33 S. E. 262 (1899), Plaintiff carried on his person an open knife, a bottle of whiskey and a razor — " a deadly combination," in the opinion of the court, as well as a public offense under a statute. ""Beckwith v. Philby, 6 B. & C. 635 (1827); Samuel v. Payne, 1 Doug. 359 (1780) ; Miles v. Weston, 60 111. 361 (1871); Doering v. State, 49 Ind. 56, 19 Am. R. 669, (1874); Burke v. Bell, 36 Me. 317 (1853); Palmer v. Maine C. Ry., 92 Me. 399, 42 At. 800. 44 L. R. A. 673, 69 Am. S. R. 513 (1899); State v. Grant, 76 Mo. 236 (1882); Burns v. Erben, 40 N. Y. 463 (1869) ; Neal v. Joyner. 89 N. C. 287 (1883); McCarthy v. De Armit. 99 Pa. 63 (1881). " See New York Code of Crim. Proc, § 177 (3>. "Palmer v. Maine Cen. Ry., 92 Me. 399. 42 At. 800. 44 L. R. A. 673. 69 Am. S. R. 513 (1899); Comm. v. Carey. 12 Cush. (Mass.) 246 246 The Law of Torts. (b) Arrest by a Private Person. The common lav authorizes a private person to arrest without a warrant one who is breaking the peace in his presence, or whose conduct shows that the peace is likely to be broken by him.^" Some modern statutes au- thorize such arrest for an\ crime committed or attempted in tlij presence of the one making the arrest.*' He is also justified in ar- resting without a warrant one who, he has probable cause to believe, has committed a felony.*- His position differs from that of a peace officer, in that he is liable for false imprisonment, if no felony has been committed, though he had probable cause to believe it had been cohimitted.*' His justification has been narrowed still more in some states, and his right to arrest without warrant for offenses not committed or attempted in his presence, has been limited to persons who have actually committed a felony.** Reasonable and Probable Cause. It has been said by eminent judges,*^ that whether probable cause exists for believing a felony to have been committed, or that the person arrested committed it, is a question of fact for the jury. In England, however, it is well (1853); Comm. v. McLaughlin, 12 Cush. (Mass.) 615 (1853); Ross v. Leggett, 61 Mich. 445, 28 N. W. 695 (1886); Danovan v. Jones, 36 N. H. 246 (1858) ; Thomas v. Turck, 94 N. Y. 90 (1883) ; Snead v. Bonnoil, 166 N. T. 245, 59 N. E. 899 (1901); San Antonio, etc., Ry. v. Griffin, 29 Tex. Civ. App. 91, 48 S. E. 542 (1898). ""Gaillard v. Laxton. 2 B. & S. 363, 31 L. J. M. C. 123 (1862). In this case the officer did not have the warrant with him, when mak- ing the arrest, and was held liable lor false mprtsonment: McCul- lough v. Greenfield, 133 Mich. 4631, 95 N. W. 532 (1903). Plaintiff was arrested by a deputy sheriff at one place, under the direction of defend- ant who had the warrant with him, at another place: held a false im- prisonment. "Timothy v. Simpson, 1 C. M. & R. 757, 6 C. & P. 499, 5 Tyr. 244 (1835); Palmer v. Maine C. Ry. 92 Me. 399 (1899). "New York Code of Cr. Proc. § 183 (1). "Handcock v. Baker, 2 Bos. & P. 260 (1800). "It is lawful for a private person to do anything to prevent the perpetration of a fel- ony." " Samuel v. Payne, 1 Doug. 359 (1780); Gamier v. Squiers, 62 Ks. 321; 62 Pac. 1005 (1900); Begley v. Comm. (Ky.) 60 S. W. 847 (1901); Phillips V. Trull, 11 Johns. (N. Y.) 486 (1814); Burns v. Erben, 40 N. Y. 463 (1869); Alabama, etc., Ry. v. Kuhn, 78 Miss. 114, 28 So. 797 (1900). "New York Code of Cr. Proc. 5 183 (2). "Lord Tenterden in Beckwith v. Phllby, 6 B. & C. 635 (1827); Grav J.' in Snead v. Bonnoil, 166 N. Y. 245, 59 N. E. 899 (1901). False Imprisonment. 247 settled that this is a question for the court;*' and the weight of authority in this country is to the same effect.*^ Probable cause has been defined as " a state of facts actually existing, known to the pros- ecutor personally or by information derived from others, which would lead a reasonable man of ordinary caution, acting conscien- tiously upon these facts, to believe a person giulty of an offense justifying his arrest." ** While these facts are to be considered from the standpoint of the person making the arrest, and not from that of the arrested one,*^ the burden is on the former to show that he had reasonable and probable cause for his belief. "^ Unreasonable Detention of a Person Arrested. An officer arresting a person with or without a warrant, or a private individual arresting without a warrant, is not allowed to imprison the suspected criminal indefinitely. Where the arrest is made without a warrant, it is the duty of the one arresting to take the other party before a magistrate, without unnecessary delay, in order that a judicial ex- amination may be had, for the purpose of determining whether a warrant shall issue, or the prisoner be discharged.'* " The value of personal liberty is too great, to permit the detention of a suspected fugitive, upon the judgment of a ministerial officer and without a hearing judicial in its character." °- Even where the arrest is made under a warrant, the officer must take the prisoner, without any "Broughton v. Jackson, 18 Q. B. "Wright v. Court, 4 B. & C. 596, 378, 21 L. J. Q. B. 266 (1852) ; Lister 6 D. & R. 623 (1825) ; Hall v. Booth, V. Ferryman, L. R. 4 H. L. 521, 39 3 N. & M. 316 (1834); Marsh v. L. J. Ex. 177 (1870). Wise, 2 F. & P. 51 (1860); Lavina "Filer v. Smith, 96 Mich. 347, 55 v. State, 63 Ga. 513 (1879); Harness N. W. 999 (1893); Burns v. Erben, v. Steele, 159 Ind. 286. 64 N. E. 875 40 N. Y. 463 (1869); McCarthy v. (1902); Brock v. Stimson, 108 Mass. De Armit, 99 Pa. 63 (1881); Wolf 520, 11 Am. R. 390 (1871); Twilley V. Ferryman, 82 Tex. 112, 17 S. W. v. Perkins, 77 Md. 252, 26 At. 286, 772 (1891); Vinal v. Core, 18 W. Va. 39 Am. St. R. 408, 19 L. R. A. 632 2(1881). (1893); Llnnen v. Banfleld, 114 "Claiborne v. Ches. & O. Ry., 46 Mich. 93, 72 N. W. 1 (1897); Green W. Va.. 363, 33 S. E. 262 (1899). cf. v. Kennedy, 48 N. Y. 653 (1871); Rich V. Mclnerny, 103 Ala. 345, 15 Leger v. Warren, 62 Ohio St. 500, So. 663, 49 Am. St. R. 32 (1894). 57 N. E. 506, 78 Am. St. R. 738 "Brady v. Stiltner, 40 W. Va. 289, (1900). 21 S. E. 729 (1895); cf. McCarthy '" Simmons v. Van Dyke, 138 Ind. V. De Armit, 99 Pa. 63 (1881). 380, 37 N. E. 973, 26 L. R. A. 33, "Jackson v. Knowlton, 173 Mass. 46 Am. S. R. 411 (1894). 97, 53 N. E. 134 (1899). 248 The Law of Torts. unnecessary delay, before the magistrate issuing it, in order that the party may have a speedy examination, if he desires it.'* When any considerable delay ensues, the burden is upon the officer to show that it was reasonably necessary."* Detentions which are not False Imprisonments. The most frequent examples of this class are the temporary detention of pupils as a matter of lawful school discipline,*" and acts done in behalf of those who are incompetent to take care of themselves, by reason of physical injury,'* or sudden sickness, or drunkenness, or insanity." The right to restrain the liberty of an insane person, in the absence of a statute,'*" however, depends upon the character of the insanity. If he is harmlessly insane he may not be interfered with : but if his lunacy makes him dangerous to himself or others, he may be con- fined,'" although such restraint ought to be followed by judicial pro- ceedings in which a proper order or judgment for confinement may be obtained. § 3. MALiciors Prosecution. The Nature of this Tort. Blackstone treats it as a species of defamation. His statement is : " .\ third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him, which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity."*" The gist of these actions for malicious prosecution is '"Simmons v. "Van Dyke supra; =' Porter v. Ritch, 70 Conn. 235, 39 Anderson v. Beck, 64 Miss. 113 At. 169, 39 L. R. A. 353 (1898); (1886) ; Francisco v. State, 24 N. J. Colby v. Jackson, 12 N. H. 526 I.,. 30 (1853). (1842). "Tubbs V. Tukey, 3 Cush (57 =«See Washer v. Slater, 67 App. Mass.) 438, 50 Am. Dec. 744 (1849); Div. 385, 73 N. Y. Supp. 425 (1901), Wiltse V. Holt, 95 Ind. 469 (1884). construing New York Insanity Law, The delay was caused by the arrest- Ch. 545 L. 1896. ed person's drunkenness: Kent v. ''Porter v. Ritch, 70 Conn. 235; Miles, 65 Vt. 582, 27 At. 194 (1893). Matter of Oakes, 8 L. Reporter The delay was due to the fact that (Mass.) 122 (1845); Look v. Dean, the court, to which the warrant 108 Mass. 116, 11 Am. R. 323 was returnable, was not in session. (1871); Van Deusen v. Newcomer, ==Fertich t. Michener, 111 Ind. 40 Mich. 90 (1879); Wheal v. W. R., 473, 485, 60 Am. R. 709 (1887). Y. B. 22 Ed. IV, f. 45, pi. 10 (1483). *■ die V. Pittsburg, etc., Ry., 201 " Blackstone's Commentiu-ies, Vol. Pa. 361, 50 At. 1011 (1902). Ill p. 126. Malicious Prosecution. 249 generally acknowledged to be an invasion of the personal rights of the plaintiff, rather than an injury to his property interests ; "^ and in most cases, complaint is not made of injury to reputation, but rather of the invasion of one's right of personal liberty. Indeed, it often happens that the plaintiff has his option of suing either for false imprisonment or for malicious prosecution."- If, however, his arrest was made under process valid in form and issued by a competent court upon sufficient complaint, he cannot sue for false imprisonment. His action, if any, is for malicious prosecu- tion."'' The Essential Elements of the Tort. A person, who brings his action for this wrong, must prove four things : first, that the prosecution complained of has terminated in his favor : second, that it was instituted maliciously : third, that it was brought without prob- able cause, and, fourth, that it caused him damage. If he fails to prove either of these propositions he fails in his suit. Termination in His Favor. The reason for this requirement, given in one of the earliest cases,"* and repeated in later decisions,"' is that " it cannot be known until the action is terminated that it was unjust." It has also been declared that if this requirement did not exist " almost every case would have to be tried over again upon its merits." "" Whether a prosecution has been terminated is not a difficult ques- tion ordinarily. The true test to be applied is : has the particular " Lawrence v. Martin, 22 Cal. 174 Mass. 102, 54 N. E. 494 (1899); (1863); Francis v. Burnett, 84 Ky. Marks v. Townsend, 97 N. Y. 590 23, 35 (1886); Nettleton v. Dine- (1885). hart, 5 Cush. (59 Mass.) 543 "Year Book 2 Rich. Ill, PI. 9 (1850); Porter v. Mack, 50 W. Va. (1484). 581, 40 S. E. 459 (1901); Noonan "Wateref v. Freeman, Hob. 267 V. Orton, 34 Wis. 259, 17 Am. R. 441 (1620) ; Smith v. Cranshaw, W. (1874). "The personal Injury is Jones 93 (1625) ; Parker v. Langley, the gravamen of the action, and 10 Mod. 210 (1714); Fisher v. Brls- the effect of the alleged malicious tow, 1 Doug. 215 (1779). acts of the defendant upon the es- "Basebe v. Matthews, L. R. 2 C. tate of the plaintiff is incidental P. 684, 36 L. J. M. C. 93 (1867); merely." Frisbie v. Morris, 75 Conn. 637, 55 "Apgar V. Woolston, 43 N. J. L. \t. 9 (1903); Quinn v. Rice, 154 57 (1881). Mass. 1, 27 N. B. 772, 12 L. R. A. " Whitten V. Bennett, 86 Fed. 405 288 (1891); Douglas v. Allen, 56 (1898); Black v. Buckingham, 174 Ohio St. 156, 46 N. E. 707 (1897). 250 The Law of Torts. prosecution been " disposed of in such a manner that it cannot be revived, and the prosecutor, if he intends to proceed further, must institute proceedings de novo- " "' It is not necessary that the pros- ecution be concluded by a trial upon the merits, although this has been declared essential by an eminent judge.** Accordingly " a crim- inal prosecution may be said to have terminated: (i) Where there is a verdict of not guilty ; (2) where the grand-jury ignore the bill ; (3) where a nolle prosequi is entered, and (4) where the accused has been discharged from bail and imprisonment." '"' If the prose- cution be one, in which the victim has no opportunity to contest the complaint and obtain a decision, the rule requiring a termination in his favor does not apply.'" A voluntary abandonment of the origfinal prosecution, with its formal dismissal on that account, is a termina- tion thereof in the victim's favor ; but if its dismissal is due to a com- promise, the action cannot be said to have terminated in his favor. This is upon the ground that "' the termination must be such as to furnish prima facie evidence that the action was without founda- tion." Where there is a compromise, the termination does not furn- ish evidence that the prosecution was improperly instituted, but indicates that the one prosecuted is in the position of admitting that his antagonist had probably cause for his proceeding." "Apgar V. Woolston, 43 N. J. L. Bump v. Belts, 19 Wend. 421 57, 66 (1881). (1838). In the first two cases, the ** Shaw, C. J., in Parker v. Farley, malicious proceeding was an ex 10 Cush. (64 Mass.) 279 (1852). parte application for arrest of the This view has been modified by plaintiff, and an order that he give later cases in that state: cf. Graves sureties to keep the peace. In the V. Dawson, 133 Mass. 419 (1882). last, there was a malicious attach- "^ Lowe V. Wartman, 47 N. J. L. ment of property, with no oppor- 413, 1 At. 489 (1885); Brown v. tunity to defend. Randall, 36 Conn. 56, 4 Am. R. 35 '> Wilkinson v. Howell Moo. & (1869); Hatch v. Cohen, 84 N. C. Mai. 495 (1830); Marks v. Gray, 42 602, 37 Am. R. 630 (1881); Doug- Me. 86 (1856); Sartwell v. Parker, las v. Allen, 56 Ohio St 156, 46 N. 141 Mass. 405, 5 N. E. 807 (1886); E. 707 (1897) ; Drlggs v. Burton, Rachelman v. Skinner, 46 Minn. 196, 44 Vt. 124 (1871); Rider v. Kite, 48 N. W. 776 (1891); McCormick v. 61 N. J. L. 8, 38 At. 754 (1897); Sisson, 7 Cow. 715 (1827); Mayer Craig V. Ginn, 3 Penne. (Del.) 117; v. Walter, 64 Pa. 283 (1870); Ruf 48 At. 192, 94 Am. St. R. 77 (1901). sell v. Morgan, 24 R. I. 134, 52 At. '"Steward v. Gromett, 7 C. B. N. 809 (1902); Craig v. Ginn, 3 Penne. S. 191, 29 U J. C. P. 170 (1859); (Del.) 117. 48 At. 192, 94 Am. St. Hyde v. Greuch, 62 Md. 577 (1884); R. 77 (1901). Malicious Phosecution. 251 Malice. This term in its present connection, means something inore than " the intentional doing of a wrongful act to the injury of another, without justification or legal excuse therefor." '- It means malice in fact, as distinguished from malice in law. It means that the conduct of the original prosecutor was actuated by some ■' improper or sinister motive ;" '' that he instituted the prosecution not " with the mere intention of carrying the law into eflfect, but with an intention which was wrongful in point of fact," '* that he did this ■■ from an indirect and improper motive, and not in further- ance of justice." '"' On the other hand, the term is not to be understood in its popular signification. The plaintiff is not bound to show that the defendant acted from motives of resentment, or ill-will or hatred towards him.'° He establishes malice by showing that the defendant pro- cured the warrant to be issued by making an intentionally false affi- davit ; " or that, having the opportunity of discovering the facts, he failed to take advantage of it, and recklessly or with culpable negli- gence instituted the prosecution.'' Express evidence of malice need not be given. It may be established by circumstantial evidence, and is generally proved in this wa}-. It may be inferred by the jury from a want of probable cause. But its " existence is always a ques- tion exclusively for the jury," '" although when the plaintiff's evi- "Ahrens & Ott. Mfg. Co. v. Hoe- (1872); S. C. 65 N. Y. 385, 22 Am. her, 106 Ky. 692; 51 S. W. 194 R. 635 (1875). (1899); Vanderbilt v. Mathis, 5 "Hamilton v. Smith, 39 Mich. Duer (N. Y.) 559 (1856). 222 (1878); Stubbs v. Mullholland, '^ Stewart v. Sonneborn, 98 V. S. 168 Mo. 47, 67 S. W. 650 (1902). 187, 25 L. Ed. 116 (1878). "Stewart v. Sonneborn, 98 U. S. "Abrath v. North E. Ry., 11 Q. B. 187 (1878); Wheeler v. Nesbit, 24 D. 440, 448-9, 52 L. J. Q. B. 620 How. (U. S.) 545 (1860); Johnson (1883). V. Eberts, 11 Fed. 129 (1880); Luns- "Ibld, p. 455. ford v. Dietrich, 93 Ala. 565, 9 So. "■Mitchell V. Jenkins, 5 B. & A. 308, 30 Am. St. R. 79 (1890); Boze- 588. 15 L. J. Q. B. 221 (1833); Pul- man v. Shaw, 37 Ark. 160 (1881); len V. Glidden, 66 Me. 202 (1877); Harkrader v. Moore, 44 Cal. 144 Wiggin V. (joffln. 3 Story 1, Fed. (1872); Porter v. White, 5 Mackey Cas. No. 17, 204 (1836). (16 Dis. Col.) 180 (1886); Harp- " Collins V. Love, 7 Blackf. (Ind.) ham v. Whitney, 77 111. 32 (1875); 416 (1845); Navarino v. Dudrap, 66 Newell v. Downs, 8 Blackf. (Ind.) N. J. L. 620, 50 At. 353 (1901); 523 (1847); Parker v. Parker, 102 Dennis v. Ryan, 63 Barb. 145 la. 500, 71 N. W. 421 (1897) ; Atchi- 252 The Law of Torts. dence fails to make a prima facie case of malice, the court should non-suit him.'" Probable Cause. This term has been defined as " such a state of facts aed circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe that the person accused is guilty," "^ or, if the prosecution is a civil suit, to believe " that he had a cause of action " *- against the one whom he prosecutes. Some courts have declared that the facts and circum- stances should be such as would convince a " cautious " man that there was good ground for the prosecution ; *' but the weight of authority is in favor of the statement contained in the definition quoted above.** While the law tends to discourage unreasonable invasions of personal rights, it has regard also for the public wel- fare and for the interests of those who have been wronged. If the test of probable cause is made too strict and severe, persons will be discouraged from setting the wheels of justice in motion.^^ The question of probable cause is one for the court and not for the jury.** Only by reserving it for the court, can anything like cer- son Co. V. Watson, 37 Ks. 773, "^ Munns v. Dupont, 3 Wash. C. C. (1887); Medcalfe v. Brooklyn Co. 31, Fed. Cas. No. 9,926 (1811); 45 Md. 198 (1876); Greenwade v. Rlchey v. McBean, 16 111. 63 (1855); Mills, 31 Miss. 464 (1856); Johnson Cole v. Curtis. 16 Minn. 181 (1870); V. Chambers, 10 Iredell (32 N. C.) Ash v. Marlow, 20 O. 119 (1853). 287 (1849); Gee v. Culver, 12 Or. "Flam v. Lee, 116 la. 289, 90 N. 228, 11 Pac. 302 (1885); Cooper v. W. 70 (1902); Bank of Miller v. Hart, 147 Pa. 595, 23 At. 833 Richmon, 64 Neb. Ill, 89 N. W. (1892); Caldwell v. Bennett, 22 S. 627 (1902); McClaflerty v. Philp, C. 1 (1884); Evans v. Thompson, 151 Pa. 86, 24 At 1042 (1892); Eg- 12 Heisk. (Tenn.) 534 (1873); gett v. Allen, 106 Wis. 633, 82 N. Barron V. Mason. 31 Vt. 189 (1858); W. 556, (1900). Forbes v. Hagman, 75 Va. 168 «= Allen v. Flood (1898), A. C. 1. (1881). 125, 172, 67 L. J. Q. B. 119, 185, 209; "■ Lauterbach v. Netzo, 111 Wis. Munns v. Dupont, 3 Wash. C. C. 31, 326, 87 N. W. 230 (1901). Fed. Cas. No. 9,926 (1811). " Heyne v. Blair, 62 N. Y. 19, 22 " Ahrens, etc.. Co. v. Hoeher, 106 (1875); Bacon v. Towne, 4 Cush. Ky. 692, 51 S. W. 194 (1899); Bank (58 Mass.) 217 (1849); Kansas, etc., of Miller v. Richmon, 64 Neb. Ill, Co. V. Galloway, 71 Ark. 351, 74 S. gg n. W. 627 (1902); Jones v. Wil- W. 521 (1903). mington, etc., Ry., 125 N. C. 227, "Ravenga v. Mackintosh, 2 B. & 34 S E 398 (1899) C. 693 (1824). Malicious Prosecution. 253 tainty as to what constitute probable cause be obtained. Of course, if the evidence is conflicting, or, if different inferences may be drawn by reasonable men from uncontradicted evidence, the jury are to determine the facts, or to state their inferences.'^ Success or Failure of Original Prosecution. If the termi- nation of the original prosecution was in favor of the prosecutor, and the decision has not been reversed, it furnishes conclusive proof of probable cause for the prosecution.^* When it has been reversed for legal error, but it is not shown to have been procured by fraud or other unlawful means, the weight of authority is in favor of treat- ing it as still conclusive on the question of probable cause.*" Indeed, a few courts refuse to inquire, in the suit for malicious prosecution, how the termination of the original proceeding was secured, if it was adverse to the present plaintiff."" On the other hand, it has been declared that the true principle to be applied is this : " A conviction is always prima facie evidence of the existence of probable cause ; but this is a rule of evidence, founded upon the fact that, ordinarily, if a court has proceeded to conviction, it must have had before it such evidence as in the mind of a prudent and reasonable man would convince him of the guilt of the accused ; and, therefore, a subse- quent reversal, while it may show that the accused was in fact in- nocent, does not show that there was no probable cause for believing him guiltv. Where, however, the conviction is under such circum- stances as to deprive it of such naturally evidentiary effect, this pre- sumption ceases." ^^ " Wlggin V. Coffin, 3 Story, 1, Fed. (1890); Morrow v. Wheeler, etc., Cas. No. 17,264 (1836); Holllday v. Co., 165 Mass. 349, 43 N. E. 105 Holliday, 123 Cal. 26, 55 Pac. 703 (1896); Cloon v. Gerry, 13 Gray (79 (1888); Johnson v. Miller, 63 la. Mass.), 201 (1859); Grlffls v. Sel- 529, 50 Am. R. 758 (1884). lars, 2 Dev. & B. L. (19 N. C.) 492, »» Hartshorn v. Smith, 104 Ga. 31 Am. Dec. 422 (1837). 235, 30 S. E. 666 (1898); Foster v. ■" Clements v. Odorless & Co., 67 Orr, 17 Or. 447, 21 Pac. 440 (1889); Md. 461, 10 At. 442, 1 Am. S. R Swepson v. Davis, 109 Tenn. 99, 70 409 (1887) ; Parker v. Huntington, S. W. 65, 59 L. R. A. 501 (1902). 7 Gray (73 Mass.), 36, 66 Am. Dec, "Crescent City Co. v. Butchers' 455 (1856); Griffis v. Sellars, 4 Dev. Union, 120 U. S. 141, 7 Sup. Ct. 472, & B. L. (20 N. C.) 177 (1838) ; Her- 30 L Ed. 614 (1886); Holliday v. man v. Brookerhoff, 8 Watts (Pa.) Holliday, 123 Cal. 26, 55 Pac. 703 240 (1839). In GriflSa v. Sellars il (1898) ; Adams v. Bicknell, 126 Ind. is said, that were the rule other 210, 25 N. B. 804, 22 Am. S. R. 576 wise, " the result would be Intermi 254 The Law of Tprts. The failure of the original prosecution is not conclusive evidence of a want of probable cause. Whether the prosecutor had such cause does not turn upon the actual guilt of the accused, or the state of the case, but upon the honest and reasonable belief of the prosecu- tor.'" In most jurisdictions, the failure of the prosecution, while a fact which the plaintiff must establish in order to make out his case, is not evidence tending to show the want of probable cause." In other jurisdictions, it is deemed evidence of a want of probable cause, but does not shift the burden of proof to the defendant."* In still others, it is held to make out a prima facie case, and casts upon the defendant the burden of showing that he had probable cause.*' The holding of an accused person by a committing magistrate, as well as the finding of an indictment by a grand-jury, is generally accounted evidence of probable cause ; *" and his discharge upon a preliminary examination, is treated by some courts as evidence of a want of probable cause.®" Advice of Counsel as Evidence of Probable Cause. " Nothing is better settled," an eminent court has declared, " than that when the prosecutor submits the facts to his attorney, who advises they are sufficient, and he acts thereon in good faith, such advice is a defense to an action for malicious prosecution.'' °' Not- nable litigation between the par- land v. Lyons, 96 Tex. 255, 72 S. ties, alternately changing sides." W. 56 (1903); Cullen v. Hanisch, "Nehr v. Dobbs, 47 Neb. 863, 869, 114 Wis. 24, 89 N. W. 900 (1902). 66 N. W. 864 (1891). "Rankin v. Crane, 104 Mich. 6, "Foshay v. Ferguson, 2 Den. (N. 61 N. W. 1007 (1895); Noblett v. Y.) 617 (1846). Bartsch, 31 Wash. 24, 71 Pac. 551 "Stewart v. Sonneborn, 98 U. S. (1903); Venal v. Core, 18 W. Va. 1 187, 25 L. Ed. 116 (1878); Thomp- (1881). son V. Rubber Co., 56 Conn. 493, 16 "Barhight v. Tammany, 158 Pa. At. 554 (1888) ; Anderson v. Friend, 545, 28 At. 135, 38 Am. S. R. 853 85 111. 1-35 (1877); Philpot v. Lucas, (1893). 101 la. 478, 70 N. W. 625 (1897); ""Ross v. Hixon, 46 Ks. 550, 26 Stone V. Crocker, 24 Pick. (41 Pac. 955, 26 Am. S. R. 123 (1891), Mass.) 81 (1832); Boeger v. Lan- with valuable note; Perkins v. genberg, 97 Mo. 390, 11 S. W. 223, Spaulding, 182 Mass. 218, 65 N. E. 10 Am. S. R. 322 (1888); Apgar v. 72 (1903). Woolston, 43 N. J. L. 57 (1881); "^ Stemper v. Raymond, 38 Or. 16. Willard v. Holmes, 142 N. Y. 492, 62 Pac. 20 (1900). 37 N. E. 480 (1894); Eastman v. " MeClaferty v. Philp, 151 Pa. 86, Monastes, 32 Or. 291. 51 Pac. 1095, 24 At. 1042 (1892), accord.; Stew- 67 Am. St. R. 531 (1898); Bekke- art v. Sonneborn, 98 U. S. 187, 25 Malicious Prosfxution. 255 withstanding this unquaHfied declaration, several courts of equal eminence have held that the advice of a duly qualified attorney, based upon an unfounded or clearly erroneous opinion of the rule of law involved, does not constitute a defense.'* " Probable cause," say these courts, " may be founded on misinformation as to the facts, but not as to the law." "" This view seems indefensible. Undoubtedly, the blunder of counsel may be so gross as to show bad faith on his part ; ^"^ but, to quote the language of a distinguished judge : " though every man being bound to know the law, is answerable for the legal consequences of his acts, the imputation of a motive which had no existence in fact is not one of them." ^''- In order that the advice of counsel may establish the existence of probable cause and thus constitute a defense, the defendant must show that he made a full and honest disclosure of all the material facts within his knowledge and belief.^"^ He cannot screen himself behind expert legal advice based upon a fragmentary statement of facts, nor upon sp-ch advice, when, notwithstanding it has been given, he does not believe that his claim or charge is well-founded.^"* The defendant is bound to show, too, that the person giving the advice was a reasonably competent lawyer of good reputation.^"" L. Ed. 116 (1878); Marks v. Hast- '"Marks v. Hastings, 101 Ala. 165, ings, 101 Ala. 165, 173, 13 So. 297 13 So. 297 (1892); Kansas, etc., Co. (1892); Kansas, etc., Co. v. Gallo- v. Galloway, 71 Ark. 351, 74 S. W. way, 71 Ark. 351, 74 S. W. 521 521 (1903); Vann v. McCreary, 77 (1903); Black v. Buckingham, 174 Cal. 434, 19 Pac. 826 (1888); John- Mass. 102, 54 N. E. 494 (1899). son v. Miller, 82 la. 693, 47 N. W. "i.ange v. 111. Gen. Ry., 107 La. 903 (1891); Roy v. Goings, 112 111. 687, 31 So. 1003 (1902); Nehr v. 656 (1886); Lange v. 111. Cent. Ry., Dobbs, 47 Neb. 863, 66 N. W. 864 107 La. 687, 31 So. 1003 (1902); (1896); Hazzard v. Fluny, 120 N. Barhight v. Tammany, 158 Pa. 545, Y. 223, 24 N. E. 194 (1890); Mor- 28 At. 135 (1893); Jackson v. Bell, gan V. Duffy, 94 Tenn. 686, 30 S. W. 5 S. D. 257, 58 N. W. 671 (1894) ; 735 (1845); Mauldin v. Ball, 104 Stubbs v. Mulholland, 168 Mo. 47, Tenn. 597, 58 S. W. 248 (1900). 67 S. W. 651 (1902); Mauldin v. '"■ Hazzard v. Fluny, 120 N. Y. 223, Ball, 104 Tenn. 597, 58 S. W. 248 227, 24 N. E. 194 (1890). (1900); Ravenga v. Mackintosh, 2 ™ Smith V. King, 62 Conn. 515, 26 B. & C. 693 (1824); Hadrick v. At. 1059 (1893). Heslop, 12 Q. B. 267, 17 L. J. Q. B. ""Gibson, C. J., in Herman v. 313 (1848). Brookerhoof, 8 Watts (Pa.), 240, '"Murphy v. Larson, 77 111. 172 242 (1829). (1875); Stubbs v. Mulholland, 168 '•"Black V. Buckingham, 174 Mo. 47, 67 S. W. 651 (1902). "In Mass. 102, 54 N. B. 494 (1899). this State, where a license to prac- 256 The Law of Torts. It is not enough that the adviser be a magistrate, or a layman accus- tomed to give counsel in legal matters."* The attorney should not be biased by any personal interest in the affair ; ^'" but the better view is that he is not disqualified by the fact that he is the defendant's regular counsel.^"' The rule that professional legal " advice, hon- estly sought and acted upon, supplies the indispensable element of probable cause " has been judicially declared to originate " in the policy of the law to encourage prosecutions where there is probable cause, actual or constructive, and is founded on the theory that per- sons, who have made the law their study and followed it as a pro- fession, are well recognized advisers on questions of law, and that the citizen is justified in relying and acting on their advice. The protecting power of the rule is limited to the advice of licensed at- torneys in good standing, and of reputed learning and eompetency. It should not be extended beyond these limitations." ^"' When the defendant establishes the existence of probable cause for his prosecution of plaintiff, he is entitled to judgment, though his motive may have been ever so malicious, and though the prosecu- tion may have terminated in the present plaintiff's favor, and though the latter may have sustained damages."" Legal Damage. The fourth element necessary to constitute a cause of action for malicious prosecution is legal damage to the plaintiff. tice is obtained almost for the ask- ^" White v. Carr, 71 Me. 55b', 36 ing, it by no means follows, because Am. R. 533 (1880); Perrenoud v. a man has been licensed to practice Helm, 65 Neb. 77, 90 N. W. 980 law, that therefore he is qualified (1902). to give advice in a matter of such '"'Kansas, etc., Co. v. Galloway, pith and moment as pertains to 71 Ark. 351, 74 S. W. 521 (1903), arresting a suspected man on a " the objection that he was inter- criminal charge." ested as the attorney of the prose- '"Burgett V. Burgett, 43 Ind. 78 cutor, and, therefore, disqualified (1873); Olmstead v. Partridge, 16 under the rule, is untenable, for Gray (82 Mass.) 381 (1860); Beal any lawyer called upon to advise is V. Robson, 8 Ired. L. (N. G.) 276 the attorney for the party asking (1848); Gee v. Culver, 12 Or. 228, his advice." 6 Pac. 775 (1885); Sutton v. Mc- '"Marks v. Hastings, 101 Ala. Connell, 46 Wis. 269, 50 N. W. 414 165. 173, 13 So. 297 (1892). Cf. 01m- (1879). ro)i*° This exception to the common law liability for maintenance has received recent judicial recognition.'*" It is also lawful for a person who has an interest in the subject matter of a litigation brought or defended by another, to contribute to its success."' But if he has not a common legal interest with such litigant, and cannot bring himself within the exception noted by Blackstone, he will be liable in tort for maintenance.'** While an action for this wrong is rarely brought, modern decisions, both in England and in this country, show that it is maintainable.'*' »> Moulton V. Lowe, 32 Me. 466 "' Guy v. Churchill, 40 Ch. D. 481, (1851); Pechell v. Watson, 8 M. & 58 L. J. Ch. 345 (1889). W. 691 (1841). '"Alabaster ■\s. Harness (1895), 1 •"Bond V. Chapin, 8 Met. (Mass.) Q. B. 339, 64 L. J. Q. .B. 76. 31 (1844). »» Bradlaugh v. Newdegate, 11 Q. '"Metcalf V. Alley, 2 Ired. U B. D. 1, 52 L. J. Q. B. 454 (1883); (N. C.) 38 (1841). Fletcher v. Ellis, Hemp. (U. S. »*Inst. Vol. 2, p. 208. Superior Ct.) 300, 9 Fed. Cas. No. '"Commentaries, Vol. 4, p. 135. 4,863a (1836); Goodyear Dental Co. '"Harris v. Brisco, 17 Q. B. D. v. White, 2 N. J. Law J. 150 (U. S. 504, 55 L. J. Q. B. 423 (1886). C. Ct), 10 Fed. Cas. No. 5,602 (1879). CHAPTER VIII. ASSAULT AND BATTERY. § I. What Constitutes this Tort. The Right Invaded by an Assault, is the right to live in society without being put in reasonable fear of unjustifiable personal harm. ^A person who threatens another with immediate personal violence, having the apjiarent means and opportunity for executing the threat, commits an assault, for which a civil suit will lie,* though a criminal prosecution may not.^ Accordingly, raising a club over the head of another and threatening to strike if the latter speaks, is an assault.' It is sometimes said that the intent to inflict violence is essential even to a civil assault ; and that when the party threaten- • DeS, V. DeS., Y. B. Liber Assls- arum, f. 99, pi. 60 (1348). Defend- ant threw a hatchet, attempting to hit plaintiff, but missed him; Tu- berville v. Savage, 1 Mod. 3, 2 Keb. 545 (1669). Plaintiff put his hand upon his sword and said : " If it were not assize time, 1 would not take such language from you," held no assault, as there was no threat of Inflicting violence; al- though the court said : " If one in- tending to assault, strike at an- other and ipiss him, this is an assault; so If he hold up his hand against another in a threatening manner and say nothing, it is an assault; " Mortin v. Schoppee, 3 C. & P. 373 (1828). Riding after an- other, threatening to whip him is an assault, although the person pursued escapes; Stephens v. Myers, 4 C. & P. 349 (1830). Defendant, advancing with clenched fist, was forcibly stopped by others, before getting within striking distance of plaintiff; Read v. Coker, 13 C. B. 850, 22 L. J. C. P. 201 (1853). De- fendant and others threatened to break plaintiff's neck, if he did not leave, and advanced upon him. 'See Chapman v. State, 78 Ala. 463, 56 Am. R. 42 (1885); but see State V. Shepard, 10 la. 126 (1859). ^United States v. Richardson, 5 Cranch (C. C), 348 (1837). "His language showed an intent to strike upon her violation of a condition which he had no right to impose; " French v. Ware, 65 Vt. 338, 26 At. 1096 (1892). "Words never amount to an assault. They frequently characterize accompanying acts." 266 Assault and Battery. 267 ing knows that he has not the present ability to execute the threat, the tort of assault is not committed.'' The better view is, however, that the tort consists not in the wrongdoer's intention, but in his invasion of the plaintiff's right to freedom from being put in fear of bodil\- harm. A learned court has stated the reason for this view as follows : " One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, that each of us shall feel security against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect secur- ity. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we com- plain. And it is surely not unreasonable for a person to entertain a fear of personal injury when a pistol is pointed at him in a threaten- ing manner, when, for aught he knows, it may be loaded, and may occasion his immediate death." ' Reasonable fear may be inspired by threatening gestures/ especially when these are connected with " unlawful, sinister and wicked " conduct on defendant's part.' Absence of intent, on the part of the defendant to put the plain- tiff in fear of b^ji^^^is pertinent to the defense that the injury was accidental, ]^^^^B^ practical joke, expressly or impliedly as- sented to by thi|^^^Hl' But cases of this kind are not common. The Right n^B^ by Battery, is the right to be secure fc^ aH unjustifiable inteHerence^^h one's person. Battery^s dis- * Blake v. BJfcard, 9 C. & P. 626, Leach, 11 Tex. Civ. App. 699, 33 S. 38 E. C. L. 365 (1840). But see R. W. 702 (1895). Soliciting sexual V. St. George, 9 C. & P. 483 (1840). Intercourse in a manner "to excite " Beach v. Hancock, 27 N. H. 223, the fear and apprehension of force 59 Am. Dec. 373 (1853); Kline v. in the execution of his felonious Khne, 158 Ind. 602, 64 N. E. 9 purpose was an assault ; " a " wll- (1902); Morgan V. O'Danlel (Ky.), ful violation of woman's most sacred 53 S. W. 1040 (1899); Moran v. right of personal security." Vlcroy (Ky.), 74 S. W. 244 (1903). » Christopherson v. Bare, 11 Q. B. "Handy v. Johnson, 5 Md. 450 473, 17 L. J. Q. B. 109 (1848); Fitz- (1854); Bishop v. Ranney, 59 Vt. gerald v. Cavln, 110 Mass. 153 316, 7 At. 820 (1887) ; Keep V. Quail- (1872); Nelson v. Crawford, 122 man, 68 Wis. 451, 32 N. W. 527 Mich. 466, 81 N. W. 335, 80 Am. St. (1887). R. 577 (1899); Degenhardt v. Hel- ' Newell V. Whitcher, 53 Vt. 589, ler, 93 Wis. 662, 68 N. W. 411, 57 38 Am. R. 703 (1880); Leach v. Am. S. R. 945 (1890). 268 The Law of Torts. tinguished from assault, involves the infliction of actual violence upon the person ; although the degree of violence is immaterial, and the term " person," in this connection, includes clothing and other articles which are so associated with the body as to partake of its legal inviolability. Accordingly, "the least touching of another in anger," " or as a trespasser,'" or in any manner which amounts to an ■" unlawful setting upon his person," " may subject one to an action for battery. Forcibly cutting the hair of an inmate of the poor- house, without legal authority,'- or injuring the clothing of another while on his person," or snatching or striking an article from his hand," or cutting a rope which fastens an article to his bodv," or striking a horse upon which he is riding, or which is attached to a carriage in which he is seated,'" or overturning a vehicle or chair in which he is," is an actionable battery. It is not necessary that the assailant should come into immediate contact with his victim. The force which he sets in motion may be communicated through some instrumentality,'* as a gun or a whip. If he throws a stone or other missile which hits the plaintiff," or spits in the latter's face,-" a battery is committed. Fraudulent deception,"' or recklessness -- on the defendant's part, may be the legal equivalent of actual force. "Cole V. Turner, 6 Mod. 149 (1704). '" Richmond v. Fisk, 160 Mass. 34, 35 N. B. 103 (1893). Defendant, without license so to do, entered plaintiff's sleeping room and touched him, so as to awaken him, in order to present a milk bill. " Geraty v. Stern, 30 Hun (N. Y.), 426 (1883). Defendant's agent forcibly took an ulster oft from plaintiff. " Porde V. Skinner, 4 C. & P. 239, 19 E. C. L. 494 (1830). "Reg. V. Day, 1 Cox. C. C. 207 (1845). "Respublica v. DeLongchamps, 1 Dall. Ill (1784) ; Dyk. v. DeYoung, 35 111. App. 138 (1889). "State V. Davis, 1 Hill L. (S. C.) 46 (1832). " DodweW^MTord, 1 Mod. 24 (1669); SpSHP'^ Chapman, 8 Ir. L. R. 461 (1846) ; Clark v. Downing, 55 Vt. 259, 45 Am. R. 612 (1882); Marentille v. Oliver, 2 N. J. L. (1 Pennington) 379 (1808). "Hopper V. Reeve, 7 Taunt. 698, 1 Moore, 407, 2 E. C. L. 554 (1817). " Bullock V. Babcock, 3 Wend. (N. Y.) 391 (1829); Kendall v. Drake, 67 N. H. 592, 30 At. 524 (1891). "■ Peterson v. Haffner, 59 Ind. 130, 26 Am. R. 81 (1877). ''"Alcorn v. Mitchell. 63 111. 553 (1872). Damages were assessed at 11,000; Whitsett v. Ransom, 79 Mo. 258 (1883); Draper v. Baker, 61 Wis. 450, 21 N. W. 527, 50 Am. R. 143 (1884). Judgment for $1,200. "Cadwell v. Farrell, 28 111. 438 (1862); Carr v. State, 135 Ind. 1, "^See note, next page. Assault and Battery. 269 Extended Signification of Assault. While the common law drew a sharp distinction, as we have seen, between assault and battery, a distinction which is still maintained in many jurisdictions,^" the modern tendency is to give to the term " assault " an extended signification, making it denote a consummated as well as an inchoate batter)-.-* In such signification, the term will be employed through- out the remainder of this section. Excusable Assaults. For two centuries there has been unques- tioned judicial authority for the proposition, that " if two were to meet in a narrow passage, and without violence or design of harm, the one touches the other gently it will be no battery." ^° The law accords a license for all i|iterferences with the persons of others, which are fairly incident to ordinary conduct in the particular cir- cumstances. It does not accord a license, however, for rude, reck- less, or unnecessarily dangerous interference with the personal security of others.-^ Leave and license of the injured party may serve as an excuse to one who otherwise would be liable for an .assault.^^ But to have this effect, as we have seen in a former connection, the license must have been obtained without deception, and for a lawful purpose.^' Inevitable accident is an excuse for what would otherwise be an actionable assault.^" Justifiable Assaults. These have been considered at length in a former chapter,*" and it is not necessary, in this connection, to 34 N. E. 533, 20 L. R. A. 863 (1893) ; ''•Mercer v. Corbln, 117 Ind. 450, Comm. V. Stratton, 114 Mass. 303, 20 N. E. 132, 3 L. R. A. 221, 10 Am. 19 Am. R. 350 (1873); McCue v. S. R. 76 (1889). Klein, 60 Tex. 168, 48 Am. R. 260 " Supra, p. 76. Fitzgerald v. (1883); Bartell v. State, 106 Wis. Gavin, 110 Mass. 153 (1872); Wart- 342, 82 N. W. 142 (1900). man v. Swindell, 54 N. J. L. 589, = State V. Monroe, 121 N. C. 677, 25 At. 356, 18 L. R. A. 44 (1892). 28 S. E. 547, 43 L. R. A. 861. 61 ^ Supra, p. 77. Markley v. Am. S. R. 686 (1897). Druggist Whitman, 95 Mich. 236, 54 N. W, dropped croton oil on candy, in .763, 20 L. R. A. 55. 35 Am. S. R. order that purchaser might play a 558 (1893); Lund v. Tylor, 115 la. joke on some one. ' 236. 88 N. W. 333 (1901). "When " Shapiro v. Michelson, 19 Tex. the mutual combat is unlawful, mu- Civ. App. 615, 47 S. W. 746 (1898). tual consent is unlawful." "Pollock on Torts (5 Ed.), 210. ''Supra, p. 58. New York Penal Code, §S 217-223. ''Supra, Chap. III. » Holt, C. J., in Cole v. Turner, 6 Mod. 149 (1704). 270 The Law of Torts. do more than enumerate the more important classes of such acts. The use of force or violence towards a person is justified on tht part of a public officer or his assistants in the performance of a legal duty ; "^ or on the part of a private person in lawfully making an arrest,'- or in the proper defense of himself, his family or his property ; '' or in the enforcement of lawful discipline at home,'* in school,'^ on board a ship '* or other public conveyance ; '' or in the lawful restraint or assistance of one mentally or physically incapacitated.'* Damages. Every actionable assault entitles the victim to dam- ages, and, even though the trespass is slight, the damages are not necessarily nominal." A different rule obtains in case of an assault upon an animal or other propert}-. There, the owner must allege and prove that the property was actually injured.*" In an action for trespass to the person, the plaintiff is not bound to specify in his complaint the various items of damage, unless he seeks to recover for consequential or indirect injuries.*' All legal harm that is the natural and probable result of the assault, is a proper subject for compensation;*- and indeed all the harm, which can be shown to have resulted directly from the assault, whether it could have been foreseen by the wrongdoer or not, should enter into the assessment of damages.*' "Supra, p. 242. (1900), a verdict of $1.00 was set ^ Supra, p. 246. aside as a travesty on justice. ^ Supra, p. 52. Hlggins v. "Slater v. Swan, 2 Stra. 872 Minaghan, 78 Wis. 602, 47 N. W. (1731); Marentille v. Oliver, 2 N. 941, 11 L. R. A. 138, 23 Am. S. R. J. L. (1 Pennington) 379 (1808). 428 (1891). "O'Leary v. Rowan, 31 Mo. 117 '^ Supra, p. 248. (1860). " Supra, p. 248. DesUlns v. Gose, *- Brzezinski v. Tierny, 60 Conn. 85 Mo. 485; 55 Am. R. 387 (1885). 55, 22 At. 486 (1891); Morgan v. ^ Supra, p. 155. Kendall, 124 Ind. 454, 24 N. E. 143, ^ Supra, p. 155. Montgomery v. 9 L. R. A. 445 (1890); Lund v. Buffalo Ry., 165 N. Y. 139, 58 N. E. Tyler, 115 la. 236, 88 N. W. 333 770 (1900). (1901); Andrews v. Stone, 10 Minn. '» Supra, p. 248. Hoffman v. Ep- 72 (1865). pers, 41 Wise. 251 (1876). "Watson v. Rinderknecht, 82 ™ Richmond v. Fisk, 160 Mass. 34, Minn. 235, 84 N. W. 798 (1901); ?A N. E. 103 (1893). In Dunbar v. Vosburg v. Putney, 80 Wis. 523, 50 Cowger, 68 Ark. 444, 59 S. W. 951 N. W. 403, 27 Am. S. R. 47, 14 L. R. A.. 226 (1891). Assault and Battery, 271 In all cases of assavilt, damages may be given for injuries to the plaintiff's feelings,** and if it is willful or reckless, or characterized by deliberate disregard of the plaintiff's rights, or by a disposition to humiliate him, punitive damages are recoverable in most juris- dictions.*^ On the other hand, plaintiff's conduct at the time of the assault, if fairly provocative of defendant's act, may be taken into account in mitigation of exemplary damages,*" and in some juris- dictions of even compensatory damages.*' It is proper, in assessing exemplary damages, for the jury to consider the character and stand- ing of the parties and the wealth of the defendant.** Counterclaiming Damages. It is generally held that, in case the person assaulted uses excessive force in repelling the attack and thus becomes liable to an action for assault, he cannot set off or counterclaim the damages which he sustained against those inflicted by him on the plaintiff. Such assaults are deemed distinct and independent wrongs, and not parts of a single transaction. *° In a few jurisdictions, however, the opposite view is taken and a counterclaim is allowed.^" Assault is Distinguishable from Negligence. Injury in- flicted by one upon the person of another as the result of negligence, does not constitute an assault. Hostile or unlawful intent is an " Maisenbacker v. Concordia So- " Willey v. Carpenter, 64 Vt. 212, clety, 71 Conn. 369, 42 At. 67, 71 23 At. 630, 15 L. R. A. 853 (1892); Am. S. R. 213 (1899); Southern Ex- Prlndle v. Haight, 83 Wis. 50, 52 N. press Co. v. Flatten, 93 Fed. 936, W. 1134 (1892). 36 C. C. A. 46 (1899). "Keiser v. Smith, 71 Ala. 481, "Bundy V. Maglness, 76 Cal. 532, 46 Am. R. 342 (1882). 18 Pac. 668 (1888); List v. Miner, "Pullman Co. v. Lawrence, 74 74 Conn. 50, 49 At. 856 (1901); Miss. 782, 22 So. 53 (1897); Gold- Root V. Sturdivant, 70 la. 55, 29 N. smith v. Joy, 61 Vt. 488, 17 At. 1010, W. 802 (1886); Thillman v. Neal, 4 L. R. A. 500 (1889). 88 Md. 525, 42 At. 242 (1898); Con- '"Dole v. Brskine, 35 N. H. 503 ners v. Walsh, 131 N. Y. 590, 30 N. (1857); Schnaderbeck v. Worth, 8 E. 59 (1892); Pendleton v. Davis, Abb. Pr. (N. Y.) 37 (1858); Dooling 46 N. C. (1 Jones L.) 98 (1853). v. Williams, 35 Ohio St. 58 (1878). Verdict was for $100 actual dam- '"Slone v. Slone, 2 Mete. (Ky.) ages and $1,000 exemplary dam- 339 (1859); Gutzman v. Clancy, 114 ages; and the court refused to dis- Wis. 589, 90 N. W. 1081, 58 L. R. A. turb it; Spear v. Sweeny, 88 Wis. '44 (1902). 545, 60 N. W. 1060 (1894). 272 The Law of Torts. essential element in this tprt,'^ although such intent is often estab- lished by the recklessnes&^f the defendant's conduct; and it is not necessary to show an act^ual intention to do the specific harm which was inflicted."" "The Lord Derby, 17 Fed. 265 4 Am. R. 55 (1869); Palmer v. Chi- (18S3); Perkins v. Stein, 94 Ky. cago, etc., Ry., 112 Ind. 260, 14 N. 433, 23^ S. W. 649, 20 L. R. A. 861 E. 70 (1897); Smith v. Comm., 100 (1893). Pa. 324 (1882). "Welch V. Durand, 36 Conn. 182, CHAPTER IX. WRONGFUL DISTURBANCE OF FAMILY RELATIONS. § I. The Family Head and Family Rights. By Primitive Law, the only member of the family who is deemed to be harmed by an unjustifiable disturbance of family relations is the family head. In his capacity as husband, the com- mon law gave him a writ of trespass against one who ravished his wife and carried her away and detained her from him.^ In his capacity as parent, he was entitled to a writ of trespass " for taking his son and heir, or his daughter and heir, and marrying her." ^ As master, he had " an action of trespass for taking of his appren- tice or for taking of his servant." ' No such right of action in favor of the wife, or child, or servant, for the abduction or beating or unjustifiable detention of the family head, is recognized by early law. Blackstone observes that the common law, in his time, totally disregarded the loss sustained by the inferior party to the family relation. His explanation of this doctrine is : " that the inferior hath no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior ; and therefore the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in anything during her coverture. The child hath no property in his father or guardian, as they have in him, for the sake of giving him education and nurture. * * * And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in his master." * Invasions of Marital Rights. According to Blackstone, these were actionable torts at common law, only when committed against ' Fitzherbert Nat. Brev. 89 O. * Blackstone's Commentaries, Vol. 'IMd. 90 H. 3, pp. 142, 143. 'Ibid. 91 I. 1 8 273 274 The Law of Torts. the husband. And such seems to be the present rule in England.' In the last cited case, Lord Wensleydale said : " The benefit which the husband has in the consortium of the wife, is of a different character from that which the wife has in the consortium of the hus- Ijand. The relation of the husband to the wife is in most respects entirely dissimilar from that of the master to the servant, yet in one respect it has a similar character. The assistance of the wife in the conduct of the household of the husband, and in the education of his children, resembles the service of a hired domestic^ tutor or gover- ness ; is of material value, capable of being estimated in money ; and the loss of it may form the proper subject of an action, the amount of compensation varying with the position of the parties. Jhis prop- erty is wanting in none. It is to the protection of such material interests that the law chiefly attends. The loss of such service of the wife, the husband, who alone has all the property of the married parties, may repair by hiring another servant ; but the wife sustains only the loss of the comfort of her husband's society and affectionate attention, which the law cannot estimate or remedy. She does not lose her maintenance, which he is bound still to supply ; and it cannot be presumed that the wrongful act complained of put an end to the means of that support, without an averment to that effect. And if there were such an averment, the recovery of a compensation must be by joining the husband in the suit, who himself must receive the money, which would not advance the wife's remedy. The wife is, in fact, without redress by any form of action for an injury to her pecuniary interests." Marital Torts Against the Husband. These " are princi- pally three: abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her." « Abduction may be accomplished either by persuasion, fraud or violence,' and the gist of the wrong is the invasion of the husband's right of consortium — " the right to the conjugal fellowship of the "Holland's Jurisprudence Oth 'Winsmore v. Greenbank, WlUes, Ed.), 164, 165; Lynch v. Knight, 9 577 (1845); Humphrey v. Pope, 122 H. L. C. 577, 5 L. T. N. S. 291, 8 Cal. 253, 54 Pac. 847 (1898); Hart- Jur. N. S. 724 (1861). pence v. Rogers, 143 Mo. 623, 45 S. " Blackstone's Commentaries, Vol. W. 650 (1898). 3, p. 139. Wrongful Disturbance of Family Relations. 375 wife, to her company, co-operation and aid in every conjugal rela- tion." * According to one class of decisions, this right is invaded whenever the wife's affections are alienated with malice or improper motives, although she may continue to reside under her husband's roof. " Debauchery and elopement," according to these authorities, are not the essence of the wrong, but only " the immediate and legitimate consequences of the wrong."" According to another class of decisions, the right is not invaded unless there is adultery with the wife, or there is " enticing and procuring, or harboring and secreting her." ^" Adultery or criminal conversation with the wife is a marital tort to the husband, even though .there is no alienation of her affections or abduction of her person. The gist of this wrong is the shame of the husband and the hazard of having to maintain spurious issue. Hence the recovery of a judgment against the wrongdoer for the enticement of a man's wife from him, is not a bar to an action for criminal conversation with her.^^ Nor does the husband lose his right of action by his forgiveness of his wife and by living with her thereafter.*- An action for damages for criminal conversation is one " for willful and malicious injury to the person and property " of the husband." Marital Torts Against the Wife. While the common-law fiction obtained, that the wife's personality is merged in that of her husband, it was not strange that the courts could not see their way to providing a tort remedy for the marital wrongs of the wife. The enticement of the husband and the alienation of his affections from her, could not harm her material interests, as Lord Wensleydale pointed out in the opinion from which we have already quoted, for •Bigaonette v. Paulet. 134 Mass. 366, 54 N. E. 843, 75 Am. S. R. 351 123, 45 Am. R. 307 (1883); Long v. (1899); Leilis v. Lambert, 24 Ont. Booe, 106 Ala. 570, 17 So. 716 App. 653 (1897). (1894). "Schnell v. Blohm. 40 Hun (N. "Rinehart v. Bills, 82 Mo. 534, 52 Y.), 378 (1886). Am. R. 385 (1884); Heermance v. "Slkes v. Tippins, 85 Ga. 231, 11 James, 47 Barb. (N. Y.) 120, 32 S. E, 662 (1890); Stiimm v. Hum- How. Pr. 142 (1866); Weston v. mel, 39 la. 478 (1874). Weston. 86 App. Div. (N. Y.) 159 '■•TinUer v. Colwell, 193 U. S. 473, (1903). 24 Sup. Ct. 505 (1904). "Houghton V. Rice, 174 Mass. 276 The Law of Torts. she could still compel him to support her. Even if the courts had thought the loss of comfort of her husband's society and afifectionate attention susceptible of monetary estimation, a suit for such dam- ages could not have been brought by her alone. The husband must have been a co-plaintiff, and the sum recovered would be his property. During the latter part of the last century, the fiction of legal unity of husband and wife was greatly modified by legislation. Xot only was the wife accorded the ownership and control of property possessed by her at marriage, as 'well as that acquired by her during coverture, but she was empowered to make contracts, to carry on business, and to maintain actions for the redress of her wrongs, as though she were vmmarried.'* Her legal personality was no longer merged in that of her husband, but, for most purposes, was totally distinct and independent of his. With this change in her legal status, came naturally a change in the judicial conception of her marital wrongs. As she could maintain an action in her own name, and damages recovered would be her sole and separate property, one of the chief objections urged by Lord Wensleydale disappeared. As the law now recognized her legal equality with her husband, Blackstone's reasoning based upon the superiority of one party and the inferiority of the other party to the marital relation, had no longer the foundation of even a fiction. There remained only the view that the wife's " loss of the comfort of her husband's society and afifectionate attention," is something so sentimental and ethereal, that " the law cannot estimate or remedy " it. In reply to this it has been said: " The actual injury to the wife from the loss of consortium is the same as the actual injury to the husband from that cause. His right to the conjugal society of his wife is no greater than her right to the conjugal society of her hus- band. Marriage gives to each the same rights in that regard. Each is entitled to the comfort, companionship and affection of the other. The right of the one and the obligation of the other spring from the " In California, Montana, North wrongful interference with his wife. Dakota anrt South Dakota, the Civil See Cal. Civ. Code, § 49; North Da- Code expressly gives to the wife the kota Civ. Code, § 2718; South Da- same right of acUon for the abduc- kota Revised Civ. Code of 1903, tion or enticement of her husband, § 32. that the husband possesses for the Wrongful Disturbance of Family Relations. 277 marriage contract, are mutual in character, and attach to the husband as husband, and to the wife as wife. Any interference with these rights, whether of the husband or of the wife, is a violation not only of a natural right, but also of a legal right arising out of the marriage relation. It is a wrongful .interference with that which the law both confers and protects. A remedy, not provided by statute, but springing from the flexibility of the common law and its adaptability to the changing nature of human affairs, has long- existed for the redress of the wrongs of the husband. As the wrongs of the wife are the same in principle and are caused by acts of the same nature as those of the husband, the remedy should be the same. Since her society has a value to him capable of admeas- urement in damages, why is his society of no legal value to her ? "" Action for Enticing Husband. Accordingly, it is held in most American jurisdictions that the wife is entitled to an action in tort against one who entices her husband from her, alienates his affections and deprives her of his society.^' In a few states her right to this action is denied. Such a right, it is declared, " would be the most fruitful source of litigation of any that can be thought of." It is also urged that the wife understands, "Bennett v. Bennett, 116 N. Y. Warren v. Warren, 89 Mich. 123, 584,-590, 23 N. E. 17, 6 L. R. A. 553 50 N. W. 842, 14 L. R. A. 545 (1891) ; (1889). Clow V. Chapman, 125 Mo. 101, 28 ■" Humphrey v. Pope, 122 Cal. 253, S. W. 328, 46 Am. S. R. 468, with 54 Pac. 847 (1898), applying § 49 note, 26 L. R. A. 412 (1894); Hodg- of the Civ. Code; Williams v. Will- kinson v. Hodgklnson, 43 Neb. 269, iams, 20 Col. 51, 37 Pac. 614 (1894) ; 61 N. W. 577, 47 Am. S. R. 759, 27 Foot v. Card, 58 Conn. 1, 18 At. TL,. R. A. 120 (1895); Seaver v. 1027, 23 Am. S. R. 258, 6 L. R. A. Adams, 66 N. H. 142, 19 At. 776, 49 829 (1899); Betser v. Betser, 186 Am. S. R. 597 (1889); Bennett v. 111. 537, 58 N. B. 249, 78 Am. S. R. Bennett, 116 N. Y. 584, 23 N. E. 17, 303 (1900); Haynes v. Nowlin, 129 6 L. R. A. 553, with note (1889); Ind. 581, 29 N. E. 389, 28 Am. St. Brown v. Brown, 121 N. C. 8, 27 R. 213, 14 L. R. A. 787 (1891); Price S. E. 998, 38 L. R. A. 242, 70 Am, V. Price, 91 la. 693, 60 N. W. 202, S. R. 574 (1897) ; Westlake v, WesS 51 Am. S. R. 360, 29 L. R. A. 150 lake, 34 O. St. 621, 32 Am. R, Sf 7 (1894); Deitzman v. Mullin, 108 (1878) ; Gernerd v. Gernerd, 185 Pa. Ky. 610, 57 S, W. 247, 94 Am. S. R. 233, 39 At. 884, 40 L. R. A, 549, f I 390 (1900); Wolf v. Frank, 92 Md. Am. S. R. 646 (1898); Beach v 138, 48 At. 132, 52 L. R. A. 102 Brown, 20 Wash. 266, 55 Pac. 46, (1900); Lockwood v. Lockwood, 67 72 Am. S. R. 98, 43 L, R. A. 114 Minn. 476, 70 N. W. 784 (1897); (1898). 2/8 The Law of Torts. when she enters the marriage relation, that her right to her hus- band's society is subject to various conditions, including his exposure " to the temptations, enticements and allurements of the world, which easily withdraw him from her society, or cause him to desert cv abandon her," and consequently that her right to his society " i , not the same in degree and value, as his right to hers." A right o.' action for his enticement and the alienation of his affections, sa)' these tribunals, must be given by statute in express terms, or they will not recognize it.'^' Still other courts have defeated the wife in such actions on the ground that she has not shown a loss of consortiiim.^^ Crim. Con. with Husband. That the wife can maintain a tort action against another woman for criminal conversation with the husband has been denied, even in a jurisdiction where the abduc- tion of the husband is held actionable.^" If the gist of this action, when brought by the husband, is, as we have heretofore stated, the shame to him, and the risk of having to support spurious issue, it would seem that the decision in the last cited case is entirely sound, in the absence of express legislation on the topic. Certainly the husband's marital infidelity subjects the wife to no risk concerning the legitimacy of her offspring ; and it must be confessed that public opinion does not deem her shamed or disgfraced by his conduct, if that is limited to criminal conversation. Of the injury to her feel- ings or the outrage upon her affections, the law seems not to take cognizance. Injuries to the Body or Reputation of the Wife. If these were of such a character as to deprive the husband for any time of the company and assistance of his wife, the common law gave him a separate remedy by action on the case for his damages thus sustained. For the injuries sustained by her, as an individual, the common law gave an action in the joint names of the husband and wife.^" As the common law vested in the husband the recovery "Duffies V. Duffies, 76 Wis. 374, Rice, 174 Mass. 366, 54 N. E. 843, 45 N. W. 522, 20 Am. S. R. 79 47 L. R. A. 310 (1899). (1890); Doe v. Roe, 82 Me. 503, 20 "Kroessin v. Keller, 60 Minn. At. 83, 17 Am. S. R. 499, 8 L. R. A. 372, 62 N. W. 438, 51 Am. S. R. 533, 833 (1890); Lellis v. Lambert, 24 27 L. R. A. 685 (1895). Ont. App. 656 (1897). =» Blackstone's Commentaries, Vol. '» Neville v. Gile, 174 Mass. 305, 3, p. 140. 54 N. E. 841 (1899); Houghton v. Wrongful Disturbance of Family Relations. 279 obtained in such a joint suit, he was in a position to discharge the, cause of action without her consent/' or to prevent her suing, by refusing to join as a plaintiff, or by absenting himself from the jurisdiction.-- This has been changed to a considerable but varying extent by modern legislation; and in many jurisdictions the wife is permitted to sue alone for injuries to her person or reputation.-" Such legis- lation, however, has not affected the husband's right to sue for those injuries to his wife which are also invasions of his marital rights,^* or which subject him to expense because of his marital obligations to provide for the comfort and support of the wife.^° The cases cited in the last two notes show that it is not necessary for the hus- band to prove that the injured wife sustained the relation of a servant to him. It is enough that he makes out a case of " his loss of consortium with her, whether this is caused by assault and battery, by medical or surgical malpractice, or by negligence of any kind." This injury to the husband is deemed generally a personal injury.^" § 2. Abduction. Torts Against the Parent. Fitzherbert, in the passage quoted on a former page, relating to this topic, speaks only of the abduc- tion of one's son and heir, and of the abduction and marrying of one's, daughter and heir. Such invasions of the parent's right in his child rarely come before modern courts for consideration.^' "Ballard v. Russell, 33 Me. 196, 395, 64 N. E. 438 (1902); Jones v. 54 Am. Dec. 620 (1851). Utica, etc., Ry., 40 Hun (N. Y.), ''Laughlin v. Eaton, 54 Me. 156 349 (1886); Nanticoke v. Warne, (1866). 106 Pa. 373 (1884). ''Supra, 276. Harris v. Webster, '"'Smith v. City of St. Joseph, 55 58 N. H. 481 (1878); Harmon v. Mo. 456, 17 Am. R. 660 (1874); Old Colony Ry., 165 Mass. 100, 42 Furnish v. Missouri, etc., Ry., 102 N. E. 505, 52 Am. S. R. 499, 30 L. Mo. 669, 15 S. W. 315, 22 Am. St. R. A. 658 (1896). R. 800 (1890). ^ Mewhirter v. Hatten, 42 la. 288, " Maxson v. Del., L. & W. Ry., 112 20 Am. R. 618 (1875); Kelley v. N. N. Y. 559, 20 N. E. 544 (1889). Y., etc., Ry., 168 Mass. 308, 46 N. E. " In Hills v. Robert, 2 Root 1063, 60 Am. S. R. 397, 38 L. R. A. (Conn.), 48 (1793), the enticement 631 (1897); Riley v. Lidtke, 49 Neb. and marrying of a daughter was 139, 68 N. W. 356 (1896); Balti- held actionable in favor of the pa- more, etc., Ry. V. Glenn, 66 O. St. rent, while in Hervey v. Moseley, 28o Th Law of Torts. Most of the litigation on this subject in this country is confined to injuries to the child, which deprive the parent of the child's ser- vices, or impose upon the parent an increased expenditure of labor or money. They may be divided into two classes : those for the seduction and debauchment of the daughter ; and those for any other wrong to a child of either sex. Ordinary Injuries to Parental Right in Child. These are to be distinguished from invasions of the personal rights of the child. For wrongs of that character, the child may maintain an action ; ^^ and a recovery therein, even where the action is brought by the parent as next friend, will not aiifect the parent's action for injuries to him in his parental relation;^' unless damages for such injuries were recovered in the former suit.^° The parent's right of action for ordinary injuries to the child rests upon his right to the child's services and upon his duty of maintenance. Even though the child is too young to render valu- able service, the parent is entitled to recover for any extra expense, to which he is put by the defendant's tortious act, in maintaining the child; and in most of our jurisdictions he is entitled to recover for such services of the child as he may lose in the future in conse- 7 Gray (73 Mass.), 479, 66 Am. Dec. is based on the loss of service, or 515 (1856), it was held not to be the labor and expense incurred In actionable. South Carolina seems recovering the child, his recovery to follow the Connecticut doctrine. is not limited to compensatory Kirkpatrick v. Lockhart, 2 Brev. damages, but may include a sum 276 (1809); Dobson v. Cothran, 34 for injury to his feelings. S. C. 518, 13 S. E. 679 (1890); and ^Wilton V.Middlesex Ry. Co.,107 common-law abduction of the daugh- Mass. 108, 9 Am. R. 11 (1871). ter seems to be recognized in Kreay ^ Wilton v. Middlesex Ry. Co., V. Anthus, 2 Ind. App. 482, 28 N. E. 125 Mass. 130 (1878). 773 (1891); but not in Jones v. =° Baker v. Flint & P. M. Ry., 91 Tevis, 4 Litt. (14 Ky.) 25, 14 Am. Mich. 471, 51 N. W. 897, 30 Am. S. Tipc. 98 (1823). R. 298, 16 L. R. A. 154 (1892). "It In Rice v. Nickerson, 9 Allen (91 is undoubtedly true that as a ques- Mass.), 478, 85 Am. Dec. 777 (1864), tion of law, Oscar had no right in compensatory damages were al- his suit to recover such damages lowed to the father, whose minor without the consent of his father; son had been wrongfully taken from but he did recover with the consent his custody. In Magee v. Holland, of his father; therefore the father 27 N. J. L. (3 Dutch.) 86, 72 Am. is now estopped from setting up a Decc. 341 (1858), it is held that claim for the same damages in this while the parent's right of action action in his own name." Wrongful Disturbance of Family Relations. 281 qiience of the injury.^^ While our courts are coming to treat this action of the parent as based upon the parental relation, rather than on the relation of master and servant, they exclude the elements of affection and sentiment, as well as of parental interest in the future welfare of the child. Accordingly, they do not permit a recovery in tort by a parent against school officers, who wrongfully expel a child from school ; "'- or for wounded feelings and anxiety because of the pain, or distress, or insult, or disfigurement of the child ; " or for loss of the child's societ}- ; "* or for a libel to a deceased child." Injury to Parent by Seduction of Daughter. " The foundation of the action by a father to recover damages against the wrongdoer for the seduction of his daughter, has been uniformly placed, from the earliest time hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest. ... It has, therefore, always been held that the loss of service must be alleged in the declaration, and that loss of "Durden v. Barnett, 7 Ala. 169 (1844) ; Sykes v. Lawlor, 49 Cal. 236 (1874) ; Gumming v. Brooklyn, etc., Ry., 109 N. Y. 95, 16 N. E. 65 (1888) ; Barnes v. Keene, 132 N. Y. 13, 29 N. E. 1090 (1892); Neder- landsch v. Hollander, 59 Fed. 417, 20 U. S. App. 225, 8 C. C. A. 169 (1894). "The evidence showed the child's disability had lasted for more than a year, and still con- tinued, thus raising the presump- tion that it would continue in the future for a longer or shorter period. Having these facts and the age and sex of the child before them, the jury were as well quali- fied as an expert could be to form a correct opinion as to the dura- tion of her incapacity, and the value of her services to her father." "Donahoe v. Richards, 38 Me. 376, 61 Am. Dec. 256 (1854) ; Spear V. Cummings, 23 Pick. (40 Mass.) 224, 34 Am. Dec. 53 (1839); Ste- phenson V. Hall, 14 Barb. (N. Y.) 222 (1852). ''Dennis v. Clark, 2 Cush. (Mass.) 347, 48 Am. Dec. 671 (1848); Cow- den v. Wright, 24 Wend. (N. Y.) 429, 35 Am. Dec. 633 (1840); Whit- ney v. Hitchcock, 4 Den. (N. Y.) 461, (1847). But see Magee v. Hol- land, 27 N. J. L. 86, 72 Am. Dec. 341 (1858), where exemplary dam- ages were held proper, in the case of abduction of children, " for the injury done to his feelings and to prevent similar abuses." "Louisville, etc., Ry. v. Rush, 127 Ind. 545, 26 N. E. 1010 (1890); McGarr v. National, etc., Mills, 24 R. L 447, 53 At. 320, 60 L. R. A. 122 (1902). ^ Bradt v. New Nonpareil Co., 108 la. 449, 79 N. W. 122, 45 L. R. A. 681 (1899) ; Sorensen v. Balaban, 11 App. Div. (N. Y.) 164 (1896). 282 The Law of Torts. service must be proved at the trial, or the plaintiff must fail. It is the invasion of the legal right of the master to the services of his servant, that gives him the right of action for beating his servant; and it is the invasion of the same legal right, and no other, which gives the father the right of action against the seducer of his daughter." Such is the language of a learned Chief Justice,"" and it still embodies the legal rule upon this topic in England. It is true that the father makes out a prima facie case of service, by proof that the seduced daughter was a minor and unmarried ; and that the courts are astute to discover the relation of master and servant, even where the daughter's service possesses no pecuniary value for the parent.^' But the " working of the action^ for seduction in modern practice " is admittedly " capricious " in England."' It " affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers." "' The Same Subject. American Law. The theory of an injury to the parent, in his character of master, is accepted in most of our states as the basis of his right of action. But, it has been judicially declared, this theory " is little more than a legal fiction used as a peg to hang a substantial award of damages on, as com- pensation not to the master but to the head of the family. It is accordingly established, in this country at least, that the father may maintain his action for the seduction of his minor daughter, although she is not a member of his household, but is in the actual employ of another, enjoying the fruits of her labor with her father's con- sent ; if he has not relinquished, past the power of recall, his right to control her services."*" It is sometimes said that the law con- clusively presumes the relation of master and servant to exist between the father and a minor daughter ; that it is not necessary to show actual service ; that constructive service is sufficient.*' If the "Tlndal, C. J., in Grinnell v. =" Pollock on Torts (6th Ed.), 229. Wells, 7 Man. & G. 1033, 14 L. J. "Sergeant Manning, In note to C. P. 19 (1844). Grinnell v. Wells, 7 M. & G. 1044. "Carr v. Clark, 2 Chit. 260, 23 "Simpson v. Grayson, 54 Ark. R. R. 748 (1818); Terry v. Hutch- 404, 16 S. W. 4, 26 Am. S. R. 52 inson, L. R. 3 Q. B. 599, 37 L. J. Q. (1891). B. 251 (1868); O'Reilly v. Glavey, "White v. Murtland, 71 111. 250, 32 Ir. L. R. 316 (1892). 22 Am. R. 100 (1874); Kennedy v. Wrongful Disturbance of Family Relations. 2S3 daughter was of age when seduced, the father must show that " by nuitual assent the relation of master and servant did exist " between him and his daughter.*- It is not necessary, however, to estabhsh a binding contract relation between them.*^ In some of our States, the fiction of service as the basis of this action has been abolished )5\- statutes in express terms ; ** and in others, the statutory provision that " all fictions in pleading are abol- ished," has been held to so far modify the common-law rule on this subject, as to permit a ' parent to maintain an action for the seduc- tion of the daughter, without averment or proof of loss of services, or expenses of sickness." ''° It is held, generally, in this country, that the mother, when the actual head of the family by reason of the husband's death or deser- tion,*" or any other person, who in fact is /); loco parentis" to the seduced girl, may maintain the action. Damages in Actions for Seduction. These are not limited, even under the common-law rule, to compensation for loss of ser- Shea, 110 Mass. 147, 14 Am. R. 584 (1872); Middleton v. Nichols, 62 N. J. L. 636, 43 At. 575 (1899) ; Martin V. Payne, 9 Johns. 387, 6 Am. Dec. 288 (1812) ; Lipe v. Bisenlerd, 32 N. Y. 229 (1865) ; Hudkins v. Hud- kins, 22 W. Va. 645 (1883) ; Lavery V. Crooke, 52 Wis. 612, 38 Am. R. 768 (1881). « Beaudette v. Gagne, 87 Me. 534, 33 At. 23 (1895) ; Mercer v. Walmes- ley, 5 H. & J. (Md.) 27, 9 Am. Dec. 486 (1820); Vessel v. Cole, 10 Mo. 634, 47 Am. Dec. 136 (1847) ; David- son V. Abbott, 52 Vt. 570, 36 Am. R. 767 (1880); Lee v. Hodges, 13 GratL (Va.) 726 (1857). "Cases In last note, and Lamb v. Taylor, 67 Md. 85, 8 At. 760 (1887) ; Sutton V. Huffman, 32 N. J. L. 58 (1866); Lipe v. Elsenlerd, 32 N. Y. 229 (1865); Briggs v. Evans, 5 Ired. L. (27 N. C.) 16 (1844); Hahn v. Cooper, 84 Wis. 629, 59 N. W. 1022 (1893). "Cal. Civ. Code, § 49; Code of Civ. Proc. § 375; Montana Civ. Code, § 35; North Dak. Civ. Code, § 2718; South Dak. Rev. Civ. Code of 1903, § 32; Hill's (Oregon) Code, § 35, applied in Patterson v. Hayden, 17 Or. 238, 21 Pac. 129, 3 L. R. A. 529, 11 Am. St. R. 822 (1889). See other jurisdictions cited in 25 Am. & Eng. Bnc of Law, p. 209. "Anthony v. Norton, 60 Ks. 341, 56 Pac. 529, 72 Am. S. R. 360, 44 L. R. A. 757 (1899); Hood v. Sud- derth. 111 N. C. 215, 16 S. E. 397 (1892). "Hammond v. Corbett, 50 N. H. 501, 9 Am. R. 288 (1871); Furman V. Van Size, 56 N. Y. 435, 15 Am. R. 441 (1874); Davidson v. Abbott, 53 VL 570, 36 Am. R. 767 (1880). "Certwell v. Hoyt, 6 Hun (N. Y.), 575 (1876); Moritz v. Garnhart, 7 Watts (Pa.), 302, 32 Am. Dec. 702 (1838); Maguinay v. Saudek, 5 Sneed (37 Tenn.), 146 (1857). 284 The Law of Torts. vices, or for actual expenditures due to the seduction. While the action is in form for loss of service, it is in fact for a personal injury to the parent,*' and juries are always instructed that they can take into consideration injury to the plaintiff's feelings." " The loss of service is not the rule of damage. It has been said that it is scarcely an item in the account. The real ground of damage is the disgrace of the family. The loss of service in many, in most instances could hardl}- be accounted anything, and yet often where the least service is or can be performed the highest damages can be given. The loss of service is but one step to that high plane of injury and wrong for which the parent is entitled to compensation. Damages are given to the plaintiff standing in the relation of parent." ^^ Where the common-law rule obtains and damages for loss of service are sought, the plaintiff must show that these are the proxi- mate efTect of the seduction. Incapacity to labor caused by preg- nancy, or sexual disease, or actual bodily injury resulting directly from the defendant's misconduct, causes a loss of service which is to be recompensed. " But if the loss of health is caused by mental suffering, which is not the consequence of seduction, but is produced by subsequent intervening causes, such as abandonment by the seducer, shame resulting from exposure, or other similar causes, the loss of services is too remote a consequence." ^' At common law, the assent of the child to the seduction does not bar the parent's action. " In respect to him," it has been declared, '■ she had no right to consent, and her act in assenting, or even pro- curing, the criminal connection was a nullity. So the defendant must stand as a wrongdoer, from whose act the plaintiff has suf- fered damage." °- In a few jurisdictions, it has been held that her voluntary assent limits the parent's recovery to his actual loss." "Hutcherson v. Durden, 113 Ga. (35 N. C.) 28, 55 Am. Dec. 427 987, 39 S. E. 495, 54 L. R. A. 811 (1852); Simpson v. Grayson, 54 (1901). Ark. 404, 16 S. W. 4, 26 Am. S. R. "Howard v. Crowther, 8 M. & W. 52 (1891); Leiicker v. Steileu, 89 COl, 5 Jurist, 914 (1841). HI. 545, 31 Am. R. 104 (1878); ™Middleton v. Nichols, 62 N. J. Stoudt v. Shepherd, 73 Mich. 5?S, L. 636, 43 At. 575 (1899). 41 N. W. 696 (1889); Heln v. Ho'- " Abrahams v. Kidney, 104 Mass. ridge, 78 Minn. 468, 81 N. W. 522 222, 6 Am. R. 220 (1870). (1900); Lawrence v. Spence, 99 N. •"McAulay v. Blrkhead, 13 Ired. Y. 669, 2 N. E. 145 (1885). "Hill V. Wilson, 8 Blackf. (Ind.) Wrongful Disturbance of Family Relations. 285 The Supreme Court of Oregon has ruled that the statute of that State, which authorizes a parent to maintain an action for the seduc- tion of a daughter, though the latter be not living at home and there be no loss of service, has entirely changed the character of the action; and that the parent's action will be defeated, if the defendant shov>fS that the daughter voluntarily submitted to illegal intercourse, and was not overcome by the defendant's artifice, promise or persuasion.^* § 3. Torts Against the Master. Harming or Enticing the Servant. Fitzherbert's statement that ■■ a man shall have an action of trespass for taking of his apprentice, or for taking of his servant," °° is preceded and followed by an enumeration of various injuries to property for which tres- pass would lie. His view, that a wrongful interruption of the rela- tion of master and servant is an interference with the property right of the master, has never been questioned by the courts. °° One who takes or entices a servant from his master, without justifiable cause, or who wrongfully injures him so that he is disabled from rendering service, commits an actionable wrong against the master ; the wrong consisting not in the act itself, but in the consequent loss to the master.'" Fitzherbert also notes '* a " writ of trespass against those who lie near the plaintiff's house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof," so that plaintiff loses " the profits of his land " and " his 123 (1846); Comer v. Taylor, 82 mestics; " Ames v. Union Ry. Co., Mo. 341 (1884). 117 Mass. 541, 19 Am. R. 426 (1875) ; "Patterson v. Hayden, 17 Or. 238, Apprentice Injured by defendant'^ 21 Pac. 129, 3 L. R. A. 529, 11 Am. negligence; Blxby v. Dunlap, 56 N. S. R. 822 (1889). H. 456, 22 Am. R. 475 (1876); Has- "Natura Brevium, 91 I. kins v. Royster, 70 N. C. 601, n "Grinnell v. Wells, 7 M. & G. Am. R. 780 (1874); Huff v. Wat- 1033, 1041, 14 L. 3. C. P. 19 (1844). kins, 15 S. C. 82, 40 Am. R. 680 "Robert Mary's Case^ 9 Coke, (1880). 111b. 113a (iei3): Jones V. Blocker, "Natura Brevium, 87 N. See 43 Ga. 331 (1871). "The master Garret v. Taylor, Croke Jac. 5C7 has purchased for a valuable con- (1621), where the servants wfere sideration the services of his do- threatened with mayhem. 286 The Law of Torts. service of the same men and servants." Commenting on this writ, a learned writer has said : " It seems, therefore, that ' picketing,' so soon as it exceeds the bounds of persuasion and becomes physical intimidation, is a trespass at common law against the employer." *' Such is the view generally entertained in this country."" If the damage threatened by this intimidation is such as cannot be ade- quately remedied in a common-law action, equity will enjoin the intimidators, although their acts may be in violation of criminal law." Whether the moral, as distinguishable from the physical intimida- tion of servants is an actionable wrong to the master, is a subject upon which the authorities are divided, as we have seen in a former section. °^ Torts Against the Servant by Wrongfully Influencing the Master. Undoubtedly the servant has no cause of action in tort against one who beats or kills the master, although the assault or death may result in pecuniary harm to the servant. In the language of Blackstone, he hath " no property in the master." "' And yet, the common law justifies the servant in defending his master against an assault,"* thus recognizing his interest in the master. Recently, the question has often arisen, whether the servant has an action in tort against those who wrongfully influence the master to discharge him, or to refuse to give him employment, which but for such wrongful influence he would have obtained. When the conduct of such persons in influencing the master is a violation of the criminal law,"° or when it takes the form of a conspiracy to =» Pollock on Torts (6th Ed.), 230, ner, 167 Mass. 92, 44 N. E. 1077, 57 note k. Am. S. R. 543, 35 L. R. A. 722 °° Supra, 71. Kernan v. Hum- (1896); Allen v. Flood (1898), A. ble, 51 La. Ann. 389, 25 So. 421 C. 1, 67 L. J. Q. B. 119. (1899); Beck v. Ry., etc.. Union, "3 Commentaries, 143. 118 Mich. 497, 77 N. W. 13, 74 Am. " v. Fakenham, Y. B. 9 S. R. 421, 42 L. R. A. 407 (1893). Bd. IV, f. 48, pi. 4 (1470); Leward "Consolidated Steel Co. v. Mur- v. Basely, 1 Ld. Raym. 62 (1695). ray, 80 Fed. 811 (1897); Shoe Co. »=01d Dominion Steamship Co. v. V. Saxey, 131 Mo. 212, 32 S. W. McKenna, 18 Abb. N. C. 262, 24 1106, 52 Am. S. R. 622 (1895); Blatch. 244, 30 Fed. 48 (1887); O'Neil V. Behanna, 182 Pa. 23C. 37 Casey v. Cincinnati Typo. Union, At. 843, 61 Am. St. ft. 702, 38 L. R. 45 Fed. 135. 12 L. R. A. 193, with A. 382 (1897). note (1891); Quinn v. leathern ""Supra, 72. Vegelahn v. Gunt- (1901), A. C. 495, 70 L. J. Q. B. 76; Wrongful Disturbance of Family Relations. 28; accomplish a result which no one of the wrongdoers could effect alone,*" and results in actual harm to the servant, he can maintain a tort action for damages in most jurisdictions. If, however, the conduct of the defendants is not positively illegal, and does not exceed the limits of fair competition, it does not amount to a tort, even against the servant who is actually harmed thereby, and whom the defendants actually intended to harm." Whether the moral intimidation of masters or employers exceeds the limits of fair competition is a point upon which not only different courts, but different members of the same court, have disagreed."' § 4. Conspiracy as a Tort. Conspiracy Without Injury. The cases, which were cited in the notes to the last section, contain much discussion of the contro- verted question, whether conspiracy is a separate tort. Some of the judicial opinions answer this question in the negative. Con- spiracy, according to the authors of these opinions, is never the gravamen of the action. They declare that unless the acts, which the conspirators combined to do, would be tortious if done by one Curran v. Galen, 152 N. Y. 33, 46 "* See cases in last two notes, and N. E. 297, 57 Am. S. R. 496, 37 L. Chipley v. Atkinson, 23 Fla. 206, 1 R. A. 802 (1897); Garret v. Taylor, So. 934, 11 Am. S. R. 367 (1887); Croke Jac. 567 (1621). See note in London Guar. Co. v. Horn, 101 111. 24 Abb. N. C. 260. App. 355 (1902), affd. 206 111. 493, " Quinn V. Leathern (1901), A. C. 69 N. E. 526 (1904); Perkins v. 495, 70 L. J. Q. B. 76; Glblan v. Nat. Pendleton, 90 Me. 166, 38 At. 96, Amalgamated Union (1903), 2 K. B. 60 Am. S. R. 252 (1897). In the 600, 72 L. J. K. B. 907; Lucke v. last cited case, it is declared, that Clothing Cutter's Co., 77 Md. 396, inducing the master to discharge or 26 At. 505, 39 Am. S. R. 421, 19 not to employ a servant, by persua- L. R. A. 408 (1893). sion or argument however whimsi- " Allen V. Flood (1898), A. C. 1, cal or absurd, or by threat to do 67 L. J. Q. B. 119; Continental Ins. what the defendant has a right to Co. v. Board of Fire Underwriters, do, is not a tort towards the ser 67 Fed. 310 (1895); National Pro- vant, though the defendant's mo- tec. Assoc, v. Cummings, 170 N. Y. tives are malicious; but to intiml- 315, 63 N. E. 369, 88 Am. S. R. 648, date the master into discharging 58 L. R. A. 135 (1902) ; Raycrott v. the servant, or withholding em- Tayntor, 68 Vt. 219, 35 At. 53, 54 ployment, by fraud or by unlawful Am. S. R. 882, 33 L. R. A. 225 threats, is an actionable wrong. (1896). 288 The Law of Torts. of them, they do not become tortious by reason of the conspiracy; that damage to the plaintiff is the gist of the action. °° It is undoubtedly true that a mere conspiracy to injure another is not actionable as a tort. Injury must ensue, or a tort action will not lie. But when one sustains actual harm as the result of con- certed action on the part of others, and the harm is such as could not have been inflicted by any of the parties acting singly, it would seem that the distinctive element of the tort is the conspiracy rather than the damage. Damage is an essential element in malicious prosecution, in deceit and in many cases of slander ; but no one contends that such fact warrants the assertion that there is no such tort, as malicious prosecution, or deceit, or defamation by slanderous words which are not actionable per se. Concert or Combination. " The essence of conspiracy," to quote from a distinguished jurist, " so far as it justifies a civil action for damages, is a concert or combination to defraud or to cause other injury to person or property, which actually results in damage to the person or property of the person injured or defrauded." " ™ Parker v. Huntington, 2 Gray (68 Mass.), 124, 66 Am. Dec. 455 (1854); Hutchlns, V. Hutchins, 7 Hill (N. Y.), 107 (1845); Van Horn V. Van Horn, 52 N. J. L. 285, 20 At. 485, 10 L. R. A. 184 (1890) ; 56 N. J. L. 318, 28 At. 669 (1893); Porter v. Mack, 50 W. Va. 581, 40 S. E. 459, 1901. In the last cited case, it is said: '' Owing to its rare character, the law regarding this kind of action has not heen well defined, and the decisions of the courts have produced some confu- sion in regard thereto. The prin- cipal authorities maintain that the common law action of conspiracy is obsoletBj and that there has been substituted therefor an action on the case in the nature of a conspir- acy. That the allegation of con- spiracy is mere matter of aggra- vation, and need not be proven, ex- cept to fix the liaijility of several defendants; and does not change the nature of the action from one purely on the case, subject to all the settled rules of such action." ™ Dwight, C, in Place v. Minster, 65 N. Y. 89, 95 (1875). In Bishop on Non-Contract Law, § 362, it is said : " The term ' conspiracy ' is in our books oftener misapplied than used correctly. In the just meaning of the word, the title is a considerable one in the criminal law; in our civil jurisprudence it is narrow, yet it exists and is import- ant. It signifies in the true and narrow sense, a wrongful combina- tion of persons to do an act or acts, which when done have brougl^ to another an injury of a sort not admitting of being accomplished alone." Examples of such a tort are afforded by GMffith v. Ogle, 1 Binney (Pa), 172 (1806). holding distinctly that damage is not the Wrongful DisturbaxcS of Family Relations. 289 That such a concert or combination " differs widely from an invasion of civil rights by a single individual cannot be doubted." " " It may be punished^ criminally by indictment, or civilly by an action on the case in the nature of a conspiracy, if damage has been occa- sioned to the person against whom it is directed. It may consist of an unlawful combination to carry out an object not in itself unlawful by unlawful means. The essential elements, whether of a criminal or of an actionable conspiracy, are the same, though to sustain an action special damage must be proved." '"■^ " The number and compact give weight and cause danger." ^^ The true rule applicable to conspiracies against servants has been well stated as follows : " Every man has a right to employ his talents, industry and capital a5 he pleases, free from the dictation gist of the action; and Wildee v. McKee, 111 Pa. 335, 2 At. 108, 56 Am. R. 271 (188). " Lord Macnaghten, in Quinn v. Leathern (1901), A. C. 495, 511. Cf. Lord Lindley's statement on p. 539: "But numbers may annoy and coera^where one may not." In Arthur v. Cakes, 63 Fed. 310, at p. 321, Harlan, J., says: " It is one thing for a single individual, or for several individuals, each acting upon his own responsibility and not in co-operation with others, to form the purpose of inflicting actual in- jury upon the property or rights of others. It is quite a different thing, in the eye of the law, for many persons to combine or conspire to- gether with the intent, not simply of asserting their rights or of ac- complishing lawful ends by peace- able methods, but of employing their united energies to injure others or the public." "Lord Brampton, in Quinn v. Leathern (1901), A. C. 495, at p. 528. To the same effect, Carew v. Rutherford, 106 Mass. 1, 10, 8 Am. R. 287 (1870) ; Giblan v. National 19 Amalgamated Union (1903), 2 K. B. 600, 621-624. Both of these cases approve of the decision in Gregory v. Duke of Brunswick, 6 M. & G. 205, 6 Scott. N. R. 809, 1 C. & K. 24 (1843), that a conspiracy to hiss another off the stage, and so injure him in his trade or calling, was illegal and actionable. It has been said that there was no actual decision to the above ef- fect, but Lord Chancellor Halsbury has pointed out that the report of the case. In 6 Scott, N. R. 809, 822, shows that such decision was made. See (1901) A. C. p. 503. Lord Macnaghten referred to the case, as an authority for the propo- sition that " a conspiracy to injure, resulting in damage, gives rise to a civil liability." It is also treated as an authority for that proposi- tion by Lord Bowen in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 614 (1889), cited approv- ingly in Allen v. Flood (1898), A. C, 1, at p. 74. "Mulcahy v. Reg., L. R. 3 H. L. 306, 317 (1868). 290 The Law of Torts. of others ; and if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. * * * While such a con- spiracy may give to the individual, directly affected by it, a private right of action for damages, it at the same time lays a basis for an indictment, on the ground that the State itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings." " "Stote v. Stewart, 59 Vt. 273, 9 At. 559, 59 Am. R. 710 (1887). CHAPTER X. DEFAMATION. § I. NATURE OF THE TORT. The Right Invaded by Defamation. This tort is an inva- sion of a person's right to enjoy a good reputation, until by his mis- conduct he has forfeited it. " The law recognizes the value of such a reputation and constantly strives to give redress for its injury." ^ Moreover the law presumes that every person is entitled to enjoy a good reputation, until it is shown that he is not so entitled.- Consequently, the plaintiff is not bound to show the falsity of a defamatory statement. On the contrary, the burden of proving its truth is on the defendant.'' It is to be home in mind, too, that the issue tendered in an action 'Times Pub. Co. v. Carlisle, 94 Fed. 7G2, 36 C. C. A. 475 (1889); In this case Sanborn, J., said: " 'A good name Is rather to be chosen than great riches, and loving favor rather than silver and gold.' The respect and esteem of his fellows are among the highest rewards of a well spent life vouchsafed to man in this existence. The hope of them is the inspiration of his youth, and the possession of them the solace of his later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who has developed a good character and an unblemished .reputation, has secured a possses- sion more useful and more valuable than lands, or bouses, or silver or gold. Taxation may confiscate his lands; fire may burn his houses; thieves may steal his money; but his good name, his fair reputation, ought to go with him to the end, — a ready shield against the attacks of his enemies, and a powerful aid in the competition and strife of daily life; " Dixon v. Holden, L. R. 7 Eq. 488, 492 (1869); De Crespigny V. Wellesby, 5 Bing. 392, 406 (1829). ° Ibid. Conroe v. Conroe, 47 Pa. 198, 201 (1864); Atwater v. Morn- ing News Co., 67 Conn. 504, 34 At. 865 (1896). 'Belt V. Laws, 51 L. J. Q. B. 359, 361 (1882) ; Ellis v. Buzzell, 60 Me. 209, 211, 11 Am. R. 204 (1872); Lewis V. News Co., 81 Md. 466, 473, 32 At. 246, 29 L. R. A. 59 (1895). 291 292 The Law of Torts. for defamation is not the character of the plaintiff, but the wrong- fulness of the particular statement. Accordingly, " It is not a defense to a libel or slander that the plaintiff has been guilty of offenses other than those imputed to him, or of offenSfes of a similar character ; and such facts are not competent in mitigation of dam- ages. The only tendency of such proof is to show not that the plaintiff's reputation is bad, but that it ought to be bad." * The dis- tinction between character and reputation ought to be sharply made and strictly observed, in the discussion of this topic. Reputation is the estimate in which others hold a person,* " the common knowledge of the community " " in which he lives, based upon " the slow spreading influence of opinion, arising out of his deportment in tht society in which he moves." ' " An existing reputation," it has been declared, " is a fact to which any one may testify who knows it. He knows it because he hears it, and what he hears constitutes the reputation." ' "Character, on the other hand is not built upon hearsay ; is not determined by the opinion of others and is not sus- ceptible to harm from scandal. It has been judicially defined as " that which is habitually impressed by nature, traits or habits upon a person." * Injury to Reputation by Means Other than Defamation. The reputation of a person may be harmed by the conduct of another, without a cause of action for libel or slander accruing to him. It may be that the one thus injured has no redress, as where a master refuses to give a servant a " character ; " for the law does not recognize a servant's right to a " character ' from his ' Sun Printing Co. v. Schenck, 98 v. Greeley, 1 Den. (N. Y.) 347, 365 Fed. 925, 40 C. C. A. 163 (1900); (1845). when the plaintiff is charged with • Chellis v. Chapman, 125 N. Y. being a thief. It is competent for 214, 221, 26 N. E. 308, 11 L. R. A. defendant to show that he has the 784 (1891); Smith v. Compton, 67 general reputation of being a thief; N. J. L. 548, 557, 52 At. 386, 58 L. R. Drown v. Allen, 91 Pa. 393 (1879); A. 480 (1902). See Conroe v. Conroe, 47 Pa. 198 ' Wright v. City of Crawfordsvllle, (1864); O'Connor V. Press Pub. Co., 142 Ind. 636, 642, 42 N. B. 227 24 Misc. 564, 70 N. Y. Supp. 367 (1895). (1901). 'Bath rick v. Detroit Post, 50 'Spalts V. PoundstMie, 87 Ind. Mich. 629. 642, 45 Am. R. 63 (1883).- r,22, 44 Am. R. 773 (1882); Cooper 'Wright v. Crawfordsville, .142 Ind. 636, 642. 42 N. E. (1895). Defamation. . 293 master.'* Even when the conduct is tortious and injurious lo repu- tation, it may not amount to defamation, as where a banker, having sufficient funds of his customer, wrongfully dishonors the'latter's checks,*' or where the payee negligently has plaintiff's note pro- tested for non-payment, , although it had been paid;'- or when a creditor institutes legal proceedings against his debtor in a way, and with the view of giving the impression that the debtor is insolvent.'* •■ In some jurisdictions, an action is given by statute for insulting words, although they are not defamatory and although they may not be heard or read by a third person.'* Publication. As the gist of the tort now under discussion con- sists in the injury done to reputation, it follows that the defama- tory statement must have been published in order to be actionable.'^ No such injur)' is done when the statement' is communicated to. the person, .concerning whom it is made, without its coming to the knowledge of a third person.'" Accordingly, a plaintiff does not make out a cause of action for slander by proving that the defend- . ant spoke defamatory words to him. He must go further aud show that " they were so spoken as to have been heard by a third "Cleveland and etc., Ry. v. Jen- Assur. Co. v. Bailey, 1* Va. 443, kins, 174 111. 398, 51 N. E. 811, 66 44 S. E. 692 (1903). Am. St. R. 296 (1898): New York, " Hebditch v. Mcllwaine (1894), Chic, etc., Ry. v. Schaffer, 65 Oh. 2 Q. B. 54; 63 L. J. Q. B. 587. St. m, 62 N. B. 1036, 87 Am. S. R. " Clutterbuck v. Chaffers, 1 Stark. 628|pl901). 471 (1816); Warnock v. Mitchell, "J. M. James Co. v. Cont. Nat. 43 Fed. 428 (1890); Spaifs v. Pou Bank. 105 Tenn. 1, 58 S. W. 261. stone, 87 Ind. 522 (1882); Mclnto! 80 Am. St. R. 856, 51 I.. R. A. 2.5.'; v. Matherly. 9 B. Mon. (48 Ky.) 119 (1900). (1848); I.yle v. Clason, 1 Caines "State Mut. Life v. Baldwin, 116 (N. Y.) 581 (1804); Wilcox v. Moon, Ga. 855, 43 S. E. 262 (1903); In 64 Vt. 450, 24 At. 244 (1892). A May V. Jones, 88 Ga. 308, 14 S. E. sealed letter containing libellous 552, 30 Am. S. 154, 15 Ij. R. A. 154 matter, communicated to no one but (1891), it was held libelous to the party libelled, will sustain an " falsely and maliciously protest " indictment, since such a publica- commercial paper. % tion to the party himself tends tr "Brewer v. pew, 11 M. & W. 625, a breach of the peace: Edwards a. 12 L. J. Exch. 448 (1843); Odgers Wooton, 12 Rep. 35 (1608); Chit- Libel & Slander, (3 ed.) p. 13. terbuck v. Chaffers, 1 Stark, 471 "Rolland v. Batchelder, 84 Va. (1816) ; State v. Avery, 7 Conn. 267, 664; 5 S. E. 695 (1888); Sun Life 18 Am. Dec. 105 (1828); Fry v. Mc- 294 The Law of Torts. person ; " '^ and, if spoken in a foreign language, that they were understood by some one who heard them." Nor is a cause of action -established by proof, that a defamatory letter or print was sent by defendant to the plaintiff." Evidence must be given that it was read to or by a third person, and that defendant was respons- ible for such publication.-" It is to be noted, however, that plain- tiff makes out a prima facie case of publication, by showing that the libel was "" contained on the back of a postal-card," -' or by other evidence that " makes it a matter of reasonable inference that the libellous matter was brought to the actual knowledge of any third person." ^' '-* The burden is then thrown upon the defendant of showing that it did not come to the knowledge of any third person. ^^ ^-^ Intention on the part of defendant that third persons shall hear or read the defamatory statement is not essential. He may believe that he and the plaintiff are alone, yet if a secreted third person overhears the slanderous utterance, there is an actionable publica- tion.-- He may intend to mail a defamatory letter to one aboift whom it is written, yet, if by inadvertence he mails it to a third % Cord, 95 Tenn. 678, 33 S. W. 568 v. Hoss, 6 Al. 881, (1844). And if (1895). • the person to whom the letter is " Sheffill V. Van Deusen, 13 Gray sent makes public its contents, this (79 Mass.) 304 (1859). is not publication by the writer, " Price V. Jenkins, Croke Bliz. 865 Wilcox v. Moon, 64 Vt. 450, 24 At. (1601); Mielenz v. Quasdorf, 68 la. 244 (1892). 726, 28 N. W. 41 (1886); Wormouth "Robinson v. Jones, L. R^ Ir. V. Cramer, 3 Wend. (N. Y.) 394 391 (1879) ; Williamson v. Freer, L. ^829). R. 9 C. P. 393, 43 L. J. C. P. 161 "Clutterbuck v. Chaffers, 1 (1874). In Fry v. McCord, 95 Tenn| Starkie 471 (1816). 678, 33 S. W. 568 (1895), it was '" Delacroix v. Thevenot, 2 Stark. held that " the sending of a writing 63 (1817); Kiene v. Ruff, 1 la. 482 in a sealed envelope, to the party (1855); Snyder V. Andrews, 6 Barb, himself," is not a publication "in (N. Y.) 43 (1849); Fry v. McCord, the absence of averment and proof 95 Tenn. 678, 33 S. W. 568 (1895).' that it was read or heard read by If the writer of a defamatory let- others." ter locks it in his desk, and a thief =' '-* Clerk jnd Llndsell, Torts (2 takes the letter and makes its con- Ed.) p. 490. tents known, this is not publication " ^-^ Clutterbuck v. Chaffers, 1 by the writer; Pullman v., Hill Stark. 471 (1816). (1891) 1 Q. B. 524, 60 L. J. Q. B. '= Desmond v. Brown, 53 la. 13. 299, (opinion of Lord Esher); Weir 15 (1871). Defamation. 295 person who reads it, there is publication.-^ So, there is publication, although the defendant intended to make the statement of another person than the plaintiff,''* or intended to make a different state- ment from that which he actually uttered,'"' or believed the occas- ion was privileged^" Communicating a defamatory statement to one spouse about the other is a legal publication,-' but a communication by one spouse to the other is privileged,-* although if it is overheard by a third per- son the privilege is forfeited and publication is made.^° Alleging Publication. It was settled at an early day, that no technical words are necessary in alleging publication. Accord- ingly, a declaration that defendant spoke the slanderous words in the presence of others, was held good, although there was no allega- tion that they were spoken in the hearing of others, the Court saying, " it shall be necessarily intended that it was in the hearing when it was in the presence of others." '" So an averment that defendant " openly and publicly promulgated " the statement was held sufficient.'^ An allegation, that defendant caused the libel to "Pox V. Broderick, 14 Ir. C. L. 453 (1864). =• Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392 (1895); S. C. 118 Cal. 366, 50 Pac. 541 (1897) ; McAllister, V. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. S. R. 339 (1889); Griebel v. Rochester Print- ing Co., 60 Hun. 319, 14 N. Y. Supp. 848 (1891) ; Morey v. Morning Jour- nal Assoc, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621 (1890) ; Warner V. Press Puh. Co., 132 N. Y. 185, 30 N. E 393 (1892); Contra, Hanson v. Globe News Co., 159 Mass. 293, 34 N» E. 362 (1893), but see dissenting opinion of Holmes, Morton and Barker, J. J. " Shepheard v. Whitaker, L. R. 10 C. P. 502 (1875). "Hebditch v. Mclliwain (1894), 2 Q. B. 54. 63 L. J. Q. B. 587, overrul- ing Tompson v. Dashwood, 11 Q. B. D. 43, 52 L. J. Q. B. 425 (1883). "Wenman v. Ash, 13 C. B. 836, 22 L. J. C. P. 190 (1853); Schenck v. Schenck, 1 Spencer (20 N. J. L.) 208 (1844); Wilcox v. Moon, 64 Vt. 450, 24 At. 244 (1892). =* Wennhak v. Morgan, 20 Q. ^. D. 635, 57 L. J. Q. B. 241 (1888); Ses- ler V. Montgomery, 78 Cal. 486, 21 Pac. 185 (1889); Trumbull v. Gib. bons, 3 City H. Rec. (N. Y.) 97 (1818). » State V. Shoemaker, 101 N. C. 690, 8 S. E. 332 (1888). " Hall V. Hennesley, Cro. Ellz. 486 (1596) ; Miller v. Johnson, 79 111. 58 (1875); Burbank v. Horn, 39 Me. 233, 235 (1855), accord. "Taylor v. How, Cro. Eliz. 861 (1601); Ware v. Cartledge, 24 Al. 622 (1854) ; Goodrich v. Warner, 21 Conn. 432 (1852) ; Hurd v. Moore, 2 Or. 85 (1863); Benedick v. West- over, 44 Wis. 404 (1878), accord. 296 The Law of Torts. be printed, charges publication, " because it calls in a third person, an agent, to whom it must have been communicated." '- For similar reasons, there is actionable publication, when a letter is dictated to a typewriter or stenographer,'' or a telegram is trans- mitted.'* In the latter case, the telegraph company publishes the libel, when one agent communicates it over the wire to another."'' And it may be laid down as a general proposition, that where two or more persons take part in communicating defamation, there is a publication by each to the other.'"' Communication Which is not Publication. When the defamatory statement is made to a third person at the plaintiff's request, the publicity is chargeable to the plaintiff, not to the defendant. '^ If, however, the defendant communicates the defama- tion to a third person, without knowledge that he is an agent of the plaintiff, there is actionable publication. The defendant cannot be heard to say, in such a case, that the publicity is the plaintiff's act.'« A person, who voluntarily engages in " the interchange of oppro- brious epithets and mutual vituperation and abuse," has been held "'Baldwin v. Elphinstone, 2 W. liability; Nye v. W. U. T. Co., 104 Bl. 1037 (1775). Cf. Watts v. Fed. 628 (1900j. Eraser, 7 A. & E. 223, 7 C. & P. 369, « Spalts v. Poundstone, 87 Ind. 1 M. & Rob. 449 (1835); Sproul v. 522, 325 (1882). Pillsbury, 72 Me. 20 (1880). ''Warr v. Jolly, 6 C. & P. 497 " Gambrill v. Schooley, 93 Md. 48, (1834) ; Ponville v. MflNease, I Dud 48 At. 730, 52 L. R. A. 87, 86 Am. (S. C.) 303, 32 Am. Dec. 49 (1838); St. R. 414 (1901); Pullman v. Hill Rowland v. Blake Manufacturing (1891), 1 Q. B. 524, 63 L. J. Q. B. Co., 156 Mass. 543, 31 N. E. 656 299. (1892); Shinglemeyer v. Wright, "Whitfield V. S. E. Ry., E. B. & 124 Mich. 230, 82 N. W. 887 (1900). E. 115, 27 L. J. Q. B. 229 (1858) ; In the last cited case, the court Williamson v. Freer, L. R. 9 0. P. , said: "There is no difference in 393, 43 L. J. C. P. 161 (1874). principle between reading a letter " Peterson v. West. XJ. Tel. Co., 65 to another, and soliciting a person Minn. 18, 67 N. W. 646, 33 L. R. A. to make a similar verbal statement. 302 (1896). If the dispatch does The maxim volenti non fit injuria not disclose that its purpose is de- applies." famatory. it is the duty of the com- '" Duke of Brunswick v. Harmer, pany, as a quasi common carrier, to 14 Q. B. 185 (1849); Byam v. Col- transmit it: the occasion is privil- lins. 111 N. Y. 143, 19 N. E. 75 eged, and the company incurs no (1888). Dki-amatioN.- 297 to license his antagonist to a reply in kind.^' " The right to answer a libel by libel is analagous to the right to defend oneself against an assault upon his person. The resistance may be carried to a successful termination, but the means used must be reason- able ." *" For any excess of defamation beyond that which is fairly incident to self-defense, the party originally attacked is answer- able." Common carriers,*- news-vendors,*' proprietors of circulating lib- raries ■''' and others, who are not responsible for originating defama- tion, and are merely unconscious vehicles of its distribution, gener- ally escape liability for its publication.*'' But, as pointed out by the courts they are prima facie answerable, inasmuch as they have in fact delivered and put into circulation the defamatory matter complained of, and they are therefore called upon to show their ignorance of its existence,'" and their freedom from negligence in the matter.*'' == Bloom V. Crescioni, 109 La. 667, 33 So. 724 (1903), Cf. Laughton v. Bishop of Sudor, L. R. 4 C. P. 495, 42 L. J. C. P. 11 (1872.) "Pish V. St. Louis, etc., Co., 102 Mo. App. 6, 74 S. W. 641 (1903), Koenig v. Ritchie, 3 F. & P. 413 (1862); Shepherd v. Baer, 96 Md. 152, 53 At. 790 (1902); Chaffin v. Lynch, 83 Va. 106, 1 S. B. 803 (1887). " Brewer v. Chase, 121 Mich. 526, 80 N. W. 575, 46 L. R. 397, 80 Am. S. R. 527 (1899): "It must not he supposed that when a libellous art- icle is published the person libelled is at once authorized to publish any and all kinds of charges against the offender, upon the theory that they tend to degrade him, and there- by discredit his libellous state- ments. If this were so, every libel might be answered in this way, and the most disgraceful charges made, the person making them being able to shelter himself behind his be- lief in their truth. The thing pub- lished must be something in the nature of an answer, like an explan- ation or denial. What is said must have some connection with the charge that is sought to be re- pelled." See Poissenot v. Reuther, 51 La. Ann. 965, 25 So. 937 (1899), limiting Goldberg v. Dobberton, 46 La. Ann. 1303, 16 So. 192, 28 L. R. A. 721 (1894). « Day v. Bream, 2 Moo. & Rob. 54 (1837). "Bmmens v. Pottle, 16 Q. B. D. 354, .55 L. J. Q. B. 51 (1885). ^'Vizetely v. Mudie's Select Lib- rary (1900) 2 Q. B. 170, 69 L. J. Q. B. 645. "Smith V. Ashley, 11 Met. (52 Mass.) 367 (1846). Defendant printed what appeared to be a fancy sketch, without any reason to be- lieve it was a libel on plaintiff. "Day V. Bream, 2 Moo. & P 54 (1837); Staub v. Van Benthuy- sen, 36 La. Ann. 467, 469 (1884; "Vizetely v. Mudie's Select Lib rary (1900), 2 Q. B. 170, 69 L. J. Q B. 645. 298 The Law of Torts. Repetition of Defamation. There is some authority for the view that in early English law, a person, who, at the time of repeat- ing a defamatory statement, gave the name of its author, could jus- tify his conduct.*' This doctrine has long been exploded, both in England and in this country. It is now well established that every repetition of a defamatory statement is a new publication, subjecting the repeater to a separate action.'" The disseminator of scandal can- not take refuge behind rumor^ or even the positive assertion of a trusted informant. He must be prepared to establish the truth of the defamatory statement, (not the fact that he has repeated only what he heard and believed to be true), or pay damages for the in- jury which his scandal-mongering has inflicted upon the plaintiff. °'' While it is natural, and to be expected, that a defamatory state- ment will be repeated by those who hear or read it, the rule is settled that one is not liable for a third person's actionable and unauthorized "Northampton's Case, 12 Co. 134 (1613). The latter part of the fourth resolution reads: " In a priv- ate action for slander of a common person, if J. S. publish that he hath heard J. N. say that J. G. was a traitor or thief; in an action of the case, if the truth be such, he may justify." It will be observed that the name of the informant must have been given when the state- ment was made, so as to give the plaintiff his action in the first in- stance against the original author of the slander: Woolworth v. Meadows, 5 East 463 (1803). "McPherson v. Daniels, 10 B. & C. 263, 34 R. R. 397 (1829); Wat- kin V. Hall, L. R. 3 Q. B. 396, 37 L J. Q. B. 125 (1868) ; Parker v. McQueen, 8 B. Mon. (47 Ky.) 18 (1847); Nicholson v. Rusk (Ky) 52 S. W. 933 (1899); Staub v. Van Benthuysen, 36 La. Ann.. 467 (1884); Stevens v. Hartwell, 11 Met. (52 Mass.) 542 (1846); Inman V. Foster, 8 Wend. (N. Y.) 602 (1832) ; Polwell v. Providence Jour- nal Co. 19 R. I. 551, 37 A. 6 (1896); Sans V. Joerris, 14 Wis. 663 (1861). =»Kelley v. Dillon, 5 Ind. 426 (1854); Lehrer v. Elmore, (Ky.) 37 S. W. 292 (1896); Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S. W. 15.(1899). In the last cited case, it is said : " The public good as well as the usefulness of the press, imperatively demand that no publication injurious to a citizen should ever be made, unless the publisher knows beyond a reason- able doubt that the statements or charges that it publishes are in fact true. It is a matter of public im- portance that all statements print- ed and published in the press of the day should be entitled to full faith and credence, and no paper should publish any matter calculated to In- jure the feelings, business, or standing of any citizen, unless the same be true; and the mere fact that such publisher may believe that the statements or charges made are true, is no defense in law or morals." Defamation. 299 repetition of his slander or libel." Of course, a person who actually authorizes the repetition of a libel or slander which he originates,'- is Hable for such repetition, as he would be for any other tort of his procurement, and it is generally held that when a person publishes defamation to one, who is under a duty to repeat it to another, he is answerable for the repetition.^'' But where the repetition is not privileged, the burden of proof appears to be upon the plaintiff to show that the defendant actually authorized or requested the repetition.^* Joint Publication. If the publication of a libel is the result of the joint efforts of several persons, each is responsible for the wrong- done to the plaintiff. Accordingly, if A prepares a libel, and B prints it, and C publishes it, the victim may have a joint action against all, or may sue them separately .°' The rules apply here which have been set forth in a former connection, relating to joint wrongdoers, to master and servant, to partners, to corporations and their managers.'" " McGregor v. Thwaites, 3 B. & C. 24, 35 (1824); Ward v. Weeks, 7 Bing. 211, 4 M. & P. 796 (1830); Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208 (1890) ; Bassell v. El- more, 48 N. Y. 561 (1872). See supra p. 90. ™Youmans v. Smith, 153 N. Y. 214. 47 N. E. 265 (1897). '-^ Derry v. Handley, 16 L. T. N. S. 263 (1867) ; Elmer v. Fessenden, 151 Mass. 359, 24 N. E. 208 (1890). " Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502 (1900). The fourth head-note is as follows: "A person whom defendant knew to be a news- paper reporter approached him con- cerning a report about plaintiff, stating that he understood that de- fendant had asserted the factss De- fendant repeated the assertion, but there was nothing: said about the publication of the statement. Held insufBcient to show that defendant intended his remarks to be publisn- ed." Judge Vann dissented from the conclusion, that the evidence presented no question for the jury, as to whether he Intended to cause or promote the publication of the words spoken to the newspaper re- porter. According to Clerk & Lind- sell's understanding of the English cases, the plaintiff made out a prima fac'.e case against the de- fendant. See their treatise on Torts, (2 ed.) pp. 540-542: also, Clay V. People, 86 111. 147 (1877). ™ Johnson v. Hudson, 7 A. & E. 233 n., 1 H. & W. 680 (1836); Watts v.- Eraser, 7 C. & P. 369, 7 A. & E. 223, 1 M. & Rob. 449, 2 N. & P. 157 (1835); Thomas v. Rum- sey, 6 Johns (N. Y.) 26 (1810); Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265 (1897.) "" Supra, Ch. iv. Also, Abrath v. N. E. Ry., 11 App. Cas. 247, 55 L. J. Q. B. 460 (1886); Johnson v. St. Lous Dispatch Co., 65 Mo. 539, 27 Am. R. 293 (1877); Washington Gas Light Co. V. Lansden, 17^ U. S. 534, ;oo The Law of Torts. Ordinarily, the publication of the same slander by diffcicnl per- sons is not a joint tort, but is a separate and distinct wrong done by each slanderer.'^ Hence, if A utters slanderous words of B, which are not actionable />«r se, and C's repetition of them causes B special damage, B can maintain an action only against C." But there can be no doubt, upon principle, that, if A and C con- certedly utter the same slander, at the same time, they are jointly liable ; nor, if C utters the slander at A"s request, or pursuant to au- thority from A, or to an understanding between them. And the weight of authority, it is submitted, sustains this doctrine".'' § 2. LIBEL AND SLANDER. Two Species of Defamation are recogni-zed by English Law. That which is expressed in oral speech, or its equivalent, is called slander ; "" while the term libel is applied to defamation which is ex- pressed in writing or print, or pictures, effigies or other visible and permanent forms. "^ 19 Sup. Ct. 296, 43 L. Ed. 543 (1899) ; Sun Life Asur. Co. v. Bailey, 101 Va. 443, 44 S. E. 692 (1903). "Van Horn v. Van Horn, 56 N. J. L. 318, 29 At. 669 (1893). The statenMnt in this case, following Chamberlain v. White, Cro. Jac. 647 (1623), and Coryton v. Lithebye, 2 Wm. Saund, 117 c. (1682), and in Blake v. Smith, 19 R. I. 476, 34 At. 995 (1896), that "an action for slander will not lie jointly against two, because the words of one are not the words of another," is too broad. ■^'ShurtlefE v. Parker, 130 Mass. 293, 39 Am. R. 454 (1881); Gough V. Goldsmith, 44 Wis. 262, 28 Am. R. 579 (1878); Parkins v. Scott, 1 H. & C. 152, 153, 31 L. I. Ex. 331 (1862); Ward v. Weeks, 7 Blng. 211, 4 M. & P. 796 (1830). °° Johnson v. Hudson, 7 A. & E. 233 n, 1 H. & W. 680 (1836); and the authorities cited in the three preceding notes; Clerk and Lindsell, Torts (2 Ed.), p. 491. In Gushing V. Hederman, 117 la. 637, 91 N. W. 940 (1902), the court appears to as- sume that a husband and wife might be joint-wrongdoers in the publication of slanderous words. In Haney Mnfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073 (1889), it was declared that if one partner, in the course of the firm's business slanders another " the partnership is liable therefor just as it might be for any other tort," and a joint ac- tion against all the partners will lie. ^ °° Pollard V. Lyon, 91 U. S. 225 (1875); Gutsole v. Mathers, 1 M. & W. 495, 2 Gale, 64, 5 Dowl. P. C. 69 (1836). " Iron Age Publ'g. Co. v. Crudup, 85 Al. 519, 5 So. 332 (1888). In Defamation. 301 The legal distinction between these two species is not limited to their differences in form. It is even more striking and important when their consequences are considered. Libel is a criminal offense as well as a tort ; while the slander of private persons has never been deemed a common-law crime."- Many a statement, which is actionable in the form of a libel, is not actionable as a slander. Sir James ^lansfield once declared,^' th.it upon principle, he could not " make any difference between words written and words spoken, as to the right which arises on them of bringing the action." He refers to the reasons usually assigned for the distinction in the following passage : " So it has been argued that writing shows more deliberate malignity ; but the same answer suffices, that the action is not maintainable upon the ground of malig- nity, but for the damage sustained. So it is argued that written scandal is more generally diffused than words spoken, and is there- fore actionable ; but an assertion made in a public place, as in Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter : it is true that a newspaper may be very generally read, but that is all casual." However, he admits that the distinction between written and spoken scandal ' has been established by some of the greatest names known to the law. Lord Hardwicke,"* Hale,^' I be- lieve Holt, C. J., and others." *« Case de Llbellis Famosis, 5 Coke, ner. 2. Signis, as to fix a gallows, 125 b. (1606), it is said: "Every or other reproachful and ignomini- infamous libel aut est in scriptis, ous signs at the party's door or else- aut sine scriptis: a scandalous where." libel in scriptis is. when an epi- "= Reg v. Holbrook, 4 Q. B. D. 42, gram, rhyme, or other writing is 48 L. J. Q. B. 113, 14 Cox C. C. 185 composed or published to the scan- (1878); New York Pen. Code § 242. dal or contumely of another, by " It is only when slander is blas- which his fame and dignity may be phemous, seditious or obscene that prejudiced. And such libel may be the State is concerned to interfere published: 1. Verbis aut cantile- and punish the speaker," Odgers, nis, as where it is maliciously re- Libel and Slander (3 Ed.) p. 7. peated or sung in the presence of " Thorley v. Lord Kerry, 4 Taunt others. 2. Traditione, when the 355, 3 Camp. 214 n. (1812). libel or any copy of it is delivered •* Bradley v. Methwyn, Selw. N. P. over to scandalize the party. Fa- 982 (7 Am. Ed. 1045 n. 1), (1737). wiotts libeUus sine scriptis may be: "King v. Lake, 2 Vent. 28, Hardr. 1. Piituris, as to paint the party in 470 (1672). any shameful and ignominious man- "Austin v. Culpepper, 2 Shower, 302 The Law of Torts. In accordance with this distinction, words of mere suspicion " or which amount to an accusation of dishonest, vicious or immoral con- duct which falls short of being criminal,*' are not actionable, when spoken, although they would be if published in writing or print. An oral charge of false swearing, which does not import perjury in a legal sense, is not actionable ; *° but the same charge becomes action- able when published in a paper.'* To say of a man in writing that he has the itch and smells of brimstone, is an actionable libel : but to say the same words orally would not be actionable slander.'^ To charge one with being an anarchist is actionable in the form of libel, but not in the form of slander.'- Defmition of Civil '' Libel. It has long been establislied that " scandalous matter is not necessary to make a libel. It is enough if the defendant induces an ill opinion to be held by the plaintiff, or to make him contemptible or ridiculous.'" '* Any censorious or ridiculing writing, picture or sign made intentionally and without just cause and excuse is a libel upon its victim.'* The degree of 313, Skin, 123 (1683). Argued Cor plaintiff by Holt, who cited King v. Lake, supra. " Haynes v. Clinton Printing Co., 169 Mass. 512, 48 N. E. 275 (1897), referring to cases cited by defend- ant. « Blake v. Smith, 19 R. I. 476, 34 At. 995 (1896): "To say of ibe plaintiff's wife that ' she is a bad woman, and a disgrace to the neigh- borhood, and ought not to be al- lowed on the street,' and that ' she is a damned bitch,' is not to charge her with the commission of any offense known to the law; for, while said language may be suggestive of lewd- ness, it is also suggestive of drunk- enness, of dishonesty, of viciousness, and of other moral infirmities and (Terelictions." "Ward V. Clark, 2 Jol^s. (N. Y.) !0 (1806). ^~-. ■' Steele v. Southwick, 9 Johns. (X. Y.) 214 (1812). 1 •'White V. Nichols, 3 How. (U. S.) 266, 285-6 (1845), citing Villers V. Monsley, 2 Wils. 403 (1769). ^Cerveney v. Chic. Daily News, 139 111., 345, 13 L. R. A. 864, 28 N. E. 692 (1891); Lewis v. Daily News Co., 81 Md. 466, 32 At. 246 (1895). Cf. Browning v. Comm. 116 Ky., 282, 76 S. W. 19 (1903). " The distinction between civil and criminal libel has not always been observed by judges and writers. Defamation of the mem- ory of the dead is often included in the definition of civil libel; Smith V. Brads'reet Co., 63 S. C. 525, 41 S. E. 763 (1902), but it is well settled that no civil action lies for such de- famation; Bradt v. News Nonpareil Co., 108 la. 449, 79 N. W. 122 (1899); Wellman v. Sun Publish- ing Co., 66 Hun, 331, 21 N. Y. Supp. 577 (1892). "Cropp V. Tilney, 3 Salk. 225 (1693). "Villers v. Monsley, 2 Wils. 403 (1769); Riggs v. Denniston, 8 Defamation. 303 censure or ridicule is not material.'" " To allow the press to be the vehicle of malicious ridicule of private character, would soon deprave the moral taste of the community and render the state of society miserable." '' Oftentimes, a libel is not aimed at one's personal character but affects him chiefly or solely in his office or vocation.'* In such cases it may be necessary to inquire whether the statement complained of necessarily imports damage to the plaintiff, or whether he must allege and prove, in addition to the publication, special damage. This class of libels involves the distinction, between statements actionable per se and those actionable only when they cause special damage, which we shall find of especial importance in cases of slander. Libels upon peftonal character, however, are always actionable unless privileged. The law assumes that they harm the victim, and relieves him from the necessity of alleging or proving actual damage." Johns. Cas. 198, 205 (1802); People V. Croswell, 3 Johns. Cas. 337, 354 (1804); Watson v. Trask, 6 O. 531 (1834). "Cooper V. Greeley, 1 Den. (N. Y.) 347 (1845). "Steele v. Southwick, 9 Johns. 214 (1812). ^ McLoughlin v. Am. Circular Loom Co., 125 Fed. 203, 60 C. C. A. 87 (1903); Lowell. J., said: "We are of the opinion that the language here used is susceptible of a defam- atory meaning. In substance it was this: That the plaintiff had installed electric wires contrary to the rules of the New Orleans Board of Underwriters. The letter thus charged the plaintiff with violating the rules of the insurance compa- nies, and it is matter of common knowledge that the owner of a house wired in a manner not per- mitted by these rules may well be unable to insure it. As most house owners desire insurance, and wish that their electric wires should be so arranged as to make insurance possible, the plaintiff's evidence, ad- missible under the allegations of his declaration, might warrant a jury in finding that the defendant's let- ter suggested that the plaintiff so conducted his business as to make inadvisable his employment by one having the ordinary desires of a householder. There is no conclu- sive presumption that damage re- sults from the language used, and so that language is not libelous per se.." "Austin V. Culpepper, 2 Shower, 313, Skin. 123 (1683); Bell v. Stone, 1 Bos. & P. 331 (1798) : Iron Age Pub. Co. V. Crudup, 85 Al. 519. 5 So. 332 (1888) ; Wynne v. Parsons, 57 Conn. 73, 17 At. 362 (1889); Bee Pub. Co. V. Shields, 68 Neb. 750, 94 N. W. 1029 (1903) ; Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409 (1895) ; Gates V. N. Y. Rec. Co., 155 N. Y. 228. 49 N. E. 769 (1898); Solverson v. Peterson, 64 Wis. 128, 25 N. W. 14 (1885). 304 The Law of Torts. Libels Aifecting^ One's Vocation. In many cases of libe'i;, which affect the victim chiefly or solely in his office or vocatio;'., their tendency to cause legal injury may be so clear, as to render allegation and proof unnecessary. Imputing insanity,'" or incom- petency *^ to a professional man, or insolvency*- to a trader, or asserting that a merchant has given a chattel mortgage or other security upon his stock,** or that a public officer has been guilty of dishonest, corrupt conduct,** is a libel actionable per se. On the other hand, a false statement that a person, not a trader, owed a debt,*° or that a judgment had been recovered against a merchant,''* is not actionable without allegation and proof of special damage, unless the circumstances warrant the inference that the defendant charged the plaintiff with inability to pay his just debts," or with conduct which would " naturally injure his standing in the com- munity and lower him in the esteem of his neighbors." ** Libel of a Class. When a libellous publication is directed against a class or body of persons, such as the commissioners of a county,** or the medical staff of a public hospital,"" any member of the class or body may maintain an action therefor.** A libel upon one, in respect of a vocation which is illegal, is not ■" Morgan v. Lingen, 8 L. T. R. N. " WofEord v. Meeks, 129 Al. 349, S. 800 (1863); Totten v. Sun Pub. 30 So. 625 (1901). Assoc. 109 Fed. 289 (1901); South- "Fry v. McCk)rd, 95 Tenn. 678, 33 wick V. Stevens, 10 Johns (N. Y.) S. E. 569 (1895). 443 (1813); Moore v. Francis, 121 "Woodruff v. Bradstreet, 116 N. N. Y. 199, 23 N. E. 1127, 8 L. R. A. Y. 217, 2 N. E. 354 (188»); Sear- 214, 18 Am. S. R. 810 (1890). les v. Scarlett (1892), 2 Q. B. 56, ' '■ Tarleton v. Lagarde, 46 La. 61 L. J. Q. B. 573. Ann. 1368, 16 So. 180, 26 L. R. A. '■Williams v. Smith, 22 Q. B. D. 325, 49 Am. S. R. 353 (1894); Mat- 134, 58 L. J. Q. B. 21 (1888). tice V. Wilcox, 147 N. Y. 624, 42 N. " McDermott v. Union Credit Co., E. 270 (1895); Kmg v. Pitass, 162 76 Minn. 84, 78 N. W. 967 (1899). N. Y. 154, 56 N. B. 526, 76 Am. St. "Wofford v. Meeks, 129 Al. 349, R. 317 (1900). 30 So. 625 (1901). " Read v. Hudson, 1 Ld. Rayn. *■ Bommann v. Star Co., 174 N. Y. 610 (1699); Met. Omnibus Co. v. 212, 66 N. E. 723 (1903). Hawkins, 4 H. & N. 87, 28 L. J. Ex. •• Hardy v. Williamson, 86 Ga. 201 (1859); Simons v. Burnham, 551, 12 S. E. 874, 22 Am. St. R. 479 102 Mich. 189, 60 N. W. 476 (1894). (1891). " Smith v. Bradstreet Co., 63 S. C. 525, 41 S. E. 763 (1902). Defamation. 305 actionable. "The law of libel is not designed to shield one in the practice of an illegal business." "- Province of the Court and the Jury. It is sometimes said that it is a pure question of fact for the jury, whether a par- ticular publication comes within the definition of a libel. Such a statement does not accord with the weight of authority either in England or in this country. In civil actions, as distinct from crimi- nal prosecutions ^^ for libel, it is the province of the court, not simply to give to the jury a correct definition of libel, but to construe the particular publication."* Hence, if, in the opinion of the court, the language is not susceptible of a defamatory meaning, it should non- sujt the plaintiff."' On the other hand, if the publication is clearly libellous, in the opinion of the court, it should so charge the jury, leaving to them only the assessment of damages."" If, however, the « Weltmer v. Bishop, 171 Mo. 110, 71 S. W. 167 (1902), citing Johnson V. Simonton, 43 Cal. 242 (1872), and Perry v. Man, 1 R. I. 263 (1849). Morris V. Langdale, 2 Bos. & P. 284 (1800), Collins v. Carnegie, 1 A. & E. 695, 3 N. & M. 703 (1834) accord. ■" For learned discussions of the province of the court and jury in such prosecutions, see Sparf v. United States, 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343 (1895); Roesel v. State, 62 N. J. L. 216, 41 At. 408 (1898); People v. Sherlock, 166 N. Y. 180, 59 N. E. 830 (1901); State V. Burpee, 65 Vt. 1, 25 At. 964 (1892) ; McCloskey v. Pulitzer Pub. Co., 152 Mo. 339, 53 S. W. 1087 (1899). "WofEord V. Meeks, 129 Al. 349, 30 So. 625 (1901); Haynes v. Clin- ton Printing Co., 169 Mass. 512, 48 N. E. 275 (1897); Trebby v. Publish- ing Co., 74 Minn. 84, 76 N. W. 961, 73 Am. S. R. 330 (1898); Alwin v. Liesch, 86 Minn. 281, 90 N. W. 404 (1902); Krug v. Pitass. 162 N. Y. 154. 56 N. E. 526 (1900); Blake v. Smith, 19 R. I. 476, 34 At. 995 (1896); Robertson v. Edelstein, 104 Wis. 440, 443, 80 N. W. 724 (1899); Morgan v. Halberstadt, 60 Fed. 592, 9 C. C. A. 147 (1894). "^ Capital and Counties Bank v. Henty, 7 App. Cas. 741, 52 L. J. Q. B. 232 (1882); Quinn v. Prudential Ins. Co., 116 la. 522, 90 N. W. 349 (1902) ; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. S. R. 810 (1890); Crashley v. Press Pub. Co., 179 N. Y. 27, 71 N. E. 258 (1904). " Trebby v. Pub. Co., 74 Minn. 84, 76 N. W. 961, 73 Am. S. R. 330 (1898); Alwin v. Liesch, 86 Minn. 281, 90 N. W. 104 (1902). In Heller V. Pulitzer Pub. Co., 153 Mo. 205, 54 S. W. 457 (1899), it is said, follow- ing the English rule as stated by Lord Blackburn in Capital, etc.. Bank v. Henty, 7 App. Cas. 741, 52 L. J. Q. B. 232 (1882), "While the court may sustain a demurrer to the plaintiff's petition, or non- suit the plaintiff on the trial, or sus- tain a motion in arrest of a judg- ment against the defendant, it can- not direct a verdict for the plaintiff 20 3o6 The Law of Torts. language or circumstances, of the publication render its defamatory character uncertain, the question of libel or no libel is for the jury." Liberty of Speech and Press. Constitutional provisions, guaranteeing the liberty of speech and press, do not affect the rules set forth above. It has been judicially declared that, " While the liberty of each is a sacred right, dear to the hearts of the entire Anglo-Saxon civilization, yet the law-makers and the framers of constitutions have all realized that liberty in the exercise of any natural right, when unrestrained by law, leads to licentiousness, and have therefore wisely provided that any one exercising the liberty of speech, or of the press within this State, shall be held responsible for an abuse of such privilege." ** Language to be Construed in its Ordinary Sense. In early English law, the rule was observed that, "when the words may have a good construction, you shall never construe them to an evil sense." *' The purpose of the rule was " to avoid vexatious actions." ^'^ Later, however, the judges became convinced that the rule was unsound in principle, and harmful in results. Lord Holt announced that, " where words tend to slander a man and take away his reputation, he should be for supporting actions for them, because in a libel case. In this respect, "Bee Publishing Co. v. Shields, libel cases differ from other cases." 68 Neb. 750, 94 N. W. 1029 (1903). It is admitted by the court that this " Brough v. Dennison, Gold. 143 doctrine is not applied in cases of (1601), holding the words "Thou slander, as the provision of the Mis- hast stolen by the highwayside " souri constitution, making the jury not actionable; Popham, J., ingeni- judges of the law as well as the ously suggesting " for it may be facts, is limited to libel cases. taken that he stole upon a man snd- " Press Pub. Co. v. McDonald, 55 denly; " and Fenner, J., with equal Fed. 264 (1893), 63 Fed. 238, 11 C. ingenuity sugg^ting. "And it may C. A. 155 (1894); Mosier v. Stoll, be intended he stole a stick under 119 Ind. 244, 20 N. B. 752 (1889) ; a hedge, and these words are not so Quinn v. Prudential Ins. Co., 116 la. slanderous that they are action- 522, 90 N. W. 349 (1902); Bee Pub. able." Co. V. Shields, 68 Neb. 750, 94 N. W. «• Pratt, C. J., in Button v. Hey- 1029 (1903); Warner v. Soutball, ward, 8 Mod. 24 (1722), and Scar- 165 N. y. 496, 59 N. E. 269 (1901); lett. arguendo in Woolworth v. Bourreseaii v. Journal Co., 03 Mich. Meadows, 5 East 463 (1803). This 425, 30 N. W. 376, 6 Am. S. H. 320 view had been repudiated in some (1886). cases, such as Toose v. St., Cro. Jac. 306 (1613). Defamation. 307 it tends to preserve the peace." '"^ Lord i\Iansfield declared,"*- " where words from their general import appear to have been spoken with a view to defame a party, the court ought not to be industrious, in putting a construction upon them different from what they bear, in the common acceptance and meaning of them." Early in the last century Lord Ellenborough observed : " The rule which at one time prevailed, that words are to be understood in initi- ori sensu, has long been superseded : and words are now construed by courts as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." "" This principle of construction is now observed by all courts.^"* Accordingly, the inquiry of a judge or jury is not confined to the secret thought of the defendant, but to the effect of his utterance upon the plaintiff's reputation; and that effect is to be determined by the sense, which readers or hearers of common and reasonable understanding would ascribe to it.'"' This sense, it is to be borne in mind, will depend very much upon the circumstances attending the utterance. These may indicate that the statement complained ^" Baker v. Pierce, 2 Ld. Ray. 959 (1703), holding actionable the words " John Baker stole my box- wood, and I will prove it." In Townsend v. Hughes, 2 Mod. 159 (1676), it was held that "words should not be construed either in a rigid or mild sense, but according to the natural and general mean- ing." In Naben v. Miecock, Skin. 183 (1683); Levinz, J., declared, that he was " for taking words in their natural, genuine, and usual sense, and common understanding, and not according to the witty con- struction of lawyers." 'Teake v. Oldham, Cowp. 275, affirming Oldham v. Peake, 2 Black- stone 959 (1774). "•= Roberts v. Camden. 9 East 93 (1807). The words spoken by -le fendant were, " He is under a charge of prosecution for perjury; and the court ruled that they were calculated to convey the imputation of perjury actually committed by the plaintiff. '"'WotEord V. Meeks, 129 Al. 349, 30 So. 625 (1901); Jones v. McDo- well, 4 Bibb (Ky.) 188 (1815); Thompson v. Sun Pub. Co., 91 Me. 203, 39 At. 556 (1898); West v. Hanrahan, 28 Minn. 385, 10 N. W. 415 (1881); World Pub. Co. v. Mul- len, 43 Neb. 126, 61 N. W. 108 (1894); Turrill v. Dolloway, 17 Wend. (N. Y.) 426 (1837); Reid v. Providence Journal Co., 20 R. I. 120, 37 At. 637 (1897); Clute v. Clute, 101 Wis. 137, 76 N. W. 1114 (1898). "» Hankinson v. Bilby, 16 M. & W. 442. 2 C. & K. 440 (1847) ; Jarnlgan V. Fleming, 43 Miss. 710 (1871); Phillips V. Barber, 7 Weiui. (N. Y. ) 439 (1831). 5o8 The Law of Torts. of was clearly a joke,'*" or was so extravagant by reason of moment- ary passion, as not to convey its normal meaning ; '"' or, on the other hand, that it was intended to convey a covert or hidden mean- ing, which would be understood by those to whom it was addressed, while wearing a harmless appearance to others.*"* The Office of Innuendo. When the defamatory character of an utterance is latent, it is necessary for the plaintiff to explain the disingenuous words and phrases and disclose their true mean- ing."' This he does, by properly alleging those " extrinsic facts and circumstances in the past and present relations of the parties, or the facts surrounding the publication, by which the jury shall be justified in giving to words, not ordinarily actionable, a slanderous or libelous signification." "" While this portion of the complaint, known as the innuendo, is often important, it is to be remembered that " the meaning of words cannot be extended by innuendo beyond their natural import, aided by reference to the extrinsic facts with ""Donoghue v. Hayes, (Ir. Exch.) Hayes, 265 (1831): " The principle is clear that a person shall not be allowed to murder another's repu- tation in jest. But if the words be so spoken that it is obvious to every bystander, that only a jest is meant, no injury is done, and consequently no action will lie." Applying the same principle, defamation by one afflicted with " great and notorious lunacy " should not be actionable, and such is the view generally held in this country; Yeates v. Read, 4 Blackf. (Ind.) 463 (1838); Dickin- son v. Barber, 9 Mass. 225 (1812); Bryant v. Jackson, 6 Humph. (Tenn.) 199 (1845); Homer v. Marshall, 5 Mumf. (19 Va.) 466 (1817), while in England it has been judicially declared, that lu- nacy is not a defense to an action for libel or slander; Mordaunt v. Mordaunt, »9 I.. J. Prob. & M. 59 (1870). "" Austral. Newspaper Co. v. Ben- nett (1894), A. C. 284, 63 L. J. P. C. 105. Ritchie v. Stenius, 73 Mich. 563. 41 N. W. 687 (1889); Mihoje- vieh v. Badechtel, 48 La. Ann. 618, 19 So. 672 (1896). '"Hanchett v. Chiatovich, 101 Fed. 742, 41 C. C. A. 648 (1900); Hickinbotham v. Leach, 10 M. &"W. 361, 2 Dowl. N. S. 270 (1842); CJooper V. Greely, 1 Den. (N. Y.) 347 (1845). '°* Sweetapple v. Jesse, 5 B. & Ad. 27, 2 N. & M. 36 (1833); Rawlings V. Norbury, 1 F. & F. 341 (1851); Over V. Shiffling, 102 Ind. 191, 26 N. E. 91 (1885) ; Quinn v. Prud. Ins. Co., 116 la. 522, 90 N. W. 349 (1902); Belknap v. Ball, 83 Mich. 583, 47 N. W. 674, 11 L. R. A. 72, 21 Am. S. R. 622 (1890); Mason v. Mason, 4 N. H. 110, 113 (1827); Hemmens v. Nelson, 138 N. Y. 517, 34 N. E. 342 (1893); Crashley v. Press Pub. Co., 179 N. Y. 27, 71 N. E. 258 (1904). "• Quinii v. Prud. Ins. Co., 116 la. 522, 90 N. W. 349 (1902). Dkfama I'lox. 309 which they may be connected." "^ Moreover, when the plaintiff has assigned a particular meaning to words, by this part of his pleading, he is limited to such meaning,^^^ unless the language is clearly libelous."" § 3. Sr..\XDER. The Peculiarities of Slander. Some of these have been stated in preceding paragraphs. The most striking of them, how- ever, are connected with the distinction which the common law "' makes between spoken words which are actionable [ falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is truJ, it would exclude him from society: (3) Defamatory words falsely |pbken of ™ Camp V. Martin, 23 Conn. 86. 92 in Louisiana, Sportono v. Pouri- (1854); McLaughlin v. Fisher, 136 chon, 40 La. Ann. 424, 4 So. 71 111. Ill, 24 N. E. 60 (1890); Mc- (1888): Civil Code Art. 2315, de- Fadin v. David, 78 Ind. 445, 41 Am. clares: "Every act whatever of R. 587 (1881); Simons v. Burnham, man, that causes damage to an- 102 Mich. 189, 60 N. W. 476 (1894) ; other, obliges him, by whose fault it Pelton V. Ward. 3 Caines (N. Y.) 73, happens, to repair it." Hence, cal!- 2 Am. Dec. 251 (1805); Woodruff v. ing a white man a negro in that Bradstreet Co., 116 N. Y. 217, 22 N. state is actionable. Sportono v. E. 354 (1889). Fourichon, supra; but the wordi "= Simmons v. Mitchell, 6 App. " dirty rat," " thief " and " swind- Cas. 156, 50 L. J. P. C. 11 (1881); ler " applied by an irate and im- Brown v. Tribune Assoc. 74 App. pulsive old woman, in an alterca- Div. 359, 77 N. Y. Supp. 461 (1902). tion with her landlord, are not ac- '" Morrison v .Smith, 177 N. Y. tionable. Mihojevich v. Bodechtel. 366, 69 N. E. 725 (1904). In such 48 La. Ann. 618, 19 So. 672 (1896). a case, the defendant is in no worse "'Lord Herschell in Alexander v. position, than if the innuendo were Jenkins (1892), 1 Q. B. 797, 61 L. J. not in the complaint. Q- B. 634. '"This distinction does not exist 3IO The Law of Torts. a person which impute to the party unfitness to perform the datics of an office or employment of profit, or the want of integrity in thv. discharge of the duties of such office or employm«it; (4) Defama- tory words falsely spoken of a party which prejudice such party in his or her profession or trade."' "° Words Imputing Crime. The diversity of judicial opinion as to what words imputing the commission of a crime are actionable per se, has long been the subject of comment/'^ In the latter part of the fifteenth century the Court of King's Bench declared : " There are divers cases in our law where one shall have damnum absque injuria; as for defamation in calling one a thief,"* or traitor; this is damage in our law, but no tort." Less than a century later, the Court of Common Pleas, in discussing an action brought because the defendant called the plaintiff a heretic,"' said : " But if it were matter wherein we could decide the main thing, as thief, traitor or the like, for such words an action would lie here, since we have cognizance of what is treason or felony.'" The present rule in England is that '' spoken words, which impute that the plaintiff has been guilty of a crime punishable with impris- onment, are actionable without proof of special damage." "" In this country the prevailing rule is that words are actionable per se, when the offense which they charge renders the party liable to an indict- ment for a crime involving moral turpitude, or subjectipg him to infamous punishment.'-* The rule has been variously modified, ""Pollard V. Lyon, 91 U. S. 225 '"Webb v. Beavan, 11 Q. B. D. (1875). 609, 52 L. J. Q. B. 544 (1883); "'Brooker v. CoflSn, 5 Johns. (N. Lopes, J., said, "A great number of Y.) 188 (1809); Spencer, J., said, offenses, which were dealt with by " There is not, perhaps, so much indictment twenty years ago, are uncertainty in the law upon any now disposed of summarily, but the subject." effect cannot be to alter the law "' Browne v. Hawkins, Y. B. 17 with respect to actions for slander." Ed. IV, f. 3 pi. 2 (1477). >=' Pollard v. Lyon, 91 U. S. 225 ""Anonymous, Y. B. 27 Hy. VIII, (1875); Dudley v. Home, 21 Al. 379 f. 14 pi. 4 (1535). The court as- (1852); Kinney v. Hosea, 3 Harr. signed this reason for dismissing (Del.) 77 (1840); Richardson v. the action: "If the defendant Roberts, 23 Ga. 215 (1856); Halley should justify that the plaintiff is a v. Gregg, 74 la. 563, 38 N. W. 416 heretic, and should show in what (1888); Lemons v. Wells, 78 Ky. point, we could not discuss whether 117 (1879); West v. Hanrahan, 28 it was heresy or not." Minn. 385 (1881); Hendrickson ▼. Defamation. 311 however, in different States. Some courts hold that words are actionable per sc if they impute a criminal offense, whether indict- able or not, if it is punishable corporally. ^-^ Others, if the crime imputed involves moral turpitude.^-' Still others, if the crime in- volves disgrace.'-^ And yet others, if it subjects the offender to infamous punishment.'-"' Whether an alleged offender is liable to an infamous punishment, depends upon the opinion, which the public entertains, of the charac- ter of the penalty imposable upon him. If the offense rnay be punished by confinement in a State prison or penitentiary at hard labor, the offender is subject to infamous punishment.'-* It is well settled that the imputation of a criminal offense need not be made with legal precision ; ^-' but it must convey the charge, that the one of whom it is spoken had done a wrong, which had been punished,'-* or was punishable, criminally. If the statement, taken as a whole, disclosed the nature of the charge to be one of trespass, or dishonesty, or vice, the employment of such general terms as ■' thief," " swindler," " robbed," " stole," and the like, will not render the statement actionable.'-' Sullivan, 28 Neb. 329, 44 N. "W. 448 (1889) ; Johnson v. Shields, 25 N. J. L. 116 (1855); Brooker v. Coffin, 5 Johns. (N. Y.) 188 (1809); Davis v. Brown, 27 O. St. 326 (1875); Davis v. Sladden, 17 Or. 259, 21 Pac. 140 (1889); Davis v. Gary, 141 Pa. 314, 21 At. 633 (1891); Lodge v. O'Toole, 20 R. I. 405, 39 At. 752 (1898); Gage v. Shelton, 3 Rich. L. (S. C.) 242 (1832).. Smith v. Smith, 2 Sneed (34 Tenn.) 473 (1855); Payne v. Tancil, 98 Va. 262, 35 S. E. 725 (1900). •=" Elliot v. Ailsbury, 2 Bibb (Ky.) 473 (1811). Buck v. Hersey, 31 Me. 558 (1850); Wagaman v. Byers, 17 Md. 183 (1861); Birch v. Ben- ton, 26 Mo. 153 (1858). '=' Frisbie v. Fowler, 2 Conn. 706 (1818); Redway v. Gray, 31 Vt. 292 (1858). ™ Miller v. Parish, 8 Pick. (25 Mass.) 383 (1829); Zelifl v. Jen- nings, 61 Tex. 458 (1884) ; Geary v. Bennett, 53 "Wis. 444 (1881). "^ Harris v. Terry, 98 N. C. 131, 3 S. B. 745 (1887). '=»Mackin v. United States, 117 U. S. 348, 6 Sup. Ct. 777. 29 L. Ed. 909 (1886). '"Odgers, Libel and Slander (3d. Ed.) p. 67, and cases cited. Sher- wood v. Chace, 11 Wend. (N. Y.) 38 (1883) ; Payne v. Tancil, 98 Va. 262, 35 S. E. 725 (1900). "' Fowler v. Dowdney, 2 Moo. & Rob. 119 (1838). Krebs v. Oliver, 12 Gray (78 Mass.) 239 (1858). '™ Murphy v. Olberding, 107 la. 547. 78 N. W. 205 (1899). "You damn Irishman! You stole my wire," but the evidence showed that the wire was a part of the realty and not the subject of larceny. Peters v. Barth, 50 S. W. (Ky.) 682 312 The Law of Torts. Nor is the charge of an intention to commit a specified crime actionable per se.^^" Imputing Unchastity, even to women, was not actionable slander at common law,''' but has been made such by legislation in England '''- and in many of our States."* In Scotland and in several of our States, the courts have declared such an imputation upon a woman actionable per se, because manifestly hindering her advancement in life.'"* These courts refuse to treat an imputation of this sort as mere " brabling words." ^'' Imputing Contagious Diseases. A false imputation of small- (1899), "She Is a damn slut"; Blake v. Smith, 19 R. I. 476, 34 At. 995 (1896), "She is a bad woman and a disgrace to the neighbor- hood"; Savile v. Jardine, 2 H. Bl. &31 (1795), "You are a swindler." BuUer, J., said : " When a man is swindled, it means he is tricked or outwitted." '" Mitchell V. Sharon, 59 Fed. 980, 8 C. C. A. 429 (1894); Severinghaus V. Beckman, 9 Ind. App. 388, 36 N. E. 930 (1893); Fanning v. Chase, 17 R. I. 388, 22 At. 275 (1891). If such a charge were written or printed, it would be actionable. Browning v. Comm. 116 Ky. 282, 76 S. W. 19 (1903). "' AIlsop V. Allsop, 5 H. & N. 534, 29 L. J. Ex. 315 (1860); Pollard v. lyon, 91 U. S. 225 (1875); Ledlie V. Wallen, 17 Mont. 150, 42 Pac. 289 (1895). See Civil Code of 1895, I 33, Sub. 4, changing the rule and making the imputation of unchas- tity to a man or a woman action- able. "= Slander of Women Act, 1891. (54 & 55 Vict. c. 51). "== Preston v. Prey, 91 Cal. 107, 27 Pac. 533 (1891) ; Dexter v. Harrison, 146 111., 169, 34 N. E. 46 (1893); Campbell v. Irwin, 146 Ind. 681, 45 N. E. 810 <1896). Ky. St. | 1, Nicholson v. Merrit, 109 Ky. 369, 59 S. W. 26 (1900); Hemming v. El- liot, 66 Md. 197, 7 At. 110 (1886); Loranger v. Loranger, 115 Mich. 681, 74 N. W. 228 (1898); Christal V. Craig, 80 Mo. 367 (1883); Hem- mens v. Nelson, 138 N. Y. 517, 34 N. E. 342 (1893); Bowden v. Balles, 101 N. C. 612, 8 S. E. 342 (1888); Freeman v. Price, 2 Bailey Law (S. C.) 115 (1831) ; Hackett v. Brown, 2 Heisk. (49 Tenn.) 264 (1871); Stewart v. Major, 17 Wash. 238, 49 Pac. 503 (1897). '^'Cushlng V. Hederman, 117 la. 637, 91 N. W. 940 (1902); Reitan v. Goebel, 33 Minn. 151, 22 N. W. 291 (1885); Smith v. Minor, 1 N. J. L. 16 (1790); Barnett v. Ward, 36 O. St 107, 38 Am. R. 561 (1880). In Nicholson v. Rust, (Ky.) 52 S. W. 933, the remarkable statement is made. — " In this State, and, so far as we are advised, throughout the U. S., it is actionable per se to im- pute a want of chastity to a female without allegation or proof of special damage, and it is not neces- sary that the words should make the charge in express terms." "'Oxford V. Cross, 4 Coke, 18 (1599); Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249 (1901). Defamation. 313 pox, or measles, or scarlet fever, or diphtheria, or the itch, is not actionable per se. " An action for oral slander," according to modem judicial authority,^^® " in charging the plaintiff with dis- ease, has been confined to the imputation of such loathsome and infectious maladies as would make him an object of disgust and aversion, and banish him from human society. The onl\- examples which adjudged cases furnish are of the plague,"" leprosy,''* and venereal diseases." ''" Moreover, if the words relate to time past, they are not actionable. Said a learned English judge : '*" " Charging a person with having committed a crime is actionable, because the person charged may still be punished; it affects, him in his liberty."' But charging an- other with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails ; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society. Therefore, unless some special damage is alleged in consequence of that kind of charge, the words are not actionable." Imputation of Unfitness for Office. A false charge of any malversation, or misconduct in his office, is actionable in favor of the incumbent,"^ whether the office be one of profit or of honor. '"Joannes v. Burt, 6 Allen (88 Pike v. Van Wormer. 5 How. Pr. (N. Mass.) 23i. (1863). Y.) 171 (1850); Irons v. Field, 9 R. ■=• Villers v. Monsley, 2 Wils. 403 I. 216 (1869), accord. (1769), dictum. ""In Fowler v. Dowdney, 2 Moo. '"Taylor v. Perkins, Cro. Jac. 144 & R. 119 (1838), it is said, that such (1607): Meteye v. Times Pub. Co., a charge is actionable, even though 47 La. Ann. 824. 17 So. 314 (1895). the punishment is alleged to have '" Austin V. White. Cro. Eliz. 214 been suffered, because the " obloquy (1591); Bloodworth v. Gray. 7 M. remains." The obloquy attaching & G. 334, 8 Scott. N. R. 9 (1844); to the victim of venereal disease Watson V. McCarthy, 2 Ga. 57 seems to be disregarded by the (1847); Nichols v. Guy, 2 Ind. 82 courts, when dealing with a charge (1850); Ctolderman v. Stearns, 7 as to time past; but it is taken into Gray (73 Mass.) 181 (1856): Will- account when the charge relates to iams V. Holdredge, 22 Barb. (N. Y. ) existing disorder; Lymbe v. Hock- 396 (1854); Kaucher v. Blinn, 29 O. ley, 1 Levinz 205 (1667). St. 62 (1875). '"Moor v. Foster, Cro. Jac. 65 '"Ashnrst, J., in Carslake v. (1606); Fleetwood v. Curley, Cro. Mapledoran, 2 D. & E. 473 (1788): Jac. 557. Hob. 268 (1619); Dole v. Nichols V. Guy, 2 Ind. 82 (1850); Van Rensselaer, 1 Johns. Cas. (N. 314 The Law of Torts. Where, however, the imputation is that of unfitness for an office, a distinction is taken between offices of profit and those which are merely honorary.^** With reference to the former, the law pre- sumes a probability of loss to the incumbent from such defamatory statement."* With regard to the latter, it is held, that a charge of unfitness will not sustain an action, without proof of special damage, unless the alleged unfitness or personal misconduct be such as would enable him to be removed from, or deprived of, that office."' Words Which Prejudice a Person in his Profession or Trade. In order that these be actionable per se, it must appear that they were spoken of the plaintiff, in relation to a profession, trade, calling or business, in which he was then engaged.**" Accord- ingly, a dry-goods merchant does not make out a cause of action, by showing that the defendant falsely asserted, that the plaintiff " made false statements about and misrepresented the lot which he traded to me." Such words are not used of him " with respect to his employment " as merchant, but with respect to an outside trans- action.**' But the statement, " Our school-teacher is a villainous T.) 330 (1800). See Forward v. Adams, 7 Wend. (N. Y.) 205, where the charge related to misconduct in an oflBce from which the plaintiff had retired. Also, Prosser v. Cal- lis, 117 Ind. 105, 19 N. E. 735 (1888). '*■ In England, honorary offices in- clude those of Sheriff, Justice of the peace. Alderman, Town-Councillor, Vestrymen, and unbeneficed clergy- men of the Church of England. '"Booth V. Arnold, (1895), 1 Q. B. 571, 67 L. J. Q. B. 443; O'Shaug- nessy v. N. Y. Record Co., 58 Fed. 653 (1893). Gove v. Blethen, 21 Minn. 80 (1874); CotuUa v. Kerr, 74 Tex. 89, 11 S. W. 1058 (1889). '"Alexander v. Jenkins (1892), 1 Q. B. 797, 61 L. J. Q. B. 634. The charge was that the plaintiff was " never sober, and not a fit man for the town council." '"Bellamy v. Bureh. 16 M. & W. 590 (1847). "Here the plaintiff was bound to prove that he exer- cised the so-called profession before and at the time the words were spoken. But the jury have found that the plaintiff's profession, so- called, did not continue at the time the words were spoken; that ex- cludes all presumption on the sub- ject; the defendant's act was noth- ing more than speaking of the plaintiff as a former contractor." '"Wlnsette v. Hunt, (Ky.) 53 S. W. 522 (1899). Todd v. Hastings, 2 Saund. 307 (1671), "You are a cheating fellow, and keep a false book," without proof that the charge touched the plaintiff in his trade, held not to be actionable. Newman v. Kingerby, 2 Lev. 49 (1672), calling a parson a "foe!, ass and goose," was held not acti:^i- able as " these are only word-, r ' heat, and do not touch him in fs profession." Lumby v. AUday, 1 Cr. & Jer. 301, 1 Tyrw. 217 (1831). Dei'amatiox. 3>5 reptile. He is not fit to go with decent girls," is clearly aimed at its victim in his vocation; and is actionable per se.^*^ The early English cases ^^^ show a disposition on the part of judges to limit the terms " profession " and " trade " rather nar- rowly, but the modern " rule,'^" as to words spoken of a man in his office or trade, is not necessarily confined to offices and trades oi the nature and duties of which the law can take notice. The only limitation is, that it does not apply to illegal callings." "' In cases of the sort now under consideration, the complaint should expressly allege that the defamatory statement was uttered of the ] laintiff in the way of his then profession, trade, business or calling, unless this clearly appears from the statement itself.^^- Whether a particular statement is such as to necessarily harm its victim in his vocation is a question of fact. It is not strange, ■ therefore, that the verdict of jurors apd the rulings of judges, with respect to very similar statements, are quite diverse. There can be no doubt, however, that to falsely charge a trader with insolvency, '^^ or a professional man with moral unfit- '" Bray v. Callihan, 155 Mo. 43, 55 r,. W. 865 (1900); Birchley's Case, I Coke, 16 a. (1585), charging an ' ttcrney with being corrupt in his r-ofession; Squire v. Johns, Cro. r^c. 585 (1620), charging a dyer -■-^th being a bankrupt knave. Goutham v. Allen, T. Ray. 231 (1673); Trimmer v. Hiscock, 27 Hun, (N. Y.) 364 (1882), charging innkeeper with being bankrupt or having no decent accommodations; Buck V. Hersey, 31 Me. 558 (1850), charging a teacher of dancing with drunkenness, vagrancy, etc.; Fitz- gerald V. Redfleld, 51 Barb. (N. Y.) 484 (1868). "°In Terry v. Hooper, T. Ray. 86 (1663), the court was evenly divided as to whether the plaintiff's busi- ness of lime-burning " were such a profession of which he may be scandalized." In Fox v. Lapthorne, T. Jones, 156 (1681), it was held that a renter of lands was not a trader, so as to be " touched in his trade " by the charge that he had cheated in corn. In Barker v. Ringrose, Popham 184 (1626), a wool-winder was held not to be scandalized by the charge that he was a bankrupt knave. ""Foulger v. Newcomb, L. R. 2 Ex. 327, 36 L. R. Ex. 169 (1867); DePew V. Robinson, 95 Ind. 109 (1883); Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457 (1890); Mo- rasse v. Brochu, 151 Mass. 567, 25 N. E. 74 (1890). / "■Hunt V. Bell, 1 Bing. 1 (1822), keeping open rooms for pugilistic encounters; Weltmer v. Bishop, 171 Mo. 110, 71 S. W. 167 (1902). '"Ayre v. Craven, 2 Ad. & E. 2 (1834); Jones v. Little, 7 M. & W. 423, 10 L. J. Ex. 171 (1841). "= Whittington v. Gladwin, 5 B. & C. 180, 2 C. & P. 146 (1826); Newell 3i6 The Law of Torts. ness "* or mental incompetence ^°^ or want of ordinary skill in his calling/'" or any person with dishonesty in the business whereby he gains his bread/"^ is to utter actionable slander. Words not Actionable per se, but Causing Special Dam- age. When defamatory language of this kind is the subject of complaint, the plaintiff must set forth the special loss or injury which lie claims to have suffered, and must show that such injury is the natural and proximate consequence of the defamation.'"''' It is not enough to allege generally that the plaintiff " has been damaged and injured, in her name and fame," '°° nor that he has " suffered pain of mind, lost the society or good opinion of his neighbors, or the like, unless he has also been injured in his estate or property.'" "" It is enough, however, to allege and prove that the slander has prevented the plaintiff from obtaining civil entertainment at a public house,"" or has led to her being turned away from a private house, V. How. 31 Minn. 235, 17 N. W. 383 (1883); Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 20 L. R. A. 138, 38 Am. St. R. 592 (1893). '>«Pemberton v. Colls, 10 Q. B. 161, 16 L. J. Q. B. 403 (1847); Ir- win V. Brandwood, 2 H. & C. 960, 33 L. J. Ex. 257 (1864); Piper v. Wool- man, 43 Neb. 280, 61 N. W. 588 (1895); Hayner v. Cowden, 27 Oh. S. 292 (1875). "^Peard v. Jones, Cro. Car. 382 (1635) ; Watson v. Vahderlash, Hetl. 69, 71 (1628); Botterill v. Whyte- head, 41 L. T. 588, 21 A. L. J. 103 (1879); Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68 (1890); St. James Military Acad. v. Gaiser, 125 Mo. 517, 28 S. W. 851, 46 Am. S. R. 502 (1899); Krug v. Pitass, 162 N. Y. 154, 56 N. E. 526, 76 Am. S. R. 317 (1900). '»Day V. Bullet, 3 Wils. 59 (1770); Edsall v. Russell, 4 M. & Gr. 1090, 5 Scott, N. R. 801, 2 Dowl. N. S. 641, 12 L. J. C. P. 4 (1843); Johnson v. Robertson, 8 Port. (Al.) 486 (1839); Sumner v. Utley, 7 Conn. 257 (1828); Secor v. Harris, 18 Barb. (N. Y.) 425 (1854); Mat- tice V. Wilcox, 147 N. Y. 624, 42 N. E. 270 (1895); Ganorean v. Supe- rior Pub. C:!o., 62 Wis. 403, 22 N. W. 726 (1885). ''" Thomas v. Jackson, 3 Bing. 104, 10 Moore, 425 (1825); Garr v. Sel- den, 6 Barb. (N. Y.) 416 (1848); Fowles V. Bowen, 30 N. Y. 20 (1864). "^Haddon v. Lett, 15 C. B. 411, 24 L. J. C. P. 49 (1860). See Re- moteness of Damage, supra, p. 90. "^ Pollard V. Lyon, 91 U. S. 225 (1875); Cook v. Cook, 100 Mass. 194 (1868). ■"Beach v. Ranney, 2 Hill (N. Y.) 309 (1842); Terwilliger v. Wands, 17 N. Y. 54 (1858); Bassell V. Elmore, 65 Barb. (N. Y.) 627 (1866), 48 N. Y. 561 (1872). "'Olmsted v. Miller. 1 Wend. (N. Y.) 506 (1828). In Roberts v. Roberts, 5 B. & S. 384, 33 L. J. Q. B. 249 (1864), it was held that the loss, suffered by the plaintiff in being ex- cluded from a religions society, was Defamation. 317 where she was receiving gratuitous entertainment,^"- or has caused the retraction of a pecuniarily valuable, though gratuitous promise,^"" or has caused a woman the loss of a marriage,'"* or has prevented a person from getting or keeping employment,'"^ or has caused an injury to the plaintiff's business or avocation.'"" Such loss, however, must be shown to have been the natural and probable consequence of the defamatory statement.'"" General Damages in Defamation. These may be either nominal, compensatory or exemplary.'"* The amount of damages in each case is peculiarly a question for the jury;'"" but the courts do not hesitate to set aside or modify verdicts, which are either so excessive, or so meager, as to indicate improper motives in the jury."" It is to be borne in mind, that while malice in fact, as distinguished from malice in law, must be shown in order to sustain a verdict for exemplary damages,'" it is not necessary to establish the existence Dot temporal damage. Dwyer v. Meehan, 18 L. R. Ir. 138 (1886); Shafer v. Ahalt, 48 Md. 171, 30 Am. R. 456 (1877), accord. '" Davies v. Solomon, L. R. 7 Q. B. 112, 41 L. J. Q. B. 10 (1871); Will- iams V. Hill, 19 Wend. (N. Y.) 305 (1838). "" Corcoran v. Corcoran, 7 Ir. C, L. R. 272 (1857), promise to supply plaintiff with means for a trip to Australia. 1" Davis V. Gardiner, 4 Coke, 16 6. (1593); Sheppard v. Wakeman, 1 Lev. 53 (1662). ""Sterry v. Foreman, 2 C. & P. 592 (1827). ■™ Brown v. Smith, 13 C. B. 596, 22 L. J. C. P. 151 (1853). '"'Miller v. David, L. R. 9 C. P. 118, 43 L. J. C. P. 84 (1874). There is "no authority for the proposi- tion that a statf raent, false and ma- licious, made by one person in re- gard to another whereby that other might probably, under some circum- stances, and at the hands of some persons, suffer damage, would, if damage resulted in fact, support an action for defamation." Terwilli- ger V. Wands, 17 N. Y^^ (1858). "« Supra, Ch. V, § 3. Mental suffering as an element of damages, supra. Chap. Ill, § 11. "» Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409 (1896); Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 (1903). ""Peterson v. W. U. Tel. Co., 65 Minn. 18, 67 N. W. 646 (1896). '"Peterson v. W. U. Tel. Co., 72 Minn. 41, 74 N. W. 1022 (1898). See Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668 (1903), malice in law is defined as a wrongful act, done intentionally without legal jus- tification or excuse, while malice in fact is defined as an act done with intent to harm the plaintiff or with a wilful and wanton neglect of hfs rights. 3i8 The Law of Torts. of actual malevolence on the defendants part towards the plaintiff.''* It is enough to show that the defendant's conduct in publishing the defamation,'^' or in pleading its truth as a defense/'* was reckless or wanton. Evidence of such misconduct is always competent for the plaintiff in aggravation of his damages; as is evidence oi i-'.'.e extent, to which the defendant has published the defamation ; oi tl:e number of his repetitions of it, or of his refusal to retract, or oi the nature of his apology.*'' On the other hand, the defendant may absolve himself from exemplary damages or mitigate them, by showing that he acted in good faith, in repeating the defamatory statement as a matter of hearsay, and giving the source of his information,"* or by showing that the plaintiff provoked the statement,"' or by showing the plain- tiff's bad reputation."® By statute in some jurisdictions, various matters may be shown in mitigation of damages, which were not available at common law."' Absence of actual malice does not exempt the defamer from liability to compensatory damages "' except in the cases of qualified privilege, to be considered presently ; nor does the fact that the defamation had been" published by others, nor that the plaintiff had recovered against such others.'*' Com- '" Smith V. Matthews, 152 N. Y. 399, 24 Pac. 1051 (1900); Lothrop 152, 46 N. E. 164 (1897). v. Adams, 133 Mass. 471 (1882); Dp- '" Warner v. Press Pub. C3o., 132 ton v. Hume, 24 Or. 420, 33 Pac. 810 N. Y. 181, 30 N. E. 393 (1892); (1893). Morning Journal Assoc, v. Ruther- '"Tarpley v. Blabey, 2 Bing. N. ford, 51 Fed. 513, 2 C. C. A. 354, 1 C. 247, 2 Scott, 642, 7 C. & P. 367 U. S. App. 296 (1892). (1836); Stewart v. Tribune Co., 41 >'*Marx V. Press Pub. Ck)., 134 N Minn. 71, 42 N. W. 787 (1889). Y. 561, 31 N. E. 918 (1892). '"Scott v. Sampson, 8 Q. B. D. "=Chamberlin v. Vance, 51 Cal. 491, 51 L. J. Q. B. 380 (1882); Hal- 75 (1875) ; Thibault v. Sessions, 101 ley v. Gregg, 82 la. 622, 48 N. W. Mich. 279, 59 N. W. 674 (1894); 974 (1891). Gribble v. Pioneer Press Ck)., 34 »=»LDrd Campbell's Act. 6 & 7 Minn. 342. 25 N. W. 710 (1885); Vict. c. 96; New York Code of Civil Enos V. Bnos, 135 N. Y. 609. 32 N. E. Procedure. §§ 535, 536; 123 (1892); Van Derveer v. Sutphin, '*»Odgers, Libel & Slander, (3rd. 5 O. St. 293 (1855); Patten v. Belo, Ed.) p. 362. *79 Tex. 41. 14 S. W. 1037 (1890). ■" Creew v. Carr, 7 C & P 64 ■'"Duncombe v. Daniel, 8 C. & P. (iS3.^); Enquirer Co. v. Johnston, 222. 2 Jur. 32 (1837); Dole v. Lyon, 72 ped. 443. 18 C. C. A. 628 (189Ct; 10 Johns. (N. Y.) 447 (1813); Re- wilson v. Fitch. 41 Cal. 363 (1873); publican Pub. Co. v. Mosman, 15 Col. Sheahan v. Collins, 20 111 3M Defamation. 319 pensatory damages include loss of reputation, shame and injury to the feelings.'*^ § 4. DEFENSES IN ACTIONS FOR DEFAMATION. Classified. These may be classed under three heads: Truth, Privilege, and Fair Comment. The Truth of the Charge is a complete defense at common law to a civil action for slander or libel, because " the law will not permit a man to recover damages in respect to an injury to a charac- ter which he either does not or ought not to possess." ^'^ It must be specially pleaded, however, in order that evidence of it may be given ; for this defense is " not a direct denial of the cause of action, but a collateral matter, which, if established by the defendant, will bar a recovery that otherwise must follow the malicious injury." "* Moreover, the justification must be as broad as the defamatory charge, and the defendant has the burden of showing that every material part of the charge is true.^'® Again, a plea of the truth should state the charge with the precision of an indictment,'*' and will be construed strictly against the defendant.'*' In some States, the truth of a libel is not a defense, unless the publication was made (1858); Palmer v. Matthews, 162 465, 39 N. E. 159 (1894); Murphy N. Y. 100. 56 N. E. 501 (1900); Con- v. Olberding, 107 la. 547, 78 N. W. roy V. Pittsburg Times Co., 139 Pa. 205 (1899); Rutherford v. Paddock, 334, 21 At. 154 (1891). 180 Mass. 289, 62 N. E. 381 (1902); "^ Hearne v. De Young, 132 Cal. proof of plaintiff's unchastity is in- 357, 64 Pac. 576 (1901); "Bedtkey sufficient to establish truth of V. Bedtkey, 15 S. D. 310, 89 N. W. charge that she was a " dirty, old 479 (1902) ; Hacker v. Heiney, 111 whore "; Thompson v. Pioneer Press Wis. 313, 87 N. W. 249 (1901). Co., 37 Minn. 285, 33 N. W. 856 ■''McPherson v. Daniels, 10 B. & (1887); Andrews v. Van Duzer, 11 C. 270, 5 M. & R. 251, 34 R. R. 397 Johns. (N. Y.) 38 (1814); Dement (1829); Baum v. Clause, 5 Hill (N. v. Houston Printing Co., 14 Tex. Y.) 199 (1843); McCloskey v. Pulit- Civil App. 391, 37 S. W. ^5 (1896); zer Pub. Co., 152 Mo. 339, 53 S. W. Dillard v. Collins, 25 Gratt (Va.) 1087 (1899); Castle v. Houston, 19 343 (1874). Ks. 417 (1877). '™ Hickinbotham v. Leach, 10 M.. '"Atwater v. Morning News Co., & W. 363, 2 Dowl. N. S. 270 (1892); 67 Conn. 504, 34 At. 865 (1896); Dennis v. Johnson, 47 Minn. 56, 49 Pokrok Pub. Co. v. Zizkovsky, 42 N. W. 383 (1891) ; Woodbeck v. Kel- Neb. 64, 60 N. W. 358 (1894); Mc- ler, 6 Cow. (N. Y.) 118 (1826). Closkey v. Pulitzer Pub. Co., 152 "" Sunman v. Brewin. 52 Ind. 140 Mo. 339, 53 S. W. 1087 (1899). (1875); Buckner v. Spaulding, 127 >» Miller v. McDonald, 139 Ind. Ind. 229, 26 N. E. 792 (1890); 320 The Law of Torts. in such circumstances as to convince the jury that the defendant acted with good motives and for justifiable ends."' Constitutional or statutory provisions to this efifect are more frequent, however, with respect to criminal libel.**' Privileged Communications. These are of two kinds — abso- lutely privileged and conditionally privileged. From considerations of public policy, which have been presented in a previous chapter,"* certain persons are privileged to defame others with impunity. ( I ) Members of Parliament in England, and Members of Congress and of the State Legislatures in this country, are not to be ques- tioned in any other place for any speech or debate.*"* This exemp- tion does not extend to the members of subordinate assemblies, such as town or county councillors in England,*"^ or Boards of Aldermen or Supervisors in this country.**^ Their privilege to defame others is, at most, conditional. Xor does the absolute privilege of legis- lators attend them, outside of legislative proceedings, in which they are taking an official part.*** Xor does it permit the circulation of defamatory speeches, even in connection with the official publication of legislative proceedings,*** in the absence of statutory provision.*"' Smith v. Buchecker, 4 Rawle (Pa.) 295 (1833) ; Skinner v. Grant, 12 Vt. 456 (1840); Leyman v. Latimer, 3 Ex. Div. 15, 352, 46 L. J. Ex. 465, 47 L. J. Ex. 470 (1878). ""Neilson v. Jensen, 56 Neb. 430, 76 N. W. 866 (1898), applying Art. 1, Sec. 5 of the State C!onstitation: " The framers of the constitution may have been of opinion that the peace, good order and well being of the state would be best subserved, if every citizen devoted, at least a part of his time to attending to his own business, instead of consti- tuting himself an agent for bruiting abroad the shortcomings of his neighbor; " Perry v. Porter, 124 Mass. 338 (1878), applying the stat- tute of that state; Ross v. Ward, 14 S D. 240, 85 N. W. 182 (1901), ap- lilying Art. 6, Sec. 5 of State Con- stitution. ""New York Constitution, Art. 1, Sec. 8; Lord Campbell's Act, (6 & 7 Vict., c. 96). "•Supra, chap. III. "■ Bill of Rights, 1 Wm. & M., Sess. 2, c. 2; XJ. S. Constitution, Ar- ticle 1, Section 6, "uid similar clauses in the State Cionstitutions. ""Royal Aquarium Society t. Parkinson, (1892), 1 Q. B. 431, 61 L. J. Q. B. 409. '"Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020 (1899); McGaw V. Hamilton, 184 Pa. 108, 39 At. 4 ( 1898 ) : BuckstafE v. Hicks, 94 Wis. 34. 68 N. W. 403 (1896). '" Coffin v. Coffin, 4 Mass. 1. 3 Am. Dec. 189 (1828). ■" Stockdale v. Hansard, 2 Moo. & Rob. 9. 7 C. & P. 731. 9 A. & E. 1, 2 P. * D. 1. 8 Dowl. 148, r,22 (1839): Trebby v. Transcript Pub. Co., 74 Minn. 84, 76 N. W. 961 (1898). "•Stockdale v. Hansard, 11 A. & Defamation. 3^1 ( 2 ) Judicial officers,'"" counsel engaged in the conduct of proceedings before a court of competent jurisdiction,"^ whether a civil, mili- tary or naval court, parties to such litigations,'"' witnesses,-"" and jurors,'*' enjoy in England an absolute privilege from liability to a tort action for defaming others, while engaged in the discharge of iheir functions. In this country, the rule is not so broad, in the case of counsel, witnesses and parties. Thus, defamatory statements are absolutely privileged, only when they are pertinent and material :o the controversy.^" This "qualification of the English rule is E. 253. 297 (1840), under 3 & 4 Vict. c. 9. '" Scott V. Stansfield, L. R. 3 Ex. 220. 37 L. J. Ex. 155 (1868); Jekyll V. Sir John Moore. 2 B. & P. N. R. 341, 6 Esp. 63 (1806); Yates v. Lansing, 5 Johns. (N. Y.) 2S2 (1810). ""Munster v. Lamb, 11 Q. B. D. 588. 52 L. J. Q. B. 726 (1883); Mac- kay V. Ford, 5 H. & N. 792, 29 L. J. Ex. 404 (1860), atfy in a county court. In Higginson v. Flaherty, 4 Ir. C. L. 125 (1854). a proctor in an ecclesiastical court was held not privileged in making statements ir- relevant to the cause, reflecting on the Integrity of the court. For rule as to proceedings before mili- tary and naval courts, see Dawkins V. Lord Rockeby. L. R. 7 H. L. 744, 45 L. J. Q. B. 8 (1875). "• Hodgson V. Scarlett, 1 B. & Aid. 244 (1818). =" Seamen v. Netherclift. 2 C. P. D. 53. 46 L. J. C. P. 128 (1876); Keigbtley v. Bell, 4 F. & F. 463 (1866). With the possibility of an action for slander hanging over his head, " a witness cannot be exi>ected to speak with that free and open mind, which the administration of justice demands." said Lord Pen- zance in Dawkins v. Rokeby. L, R. 7 H. I. 741 (1S7:.). ="'Reg. V. Skinner. Lofft. 55 (1772); Little v. Pomeroy, Ir. R. 7 C. L. 50. ""^ White v. Nichols. 3 How. (U. S.) 266 (1845); Union Mut. Life Ins. Ck>. V. Thomas, 83 Fed. 803, 28 C. C. A. 96 (1897); Allegation in a pleading; Lawson v. Hicks, 38 Al. 279 (1S621: Chambliss v. Blau. 127 Ala. 86. 28 So. 602 (1900); Wyatt v. Buell, 47 Cal. 624 (1874); People v. Green. 9 Col. 506 (1886); Lester v. Thurmond, 51 Ga. IIS (1874); Com- fort V. Young, 100 la. 627, 69 N. W. 1032 (1897); McDavitt v. Boyer, 169 111., 475. 48 N. E. 317 (1897); Gard- emal v. McWilliams. 43 La. Ann. 454, 9 So. 108, 28 Am. S. R. 197 (1891); Hunckel v, Vonieff, 69 Md. 179, 14 At 500 (1888); Maulsby v. Reifsnider. 69 Md. 143, 14 At. 505 (1888); Hoar v. Woods, 3 Met. (44 Mass.) 193 (1841); McAllister v. Press Co.. 76 Mich. 338, 43 N. W. 431, 15 Am. S. R. 31S (1889); Har- tung V. Shaw, 130 Mich. 177, 89 N. W. 701 (1902); Hastings v, Lusk, 22 Wend. (N. Y.) 410, 34 Am, Dec. 330. and note (1839); Gilbert v. People, 1 Den. 41. 43 Am. Dec. 646, and note (1841) ; Moore v. Manufac- turers' Bank. 123 X. Y.^20. 25 N. E. 1048. 11 L. R. A. 753 (1890^ : Gattis V. Kilgo. 128 X. C. 402, 38 S. E. 931 (TOO]); Shadden v, MrElwee, 86 322 The Law of Torts. adopted in order that the protection given to individuals, in the interest of an efficient administration of justice, may not be abused as a cloak from beneath which to gratify private malice." ^"' But, as another learned judge has remarked,-"* the courts are liberal in applying this qualification " even to the extent of declaring that where matter is put forth by counsel, in the course of a judicial proceeding, that may possibly be pertinent, they will not so regard it as to deprive its author of his privilege."' Functions of the Court and of the Jury. Whether an allegation in a pleading, or a statement by counsel, parties or wit- nesses, is pertinent to the cause, is usually a question for the court.'"' Whether the person making the statement acted in good faith in making it, is a question of fact for the jury.^"* Conditional or Qualified Privilege. In cases of absolute privilege, as we have seen, neither the falsity of the defamatory statement, nor the bad faith of the defamer, is a subject of inquiry. Granting that the defendant knew his statement was absolutely false, and that he took advantage of his position from the meanest of motives, he still goes scot free. Where the false, defamatory statement is only conditionally privi- leged, however, the good or bad faith of the defendant is a very material matter of inquiry. Accordingly, in this country, when counsel, parties or witnesses indulge in false and defamatory state- ments, which are not material or pertinent to the questions involved in the judicial proceeding in which they are made, the victim may maintain a civil action therefor, by showing that the defendant made the statement in bad faith. In such a case, the question at issue is one of " conduct, of motive, of good faith and honest purpose, or of Tenn. 146, 152, 5 S. W. 604, 6 Am. =»• Vann J.— in Youmans v. Smith. S. R. 821 (1887) ; Cooley v. Galyon, 153 N. T. 214, 47 N. E. 265 (1897). 109 Tenn. 1, 70 S. W. 607 (1902); =« Jones v. Brownlee, 161 Mo. 258, Crockett v. McLanahan, 109 Tenn. 61 S. W. 795, 53 L. R. A. 448 (1901), 517, 72 S. W. 950 (1903); Torrey v. citing Johnson v. Brown, 13 W. Va. Field, 10 Vt. 353 (1838); Clemmons 71 (1878); Forbes v. Johnson, 11 B. V. Danforth, 67 Vt. 617, 32 At. 626 Mon. (50 Ky.) 48 (1850); Strauss (1895); Johnson v. Brown, 13 W. v. Meyer, 48 111., 385 (1868); Garr Va. 71 (1878); Calkins v. Sumner, v. Selden, 4 N. Y. 91 (1850). 13 Wis. 193 (1860). »• Klinck v. Colby, 46 N. Y. 427 '■"Lord, J.— in McLaughlin v. (1871); Marsh v. Ellsworth, 50 N. Cowley, 127 Mass. 316 (1879). Y. 309 (1872). Defamation. 323 bad faith and malicious purpose." -"" The plaintiff must allege that the statement was not only false and malicious, but that it was not pertinent, and that it was made in bad faith.-"^ And the burden of proof is upon him to establish these allegations.-"" Good Faith Presumed. In cases of conditional privilege, it will be observed, the law presumes the defamatory statement to have been made in good faith and for an honest purpose; but such presumption is not conclusive, and the victim is at liberty to establish if he can, bad faith and malicious purpose on the part of his defamer.^^* This presumption of good faith is based upon the nature of the occasion. When a person rrj^kes a defamatory statement, " in the discharge of some public or private duty, whether legal or moral, or in the conduct of his affairs, in matters where his interest is con- cerned," the occasion is privileged. It " prevents the inference of malice which the law draws from unauthorized communications. If fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them, within any narrow limits." "" In order that the occasion be privileged, the duty or interest described above must exist. Xo amount of good faith in believing that it existed will avail the defendant.-^- " Whether the occasion is privileged, if the facts are not in dispute, is a. question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which the question depends, they must be left to the jury. But when the jury have found the facts, it is for the ="• White V. Carrol, 42 N. Y. 161 ="Toogood v. Spyring, 1 C. M. & (1870). R. 181, 4 Tyr. 582 (1834); Lewis v. ^ Hartung v. Sliaw, 130 Mich. 177, Daily News Co., 81 Md. 473. 32 At. 89 N. W. 701 (1902); Mower v. 246, 29 L. R. A. 59 (1895) ; Marks v. Watson, 11 Vt. 536, 34 Am. Dec. 704 Baker, 28 Minn. 162, 9 N. W. 678 (1839); Johnson v. Brown, 13 W. (1881); Finley v. Steele, 159 Mo. Va. 71 (1878). 299, 60 S. W. 108 (1900); Klinck v. ""McDavitt V. Boyer, 169 111., 475, Xiolby, 46 N. Y. 427 (1871); Briggs 48 N. E. 317 (1897). v. Garrett, 111 Pa. 404, 2 At. 513 ^'" Cases in last two notes. Henry (1886). V. Moberly. 6 Ind. App. 490, 33 N. E. '='= Stuart v. Bell (1891), 2 Q. B. 981, 48 A. L. J. 34 (1893) ; Strode v. 341, 60 L. J. Q. B. 577. Clement, 90 Va. 553, 19 S. E. 177 (1894). 324 The L^w of Torts'. judge to say whether they cotistitute a privileged occasion." ^" If the occasion is privileged, it matters not whether the privilege is based upon a duty or an interest of the defendant, he is entitled to the presumption that he acted in good faith, " The privilege would be worth very little if a person making a communication on a privi- leged occasion, were to be required in the first place, and as a condition of immunity, to prove affirmatively that he honestly believed the statement to be true * * * No distinction can be dra 'vn between one class of privileged communications and another."^^* Defamation in the Performance of a Duty. It is not necessary that the duty be one of positive legal obligation, enforce- able by " indictment, action or mandamus ; it may be only a moral or social duty of imperfect obligation." "'' When the statement is made in the performance of a duty clearly imposed by a rule of law, courts are everywhere agreed that the occasion is a privileged one.^^' When, however, the duty is one of a social or moral nature, the question, whether it renders the occasion privileged, is one upon which judicial opinion is most discordant.'"^ This is not surprising, because, as a learned judge has pointed out, " the question of moral or social duty being for the judge, each judge must decide it as best he can for himself." ^^' On the one hand are judges who hold that the moral duty not to publish matter defamatory of another which he does not know to be true, is stronger than the duty to convey to a third person that which he believes to be true, although such third person would be affected if the matter were true.^" On the other hand, are judges who hold "'Hebditch v. Mcllwalne (1894), and the opposing views, in Coxhead 2 Q. B. 54, 63 L. J. Q. B. 587. v. Ricliards, 2 M. G. & S. 569, 15 L. =" Jenoure v. Delmege (1891), A. J. C. P. 278 (1846), and in Stuart v. C. 73, L. J. P. C. 11. Bell (1891), 2 Q. B. 341, 60 L. J. Q. ='» Harrison v. Bush, 5 E. & B. 344, B. 577. 25 L. J. Q. B. 25, 99 (1855). "* Lindley, L. J. in Stuart v. Bell, ^» Cooke V. Wildes, 5 E. & B. 328, supra. 24 L. J. Q. B. 367 (1855); Lawless '"Coltman and Cresswell, JJ. in V. Anglo-Egyptian Cotton Co., L. R. Coxhead v. Richards, 2 M. G. & S. 4 Q. B. 262, 10 B. & S. 226, 38 L. J. 569, 15 L. J. C. P. 278 (1846); Earl Q. B. 129 (1869) ; Byam v. Collins, J., in Byam v. Collins, 111 N. Y. 143, 111 N. Y. 143, 19 N. E. 75, 2 L. R. A. 19 N. E. 75, 2 L. R. A. 129, 1888) ; 129 (1888). Joanness v. Bennett, 5 Alien (87 '"See prevailing and dissenting Mass) 169 (1862), opinions in Byam v. .Collins, supra, Defamation. 325 that a. person having information materially affecting the interests of another, is imder a stronger social and moral duty to communi- cate that information, than to guard the reputation of the person defamed by such information.--" The Performance of a Duty to the Public. Examples of privileged occasions connected with the performance of a public duty are numerous. Charges and communications made in the prosecution of an inquiry into a suspected crime ; -'-' complaints to superior officials of misconduct on the part of subordinates ; --- argu- ments presented to legislative committees, or to the executive department, against a bill under consideration ; --'' charges and com- munications in regularly conducted trials before the proper author- ities of religious, social and similar organizations,--^ have been repeatedly adjudged to be statements made upon a privileged occasion. In all of these cases, however, the courts have been careful to point out the limitations of the privilege. The defendant is not allowed to abuse the occasion. His charges, complaints and com- munications are not to be spread broadcast through the community. Their dissemination is to be restricted to those who have an interest or duty in dealing with them.--° And the defendant must act in good faith. If he does not know or believe them to be true, or if, '=°Tindal, C. J., and Erie, J., in ==Woods v. Wiman, 122 N. Y. 445, Coxhead v. Richards, supra,—; Dan- 25 N. E. 919 (1890). forth, J., in Byam v. Collins, supra. ~* Etchison v. Pergerson, 188 Ga. -' Padinore v. Lawrence, 11 A. & CZO. 15 S. E. 680 (1891); Redgate v. E. 380. 3 P. & D. 209 (1840); Light- Roush, 61 Ks. 480, 59 Pae. 1050 body V. Gordon, ;- Scotch Sess. Cases (ISOO) ; Piper v. Woolman, 43 Neb. (4th Ser.) 934 (1882); Dale v. Har- 280, 61 N. W. 588 (1895); Shurtleff rjs, 109 Mass. 193 (1872); Klinck v. v. Stevens, 51 Vt. 501 (1879); York Colby, 46 N. Y. 427 (1871). v. Pease, 2 Gray (68 Mass.) 282 =" Harrison v. Bush, 5 E. & B. (1854); Holt v. Parsons, 23 Tex. 9 344, 25 L. J. Q. B. 25, 99 (1855); (1859). Proctor V. Webster, 16 Q. B. D. 112, ^-' Cases in last four notes. Hocks 55 L. J. Q. B. 150 (1885) ; Jenoure v. v. Sprangers, 113 Wis. 123, 87 N. W. Delmege (1891), A. C. 73, 60 L. J. P. 1101- (1902), holding that a state- C. 11; Mclntyre v. McBean, 13 Up. ment by one member of a church to Can. Q. B. 534 (1856); Branaman v. another concerning the chastity of Hinkle. 137 Ind. 496, 37 N. E. 546 a third, over whom such other had (1893); Wieman v. Mabee, 45 Mich. no power of discipline, is not made 484, 40 Am. R. 477 (1881). on a privileged occasion. 326 The Law of Torts. when stating them, he is not discharging a duty or protecting his legitimate interests, he exceeds the privilege of the occasion, and becomes liable for the harm done to the plaintiff by his defamatory communication.^^' In such circumstances, he is said to act mala Me; to be prompted by an indirect and wrong motive ; to be impelled by actual malice. " When a defendant claims that the occasion of a libel or slander is privileged, and when it is held by a judge, whose duty it is to decide the matter, that the occasion is privileged, the question arises — under what conditions can the defendant take advantage of the privilege? If the occasion is privileged, it is for some reason, and the defendant is entitled to the protection of the privilege if he uses the occasion for that reason, but not otherwise. If he uses the occasion for an indirect reason or motive, he uses it, not for the reason which makes it privileged, but for another."--' Reports of Public Proceedings. It has long been settled that the publication of judicial proceedings is conditionally privi- leged — the condition being that the proceedings are public, are decent and fit for publication, and that the reports are full and fair, and their publication not inspired by actual malice.^-' The reports of such proceedings are usually made without reference to the indi- viduals concerned, and for the information and benefit of the public. The law, therefore, presumes that they are made in good faith. Moreover, the advantage to the community, from having the pro- ceedings of courts of justice universally known, is deemed to more than counterbalance the inconvenience and hardship to the private persons, whose reputation may be harmed by reports of such pro- '^ Jackson v. Hopperton, 16 C. B. (1884); and Park v. Detroit Free N. S. 829, 12 W. R. 913 (1864). Press Co., 72 Mich, 560, 40 N. W. 731 =" Brett, L. J. in Clark v. Moly- (1888), reports of papers not used neux, 3 Q. B. D. 237, 47 X,. J. Q. B. in open court; Boogher v. Knapp, 230 (1877). 97 Mo. 122, 11 S. W. 45 (1889); Mil- ^ R. V. Wright, 8 D. & E. 293 lisch v. Lloyds, 13 Cox C. C. 575, 46 (1799); Ryalls v. Leader, L. R. 1 L. J. C. P. 405 (1877), the question Exch. 296, 4 H. & C. 555, 35 L. J. Ex. was for jury whether the report 185 (1866) ; Re Evening News, 3 T. gave to readers a fair notion of what L. R. 255 (1886) ; R. v. Carlile, 3 B. took place in open court; Stevens & Aid. 167 (1819). The last two v. Sampson, 5 Ex. D. 53, 49 L. J. Q. cases involved the publication of B. 120 (1879), and Brown v. Prov. obscene and blasphemous libels, as Tel. Co., 25 R. I. 117, 54 At. 1061 reports of judicial proceedings; (1903). Reports were unfair and Cowley V. Pulsifer, 137 Mass. 392 malicious. Defamation. 327 ceedings.*-* This rule, according to the weight of modern author- ity, both in England and in this country, applies to preliminary investigations, and e.r- parte proceedings, which must result in a final determination.''^'' The full and fair reports of parliamentary and legislative pro- ceedings are also conditionally privileged, for reasons similar to those which apply to the publication of reports of judicial proceed- ings.'^^' No privilege attaches, however, to the publication of a resolution of a city council, which is not within the scope of its official authority.-^^ In this country, the publication of the proceedings of quasi-public bodies, such as the State Medical Societies, has been deemed condi- tionally privileged ; -^^ and in England, the official publication by such bodies of their proceedings is conditionally privileged.-'* Newspaper Reports of Public Meetings. No privilege at- taches, at common law, to the reports in the public prints, of other proceedings than those above considered. " Professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by false news. Their communications are not privileged merely because made in public journals." ^'' In Eng- '='Wason V. Walter, L. R. 4 Q. B. The resolution declared that the 73, 8 B. & S. 671, 38 L. J. Q. B. 34 plaintiff was a disreputable person (1868) ; Lewis v. Levy, E. B. & E. and had made an intentionally false 537, 27 L. J. Q. B. 282 (1857) ; Beiser and malicious report about the city's V. Scripps, McRae Pub. Co., 113 Ky. credit The court declared that the 383, 68 S. W. 457 (1902). council "had no more authority to ^™ Cases in last note; also, Usill V. libel the private character of a Hales, 3 C. P. D. 319, .47 L. J. C. P. private citizen, than an assemblage 323 (1878); Kimber v. Press Assoc. of private citizens would have," cit- (1893), 1 Q. B. 65, 62 L. J. Q. B. 152; ing Buckstaft v. Hicks, 94 Wis. 34, McBee v. Fulton, 47 Md. 403, 28 Am. 68 N. W. 403, 59 Am. S. R. 853 R. 465 (1877); Saunders v. Baxter, (1896). 6 Heisk. (53 Tenn.) 369 (1871); ^Barrows v. Bell, 7 Gray (73 Metcalf V. Times Pub. Co., 20 R. I. Mass.) 301 (1856); Kirkpatrick v. 674, 72 Am. S. R. 900 (1898). Eagle Lodge, 26 Ks. 384, 41 Am. R. "'R. V. Wright, 8 D. & E. 293 316 (1881); ShurtlefC v. Stevens, 51 (1799); Wason v. Walter, L. R. 4 Vt. 501, 31 Am. R. 698 (1879). Q. B. 73, 8 B. & S. 671, 38 L. J. Q. B. ™ Albutt v. Gen. Med. Council. 34 (1868); Kane v. Mulvaney, Ir. R. 23 Q. B. D. 405, 58 L. R. Q. B. 606 2 C. L. 402 (1866). (1888). ^ Trebby v. Transcript Pub. Co., *" Barnes v. Campbell, 59 N. H. 74 Minn. 84, 76 N. W. 961 (1898). 128 (1879); Davison v. Duncan, 7 328 The Law of Torts. land, and in some of our States, statutes have been passed modifying this rule of the common law, and providing that fair and accurate reports of legislative and other public meetings shall be conditionally privileged.''^" Defamation in the Performance of Private Duty. The commonest example of this species of conditional privilege is afforded by statements of employers about servants. While, as we have seen in a former connection, an employer is under no legal duty to a servant to give him a character,-'^ and is under no legal duty, either, to answer inquiries about him by one about to employ him, he is under a private, moral duty of answering such inquiries. Accordingly, the law presumes that in making such answers, he acts in good faith. If they contain defamatory "statements about the servant, he cannot recover against the employer without show- ing that the latter was inspired by actual malice.^'* In England, it is settled that the employer's statement is con- ditionally privileged, even when volunteered to one about to employ the servant.-'* This view is sustained by considerable authority in this country ^*'' and seems sound in principle. A communication, retracting a favorable character,-*^ as well as a statement of reasons for dismissing a servant,-*' made to the latter, or his parents, or guardians, or fellow servants, is also conditionally privileged. E. & B. 229, 26 L. J. Q. B. 104 569, 15 L. J. C. B. 278 (1846). Tin- (1857); Purcell v. Sowler, 2 C. P. D. dal's opinion Is now recognized as 215, 46 L. J. C. P. 308 (8177). stating the correct rule. See Stuart "=« Kelly V. G'MallEy, 6 T. I.. R. 62 v. Bell (1891), 2 Q. B. 341, 60 L. J. (1889); Chaloner v. Landsdown, 10 Q. B. 577. T. L. R. 290 (1894), applying 51 & 52 ="Hart v. Reed, 1 B. Mon. (40 Vict. V. 64, sec. 4. (Law of Libel Ky.) 166 (1840); Fresh v. Cutter, 73 Amendment Act, 1888); Garby v. Md. 87, 20 At. 774 (1890); Noonan Bennett, 166 N. Y. 392, 59 N. E. 1117 v. Orton, 32 Wis. 106 (1873). (1901), under § 1907 N. Y. Code of =*' Gardner v. Slade, 13 Q. B. 796, Civil Procedure. 18 L. J. Q. B. 334 (1849) ; Fowles v. ^ Supra, Chap. III. Bowen, 30 N. Y. 20 (1864). ^ Edmonson v. Stevenson, Bui. N. "" Taylor v. Hawkins, 16 Q. B. P. 8 (1766); Child v. Affleck, 9 B. & 308, 20 L. J .Q. B. 313 (1851); Som- C. 403, 4 M. & R. 338 (1829) ; Hollen- erville v. Hawkins, 10 C. B. 590, 20 beck V. Ristine, 105 la. 488; 75 N. L. J. C. B. 131 (1885); Hunt v. Great W. 355 (1898); Billings v. Fair- N. Ry. (1891), 2 Q. B. 189, 60 L. J. banks, 139 Mass. 66 (1885). Q. B. 498; Dale v. Harris, 109 Mass. ^Coxhead v. Richards, 2 C. B. 193 (1872); Hebner v. Great N. Ry., Defamation. 329 Duty Arising from the Family Relation. Close family re- lationship imposes a duty upon persons to communicate informa- tion to their relatives about third persons, which does not exist in the case of strangers. Accordingly, a son-in-law acts upon a privi- leged occasion, in giving to his widowed mother-in-law information derogatory to the character of one whom she is about to marry.-*'' Duty of Mercantile Agencies. Statements rendered by such agencies to persons, making inquiries about persons with whom they propose to deal, are clearly privileged.^** Whether the circu- lation among all of their subscribers of a sheet containing such statements, is privileged, is a question upon which authorities dif- fer. -*° In a leading case, Ihe majority of the court held it was not privileged.-*® The English view appears to be that it is privileged, " as being a reasonable and usual method of conveying to the sub- scribers the information which they needed, for the safe conduct of their business." -" It is quite important, however, that the agency reports only the information which it has received, and reports that with substantial accuracy. If it carelessly makes a mistake in reporting, its privilege may be forfeited.^*' 78 Minn. 289, 80 N. W. 1128 (1899); Missouri Pac. Ry. v. Richmond, 73 Tex. 568, 11 S. W. 555 (1889). =" Todd V. Hawkins, 8 C. & P. 88, 2 M. & R. 20 (1837), cited approvingly in Byam v. Collins, 111 N. Y. 143, 19 N. E. 75, 2 L. R. A. 129 (1888) ; Bayssett v. Hire, 49 La. Ann. 904, 22 So. 44 (1897). »« Rowland v. Blake M'fg. Co., 156 Mass. 543, 31 N. E. 656 (1892); Ormsby v. Douglass, 37 N. Y. 477 (1868); S. P. In Waller v. Lock, 7 Q. B. D. 622, 51 L. J. Q. B. 274 (1882) ; Robshaw v. Smith, 38 L. T. 423 (1878). ^' See Douglass v. Daisley, 114 Fed. 628, 52 C. C. A. 324, 57 L. R. A. 475 (1892), and authorities cited. Also Odgers, Libel and Slan- der (3d Ed.) 273. '^King v. Patterson, 49 N. J. L. 417, 9 At. 705, 60 Am. R. 622 (1887). See also Johnson v. Bradstreet, 77 Ga. 172 (1886); Newbold v. Brad- street, 57 Md. 38, 40 Am. R. 426 (1881) ; Pollasky v. Mlnchener, 81 Mich. 280, 46 N. W. 5 (1890); Mit- chell V. Bradstreet, 116 Mo. 226, 22 S. W. 358 (1893) ; Sunderlin v. Brad- street, 46 N. Y. 188, 7 Am. R. 322 (1871); Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405 (1898); State v. Lonsdale, 48 Wis. 348, 4 N. W. 390 (1879); Trussell v. Scarlett, 18 Fed. 214 (1882), with note; Locke v. Bradstreet, 22 Fed. 771 (1885). ^'Boxsius V. Goblet Freres (1894), 1 Q. B. 842, 63 L. J. Q. B. 401; An- drews V. Nott Bower (1895) 1 Q. B. 888, 64 L. J. Q. B. 536. "' Douglass V. Daisley, 114 Fed 628, 52 C. C. A. 324, 57 L. R. A. 475 (1902). In this case the informa- tion received was that Daisley had / 330 The Law of Torts. Volunteered Statements for the Benefit of Recipient. The older view in England, and that which obtains in some of our States, as we have seen, is that one who volunteers information to another, who has not asked for it, and with whom the volunteer has no confidential relations, nor common interests, acts at his peril. If the information is defamatory of a third person and false, he is liable for the damage done to such person's reputation. He is not acting upon a privileged occasion.^** The present English rule, and that which seems to be gaining favor in this country, has been stated as follows : " Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona Me and without malice does tell them, it is a privileged communication." ^°" " It is not necessary in all cases that the information should be given in answer to an inquiry." -"^ The difficulty in applying this rule, it will be observed, arises in the answer to the question, " Was it right in the particular case, to volunteer to the third person the statement complained of ? " As this question is for the judges, " each judge must decide it as best he can for himself." ^°- Defamation in Self-Defense. The rule on this topic has been formulated as follows : ' Every statement made with the object of protecting some interest of the writer or speaker, and reasonably necessary for such purpose, is conditionally privi- leged." ^°' This interest may relate to the writer's or speaker's assigned certain property to T., to of, but made it in response to in- secure him for indorsing a note. quiries. The report made by the agency was ^ Davies v. Snead, L. R. 5 Q. B. that he had assigned to T. for the 608, 39 L. J. Q. B. 202 (1870) Black- benefit of his creditors. Held that burn J., followed in Stuart v. Bell it was a question for the jury, (1891), 2 Q. B. 341, 60 L. J. Q. B. whether the mistake was due to 577. carelessness, so as to destroy the ^' Jessel M. R. in Waller v. Lock, privilege. 7 Q. B. D. 621, 51 L. J. Q. B. 274 "•King V. Watts, 8 C. & P. 614 (1882). (1838); Bulsson v. Huard, 106 La. "^'Lindley L. J., in Stuart v. Bell 768, 31 So. 293 (1901) is based upon (1891), 2 Q. B. 341, 60 L. J. Q. B. the fact that the defendant did not 577. volunteer the statement complained =» Praser's Law of Libel and Slan- der, (3d. Ed.) p. 135. Defamation. 331 reputation,-"* or to his property,-^'* and it may be an interest belong- ing to him exchisively,-'^'' or to him in common with others. ^°' Fair Comment. This defense has been confounded at times with that of conditional privilege ; ^'* but the distinction between the two is perfectly clear and well settled. When a defendant sets up the defense of conditional privilege he asserts and must prove that he stands in such a relation to the facts of the case, that he is justified in saying or writing what would be slanderous or libelous in any one else. When his defense is fair comment, he asserts that he has done only what every one has a right to do, and that his utterance is not a libel, or slander, and would not be a libel or slander by whomsoever published.-'* Subjects of Fair Comment. Speaking generally, any mat- ter of public interest is a proper subject of fair comment. " Nothing is more important," in the language of an eminent English judge, " than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men or the proceedings in courts of justice, or in Parliament, or the publication of a scheme, or a literary work." ^''° This principle has found expression in various constitutional provisions in this country. For example, the Maryland Declaration of Rights asserts, " that any citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege." =*" =" Koenig v. Ritchie, 3 F. & F. 413 =" Caldwell v. Story, 107 Ky. 10, (1862), Laugton V. Bishop of Sudor, 52 S. W. 850 (1899); Flnley v. L. R. 4 P. C. 495, 42 L. J. P. C, 11 Steele, 159 Mo. 299, 60 S. W. 109 (1872); Shepherd v. Baer, 96 Md. (1900) ; Warner v. Mo. Pac. Ry., 112 152, 53 At. 790 (1902). Fed. 114 (1901). ^Squires v. Wason Mfg. Co., 182 =»Henwood v. Harrison, L. R. 7 Mass. 137, -65 N. E. 32 (1902). In C. P. 606, 41 L. J. C. P. 206 (1872); Browning v. Comm. 116 Ky. 282, 76 Ross v. Ward, 14 S. D. 240, 85 N W. S. W. 19 (1904), it was held that 182 (1901). defendant must show, that he had ^ Blackburn L. J. In Campbell v. reasonable ground to believe, that Spotteswoode, 3 B. & S. 769, 32 L. J, his property was in danger from Q. B. 185 (1863). the plaintiff's misconduct. =»° Crompton J. In Campbell v. ==« Smith V. Smith, 73 Mich. 445, Spotteswoode, 3 B. & S. 769, 32 L. J. 41 N. W. 499, 3 L. R. A. 52 16 Am. Q. B. 185 (1863). S. R.594 (1889); Livingston v Brad- =«• Quoted and explained in Coffin ford, 115 Mich. 140, 73 N. W. 135 v. Brown, 94 Md. 190, 50 At. 567 (1897). (1901). 332 The Law of Torts. The subjects of fair comment which are most frequently involved in actions for defamation, are (i) the character and conduct of public men or candidates for office, and (2) literary, artistic or com- mercial productions, offered to the public.'*'- The Criticism of Public Men. " The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized.^"* Comments on govern- ment, on ministers and officers of State, on members of both houses of parliament, on judges and other public functionaries are now made every day, which half a century ago would have been the sub- ject of actions, or of e.r officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that, though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties ? " ^°* That there is a clear distinction between the publication of per- sonal abuse, and of fair comment upon the conduct and official character of men, engaged in managing public or semi-public affairs, is now well settled. Judge Cooley, speaking for the Supreme Court of Michigan,^"*' once declared : " It is very certain that no declaration of this or any other court can convince the common reason, that this distinction is not plain and palpable. Few wrongs can be greater than the public detraction which has only abuse, or profit from abuse, for its object. Few duties can be plainer than to challenge public attention to official disregard of principles which protect public and personal liberty." What Comment on Personal Conduct is Fair. Whether a particular statement is an unfair aspersion of personal character, »"Odgers, Libel and Slander (3d =«It was established in this coun- Ed.) p. 46. classifies these topics try much earlier than in England, as follows: "1. Affairs of State. See Hogg v. Dorrah, 2 Porter (Ala.) 2. The Administration of Justice. 212 (1835); Sillars v. Collier, 151 3. Public Institutions and Local Mass. 50, 23 N. E. 723 (1890). Authorities. 4. Ecclesiastical Mat- ^Cockburn C. J. in Wason v. ters. 5. Books, Pictures and Ar- Walter, L. R. 4 Q. B. 73, 8 B. & S. chitecture. 6. Theaters, Concerts 671, 38 L. J. Q. B. 34 (1868), and other public entertainments. "= Miner v. Tribune Co., 49 Mich. 7. Other Appeals to the Public." 358, 13 N. W. 773 (1882). Defamation. 333 or a fair comment upon public conduct, is generally a question for the jury.=°* In the Kentucky case cited in the last note, a publica- tion appeared in the Courier- Journal charging that Vance had vio- lated his oath of office as a supervisor of election, and with inter- fering with and bribing voters. The court instructed the jury to award the plaintiff damages, if they believed the pubhcation false and was made maliciously; and that malice was to be inferred or presumed from the falsity of the publication, but that if they believed the statements contained in the publication were substan- tially true, as pubHshed, or were reasonable and fair criticism of the acts and conduct of the plaintiff as supervisor, and were made in good faith and without malice, they should find for the defendants ; and the court held that these instructions were substantially cor- rect, and that the jury were the judges of the truth of the matter put in issue, and were also the judges of the reasonableness of the . grounds upon which the newspaper's charges were based ; that ani- madversions upon the conduct of a public officer, however severe were not libelous if confined within the limits of fair and reasonable criticism, and based on facts." ^*' Another court has defined fair comment in the following terms; " Real comment is merely the expression of opinion. Misdescrip- tion is a matter of fact. If the misdescription is such an unfaithful representation of a person's conduct as to induce people to think that he has done something dishonorable, disgraceful and contempt- ible, it is clearly libelous. To state accurately what a man has done, and then to say that in your opinion such conduct is dishonor- able, or disgraceful, is comment which may do no harm, as every one can judge for himself whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity of judging for himself of the conduct condemned, nothing but a false picture being presented for judgment." ^°* At times, however, the statement is clearly an aspersion of private character, and the court does not hesitate to declare that it is not ^ Merivale v. Carson, 20 Q. B. D. ing Post Co. v. Richardson, 113 Ky. 275, 58 L. T. 331, (1887); Vance v. G41, 68 S. W. 665 (1902). Courier Journal Co., 95 Ky. 41, 23 S. '" Christie v. Robertson, 10 New S, W. 591 (1893). Wales L. R. 157, 161 (1889), *" ApproTed and followed in Even- 334 The Law of Torts. fair comment.^*' On the other hand, the statement may be unques- tionably fair as a comment or criticism, and the court may dispose of the case without submitting to a jury."'" Criticism of Candidates for Public Ofifice. There is some authority for the view that defamatory statements concerning a candidate for public office are conditionally privileged, when made by electors or when made to them; that in such a case the defamed candidate, in order to recover, must prove not only the falsity of the statement but also that the defendant published it in bad faith."^ The weight of authority, however, is opposed to this view. Most courts have approved of the rule, announced by Chief Justice Par- sons, in an early Massachusetts case, as follows : " When any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his char- acter in issue, so far as it may respect his qualifications and fitness for the office ; and publications of the truth on this subject, with the - honest intention of infoming the people, are not a libel, for it would be unreasonable to conclude that the publication of truths, which it is the interest of the people to know, should be an offense against the law. For the same reason, the publication of falsehood and calumny against public officers, or candidates for public offices, is an oflfense most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens to their great injury, and, it may be, to the loss of their liberties." "" It is not always easy to apply this rule in a given case, but the dis- "" Coffin V. Brown, 94 Md. 190; 50 tend to the publication in a news- At. 567 (1901). paper, circulated outside the dis- ^'"Kllgour V. Evening Star Co., trlct in which the candidate was 96 Md. 16, 53 At. 716 (1902). running; following on this point. "'Ross V. Ward, 14 S. D. 240, 85 Buckstaff v. Hicks, 94 Wis. 34, 68 N. W. 182 (1901); Mott v. Dawson, N. W. 463 (1896). and Duncombe v. 46 la. 533 (1877) ; Bays v. Hunt, Daniell, 1 W. W. & H. 101, 8 C. & 60 la. 251, 14 N. W. 785 (1882); p. 222 (1838). State V. Balch, 31 Ks. 465 (1884); ='^Comm. v. Clap, 4 Mass. 163, 3 Marks v. Baker, 28 Minn. 162, 9 N. Am. Dec. 212 (1808), Jarman v. Rea, V/. 678 (1881); Briggs v. Garrett, 137 Cal. 339, 70 Pac. 216 (1902); 111 Pa. 404, 2 At. 513 (1886); Ex- Jones v. Townsend, 21 Fla. 431 press Co. v. Copeland, 64 Tex. 354 (1885); Rearick v. Wilcox. 81 111. 77 (1885). In State v. Haskins, 109 (1876); Belknap v. Ball, 83 Mich, la. C5G, 80 N. W. 1063 (1899), it was 583, 47 N. W. 674 (1890) ; Aldrich v. held that this ptivilege did not ex- Press Ptg. Co., 9 Minn. 183, 86 Am. Defamation. 335 tinction which is to be borne in mind is that between comment and criticism, on the one hand, and statements of fact, on the other. " It is one thing to comment upon or criticise, even with severity the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct." -" Or to put it in another way : " An elector may freely canvass the character and pretensions of officers and candidates, but he has no right to calumniate one who is a candidate for office with impu- nity." -'* " A public journal or an individual, who indulges in defamatory assertions about candidates for office, is equally liable for his acts with those who commit the same offense against private individuals."-'' Criticism of Literary, Artistic or Commercial Productions and Displays. Every one who publishes a book,^'* or publicly exhibits a picture or other work of art,^" or presents or takes part in a theatrical or other public performance,^'* or advertises or offers to the public an article for sale,^" or engages in the construction and management of a railroad,^*" " commits himself to the judgment of the public, and any one may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right." Dec. 84 (1864); Smith v. Burrus, Minn. 133, 86 Am. Dec. 84 (1864). 106 Mo. 94, 16 S. W. 881, 13 L. R. A. "'Seely v. Blair, Wright (O.) 59, 27 Am. S. R. 329 (1891); King 358 (1833). V. Root, 4 Wend. (N. Y.) 113, 21 Am. »"Carr v. Hood, 1 Camp. 355, n. Dec. 102 (1829); Hamilton v. Eno, (1808); Cooper v. Stone, 24 Wend. 81 N. y. IIG (1880); Mattice v. Wil- (N. Y.) 434 (1840). cox, 147 N. Y. 624, 42 N. E. 270 »" Soane v. Knight, Moo. & M. 74 (1895); Post Pub. Co. v. Molony, (1827); Gott v. Pulsifer, 122 Mass. 50 O. St. 71, 33 N. E. 92 (1893); 235, 23 Am. R. 322 (1877). Brewer v. Weakley, 2 Overt. (2 =='Dibdin v. Swan, 1 Esp. 28 Tenn.) 99, 5 Am. Dec. 656 (1807); (1793); Green v. Chapman, 4 Sweney v. Baker, 13 W. Va. 158, 31 Bing. (N. C. ) 92; 5 Scott 340 (1837) Am. R. 757 (1879). Fry v. Bennett, 28 N. Y. 324 (1863). ^ Davis V. Shepstone, 11 App. ■" Hunter v. Sharpe, 4 P. & F. 983 Cas. 187, 55 L. J. P. C. 51 (1886); (1866); Paris v. Levy, 9 C. B. N. S. Burt V. Advertiser Co., 154 Mass. 342, 30 L. J. C. P. 11 (1861); Boyn- ?ns "^ N. E. 1 (1891); Hallam v. ton v. Remington, 3 Allen, (85 Post Pub. Co., 59 Fed. 530, 8 C. C. A. Mass.) 397 (1862). 201, 16 U. S. App. 613 (1893). ^" Crane v. Waters, 10 Fed. 619 '"Aldrich V. Press Printing Co., 9 (1882). 336 The Law of Torts. If, however, the commentator or critic does step aside from expressing his opinion of the book, or the work of art, or the per- formance, or the wares of the plaintiff, and indulges in defamation of the plaintiff himself, he is no longer exercising a fair and legiti- mate right ; he is no longer exercising the function of a guardian of public morals or of correct literary or artistic taste ; he is not engag- ing in fair discussion in order to promote " the truth of history or the advancement of science," but he is committing a tort and must answer in damages for his injury of the plaintiff.^** What Comment on Literary and other Displays is Fair ? This question is generally for the jury. The court ordinarily leaves it to them to say " whether they think the limit of fair criticism has been passed." ^*- The jury are to be informed that " every latitude must be given to opinion and prejudice, and then they are to say whether any fair man would have made the comment or criticism in question on the work. * * * If it is no more than fair, honest, inde- pendent, bold, even exaggerated criticism, then their verdict will be for the defendant. * * * The court should give a very wide limit to the jury. Mere exaggeration or even gross exaggeration may not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limits. The question which the jury must consider is this : Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work criticised? If it goes beyond that, then they must find for the plaintiff; if they are satis- fied that it does not, then it falls within the allowed limit, and there is no libel at all." ^'' Applying these tests, it is clear that one who, under the pretense of criticism, makes a personal attack on the character of the author, the artist, the performer or the vendor, or who imputes to him something which he has never presented to the public, goes beyond the limits of fair comment and criticism. "' Tabert v. Tipper, 1 Camp. 350 235, 23 Am. R. 322 (1877) ; Cooper v. (1808) ; Strauss v. Francis, 4 P. & F. Stone, 24 Wend. (N. Y.) 434 (1840). 939 (1866); Duplany v. Davis, 3 T. »»Bowen L. J. in Merivale v. Car- L. R. 184 (1887); Whistler v. Rus- son, 20 Q. B. D. 275 (1887). kin, Times, Nov. 26th, 27th, 1878; ='»=Lord Esher, M. R. in Merivale Hunter v. Sharpe, 4 F. & F. 983 v. Carson, supra. (1866); Gott v. Pulsifer 122 Mass. CHAPTER XI. TRESPASS TO PROPERTY. Definition of Trespass. Blackstone defines " trespass in its largest and most extensive sense," as, '" any transgression or offense against the law of nature, of society, or of the country in which we live, whether it relates to a jnan's person or to his property." ^ We are not now concerned with trespass, in any such large and exten- sive sense, but with the tort which consists in the unlawful disturb- ance of another person's possession of lands or goods. ^ Trespass to Realty. " Every unauthorized, and. therefore, unlawful entry into the close of another is a trespass." * The techni- cal designation of it, at common law, is " trespass quare clausum f regit ; " from the language of the old writ, which called upon the defendant to show cause quare clausum querentis fregit — why he had broken into plaintiff's close. " For, every man's land is in the eye of the law, inclosed and set apart from his neighbor's ; and that, either by a visible and material fence, or by an ideal, invisible boundary, existing only in the contemplation of law, as when one man's land adjoins another's in the same field." * A personal, bodily entry upon the land is not necessary to con- stitute a trespass. One who stands on his own land and throws stones or other missiles upon his neighbor's property," or kicks or strikes it,' or removes a line fence which rests partly on the neigh- bor's land,' or turns water upon his neighbor's land,* or constructs » Commentaries, Vol. 3, p. 208. Clayton, 5 Mon. (21 Ky.) 4, 5 = Kent's Commentaries Vol. 4, p. (1827) Hay v. Tlie Cohoes Co., 2 N. 120. Y. 159, 51 Am. Dec. 279 (1849). = Dougherty v. Stepp, 1 Dev. & "Ellis v. Loftus Iron Co., L. R. Bat. (18 N. C.) 371 (1835); Brown 10 C. P. 10, 44 L. J. C P. 24 (1874). V. Manter, 22 N. H. 468, 472 (1851). ''Garrett v. Sewell, 108 Al. 521, 18 'Commentaries Vol. 3, p. 209. So, 737 (1895). ' Pickering v. Rudd, 4 Camp. 219, ' Byrnes v. City of Cohoes, 67 N. 221, 1 Stark 56 (1815); Prewitt v. Y. 204 (1876); Jutt v. Hughes, 67 22 337 338 The Law of Torts. eaves or other projection over the neighbor's land,' is clearly liable for breaking the close of his neighbor. So, it is submitted, throw- ing or firing a missile, or sending a balloon through the air, over the land of another, amounts to a legal breaking of his close.^* Intention of Trespasser. It is also to be borne in mind, that the intent, with which an act is done, is not the test of liability of a party to an action for trespass.*' A person may be ever so inno- cent of an intention to cross the invisible boundary of his neighbor's land, or he may- believe that he has a perfect right to cross it, and yet his innocence and good faith will not protect him.*^ His conduct may be marked by the utmost civility,*' and even be actuated by a desire to benefit, or it may in fact benefit the owner.** Still, if his entry was unauthorized, he is a trespasser, and liable accordingly. Mere inadvertence or accident in crossing the line will not save him from trespass ; *' nor will plaintiff's failure to prove that defendant's act caused substantial damage. The law implies damage from the trespass.*" Even though the harm be so trifling, that plaintiff's witnesses are unable to place any estimate upon the injuries inflicted, yet, it is said, if no recovery could be had, the trespasser, by repeti- tion of the act and the lapse of time, might acquire an easement in plaintiff's land, in spite of anything that could be done to prevent it.*^ N. Y. 267, 273 (1876); Mairs v. phy v. City of Fond du Lac 23 Wis. Manhattan Real Estate Assoc. 89 365 (1868). N. Y. 498, 505 (1882). "Cannon v. Overstreet, 2 Bax. •Smltli V. Smith, 110 Mass. 302 (61 Tenn.) 464 (1872). (1872); Contra, Pickering v. Rudd, " Ketcham v. Newman, 141 N. Y. 4 Camp. 219, 1 Stark 56 (1815). 205, 36 N. E. 197, 24 L. R. A. 102 "Dicta in Kenyon v. Hart, 6 B. (1894). & S. 249, 252 (1865); Wandsworth >= Basely v. Clarkson. 3 Levinz, 37 Board v. United Tel. Co., 13 Q. B. D. (1681) ; Newsom v. Anderson, 2 904, 53 L. J. Q. B. 449 (1884). Ired. (24 N. C.) 42, 37 Am. Dec. "Guille V. Swan, 19 Johns (N. 406 (1841.). Contra, Keller v. Y.) 381, 10 Am. Dec. 234 (1822); Mosser, Tappan (Ohio) 43 (1816). Higginson v. York, 5 Mass. 341 '• Dixon v. Clow, 24 Wend. (N. Y.) (1809)- 188 (1840); Kell v. CHiartiers Val- "Pfeiffer v. Grossman, 15 111. 53 ley Gas Co., 131 Pa. 466, 19 At. 78, (1853); Baltimore etc. Ry. v. Boyd 17 Am. St. R. 823 (1890); Carter v. 67 Md. 32, 10 At. 315, 1 Am. S. R. Wallace, 2 Tex. 206 (1847). 362 (1887); De Camp V. Bullard 1.59 "'Norvell v. Thompson, 2 Hill N. Y. 450, 54 N. E. 26 (1899); Mur- (S. C.) 470 (1834). In this case. Trespass to ruopERXY. ^t^o Mitigation and Aggravation of Damages. While the good faith of the trespasser can never bar an action, it may and often does operate to lessen the award of damages. In such a case as that cited in the last note, it would limit the recovery to a nominal sum. In the case of taking minerals,^* or trees/' it reduces the recovery, in most jurisdictions, to the value of the property when first taken. On the other hand, the bad faith of the trespasser may enhance the award of damages. If a telephone company unlawfully cuts the limbs of trees belonging to plaintiff, with knowledge that they are his, and especially if he does this after warning from the plaintiff not to do it, punitive damages may be awarded against him.-" The Right to Damages for Trespass to Land, vests in the owner, as soon as the trespass is committed, and descends to his heirs.-* It does not merge in the title to the land subsequently acquired by the trespasser.*- Even though the trespasser be a dis- seizor, at the time of his trespass, he will still be liable after reentry by the true owner.-^ It is to be borne in mind that the gist of the tort, which we are now considering, is the disturbance of the possession, and that what- ever is done, after the breaking and entry, is but an aggravation of damages.-* Even if the plaintiff declares for breaking his close the trial judge charged the jury, 16 Lea ( S4 Tenn. ) 456, 1 S. W. 159 that, if there were actually no dam- (1886) ; Cumberland Tel. Co. v. Pos- age done, or if it were so inconsid- ton, 10 Pickle (94 Tenn.) 69C, erable that it could not be esti- 30 S. W. 1040 (1895) ; Telephone Co. mated, as the defendant set up no v. Shaw, 102 Tenn. 313, 52 S. W. 163 claim to the land, and supposed he (1899). had permission of the real owner, =' Mountz v. Railroad Co., 203 Pa. they might find a verdict for the de- 128. 52 At. 15 (1902). fendant; and they did so. This - McCIintocn v. Railroad Co. 66 charge was held to be erroneous. Pa. 404 (1870). ''Livingstone v. Rawyards Coal ==Emerich v. Ireland, 55 Miss. Co.. 5 App. Cas. 25. 42 L. T. N. S. 390 (1877); Alliance Trust Co. v. 334 (1880); Dougherty v. Chestnut, Nettleton Hardware Co., 74 Miss. 86 Tenn. 1, 5 S. W. 444 (1888). 584, 21 S. W. 396, 36 L. R. A. 155 "Wooden Ware Co. v. U. S., 106 (1897), and oases cited therein. U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. =* Taylor v. Cole, 3 D. & E. 292 230 (1882); Striegel V. Moore. 55 la. (1789); Curtis v. Groat 6 Johns. 88. 7 N. W. 413 (1880): Holt v. (N. Y.) ICS, .5 Am. Deo. :;u4 (ISlOj: HaytS. 110 Tenn. 42. 73 S. W. Ill Smith v. Ingram, 7 Iredell (29 N. ,I9,V>) C.) IT.".. (1S47); Carter v. Wallace.^ =• Memphis Telephone Co. V. Hunt. 2 Tex. 206 (1847). 340 The Law of Torts. and cutting his trees, he may recover, although he fails to prove that any trees were cut."' Injuries Which are not Trespass. A person's land may be injured by materials belonging to another, or by forces set in motion by another, and yet a trespass not be committed. If stones and other materials, are carried upon plaintiff's land from defend- ant's, b\- a violent storm, or by other natural forces, plaintiff's pos- session is disturbed, but that disturbance is not due to trespass by defendant. It is due to an accident.^' Again, the plaintiff's realty may be harmed " through the jarring of the ground or the concus- sion of the atmosphere, caused by explosions " of blasts set off on defendant's adjoining premises. If, however, such injuries are not due to materials hurled upon the land : if they are not due to the direct application of force, but are merely consequential, plaintiff cannot maintain an action for trespass. His remedy is an action on the case for negligence.-^ The Possession of Plaintiff, which entitles him to maintain an action for trespass to land, is not limited to a possession attendant upon his personal occupation of the premises. It is enough that there was an actual possession in the plaintiff, when the trespass was committed, or a constructive possession in respect of the right being actually vested in him.^* This is true even of uninclosed and unim- proved lands,^» unless there is an adverse possession or right in some ==Mundell v. Perry, 2 Gill. & J. down upon plaintiff's land, there (Md.) 193 (1830) ; Brown v. Manter, would have been a good case of tres- 22 N. H. 468 (1851). In Bailey v. pass. Gregory v. Piper, 9 B. & C. Chic. M. & St. Paul Ry., 3 S. Dak. 591, 4 M. & R. 500 (1829). 531, 54 N. W. 596, 19 L. R. A. 653, ^ Sullivan v. Dunham, 161 N. Y. with valuable note, it Is held that 290, 55 N. E. 923, 47 L. R. A. 715 76 where trees are destroyed or taken Am. St. R. 274 (1901); Holland by a trespasser, the owner may sue House Co. v. Baird, 169 N. Y. 136, tor the injury to the realty, in 62 N. E. 119 (1901. which case the measure of damages * Kent's Commentaries, Vol. 4, p. \s the diminished value of the 120; Bulkley v. Dolbeare, 7 Conn, 'ealty; or he may sue for the value 232 (1828); McColman v. Wilkes, of the trees, when the measure of 3 Strob. (S. C.) 465 (1849); Wilson damages will be their market v. Phoenix Co., 40 W. Va. 413, 21 S. value. E. 1035, 52 Am. St. R. 890. (1895). =* Snook V. Town Council ot Brad- =» Baltimore etc., Co. v. Boyd, 67 ford, 14 Up. Can. Q. B. 255 (1856). Md. 32. 10 At. 315, 1 Am. St. R. Had these materials been so placed 362, (1887); Irwin v. Patchen, 164 by plaintiff, as naturally to slide Pa. 51, 30 At. 436, (1894). Trespass to Property. 34' other person, by contract or by operation of law, to the actual exclu- sion of the plaintiff.*" Trespass may be maintained by a reversioner, when the breaking of the close results in injury to his interest in the lands.** Accord- ingly, the unauthorized interference with trees in the highway, or the erection of telegraph poles, or other structures in the highway, which interfere with the reasonable use of his premises by the adjoining owner, and impose a new burden upon them, is generally treated as a trespass against such owner, when the fee to the high- way at the point in question, is in him."'- Trespass by Animals. The common law held the owner ** and the custodian ^* of cattle liable for their trespasses. He was under an absolute duty to keep them upon his own premises ; and, if they wandered therefrom, and broke into the close of another, their owner was liable for all the damages which they inflicted, whether he had notice or not of their propensity to do the particular mischief.'^ This has been modified by general custom,*' or by statute *' in "Storrs v. Feick. 24 W. Va. 606, (1884). " Bigelow's Leading Cases on Torts, p. 355; Develin v. Snellln- burg. 132 Pa. 186. 11 At. 1119 (1890). •= Chesapeake etc.. Co. v. Macken- zie, 74 Md. 36, 21 At, 690, 28 Am. St R. 219. (1891); Broome v. N. Y. etc.. Co., 42 N. J. Eq. 141. 7 At. 851 (1886); Western Union Tel. Co. v. Williams, 86 Va. 696, 11 S. E. 106, 19 Am. St. R. 908, 8 L. R. A. 429 (1890); Kreuger v. Wis. Tel. Co., 106 Wis. 96, 81 N. W. 1041, 50 L. R. A. 298 (1900). ""Gresham v. Taylor, 51 Al. 505, (1874) ; Crawford v. Hughes, 3 J. J. Marsh (26 Ky.) 433 (1830); Noyes V. Colby, 30 N. H. 143 (1855) ; Wells T. Howell. 19 Johns. (N. Y.) 385 (1822); Rossell v. Cottom, 31 Pa. 525 (1858). " Tewksbury v. Bucklln, 7 N. H. 518 (1834). = Decker v. Gammon, 44 Me. 322. 69 Am. Dec. 99 (1857); Lyons v. Merrick, 105 Mass. 71 (1870) ; Angus V. Radin, 5 N. J. L. 815, 8 Am. Dec. 626, (1820); Malone v. Knowlton, 15 N. Y. Suppl. 506, 39 N. Y. S. R. 901 (1891); Morgan v. Hudnell,52 O. St. 552, 40 N. E. 716. 27 L. R. A. 862, 49 Am. St. R. 741 (1895); Dolph V. Ferris, 7 W. & S. (Pa.) 367, 42 Am. Dec. 24G (1844); Mosier V. Beale. 43 Fed. 358 (1890). "Logan V. Gedney, 38 Cal. 579 (1869); Seeley V. Peters 5 Gilmaii (111.) 130 (1848); Kerwhacker v. Cleveland etc., Ry.. 3 O. St. 172. 02 Am. Dec. 246 (1854); Buford v Houtz, 133 U. S. 320, 10 Sup. Ct. 30r.. 33 L. Ed. 618 (1890);, affirming S. C. 5 Utah 591, 18 Pac. 633 (1888). "Lazarus v. Phelps, 152 U. S. 81. 14 Sup. Ct 477, 38 L. Ed. 363 (1894). 342 The Law of Torts. many of our jurisdictions, and the rule has become established that the land-owner must fence against the cattle of his neighbor run- ning at large. Under such custom or statutes, however, no privi- lege accrues to the cattle owner to drive his animals upon the un fenced land of another, and appropriate their pasturage to- him- self. If he does this he becomes a trespasser'* and makes himself liable for the fair rental of the land thus used.'* Even when his cattle accidentally stray upon unfenced land, although he is not answerable for their trespass, the land-owner may drive and keep them off : *" and the latter is under no duty to keep such premises in a safe condition for them.*^ His duty is only to refrain from inflict- ing upon them wanton or willful injury. In an early English case. Lord Holt declared that the liability for trespasses of animals, is limited to beasts in which the defendant has a valuable property.*^ Although this statement is mere dictum, it has been accepted by many courts as a correct statement of the law.*' Accordingly these courts have held that the owner of dogs and cats is not answerable for their trespasses upon land, as he is for those of his cattle. These animals, it is said, are not so abso- lutely the chattels of the owner as to be the subject of larceny ; their wanderings ordinarily cause but slight damage, and common usage accords them a wider liberty than is permitted to cattle, horses, sheep, and the like.** "CosgrifE V. Miller, 10 Wy. 190, "Mason v. Keeling, 12 Mod. 68 Pac. 206 (1902); Poindexter v. 332, 1 Ld. Ray. 606 (1700). May, 98 Va. 143, £4 S. B. 971 « Brown v. Giles 1 C. & P. 118, 12 (1900). E. C. L. 79 (1823); Saunders v. ''Lazarus v. Phelps, 152 U. S. 81, Teape 51 L. T. N. S. 263, 48 J. P. 14 Sup. Ct. 477. 38 L. Ed. 363 757, 29 A. L. J. 321 (1884). In De- (1894); Monroe v. Cannon, 24 well v. Sandars, Cro. Jac. 490, Mont. 316, 61 Pac. 863, 81 Am. St (1619), it was declared that the R. 439 with valuable note (1900). owner'of a dovecote is liable if his '"Addington v. Canfield, H Okl.. pigeons eat his neignbors' grain. 204, 66 Pac. 355 (1901). In Woolf v. Chalker, 31 Conn., 121, "Beinhorn v. Griswold, 27 Mon. 81 Am. Dec. 175 (1862), it wai 79, 59 L. R. A. 771, 69 Pac. 557 held tnat "if the owner trespass (1902); Knight V. Abert, 6 Pa. 472, and his dog attend him, and do 47 Am. Dec. 478 (1847); Clarendon mischief unbidden, the owner is Land Co. V. McCleland Bros., 89 liable." Tex. 483, 34 S. W. 98, 59 Am. S. R. « Willes J. in Read v. Edwards, 70, (1896). 17 c. B. N. S. 245, 260, 34 L. J. C. P. Trespass to Troperty. 343 Other courts have declined to accept Lord Holt's dictum, and have held the owner of a dog to the same responsibility for its trespasses, as attaches to the owner of an ox or horse.*' Trespasses by Animals Driven Along Highways. F^r these, the owner or custodian is not liable, unless they are due to his negligence. This exception has been described by a learned judge as " absolutely necessary for the conduct of the common affairs of life." " Duty of Land-Owner to Trespassers. Although as we have seen in a previous connection, a trespasser is not an outlaw " he is not entitled to have the premises, upon which he is trespassing kept in a safe condition. The only legal duty which the land-owner owes him, is to abstain from inflicting upon him willful or wanton injury.*' .\ different view is held in some jurisdictions, when the trespasser is an infant, especially if there is ground for finding that he has been enticed upon the dangerous premises, by the land- owner.*® Trespass to Chattels. T^^'s (-onsists, ordinarily, in wrong- fully taking or destroying personal property. It has been said that trespass does not lie for an assault upon a ship, or other insensate thing,'"' but that it does for beating and wounding a beast.'' The 31 (1864); Smith v. Donohue, 49 N. "Supra 88. J. Lu 548, 60 Am. R. 652 (1887). "Jordan v. Grand Rapids Ry., « Doyle V. Vance, 6 Vict. L. R. 162 Ind. 464, 70 N. E. 524, (1904) ; (Cases at Law) 87 (1880) ; Churnot Daniels v. New York etc., Ry., 154 V. Lawson, 43 Wis. 536, 28 Am. R. Mass. 349, 28 N. E. 283, 13 L. R. A. 567 (1878), Ryan, C. J., dissented; 248, 26 Am. S. R. 253 (1891); cf. Crowley v. Grroonell, 73 Vt. 45, 50 Christian v. Illinois Cent. Ry., 71 At. 546, 55 L. R. A., 876 (1901), Miss. 237, 12 So. 710 (1894) j Blen- where the owner of a dog was held horn v. Griswold, 27 Mon. 79, 69 liable for his jumping against the Pac. 557, 59 L. R. A. 771 (1902). plaintiff and knocking him down, " Union Pac. Ry. v. McDonald, even though he jumped in playful- 152 U. S. 262, 14 Sup. Ct. 619, 38 ness. The test laid down is: had L. Ed. 434 (1894). the owner, as an ordinarily prudent "> Marlow v. Weekes, Barnes' person, reason to anticipate the in- Notes of Cases, 452 (1744). The jury, which actually occurred — ? decision in Paul v. Slason, 22 "Tillett V. Ward, 10 Q. B. D. 17, Vt. 231, 54 Am. Dec. 75 (1850), ac- 52 L. J. Q. B. 61 (1882); Hartford cords with the above dictum, but V. Brady, 114 Mass. 466, 19 Am. R. it was based upon the maxim, De 377 (1874); Bamum v. Turpening minimis non curat lex. 75 Mich. 557, 42 N. W. 967 (1874) ; " Marlow v. Weekes, supra; Dand Moynahan v. Wheeler 117 N. Y. v. Sexton, 3 D. & E. 37 (1789). 285, 22 N. E. 702 (1889). 344 The Law of Torts. better view seems to be, however, that any wrongful disturbance of another's possession, whether amounting to an asportation or destruction or not, and whether depriving the plaintiff of the val- uable use of the property or not, is an actionable trespass.®- It is not necessary that actual force be applied to the property. If the defendant intentionally frightens plaintiff's horse so that it runs away and is injured, he is liable in trespass as he would have been, had he beaten and wounded the animal by the direct application of force.°^ So, if an officer unlawfully levies upon plaintitf's prop- erty, he is a trespasser, although there is no manual taking or removal."* And if one sets fire upon his land, he is liable in trespass, if it escapes and harms another's goods."' Intention to Inflict Harm is not material ; the same rule applying to trespasses to goods, that we have found applying to real-property trespasses. One, who interferes with the possession of goods, acts at his peril,®* and is answerable " not only for the bare act of trespass, but also for the natural, immediate and direct conse- quences of that act." ^' "Pollock's Torts, (6tli Ed.) pp. 334, 335; Alderson, B. in Fouldes V. WlUoughby, 8 W. & W. 540, 549 (1841); Bull v. Colton 22 Bar- bour (N. Y.) 94 (1856). No alle- gation that plaintiff lost the use of the horse. In Fullam v. Stearns, 30 Vt. 443, 456 (1857), the opinion is expressed that there may have been a trespass in Paul t. Slason, supra; cf. Pope v. Cordell, 47 Mo. 251 (1871). Fitzherbert's Natura Brevium, 88 M. and 89, L. shows that the writ of trespass could be had for breaking one's mill-stone, or chasing his sheep or swine to their injury. "Cole v. Fisher, 11 Mass. 137 (1814); Loubz V. Hofner, 1 Dev. L. (12 N. C.) 185 (1827); James v. Caldwell, 7 Yerg. (15 Tenn.) 38, (1834); Waterman v. Hall, 17 Vt. 128. 42 Am. Dec. 484 (1844). "Miller v. Baker, 1 Met. (42 Mass.) 27 (1840); Wintringham v. Lafoy, 7 Cow. (N. Y.) 735 (1827); Philips V. Hall, 8 Wend. (N. T.) 610, 24 Am. Dec. 108 (1832). "Jordan v. Wyatt, 4 Gratt. (45 Va.) 151, 47 Am. Dec. 720 (1847) =• Dexter v. Cole, 6 Wis. 319. 70 Am. Dec. 465 (1858); defendant at- tempted to separate plaintiff's sheep from his own flock, but inad- vertently drove off four belonging to plaintiff. It is not trespass for one, law- fully driving cattle or sheep on the highway, to drive animals, which mix with his, to a conven- ient place for separating them. VanValkenburg v. Thayer, 57 Barb. (N. Y.) 196 (1870); but it is tres- pass for him to drive them away with his, without taking reasonable precautions to discover and sepa- rate them; Young v. Vaughan, 1 Houst, (Del.) 331 (1857); Brooks V. Olmstead, 17 Pa. 24, (1851). »■ Bruch V. Carter, 32 N. J. L. 554 Trespass to Propertv. 345 Possession of Plaintiff. This may be either actual or con- structive. •' It is established law, that he, who has the general property in a personal chattel, may maintain trespass for the taking of it, by a stranger, although he never had the possession in fact ; for the general property in a personal chattel, draws to it possession in lavv."^* It is also established, that one, who illegally interferes with the possession of a chattel, is liable in trespass to the one whose actual possession is invaded"* although such possession is illegal. A suc- cessful defense to the action of trespass must rest upon the rightful- ness of the defendant's conduct, not upon defects in the plaintiff's title, or in his right to possession.®" One may be a trespasser, even against a thief."* Excusable Trespasses. Thes.i have been dealt with, at con- siderable length, in a previous chapter,®- and their consideration need not be renewed here. It will be recalled that a very extensive head of excuse, in cases of trespass, is that of license. AX'hen that license is abused it becomes (1867). Defendant untied plain- tiffs horse, led him to another post and hitched him. Here, he became entangled in his halter, was thrown to the gi-ound and killed. Judg- ment upon verdict for plaintiff for the value of the horse affirmed. " Bulkley v. Dolbeare. 7 Conn. 232, 235 (1828); Haythorn v. Rush- forth 16 N. J. L. 160. 38 Am. Dec. 540 (1842); Putnam v. Wyley. 8 John. (N. Y.) 432. 5 Am. Dec. 346 (1811); Edwards v. Edwards, 11 Vt. 587. 34 Am. Dec. 711 (1839). " Outtner v. Pac. Steam Whaling Co., 96 Fed. 617 (1899). Seamen on board an abandoned whaling bark successfully maintained tres- pass against the defendant, whose servants took the stores from the bark, although the seamen had bare possession and no ownership. " The peace and good order of society," it is declared, "require that persons thus in the possession of property, even without any title, should be enabled to protect such possession, by appropriate remedies against mere naked wrongdoers," citing Jeffries v, G. W. Ry., 5 E. & B. 802. 25 L. J. Q. B. 107 (1856); Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360 (1886). "Brown v. Ware. 25 Me. 411 (1845); Commonwealth v. Rourke, 10 Cush. (64 Mass.) 397 (1852); Ewings V. Walker. 9 Gray (75 Mass.) 95 (1857); Odlorne v. CoUey, 2 N. H. 66. 9 Am. Dec. 39, (1819); Potter V. Washbun, 13 Vt. 558, 37 Am. Dec. 615 (1840). " Commonwealth v. Coffee, 9 Gray, (75 Mass.) 139 (1857); Ward V. People, 3 Hill, (N. Y.) 395 (1842) ; Fletcher v. Cole, 26 Vt. 170, 177, (1853). "Chapter HI. 346 The Law of Torts. important to inquire whether it was accorded to the defendant by the law, or by consent of the plaintiff. ■ Trespass Al> Initio. When the license is accorded by law, it is said that the law should make void everything done by the abuse of its authority, and leave the abuser as though he were a trespasser from the beginning. But where a man, who is under no necessity to give a license to another, does give it, and the licensee abuses the authority, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority, who was not fit to be trusted."^ Accordingly, where one distrains property,"* or takes up an estray,*' and converts or abuses it, he is liable as a trespasser ab initio. So is an officer who seizes property or arrests a person under legal process, and then abuses the authority given him by the law — as by unreasonable delay in removing the property,'" or by charging illegal fees." So is one who secures entrance upon plaintiff's land by authority of the law, and then abuses the license."' On the other hand, if the license proceeds from the plaintiff, an abuse of it will not make the .original entry upon the land a trespass, although the abuser's act may be in itself a trespass."' And it is to be borne in mind, that the abuse of the authority of law, which makes a man a trespasser ab initio, is the abuse of some special and particular authority, and has no reference to the general rule which makes acts lawful which the law does not forbid.^" "Allen V. Crofoot, 5 Wend. (N. (24 N. C.) 247 (1842); Adams v. Y.) 506 (1830). Rivers, 11 Barb. (N. Y.) 390 (1851) ; "Diincombe v. Reeve, Croke Harrison v. Duke of Rutland (1893) Eliz.. 783 (1601). 1 Q. B. 142, 62 L. J. Q. B. 117, 47 " Bagshaw v. Goward, Croke Jac, A. L. J. 329. 147, 1 Yelv. 96, Noy, 119 (1606): "Hubbell v. Wheeler, 2 Aik. Adams v. Adams, 13 Pick., (30 (Vt.) 359 (i827); Jewell v. Ma- Mass.) 384 (1832). hood 44 N. H. 47 (1863); Allen v. "Williams v. Powell, 101 Mass. Crofoot, 5 Wend. (N. Y.) 506 467 (1869). (1830); The Six Carpenters's Cas^ "Robblns v. Swift, 86 Me. 197, 8 Coke 146, a. (1610). 29 At. 981 (1894), and cases cited. ™Esty v. Wllmot, 15 Gray (81 "Gardner v. Rowland, 2 Ire. Mass.) 168 (1860). CHAPTER XII. TROVER AND CONVERSION. The Fiction of Finding. Originally, the action of trover was ■■ an action of tresjKiss on the case for the recovery of damages against a person who had found goods, and refused to deliver them to the owner upon demand, but had converted them to his own use."^ The allegation of finding was often fictitious, but the defend- ant was not allowed to deny the fiction ; and in modem times the allegation is treated as unnecessary.- The substance of the action, to-day, is for the wrongful interference with the plaintiff's dominion over the property in question.^ In many cases, the plaintiflF has his option to sue for trespass or for conversion.* This is true, whenever the defendant's conduct is a wrongful interference with the plaintiff's possession and with his right as owner.° ' Smith V. Grove, 12 Mo. 51 (1848) ; Cooper v. Chitty, 1 Burr. 20 (1756). = Royce v. Oakes, 20 R. I. 252, 38 At. 371, 39 l; R. a. 845 (1897); Burroughs v. Bayne, 5 H. & N. 296. 29 L. J. Ex. 188 (1860). 'Cases in last two notes; Davis v. hurt, 114 Al. 146. 21 So. 468 (1896) ; Payne v. Elliott. 54 Cal. 339, (1880); Piatt v. Tuttle, 23 Conn. 233 (1854); Harris v. Saunders, 2 Strob. Eq. (S. C.) 370 (1835); ap- proving of the following definition: " A conversion seems to consist in any tortious act. by which the de- fendant deprives the plaintiff of his goods, either wholly or for a time." * In Montgomery etc., Co. v. Chap- man & Co., 126 Fed. 68 (1903) the court said; "The distinction be- tween trespass and conversion is this: that trespass is an unlawful taking — as, for example, the unlaw- ful removal of the property — while conversion is an unlawful taking or keeping in the exercise, legally considered, of the right of ownership. A mere seizure or un- lawful handling may amount to a trespass, while conversion is usu- ally characterized by a usurpation of ownership." " Bassett v. Maynard, 1 Rolle Abd. 105 M. pi. 5 (1601) ; Bishop v. Mon- tague, Cro. Eliz., 824 (1601). S. C. Cro. Jac. 50 (1604); Leverson v. Kirk. 1 Rolle Abd. 105, M. pi. 10 (1610); Dexter v. Cole, 6 Wis. 320 (1858). 347 348 The Law of Torts. Subject Matter of Trover. While the fiction of finding remained an essential element of the cause of action, trover could be brought only for tangible chattels. At present, however, it lies for any species of personal property " — for bank bills ; ' or other negotiable instruments ; ° for certificates of stock ; " for copies of book accounts ; ^'' for timber or crops converted after severance from the realty ; " for domestic animals," as well as for animals of a wild nature which have been tamed, ^'^ or reduced to the legal ownership and control of the plaintiff ; " and even for property which the plaintiff had no legal right to possess. " It does not lie, however, to protect the ownership of counterfeit money, or any other chattel, which the law treats as a nuisance, and outside the pale of legal toleration.^" Against Whom the Tort May be Committed. It is not necessary that the plaintiff be the true owner of the goods in ques- tion. If he has a special property therein, as bailee,^' or as receiver under an order of the court,^* or, if he is in actual possession at the time of their conversion by the defendant,^' although that possession may be in the nature of a disseisin of the true owner,^" he can suc- " State V. Omaha, Nat. Bank, 59 Neb. 483, 81 N. W. 483 (1899). "Moody V. Keener, 7 Porter (Al.) 218 (1838); Royce v. Oakes, 20 R. I. 252, 38 At. 371, 39 L. R. A. 845 (1897). ' Comparet v. Burr, 5 Blackf. (Ind.) 439 (1840); Griswold v. Judd, 1 Root (Conn.) 221 (1790). 'Payne v. Elliot, 54 Gal. 339 (1880). "Fullam V. Cummings, 16 Vt. 697 (1844). " Sampson v. Hammond, 4 Cal. 184 (1854); Nelson v. Burt, 15 Mass. 204 (1818). In Platner v. Johnson, 26 Miss. 142 (1853), the court held that trover would not lie, because the severance and as- portation were one transaction. " Drew V. Spaulding, 45 N. H. 472 (1864). " Amory v. Flyn, 10 Johns, (N. Y.) 102, 6 Am. Dec. 316 (1813). "Taber v. Jenny, 1 Sprague (U. S. Adm. Dec.) 315 (1856). ^° Averill v. Chadwlck, 153 Mass. 171, 26 N. E. 441 (1891). " Spalding v. Preston, 21 Vt. 9, 14, 50 Am. Dec. 68 (1848). "Buxton V. Hughes, 2 Bing. 173 (1824); Smith v. James, 7 Cow. (N. Y.) 328 (1827); National Surety Co. v. United States, 129 Fed. 70 (1904); The Beaconsfleld, 158 U. S. 303, 15 Sup. Ct. 860, 39 L. Ed. 993 (1894). "Kehr v. Hall, 117 Ind. 405, 20 N. E. 279 (1888). " Wheeler v. I.awson, 103 N. Y. 40, 8 N. E. 360 (1886); Cook v. Thorn- ton, 109 Al. 523, 20 So. 14 (1895). =" Disseisin of Chattels, by Pro- fessor Ames, 3 Harv. L. R. 23, 313, 337 (1889). Trover axu Conversion. 349 cessfully maintain the action. In such cases, the defendant does not make out a defense, as a rule, by showing that the true ownership is in a third person. He must go further and connect himself with such title. -^ When the plaintiff is not in possession at the time of the defend- ant's conversion, he must show property in himself and his right to immediate possession. In such cases, it is proper to say that he must recover upon the strength of his legal right and not upon the defects in the defendant's title.^- How Conversion is Committed. The tort of conversion ordinarily assumes one of four forms : ^' ( i ) A wrongful taking under a claim of ownership, or a claim inconsistent with the plain- tiff's ownership. (2) An exclusion of the plaintiff from his right- ful exercise of dominion, although the defendant's taking was lawful. (3) A wrongful use of the property. (4) Its wrongful detention. Let us consider these in detail : — Wrongful Asportation in the Exercise of Dominion. If the asportation, or wrongful taking, is not of a character incon- sistent with the plaintiff's ownership, it may be trespass, but it does not amount to conversion. Accordingly, a person who removes the goods of another, for his own convenience, and does not restore them to their original posi- tion, may be liable in trespass, but not in conversion, for he makes no claim to their ownership or possession ; he does no act which amounts to an exercise of ownership or right of property inconsis- tent with the real owner's right of possession.^* If, however, he =>Stowell V. Otis, 71 N. Y. 36 C.) 582 (1850) ; Harris v. Saunders, (1866); Cook v. Patterson, 35 Al. 2 Strob. Eq. (S. C.) 370 (1848). 102 (1859); Jeffries v. Great Wes- « Bushel v. Miller, 1 Strange 128 tern Ry., 5 E. & B. 802, 25 L. J. Q. B. (1718); Fouldes v. Willoughby, 8 107 (1856). M. & W. 540, 5 Jur. 534 (1841). " Union Stockyard Co. v. Mallory, The defendant put plaintiff's horses 157 111. 554, 41 N. E. 888, 48 Am. St. off his steamboat, because of the R. 341 (1895). plaintiff's misconduct, though not "Kennet v. Robinson, 2 J. J. with any view to appropriating Marsh. (25 Ky.) 84 (1829); Fernald them to his own use or to deprive V. Chase, 87 Me. 289 (1853); State defendant of them, but to get rid of V. Haley, 2 Hask. (U. S. Cir. Ct.) him. Shea v. Milford, 145 Mass. 354, Fed. Cases No. 8,977 (1879); 525, 14 N. E. 769 (1888). Defend- Glover v. Riddick, 11 Ired. (33 N. ant's officers requested plaintiff to 3SO The Law of Torts. removes them to a place to which he refuses the owner access,^" or does any other act in exclusion or defiance of the owner's right; makes any assumption of property and of the right of disposition, or intermeddles in a way which indicates a claim of ownership; or makes any assertion of the control which belongs to the owner, his conduct may be treated as amounting to a conversion.^" Intention to Convert, unless followed by some act which amounts to an exclusion of the owner from his exercise of dominion over the goods, is not a conversion. ''' Accordingly, a threat, by one not in possession of goods, to resist their removal by the owner, may be actionable as slander of title, but not as conversion. ^^ The same is true of a pretended purchase or sale of goods, by one who neither takes nor delivers possession of them.°° If, however, the goods are in the defendant's possession, his refusal to allow the plain- tiff to remove them may constitute a conversion.^" Conversion without Physical Taking. The asportation necessary to constitute a conversion, where the tort is founded upon a wrongful taking, need not be actual; it may be constructive. A person, who wrongfully transfers a 'bill of lading or a warehouse remove his property from the par- cel of. land where they were stored; and upon his refusal to do so, re- moved it to another parcel. Noth- ing was done in derogation of plaintiff's dominion. Mattice v. Brinkham, 74 Mich. 705, 42 N. W. 172 (1889). Articles were removed from one room to another: Sparks V. Purdy, 11 Mo. 219 (1847), similar to preceding case. ='Fosdick V. Collins, 1 Stark, 173 (1816). " Nelson v. Whetmore, 1 Rich. (S. C.) 318 (1845.) In this case, the defendant permitted plaintiff's slave, who represented himself to be a free mulatto, to travel with hjm, and was held not liable for a conversion as he did not use the slave as property. "England v. Cowley, L. R. 8 E.x. 126, 42 L. J. Ex. 80 (1873); Penny V. State, 88 AI. 105, 7 So. 50 (1889); Herron v. Hughes, 25 Cal. 555 (1864); Irish v. Cloyes, 8 Vt. 30 (1836). '"Boobier v. Boobier, 39 Me. 406 (1855); PoUey v. Lenox Iron Works, 2 Allen (84 Mass.) 182, 184 (1861) ; Platner v. Johnson, 26 Miss. 142, 143 (1853). '^Traylor v. Horrall, 4 Blackf. (Ind.) 317 (1837); Puller v. Tabor, 39 Me. 519 (1855) ; Burnside v. Twi- chell, 43 N. H. 390 (1861). '"Badger v. Batavia etc., Co., 70 111. 302 (1873); Contra— Toyrn v. Hazen, 51 N. H. 596 (1872). In Thorogood v. Robinson, 6 Q. B. R. 769, 14 L. J. Q. B. 87 (1845), a ver- dict for defendant was sustained, chiefly on the ground that '.plain- tiff did not send some one with proper authority to demand and re- ceive the goods. Trover and Conversion. 351 receipt, and thereby enables a third person to get the goods to the exclusion of the owner, is liable as for anasportation."' So, too, is the one receiving such ^^ document of titleand^laiming the prop- erty under it.^- And, of course, a buyer of chattels, which are in his presence, is guilty of asportation, when he asserts that they are his and repudiates the owner's title and possession, although he does not tquch them.'^ Moreover, a taking by an agent, for which the principal is legally responsible, is his taking.'* Again, one who shuts up his neighbor's trespassing fowls and refuses to turn them loose ; ^" a lessor, who insists that articles belonging to a lessee are his own, and forbids the lessee from taking them,'* and a public official who unlawfully prevents the owner from taking his property from a warehouse," is guilty of their asportation. So is a sheriff, nonstable or marshal, who levies upon goods without lawful right, although he does not actually touch them. It is enough that he " assumes such a control over the property, by a possession actual or constructive, as deprives the owner of his dominion over them for any purpose." '* If, however, he does not assume their custody or control, but contents himself with asserting his intention to do so in the future, he is not able for conversion.'" Goods Obtained By Fraud. Even though the owner of goods voluntarily delivers them to another, the latter is guilty of a wrongful taking, if he obtains them by such a fraud as justifies the owner in avoiding the sale, or other transaction, to which his assent was obtained.'"' Upon its avoidance, the owner may insist that no "Hiort V. Bott, L. R. 9 Ex. 86, '"Leonard v. Belknap, 47 Vt. 43 L. J. Ex. 81 (1874). 602 (1874). ^McCombie v. Davies, 6 Bast. '"Vilas v. Mason, 25 Wis. 310 538, 8 R. R. 534 (1805). (1870), ''Chamberlin v. Shaw, 18 Pick. "Bristol v. Burt, 7 Johns. (N.Y.) (36 Mass.) 278 (1836). The same 254 (1810). doctrine was applied to a land " Johnson v. Farr, 60 N. H. 426 owner, who refused to permit a (1880); Abercrombie v. Bradford, mortgagee to take a boiler from his 16 Al. 560 (1849) ; Stuart v. Phelps, premises. Badger v. Batavia etc., 39 la. 14 (1874); Wintringham v. Co., 70 111. 302 (1873). Lafoy, 7 Cow. (N. Y.) 735 (1827). "Keyworth v. Hill, 3 B. & Aid. "Mallalieu v. Laugher, 3 C. & P. 685 (1820). Taking was by the 551 (1828); Herron v. Hughes, 25 wife, and husband held liable with Cal. 555 (1864); Fernald v. Chase, the wife; Chambers v. Lewis, 28 37 Me. 289 (1853). N. Y. 454 (1863). "Thompson v. Rose, 16 Conn. 71, 352 The Law of Torts. title or right of possession ever passed to the defrauder. Of course if the owner does not avoid the transaction, until after the goods have been transferred to a bona fide purchaser, he cannot proceed against the latter for conversion.*' Nor, according to the better authorities, can he maintain conversion against an innocent trans- feree of such defrauder, although not one for value, without demand and refusal. *- Excluding the Rightful Owner, or Possessor. The most frequent examples of this form of conversion are afforded by the destruction, or sale of personal property. It is not necessary to show that the defendant actually converted to his own use the property of the plaintiff, nor that he derived any benefit therefrom. It is enough that, by an intended act, he deprived the plaintiff of the property. Accordingly, one commits conversion by killing animals, or burning up property, or melting ice, or cancelling a certificate, or by so dealing with a chattel that its identity is destroyed.*^ Nonfeasance, Or Negligent Omission. If the deterioration or destruction of the article, however, is due to the mere nonfeas- ance of the defendant, he can successfully defend against an action of conversion, although he may be liable in an action for negli- 41 Am. Dec. 141 (1844); Lovell v. Col. 559, 36 Pac. 541, (1894), sev- Hammond, 66 Conn. 500, 34 At. 511 enth count for destruction of grass; (1895) ; Holland v. Bishop, 60 Minn. Frost v. Plumb, 40 Conn. Ill, 16 23, 61 N. W. 681 (1895); Thurston Am. R. 18 (1873); Olds v. Chi- V. Blanchard, 22 Pick. (40 Mass.) cago Open Board of Trade, 33 111. 18, 33 Am. Dec. 700 (1839); Baird App. 445 (1889); Simmons v. Sikes, V. Howard, 51 O. St. 57, 36 N. E. 2 Ire. (24 N. C.) 98 (1841); Ascher- 732, 46 Am. St. R. 550, 22 L. R. A. man v. Philip Best Co., 45 Wis. 846, (1894). 262 (1878); Richardson v. Atkin- "Trott V. Warren, 11 Me. 227 son, 1 Strange, 576 (1723); Dench (1824); Bradley v. Obeare, 10 N. v. Walker, 14 Mass. 500 (1780); H. 477 (1839); Mowrey v. Walsh, Sanderson v. Haverstick, 8 Pa. 294 8 Cow. (N. Y.) 238 (1828). (1848). m Bryne v. Stout, 15 IIL "Goodwin v. Wertheimer, 99 N. 180 (1853), it is held that the cas- Y. 149, 1 N. E. 404 (1885); but see tration of a trespassing hog does Farley v. Lincoln, 51 N. H. 577 not amount to conversion. C£. Sim (1872). mons v. Lillystone, 8 Exch. 431, 22 "Keyworth y. Hill, 3 B. & Aid. L- J- Exch. 217 (1853), Cutting a 685 (1820), opinion of Abbott C. spar. J.; Atehinson etc., Ry. v. Tanner, 19 Trover and Conversion. 351 gence.** For example, a warehouseman, or common carrier fails to guard properly articles which have been confided to him, and they become worthless,*" or are lost or stolen.*" He is not liable in trover, although he may be answerable either for a breach of his contract, or of his common law duty, to keep safely. " Conver- sion "' it is said, "' upon which recovery in trover may be had, must be a positive, tortious act. Nonfeasance or neglect of duty, mere failure to perform an act obligatory by contract, or by which prop- erty is lost to the owner will not support the action."*' When, however, the property is rendered worthless, or its nature is changed, or it is lost or destroyed as the proximate result of the defendant's act, or misfeasance, trover may be maintained, even though the defendant is a bailee,** or an agent.*" Sale of Property, as a Conversion. A person, who engages in selHng and delivering property, thereby asserts owner- ship, either in himself, or in the person for whom he professes to act. If the ownership is in another, the act of selling is a distinct repudiation of that other's dominion, and an exclusion of him from possession. It is, therefore, actionable conversion, no matter "Central etc., Co. v. Lampley, 76 Al. 357 52 Am. R. 334 (1884); Thompson v. Moesta, 27 Mich. 182 (1873); Salt Springs Bank v. Wheeler. 48 N; Y. 492, 8 Am. R. 504 (1872); Tinker v. Morrill, 39 Vt. 477, 94 Am. Dec. 345 (1866). "Mulgrave v. Ogden, Croke Eliz. 219 (1591); Emory v. Jenkinson, Tappan (O.) 219 (1818); Jones v. Allen, 1 Head (38 Tenn.) 626 (1858). "Ross V. Johnson, 5 Burr. 2825 (1772) ; Williams v Gesse, 3 Blue. N. C, 849, 32 B. C. L. R. 389 (1837) ; Bowlin V. Nye, 10 Cush. (64 Mass.) 416 (18o2); Scovill v. Griffith, 12 N. Y. 509 (1855); Wamsley v. At- las S. S. Co., 168 N. Y. 533, 61 N. E. 896. 85 Am. St. R. 699 (1901); Louisville etc., Ry. v. Campbell, 7 Heisk. (54 Tenn.) 253 (1872), "Davis & Son v. Hurt, 114 Al. 146, 21 So. 468 (1896); Smith v. Archer, 53 111. 241 (1870); Savage V. Smythe & Co., 48 Ga. 562 (1873). "Munford v. Taylor, 2 Met. (59 Ky.) 599 (1859); Hay v. Conner, 2 Har. & J. (Md.) 347 (1808); Went- worth V. McDuffie, 48 N. H. 402 (1869); Hawkin- v. Hoffman, 6 Hill (N. Y.) 586, 41 Am. Dec. 768 (1844); Weakley v. Pearce. 5 Heisk. (52 Tenn.) 401 (1871); Ry. Co. v. O'Donnell, 49 0. St. 489, 32 N. E. 476, 34 Am. St. R. 579 (1892); Marshall etc. Co. v. Kansas etc. Ry., 176 Mo. 480, 75 S. W. 638, 98 Am. St. R. 508 (1903). "Donahue v. Shippee, 15 R. I. nn. 8 At. 541 (1887); plaintiffs grass was cut by defendant, while working for a third person, 354 The Law of Torts. whether the seller believed the property to be his or not. In attempt- ing to transfer the ownership he acted at his peri]^° The same rule applies to an auctioneer, br^^^br other agent, when he sells and delivers property for a pri|^Ral who is not its owner and has no legal authority to dispose of it.^; Wrongful intent is not an essential element of the tort of converfeion in such cases. Its gist is the rightful owner's deprivation of his property, by some unauthorized act of another asserting dominion or control over it."' Purchaser is also Liable for Conversion. As one, who buys and receives possession of property, does thereby assert domin- ion over it, to the exclusion of everyone else, his act of purchasing and taking possession amounts to conversion, as against the true owner. His good faith in the transaction does not save him,*' and, in most jurisdictions, it does not entitle him even to a demand for the property from the true ow'ner, before a suit in trover can be brought.'* "• Hutchins V. King, 1 Wall. (68 U. S.) 53, 17 L. Ed. 544 (1863); May V. O'neal, 125 Al. 620, 28 So. 12 (1899); Merchants Bank v. Meyer, 56 Ark. 499, 20 S. W. 406 (1892); Horton v. Jack, 126 Cr.l. 521, 58 Pac. 1051 (1899); Brown v. Campbell Co., 44 Ks. 237, 24 Pac. 492 (1890); Lafeyth v. Emporia Bank, 53 Ks. 51, 35 Pac. 805 (1894); Gore v. Izer, 64 Neb. 843, 90 N. W. 758 (1902); Pease v. Smith, 61 N. Y. 477 (1875); Croft V. Jennings, 173 Pa. 216, 33 At. 1026 (1896); Morril v. Moulton, 40 Vt. 242 (1867). "Stephens v. Elwall, 4 M. & S. 259 (1815); Hollins v. Fowler, L. R. 7 H. L. 757, 44 L. J. Q. B. 169 (1875); Consolidated Co. v. Curtis, (1892) 1 Q. B. 495, 61 L. J. Q. B. 325; Swim y. Wilson, 90 Cal. 126, 27 Pac. 33, 13 L. R. A. 605, 25 Am. St. R. 110 (1891); Kimball v. Bill- ings, 55 Me. 147, 92 Am. Dec. 581 (1867) : Robinson v. Bird, 158 Mass. 357, 33 N. E. 391, 35 Am. St. R. 495 (1893); Bercich v. Marye, 9 Nev. 312 (1874); contra— FvimeM v. Rundle, 88 Tenn. 396, 12 S. W. 918, 17 Am. St. R. 998 (1890). *" Boyce V. Brockway, 31 N. T. 490 (1865); Reid v. Colcock, 1 Nott & McCord (S. C.) 592 (1819). ==' Cooper V. Willomatt. 1 C. B. 672, 14 L. C. J. P. 219, 50 B. C. L. R. 672 (1845); Scott v. Hodges, 62 Al. 337 (1878); Sims v. James, 62 Ga. 260 (1879). Gilmore v. Newton 9 Allen (91 Mass.) 171, 85 Am. Dec. 749 (1864); Trudo v. Anderson, 10 Mich. 357 (1862); Hyde v. Noble, 13 N. H. 494, 38 Am. Dec. 508 (1843); Velzian v. Lewis, 15 Or. 539, 16 Pac. 631, 3 Am. St. R. 184 (1888); Carey v. Bright, 58 Pa. 70 (1868); Riford v. Montgomery, 7 Vt. 411 (1835). "In N. Y., it is held that "an Innocent purchaser of personal property from a wrong-doer shall first be informed of the defect in his title, and have an opportunity to deliver the property to the true owner, before he shall be liable as a tort-feasor for a wrongful conver- sion." Gillett V. Roberts, 57 N. Y. 28, 34 (1874.) Trover and Conversion. 355 Even in jurisdictions, where an innocent purchaser from a wrongful holder is entitled to a demand, he forfeits that right by selling the property. Until the sale, it is said, his mere possession is not incon- sistent with the plaintiff's ownership, but the sale estops him from denying that he was dealing with it adversely to the plaintiflf.°° The pledgee or mortgagee of personal property, who asserts a right to it, in defiance of the claim of the true owner, is guilty of converting it.°° Wrongjful Use of Property as a Conversion . Perhaps the most common example of this form of conversion is afforded by the bailee who deals with property, of which he has lawful posses- sion, in a manner inconsistent with the purposes of the bailment. Some instances of this class have been given, under previous head- ings, such as destruction ^^ and loss,"^ due to the culpable acts of the hirers of property or of carriers. Other examples are afforded by the bailees of various descrip- tions, who sell or pledge property without authority therefor from their bailors ; ** or who, having it lawfully in their possession for one purpose, use it for a different "" and unjustifiable *^ purpose. In cases of this class, the bailee, having converted the property, "Pease v. Smith, 61 N. T. 477 (1875). ^ McCombie v. Davies, 6 East. 538, 8 R. R. 534 (1805); Newcomb- Buchanan Co. v. Baskett, 14 Busb. (77 Ky.) 658 (1879); Hotchkiss v. Hunt, 49 Me. 213. 224 (1860) ; Stan- ley V. Gaylord, 1 Cush. (55 Mass.) 536. 48 Am. Dec. 643 (1848); Thrall V. Lathrop, 30 Vt. 307, 73 Am. Dec. 306 (1858). ^^ Frost V. Plumb, 40 Conn. Ill, 16 Am. R. 19 (1873). ''Marshall etc. Co. v. Kansas etc. Ry., 176 Mo. 480, 75 S. W. 638. 98 Am. St. R. 508 (1903). Accord, Youl V. Harbottle, 1 Peake 49 (1791); Devereaux v. Barclay. 2 B. & Aid. 702. 21 R. R. 457 (1819). *» Powell V. Sadler, Paley. Prin. & Agent (3 Ed.) 80 (1806); Mulli- ner v. Florence, 3 Q. B. D. 484, 47 L. J. Q. B. 700 (1878); Hooks v. Smith, 18 Al. 338 (1850); McPart- land V. Read, 11 Allen (93 Mass.) 231 (1865). "Welch V. Mohr, 93 Cal. 371, 28 Pac. 1060 (1892); Wheelock, v. Wheelwright, 5 Mass. 104 (1809); Disbrow v. Tenbroeck. 4 E. D. Smith (N. Y.) 397 (1855); Woo '- man v. Hubbard, 25 N. H. 67, 57 Am. Dec. 310 (1852); Hart v. Skinner, 16 Vt. 138, 42 Am. Dec. 500 (1844). "Doolittle V. Shaw, 92 la. 348, 60 N. W. 621. 26 L. R. A. 366 and note; 54 Am. St. R. 562 (1894); Spooner v. Manchester, 133 Mass. 270, 43 Am. R. 514 (1882). These cases hold that a slight deviation from, or extension of, the proposed route, may be justifiable. Cf. Alvord V. Davenport, 43 Vt. 30 (1870). 35^ The Law of Torts. becomes liable for its value, without regard to the degree of care which he may have taken of it, and regardless also of the immediate cause of its injury or destruction."- He may be liable, too, although an infant and thus in a position to defend successfully an action for breach of his contract as bailee,*' or, although the contract of bail- ment was made on Sunday, and, therefore, invalid."* In the case of an infant bailee, it is generally held that any willful and positive act on his part, in violation of the bailment, amounts to an election on his part to disaffirm the contract, and constitutes him, thereafter, a converter of the property. "° ■' Conversion of Principal's Property by Agent. An agent is guilty of conversion, as against his principal, when he sells or exchanges the latter's property without authority,"* or applies its proceeds to an unauthorized purpose,"^ or refuses to return it or its proceeds upon a seasonable demand."* If the agent's default, however, consists in a simple omission to act,*° or in a mere breach of duty, as in selling goods (which he is authorized to sell) for a lower price than that named by his princi- pal, or on different terms,'" or, as, in using railroad bonds, in effect- ■"Ledbetter v. Thomas, 130 Al. (N. Y.) 137, 19 Am. Dec. 561 299, 30 So. 342 (1901); Malone v. (1828); Wentworth v. McDuffie, 48 Robinson, 77 Ga. 719 (1886); Mur- N. H. 402 (1869). phy V. Kaufman, 20 La. Ann. 559 «« Haas v. Damon, 9 la. 589 (18b8); Fisher v. Kyle, 27 Mich. (1859); Btter v. Bailey, 8 Pa. 442 454 (1875); Perham v. Coney, 117 (1848). Mass. 102 (1875); Lane v. Cameron, " McNear v. Atwood, 17 Me. 434 38 Wis. 603 (1875;) DeVoin v. (1840); Murray v. Burling, 10 Mich. Lumber Co., 64 Wis. 616, 54 .Johns. (N. Y.) 172 (1813); Laverty Am. R. 649, 25 N. W. 552 (1885). v. Snethen. 68 N. Y. 522, 23 Am. R. •» Homer v. Thwing, 3 Pick. (20 184 (1877); Cotton v. Sharpstein, Mass.) 492 (1826) ; Freeman v. Bo- 14 wis. 226, 80 Am. Dec. 774 land, 14 R. I. 39, 51 Am. R. 340 (I86I). (1882); Towne v. Wiley, 23 Vt. 355, « Britton v. Ferrin, 171 N. Y 235, 56 Am. Dec. 85 (1854). C3 N. E. 954 (1902). "Frost V. Plumb, 40 Conn. Ill, " McMorris v. Simpson, 21 Wend. 16 Am. R. 18 (1873); Hall v. Cor- (n. t.) 610, 614 (1839) coran, 107 Mass. 251, 9 Am. R. 30 ™ Loveless v. Fowler, 79 Ga. 134, ^^^''•^^- 11 Am. St. R. 407, 4 S. E. 103 "Campbell v. Stakes, 2 Wend. (iggT). sarjeant v. Blunt, 16 Johns. (N. Y.) 74 (1819). Trover and Conversion. 357 ing a reorganization, without following all the directions of the principal,'^ he is not guilty of conversion. Asportation or Detention by a Mere Custodier. The courts, both in England and in this country, are disposed to treat the acts of agents, servants and bailees as not amounting to con- version, when they are limited to the mere custody or transportation of property, and are done without any intention of interfering with the title of the true owner, or of antagonizing his dominion. The difficulty lies, in fixing the limits of this exception to the general rule of liability, for wrongful intermeddling with another's property. Perhaps the following statement fairly expresses the prevailing view upon this topic : Tlje reception of property by delivery from one, whom the receiver is justly entitled to regard as its owner, and its return to him, or delivery over to a third person upon his order, without notice of an adverse claim in another, and without reference to the question of ownership of the property, are not tortious acts."^ Accordingly, it has been held that if a bailee have the temporary possession of property, holding the same as the property of the bailor and asserting no title in himself, and in good faith restores the property to the bailor, before he is notified that the true owner will look to him for it, no action will lie against him, for he has only done what it was his duty to do.'^ Some courts have gone further, and have held, that the bailee of goods, known by him to have been stolen by the bailor, is not liable for conversion to the true owner for taking custody and delivering them back to the thief.'* They have also held that the mortgagee ^'^ " Indust. & Gen. Trust v. Tod, 170 93 Mo. 331, 6 S. W. 246, 3 Am. St. N. Y. 233, 63 N. E. 285 (1902). See R. 531 (1887); Walker v. First Nat. dissenting opinion. Banlf, 43 Or. 102, 72 Pac. 635 "Burditt V. Hunt, 25 Me. 419, 43 (1903). In Hudmon v. DuBose, 85 Am. Dec. 289 (1845); Greenway v. AI. 446, 5. So. 162, 2 L. R. A. 475 Fisher, 1 C. & P. 190 (1824); Brett (1888), constructive notice, by the J. in Fowler v. Hollins, L. R. 7 Q. registration of a chattel mortgage, B. at p. 630 (1872); Frome v. Den- was held sufficient to make the nis, 45 N. J. L. 515 (1883). bailee's act of delivery a conversion. "Nelson v. Iverson, 17 Al. 216 ■' Loring v. Mulcahy, 3 Allen, (1850); Hill v. Hayes, 38 Conn. 532, (85 Mass.) 575 (1862). (1871); Parker v. Lombard, 100 "Leonard v. Tidd, 3 Met. (44 Mass. 405 (1868); Hodgson v. St. Mass.) 6 (1841); Spackman v. Fos- Paul Plow Co., 78 Minn. 172, 80 N. ter, 11 Q. B. D. 99, 52 L. J. Q. B. W. 956, 50 L. R. A. 644, with valu- 418 (1883). able note, (1899); Nanson v. Jacob, 358 The Law* of Torts. or pledgee '" is not guilty of conversion, when he does not assume to hold the property adversely to the true owner. It is difficult to see, however, why the very act of taking possession as mortgagee or pledgee is not a repudiation of the true owner's dominion. In a recent Minnesota ca.se,'' the court enunciated the following rule: " An agent or servant, who, acting solely for his principal or mas- ter, and by his direction, and without knowing of any wrong, or being guilty of gross negligence in not knowing it, disposes of or assists the master in disposing of property which the latter has no right to dispose of, is not thereby rendered liable for a conversion of the property." The same court, however, has shown a tendency to limit the doctrine thus announced, and has refused to apply it to a commission merchant, who receives warehouse receipts from his debtor, and applies the grain to the payment of the debt, believ- ing that the grain belongs to the debtor, while in fact it is the prop- erty of another.'* » It is clear, too, that the doctrine is not to De applied, when the agent or servant takes an active, thpug'- bona fide, part with his master, or principal, in actually converting the property."' Conversion by a Finder. In dealing with the topic just discussed, a learned English judge *» said : " I cannot find it an)-- where distinctly laid down, but I submit to your lordships that, on principle, one who deals with goods, at the request of a person who has the actual custody of them, in the bona fide belief that the custodier is the true owner, or has the authority of the true owner, should be excused for what he does, if the act is of such a nature as would be excused if done by the authority of the person in possession, if he was the finder of goods, or intrusted with their custody." Just what a finder may do with goods which he takes into his possession, without being guilty of conversion, may not be clearly settled. Certainly he is not liable for conversion, when the property "Leuthold V. Palrchild, 35 Minn. S. E. 578 (1896); Shearer v. Evans 99, 27 N. W. 503, 28 N. W. 218 89 Ind. 400 (1883); Wardner-Bush (1886>- nell Co. V. Harris, 81 la. 153, 46 N. "'**<*• W. 859 (1890); D. M. Osborne Co. ™ Dollff V. Robins, 83 Minn. 498, v. Piano Mfg. Co., 51 Neb. 502, 70 M 86 N. W. 772, 85 Am. St. R. 466 W. 1124 (1897). (1901). «» Blackburn L. J. in Hollins v. "Miller V. Wilson, 98 Ga. 567, 25 Fowler, L. R. 7 H. L. 757 (1875). Trover and Conversion. 359 becomes worthless, or is lost, by reason of his nonfeasance,'* although he may be liable in some other form of action for the proximate consequences of his gross negligence.'- It is also clear, that if he abuses the property,'" or takes upon himself its delivery to some third person who is not entitled to it,"* his act amounts to a conversion. But, is it a conversion for him, after taking the prop- erty into his possession, to place it back where he found it, provided this act of dispossession subjects it to no greater peril than it was in, when he found it ? Undoubtedly there are dicta to the effect that, though a finder is not bound to take possession, if he does, he is bound to keep safely for the true owner, and to make reasonable effort to discover him; that, after taking possession, there is no locus peiiitentiae."^' This, it is submitted, tends to deter finders from taking temporary pos- session of property, the quality of which is not apparent at a glance, and is opposed to the weight of authority.'" The Supreme Court of Massachusetts has held that one, who takes up a horse going at large in the highway, does not convert it by turning it back again into the highway ; '" and the Supreme Court of Tennessee has " Mulgrave v. Ogden, Croke Eliz. legal advisers had told him to put 219, Owen 141 (1591); Nelson v. the money, which he had found, Merriam, 4 Pick. (21 Mass.) 249 back where he found it. The court (1826). does not intimate that this was un- ^ Rcss V. Johnson, 5 Burr. 2825 sound advice, and the liability of (1772). the defendant, the jury were in- '^ Murgoo V. Cogswell, 1 E. D. structed, depended upon whether he fSmith (N. Y.) 359 (1852). had been guilty of gross negligence. " Coke J. in Isaack v. Clark, 2 Cf. analogous cases, Roulston v. Bulstrode 306 (1615). In this case McClelland, 2 E. D. Smith (N. Y.) there was no actual finding. The 60 (1853); Griswold v. Boston & finding alleged was a fiction of the M. Ry., 183 Mass. 434, 67 N. B. 354 pleader, and it is not clear whether (1903); Doxtator v. Chic. & M. Lord Coke's dictum was intended to Ry. 120 Mich, 596, 79 N. W. 922 apply to the case of actual finding, (1899); Dyche v. Vicksburg etc., or to the fictitious finding, in the Ry., 79 Miss. 361, 30 So. 711 (1901). case then before the court. " Wilson v. McLaughlin, 107 » Severn v. Yoran, 16 Or. 269, 20 Mass. 587 (1871). It is true, the Pac. 100, 8 Am. St. R. 293 (1888); court says, that the defendant's act. Smith V. Nashua & L. Ry., 27 N. in turning the horse into the high- H. 86, 90, 59 Am. Dec. 364 (1853). way, was due to the refusal of his " Dougherty v. Posegate, 3 la. 88 employer to let the horse remain (1856). In this case, defendant's on his land. But, if the law im- 360 The Law of Torts. declared that one, who finds in his pasture the cow of another, ought to turn her out and let her find her owner.'* Conversion by Unlawful Detention. Not every wrongful detention of goods amounts to a conversion. If a person is bailee of an article, he may be bound by the terms of the bailment to return it to the bailor. Still, his mere failure to return it at the end of the bailment period is a breach of contract, not a tort. Nor can his contract liability be turned into conversion, by a demand from the bailor, that he return the article, and by his refusal to comply with the demand." Such refusal does not amount to an assertion of dominion over the article. If the demand is for its surrender, how- ever, and the bailee refuses to comply therewith, this is evidence of conversion."" " For what is conversion," said Lord Holt, " but an assuming upon one's self the property and right of disposing of another man's goods, and he that takes upon himself to detain another man's goods from him without cause, takes upon himself the right of disposing of them."" Unconditional Refusal. In order to mnke out a cnse of con- version by demand and refusal, where there is no evidence of unlaw- ful taking or use, the refusal must be unqualified,"- or the qualifica- tion must have been made in bad faith, or upon a legally untenable ground."' Moreover, when one ground has been assigned by the poses upon the finder the positive (1872); s. c. 99 N. Y. 65, 52 Am. R. duty of keeping- the article, this 6 (1885); Claflin v. Gurney, 17 R. I. command of the master to violate 185, 20 At. 932 (1890) ; Sibley v. the aetendant's legal duty would Story, 8 Vt. 15 (1836). not avail him. He would be bound " Baldwin v. Cole, 6 Mod. 212 to take the horse off from his em- (1704); Davies v. Nicholas 7 C. & ployer's premises, but he could have P. 339 (1836), accord. ' kept the animal in some other '^Rushworth v. Taylor, 3 Q. B. place. 699, 12 L. J. Q. B. 80 (1842); Mc- ""Medlin v. Balch, 102 Tenn. 710, Lain v. Huffman, 30 Ark. 428 52 S. W. 140 (1899). (1875); Moore v. Fitzpatrick, 7 "Fifleld v. Maine Co., 62 Me. 77 Baxt. (66 Tenn.) 350 (1874); Nay (1873); Bassett v. Bassett, 112 v. Crook, 1 Pin. (Wis.) 546 (1845). Mass. 99 (1873); Farrar v. Rollins, ™ Borroughs v. Bayne, 5 H. & N. 37 Vt. 295 (1864). 296, 29 L. J. Ex. 188 (1860); Briggs ""Dent v. Chiles, 5 Stew. & P. v. Haycock, 63 Cal. 343 (1883); (Al.) 383, 23 Am. Dec. 350 (1832); Jonsson v. Lindstrom, 114 Ind. 152, Dame V. Dame, 38 N. H. 429, 75 Am. 16 N. E. 400 (1888); Williams v. Dec. 195 (1859); Wykoff v. Steven- Smith, 153 Pa. 463, 25 At. 1122 son, 46 N. J. L. 326 (1884); Mc- (1893); Roberts v. Yarboro, 41 Tex. Cormick v. Penn. Ry., 49 N. Y. 303 449 (1874). Trover and Convfrsion. 361 defendant for his refusal, and suit is brought for conversion, he cannot justify by evidence that he had a legally tenable ground for refusal. Such ground was waived by his choosing to stand upon another ground."'' Qualified Refusal. When there has been neither wrongful taking nor use of the property by the defenda'tit Nand it is demanded from him by one whose right to demand and receWe it is not known to him, he may safely refuse to surrender, unttrhe has had a fair opportunity to clear up his doubts on the subject. Such a refusal is a qualified one, and if made in good faith and upon reasonable grounds, it does not constitute a case of CQnversion.°° Whether the defendant has acted reasonably, either in as^ning the qualification, or in the time taken for resolving his doubts, is a question of fact, and, whenever different inferences may be drawn from the evidence, is for the jury.®* The doctrine, which we have been considering, is most frequently invoked in behalf of a common carrier or other bailee. When a demand is made upon him for the goods, by another than the bailor, or some one claiming under him, the bailee is not bound to act upon the instant, but is entitled to a reasonable time for investi- gation ; and, during such period, his detention of the property is not a conversion."" As soon, however, as he becomes satisfied, or had he acted reasonably, would have become satisfied, that the claimant is entitled to the possession of the property, he should surrender it. "Boardman v. Sill, 1 Camp. 410 492 (1840); Pilott v. "Wilkinson, 3 (1809); Marine Bank v. Fiske, 71 H. & C. 345, 34 L. J. Ex. 22 (1864); N. Y. 353 (1877); Singer Mfg. Co. Ingalls v. Bulfeley, 15 III. 224, V. King, 1* R. I. 511 (1884) ; 24 Am. (1853) ; Entee v. N. J. S. Co., 45, N. L. Reg., N. S. 51 (1885). Y. 34 (1871); Felcher v. McMillan, "Green v. Dunn, 3 Campb. 215 103 Mich. 494, 61 N. W. 791 (1895); (1811); Alexander v. Southey, 5 B. Dowd v. Wadsworth, 13 N. C. 130, & Aid. 247, 24 R. R. 348 (1821); (2 Dev.) 18 Am. Dec. 567 (1829); Zachary v. Pace, 9 Ark. 212, 47 Am. Watt v. Potter, 2 Mason, (U. S. C. Dec. 744 (1848); Wltherspoon v. C.) 77 (1820). Blewett, 47 Miss. 570 (1873); Robin- " Merz v. Chic, etc., jcty. Co., 86 son V. Burleigh, 5 N. H. 225 Minn. 33. 90 N. W. 7 (1902); Hett (1830); Mount v. Derrick, 5 Hill, v. R. K., 69 N. H. 139, 44 At. £10 (N. Y.) 455, (1843); Ball v. Liney, (1897); Holbrook v. Wight, 24 48 N. Y. 6, 8 Am. R. 511 (1871); Wend. (N. Y.) 169, 177, 35 Am. Blankenship v. Berry, 28 Tex. 448. Dec. 607 (1840); Smith v. Durham, "Vaughan v. Watt, 6 M. & W. 127 N. C. 417, 37 S. E. 473 (1900). 362 The Law of Torts. Such a surrender is justifiable even against his bailor.'* If he can- not decide upon the merits of the adverse claimants, he should demand a bond of indemnity from the one to whom he delivers, or should interplead them."" Conversion by a Tenant in Common. The mere refusal of one tenant in common of personalty, to permit his co-tenant to use or possess it, is not a conversion, ordinarily. When two persons have an equal title to an indivisible chattel, such as an ox, a horse or a cow, it is said, neither can enjoy his moiety without actual and exclusive possession of the chattel. Hence, neither can lawfully compel the other to surrender possession. The one excluded from possession has no legal remedy, except to take it when he can see fit."" If, however, one tenant in common destroys the property, or does an act equivalent to its destruction, he is guilty of conversion.'"* When he sells and delivers it as his sole property, he commits con- version, according to the weight of authority in this country.'"- It is submitted that this is the correct view, because he is doing an act which he intends as a repudiation of his co-tenant's title and a defiance of his dominion. In England, such a sale is not treated as a conversion ^"^ unless possibly it is a sale in market overt.'"* In the latter case, the purchaser becomes the legal owner of the »' The Idaho, 93 U. S. 575, 23 L. Southworth v. Smith, 27 Conn. 355, Ed. 278 (1876); Nat. Bank of Con- 71 Am. Dec. 72 (1858); Hudson v. merce v. Chic, etc., Ry., 44 Minn. Swan, 83 N. Y. 552 (1881). 224, 46 N. W. 342, 560, 9 L. R. A. "'Morgan v. Marquis, 9 E3x. 145, 263, 20 Am. St. R. 566 (1890). In 148, 23 L. J. Ex. 21 (1853); Jacobs Kohn V. Richmond, etc., Ry., 37 S. v. Seward, L. R. 5 H. L. 464, 475, C. 1, 16 S. B. 376, 24 L. R. A. 100, 41 L. J. C. P. 221 (1871); Osborn 34 Am. St. R. 734, with valuable v. Schenck, 83 N. Y. 201 (1880). note, it was held, that a common "" Perminter v. Kelly, 18 Al. 716, carrier, receiving goods for trans- 54 Am. Dec. 177 (1851); Goell v. portation, is liable for conversion Morse, 126 Mass. 480 (1879) ; White in failing to deliver to their true v. Osborn, 21 Wend. 72 (1839). owner upon a demand, only when "" Mayhew v. Herrick, 7 C. B. 229, such demand is made under and 18 L. J. C. P. 179 (1849); Sanborn accompanied by legal process. v. Morrill, 15 Vt. 700, 40 Am. Dec. '"Ball V. Liney, 48 N. Y. 6, 8 Am. 701, (1843), accord. R. 511 (1871); Hutchinson on Car- ""Parke B. in Farrar v. Beswick, riers, (2 Ed.) 407. 1 M. & W. 682, 688, Tyrwh. & Gr. ""Coke on Littleton, § 323; 1053 (1836). Trover and Conversion. 363 entire chattel, which is thereby lost to the non-consenting co- owner. In this country, an exception has been made to the general rule stated above, with respect to fungible goods. As they are alike in quality and value, and divisible by weight, measure or number, one co-tenant may sever and take out his share, without interfering witli the other co-tenant's right of enjoyment of his share. Accord- ingly, if the tenant in possession refuses to permit a division, he exercises an unjustifiable dominion over the property and is guilty of conversion.^"' Conversion by Pledgee. It is admitted, both in England and in this country, that in case of a bailment other than a pledge, a sale by the bailee without authority " determines the contract, the right of possession at once reverts to the owner, and he can treat the sale as a conversion." '"* In England, however, it is held that a sale of the property by the pledgee does not amount to a conver- sion, because the pledgor has no right of possession until he tenders what is due on the pledge."" In this country, it has been held that when a pledgee sells the collateral, without authority from, notice to, or an accounting with the pledgor, he is guilty of conversion. and the pledgor's right of action is consummate.'"* This, it is sub- mitted, is the better view. Tender of Converted Goods by Defendant. Since Lord Mansfield's time, the English courts have allowed the converter to bar the cause of action by a return of the goods, and, if a suit has been commenced, by the payment of costs ; when the goods are of •"Pickering v. Moore, 67 N. H. 659 (1894); Fay v. Gray, 124 Mass. 533, 32 At 828, 68 Am. St. R. 695, 500 (1877); Stevens v. Wiley. 165 31 L. H. A. 698 (1894); Gates v. Mass. 402, 407, 43 N. E. 177 (1896); Bowers. 169 N Y. 14, 61 N. E. 993, TJpham v. Barbour, 65 Minn. 364, 88 Am. St. R. 530 (1901). 68 N. W. 42 (1896); WoodwortU v. ""Clerk & Lindsell, Torts, (2 Hascall, 59 Neb. 124, 80 N. W. 483 Ed.) 223; Cooper v. Willomat. 1 C. (1899); Stearns v. Marsh, 4 Den. B. 672. 14 L. J. C. P. 219 (1845). 227, 47 Am. Dec. 248 (1847): Top- '"" Donald v. Suckling, L. R. 1 Q. lltz v. Bauer, 161 N. Y. 325, 55 N. E. B. 585, 35 L. J. Q. B. 232 (1866); 1059 (1900); Blood v. Ene Dime Halliday v. Holgate, L. R. 3 Ex. Co., 164 Pa. 95, 105, 30 At. 362 299, 37 L. J. Exch. 174 (1868). (1894); Walley v. Deseret Nat. •"Richardson v. Ashby. 132 Mo. Bank, i4 Utah 305, 320, 47 Pac. 147 238, 247. 33 S. W. 806 (1895); War- (1896), accord. ing V. Gaskill. S5 Ga. 731. 22 S. E. 3^4 The Law of Torts. " an ascertained quantity and value, and there are no circumstances that can enhance the damages above the real value." ^"^ This course was admitted by Lord Keriyon ^" to be inconsistent with the earlier decisions/^' and is not followed when the plaintiff is entitled to punitive damages, or the value of the converted property is in dispute.^" The defendant is always allowed, however, to return the property, and to have it applied in mitigation of damages.^^' This doctrine has been accepted by some of our courts,"* but the prevailing rule is that of the early common law, which permits the owner of converted property to abandon it to the converter and recover its value, as well as any special or punitive damages to which he can show himself entitled.^^' ™ Fisher v. Prince, 3 Burr, 1363 (1762). "" Pickering v. Truste, 7 D. & E. 53 (1796). '"WilGoclc's Case, 2 Salk. 597 (1704); Bowington v. Parry, 2 Strange 822 (1729); Olivant v. Per- ineau, 2 Strange 1191, 1 Wil. 23 (1743). "'Pickering v. Truste, 7 D. & E. 53, 54 (1796); Tucker v. Wright, 3 Bing. 601 (1826). '" Plevin V. Henshall, 10 Ring. 24 (1833); Hiort v. L. & N. W. Ry. 4 Ex. D. 188, 48 L. J. Ex. 545 (1879). '"Ward V. Moffiett, 38 Mo. App. 395 (1889); Blgelow Co. v. Helntze, 53 N. J. L. 69, 21 At. 109 (1890), return allowed when conversion not willful and property unchanged; Rutland Ry., v. Bank 32 Vt. 639 (1860) ; Farr v. State Bank, 87 Wis. 223, 58 N. W. 377, 41 Am. St. R. 40 (1894), tender allowed before suit, if the conversion resulted from mis- take. "" Norman v. Rodgers, 29 Ark. 365 (1874) ; Carpenter v. Dresser, 72 Me. 377, 39 Am. 337 (1881); Northrup v. McGill, 27 Mich. 234 (1873); Stlckney v. AUen, 10 Gsay (76 Mass.) 352 (1858); Gilbert v. Peck, 43 Mo. App. 577 (1890); deny- ing the right to return, when the conversion is willful; Comm. Bank V. Hughes, 17 Wend. (N. Y.) 91 (1837); Brewster v. Silliman, 38 N. y. 423 (1868); Baltimore Ry. v O'Donnell, 49 O. St. 489, 32 N. E. 476, 21 L. R. A. 117 (1892); Weaver V. Ashcroft, 50 Tex. 427 (1878); Hofschulte T. Panhandle Co., 50 S. W. (Tex. Civ. App.) 608 (1899). CHAPTER XIII. DECEIT AND KINDRED TORTS. § I. DECEIT. As a Tort. Our discussion of this prolific source of litigation will be comparatively brief, for it is limited to deceit as a tort ; that is, as a cause of action at common law for damages. Neither the right of the party deceived to rescind a contract induced thereby, nor his right to equitable relief comes within the scope of the present work. Although deceit, as a tort, is a much narrower topic than fraud, in its various relations to the law of contracts, to the law of property and to equity jurisprudence, it is much more extensive than it was three centuries,' or even a hundred and fifty years ago.'' Deceit Defined. " Where one person makes a statement to an- other which (i) is untrue; and which (2) the person making it does not believe to be true, whether knowing it to be untrue, or being ignorant whether it is true or not ; and which (3) the person making it intends or expects to be acted upon, in a certain manner by the person to whom it is made, or with ordinary sense and prudence would expect it to be so acted upon; and (4) in reliance on which • If the reader would compare the writ in case of a false " warranty modern limits of this topic with of the length of cloaths." those of three and a half centuries ^ The anonymous author of Ac- ago, he need only refer to Fitzher- tions on the Case for Torts and hert's Natura Brevium, published Wrongs (London 1720) devotes in 1534. He says, " This writ (de Chapter IX to " Actions on the case disceit) lieth properly when one for Disceits and on Warranties." It man doeth anything in the name of contains but little matter of value another, by which the person is to the lawyer of today, but it shows damnified and deceived." He then that the judicial conception of de- gives several pages of precedents, ceit as a tort was quite different, nearly every one of \vhlch involves at thfe opening of the 18th Century. a case of false personation or a case fi-om that which is entertained at of the improper use of legal process. the opening of the twentieth cen- At 99ft he gives a precedent for the tury. 3^5 366 The Law of Torts. the person to whom it is made does act in that manner to his own harm ; then the person making the statement is said to deceive the person to whom it is made." ' Statement of Fact. It is not every untrue statement, con- nected with a transaction, which will sustain an action for deceit, although it be shown to have induced the plaintiff to act to his harm. A mere promise to do an act in the future is an illustration. A broken promise, although causing harm to the promisee, is not a tort. If it were, the distinction between breaches of contract and torts would disappear.' It is to be born in mind, however, that a statement may. be a representation of fact although it takes the form of a promise. Accordingly, if A is induced to accept bills, drawn on him by B, by C's statement that no part of the proceeds shall be applied to B's indebtedness to C, and if A shows that C intended, when the state- ment was made, to apply the proceeds to his claim against B, and did so apply them to A's harm, C is liable in an action for deceit.^ A man, who- buys goods on credit, not only promises to pay for them, but either expressly or impliedly represents that he intends to pay for them. If, in truth, he has no such intention, then his lan- ' Sir Frederick Pollock's Draft of promise that the dealings of de- a Civil Wrongs Bill for India, sect. fendant and plain Jtf " should be 40; Taylor v. Commercial Bank, more satisfactory than last sea- 174 N. Y. 181, 185, 66 N. E. 726, 95 son"; Gray v. Palmer, 2 Robt. (W. Am. St. R. 564 (1903). Y.) 500 (1864): A promise to col- * Union Pac. Ry. v. Barnes, 64 lect a draft and apply the proceeds Fed. 84 (1894): A promise to sell in a specified manner; Taylor v. land and convey a perfect title by Commercial Bank, 174 N. Y. 181, one who believes his title is good, G6 N. E. 726, 95 Am. St. R. 564 when in tact it is defective; Smith (1903): An assurance that plain- v. Parker, 148 Ind. 127, 45 N. E. tiff would get his pay, if he made 770 (1897): A promise to furnish a loan to a third person, the money for a specified business; "Clydesdale Bank v. Paton (1896) Ayers v. Blevins, 28 Ind. App. 101, A. C. 381, 394, 65 L. J. P. C. 73. In 62 N. E. 305 (1901) : A promise this case, there was no evidence to make certain machinery work either that the bank did not have up to a stated capacity; Long v. the intention of keeping its promise, Woodman, 58 Me. 49, (1870): A or that it broke it. Cockrill v. Hall, promise to give bond for the recon- 65 Cal. 326 (1884): A promise to vpyance of certain property; Syra- return a note thvj next d?.y, or pay nise Knitting Co. v. Blanchard, 69 it, inducing piaintifl to act to his N. H. 447, 43 At. 637 (1899): A harm. Deceit and Kindred Torts. 367 g^age, or his conduct, or both amount to a false representation of fact, for which deceit will lie.' The mere facts, however, that the buyer is insolvent and fails in business, before the term of credit ex- pires, and never pays for the goods, do not make out a case of deceit. The plaintiff must go further and show that the defendant bought the goods, with the preconceived design of not paying for them.' Undoubtedly " it is very difficult to prove what the state of a man's mind at a particular time is, but, if it can be ascertained, it is as much a fact as anything else ; as much a fact as the state of his digestion." ' Deception by Silence. Mere silence, unaccompanied by lan- guage or conduct which renders the silence beguiling, or by circum- stances which impose upon the defendant a duty to speak, will not sustain an action for deceit, however reprehensible it may be morally.' But it often happens that the previous conduct of the defendant, or his relations to the other party to a transaction, impose upon him a duty to speak. Where there is such " a duty or obliga- tion to speak, and a man in breach of that duty or obligation holds his tongue and does not speak, and does not sa>- the thing he is bound to say, if that be done with the intention of inducing the other party to act upon the belief, that the reason why he did not speak was because he had nothing to say, there is fraud." " Accordingly, a banker who receives deposits, after he knows he is hopelessly insol- • Morrill v. Blackman, 42 Conn, could not pay for them, although he 324 (1875); Burrill v. Stevens, 73 intended to pay when he contracted Me. 395, 398 (1892); Leather Co. v. for them. Flynn, 108 Mich. 91, 65 N. W. 519 • Bowen. L. J., in Edglngton v. (1895); Nichols v. Pinner, 18 N. Y. Pitzmaurice, 29 Ch. D. 459, 483, 55 295 (1858); D. Adler & Sons v. L. J. Ch. 650 (1884). Thorpe, 102 Wis. 70, 78 N. W. 184 'Pratt Land Co. v. McLain, 135 (1899); Biggs v. Barry, 2 Curtis, Al. 452, 33 So. 185, 93 Am. St. R. (U. S. C. C.) 259 (1855); Swift v. 35 (1902); Kirtley's Administratrix Rounds, 19 R. I. 527, 35 At. 45, 61 v. Shinkle, (Ky.) 69 S. W. 723 Am. St. R. 791 (1896). (1902); Wiser v. Lawler. 189 U. S. 'Cases in last note; Hart v. Moul- 260, 23 Sup. Ct. 624 (1902); Roth- ton, 104 Wis. 349. 80 N. W. 599 miller v. Stein, 143 N. Y. 581, 38 N. (1899); in Whitten v. Fitzwater. E. 718. 26 L. R. A. 148 (1894). 129 N. Y. 62fi. 29 N. E. 298. (1891). '"Blackturn L. J., in Brownlle v. it was held fraudulent for the pur- Campbell, 5 App. Cases, 925, 950 chaser to receive goods, knowing he (1880). 368 The Law of Torts. vent, is guilty of deceiving his depositors." So is a father, who induces another to give credit to his son, by a letter from which he omits the statement that the son is a minor. Such silence is designed to mislead.'- Opinion as Distinguished From Fact. In order to make out a case of deceit, the plaintiff must show that the defendant's false statement was one of fact, as distinguished from one of opinion, or belief.^' " If,"' said a learned judge, " the defendant went no further than to say that the bond was an A Xo. i bond, which we understand to mean simply that it was a first-rate bond, or that the railroad was good security for the bond, we are constrained to hold that he was not liable under the circumstances of this case, even if he made the statement in bad faith. The rule of law is hardly to be regretted, when it is considered, how easily and insensibly, words of hope or expectation are converted by an interested memory into statements of quality and value, when the expectation has been dis- appointed." '* Hence, statements by a seller, relative to the value or quality of goods, are generally treated as expressions of opinion. ^^ If, how- " Anonymous, 67 N. Y. 598 (1876); Cassldy v. Uhlman, 170 N. Y. 505, 63 N. B. 554, 79 Am. S. R. 596 (1902). "Kidney v. Stoddard, 7 Met. (48 Mass.) 252 (1843). " Such a partial and fragmentary statement of fact, as that, the withholding ■ of that which is not stated makes that which is stated absolutely false," will sustain an action for deceit. Lord Uairns, in Peek v. Gurney, R. 6 H. L. 377, 403, 43 L. J. Ch. 19 (1873). " To tell half a truth only is to conceal the other half," Mitch- ell J. in Newell v. Randall, 32 Minn. 171, 50 Am. R. 562 (1884); Croyle V. Moses, 90 Pa. 250, 35 Am. R. 654 (1879); an artful and evasive an- swer, intended to deceive and actu- ally deceiving the plaintiff. "In Hedin v. Minn. etc. Inst, 62 Minn. 146, 64 N. W. 158, 35 L. R. A. 417, with v(6uable note, 54 Am. St. R. 628 (18957, an action for deceit was sustained for false and fraudu- lent representations that the defend- ant's disease was curable and would be cured by the defendant for five hundred dollars The liability for deceit, it was held, " may arise where one has or assumes to have knowledge upon a subject of which the other is ignorant, and knowing- ly makes false statements, on which the other relies." " Holmes J., in Deming v. Dar- ling, 148 Mass. 504, 505, 20 N. E. 107, 2 L. R. A. 743 (1889). "Harvey v. Young, Yelv. 21 (1597); Ekins v. Tresham, 1 Lev. 102 (16V5); Gustafson v. Ruste- meyer, 70 Conn. 125, 39 At. 104, 39 L. R. A. 644, 66 Am. St. R. 92 (1898); Williams v. McFadden, 23 Fla. 143, 148, 1 So. 618, 11 Am, St. Deceit and Kindred Torts. 369 ever, the seller, goes beyond the limits of mere puffing and makes assertions of fact upon which the opinion is represented to rest, as that the goods are new and fresh, when they are old and shop-worn, he makes himself liable for deceit." At times, it may be difficult to det_ermined whether the statement involves an assertion of fact as well as an expression of opinion. In such cases the question is for the jury.*" Statements as to the price paid or offered for property are held by some courts to be " so manifestly statements of opinion on the part of the seller, or mere evidence of the opmion of others respect- ing its value, that they cannot be deemed statements of material facts which will lay the foundation for an action for deceit, even if the statements are false and intended to deceive." ** These courts, however, are ready to lay hold of any additional statements or cir- cumstances, indicative of the defendant's fraudulent purpose, as a club with which to beat him, when he has lied about the price paid or offered." R. 345 (1887), "Human opinion is so various and discordant, and what it really is. Is so difficult of proof, that the law allows great latitude of statements which are properly traceable to it; " Gordon v. Parme- lee, 2 Allen (84 Mass.) 212 (1861); Gordon v. Butler, 105 U. S. 553, 26 U Ed. 1166 (1881). '"Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444 (1899); Stewart v. Stearns, 63 N. H. 99, 56 Am. R. 496 (1884); cf. Martin v. Jordan, 60 Me. 531 (1S72), false statement, as to the amount of hay cut the pre- vious year, on the land sold by the defendant to the plaintiff; Savage V. Stevens, 126 Mass. 207 (1879), false statements as to the location and condition of a farm. "Andrews v. Jackson, 168 Mass. 266. 47 N. E. 412, 60 Am. St. R. 390. ;!7 L. R. A. 402 (1897); Simar v. Canady. 53 N. Y. 298, 13 Am. R. 52.3 (1873). "Cole v. Smith, 26 Col. 506, 58 Pac. 1086 (1899); Hemmer v. Coop- er, 8 Allen (90 Mass.) 334 (1864); Holbrook v. Connor, 60 Me. 578, 11 Am. R. 212 (1872), see dissenting opinion; Bishop v. Small, 63 Me. 12 (1874). " Braley v. Powers, 92 Me. 203, 42 At. 362 (1898) : An action for deceit was sustained, for false statements as to the cost of producing buckles, under a patent which defendant sold plaintiff; Manning v. Albee, 11 Allen (93 Mass.) 520, 92 Am. Dec. 736 (1866) : The statement was that certain bonds were selling in the market at a given price; Way v. Ryther, 165 Mass. 226, 42 N. E. 1128 (1896): Statement, that the property was billed to the defendant at a certain price, together with the false statement that he could not find the bill, may constitute deceit. " We have no disposition,'' said the court. ■' to extend the decisions in favor of vendors' representations beyond the limit to which they have 24 370 The Law of Torts. Other courts do not hesitate to declare that the statement of a vendor that he paid or had been offered a certain price for the property he sells, is a statement of fact ; and if the purchaser, with- out knowing or having reason to know what price was paid or offered, relies upon the false statpgient to his injury, he is entitled to maintain an action for deceit.^" They also declare, that false statements as to value may often take the form of false assertions of fact, and thus amount to actionable deceit ; ^' especially where they are grossly and palpably false, or where their utterer has better means of knowing their truth or falsity than has the one to whom they are made.^- So, inducing one to sell goods at a certain price, by the false statement of the purchaser, that the seller's rivals in trade offer the same goods at such a price, is a fraud.^' Statement as to a Person's Credit. This, undoubtedly, involves to some extent an expression of opinion, but ordinarily it contains an assertion of fact. If the defendant is asked, by one who is considering whether to give financial credit to him or to a third person, for the pecuniary standing of himself or of the third person, and answers that he is a person " safely to be trusted and given credit to in that respect,"** or that he is " as good as any gone;" Kilgore v. Bruce, 166 Mass. they shall be understooa as state- 136. 44 N. E. 108 (1896). Repre- ments of fact, and not as expres- sentation, that all the stock, which sions of opinion, they will const!- the defendant was selling, was be- tute fraud; " Coulter v. Clark, 160 ing sold at the price asked of the Ind. 311, 66 N. E. 739 (1903); Bish plaintiff. ^ v. Beatty, 111 Ind. 403, 12 N. E. »Dorr V. Cory, 108 la. 725, 78 N. 523 (1887); statement that certain W. 682 (1899); Johnson v. Gavitt, notes were as good as government 114 la. 183, 80 N. W. 256 (1901); bonds; Smith v. Countryman, 30 N. Stony Creek Woolen Co. v. Smalley, Y. 655 (1864); Rothschild v. Mack, 111 Mich. 321, 69 N. W. 722 (1896); 115 N. Y. 1, 21 N. E. 726 (1889): Conlan v. Roemer, 52 N. J. L. 53, 18 Assertion that a note was as good At. 858 (1889) ; Pairchild v. Mc- as the Bank of England. Mahon, 139 N. Y. 290, 34 N E. 779, ^ Hedin v. Minn., etc. Ints., 62 36 Am. St. R. 701 (1893). Minn. 146, 64 N. W.158, 54 Am. St. =» Wilson V. Nichols, 72 Conn. 173, R. 628, 35 L. R. A. 417 (1895) and 43 At. 1052 (1899); Shelton v. cases cited in the note at pp. 418, Healy, 74 Conn. 265, 50 At. 742 427-429. (1901); Leonard v. Springer, 197 ^ Smith Kline & Co. v. Smith, 166 111, 532, 64 N. E. 299 (1902), Pa. 563, 31 At. 343 (1895). " Where false statements of value '* Pasley v. Freeman, 3 D. & E. 51, are made with an intention that i R. R. 638 (1789). Deceit and Kindred Torts. 3/1 man in the country for that sum," -^ he certainly assumes to state a matter of fact. If his statement was consciously false, was made for the purpose of inducing the plaintiff to give credit, and such credit was given to the plaintiff's harm, most courts have not hesitated to hold him liable for deceit.-® In England, and in some of our jurisdictions, statutes have been passed providing that no p.ction shall be brought upon such representations, unless made in writing and signed by the party to be charged therewith.-' Misrepresentation of Law. The general rule, upon this topic, is that " a false or mistaken representation of what the law is upon an admitted state of facts is no basis of an action in deceit, especially when there are no confidential relations between the parties. " -' Or to put it in another form, " A statement of opinion upon a question of law, when the facts are equally well known to both the parties, cannot constitute a false representation or deceit."-" = Upton V. Vail, 6 Johns. 181, 5 Am. Dec. 210 (1810); Boyd's Exe- cutors V. Browne, 6 Pa. 310 (1847) ; Robbins v. Barton, 50 Ks. 120, 31 Pac. 686 (1892). =" Endsley v. Johns. 120 111. 469, 60 Am. R. 572 (1887); Patten v. Gur- ney, 17 Mass. 182, 9 Am. Dec. 141 (1821); Morehouse v. Yeager. 71 N. Y. 594, (1877); Gainsville Natl. Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959 (1890); Lang v. Lee, 3 Rand, (Va.) 410 (1825). In Rhode Island, the court Is not inclined to hold the defendant for statements about his own financial standing as strictly as for those about a third person. Lyons v. BriggB, 14 R. I. 222, 51 Am. R. 372 (1893): White & Co. v. Fitch. 19 R. I. 687, 36 At. 425 (1897): Vermont is not disposed to hold a person answerable in deceit for false asser- tions as to credit. Fisher v. Brown, 1 Ty!er 387, i Am. Dec. 726; Jiide v. Woodburn. 27 Vt. 415 (l.S.-,.-,l. Sre also Savage v. Jackson, 19 Ga. 305 (1856), criticising Pasley v. Free- man, 3 D. & E. 51 (1789). " Lord Tenderten's Act, 9 Geo. IV. ch. 14, § 6 (1829); Nevada Bank v. Portland Nat!. Bank, 59 Fed. 338 (1894) ; applying the statute of Ore- gon; — 1 Hill's Code, § 786, p. 594; Kimball v. Comstock, 14 Gray (80 Mass.) 508 (1860), applying the Massachusetts statute. " Gormley v. Gym. Ass'n., 55 Wis. 350, 13 N. W. 242 (1882); defend- ant, when leasing a hall to plain- tiff, said, " If you lease the hall you can retail liquors, etc., at the bar, under licenses held by me." Plain- tiff was bound to know that such licenses would not protect him; Fish V. Cleland, 33 111. 238, 243 (1864); Thompson v. Phoenix Ins. Co.. 75 Ale. 55, 46 Am. R. 357 (1883); Ins. Co. v. Reed, 33 O. St. 283, 294 (1877). "Mutual Life Co. v. Phinney, 178 U. a. 327, 211 Sup. Ct. !mm; (1900); Upton T. Tribelcock, !U U. S. 45. .'." (1875); Davis v. Betz, 66 Al. 20i;. 372 The Law of Torts. Where, however, there is a misrepresentation of fact as welt as of law,^° or where " any pecuHar relationship of trust or confidence exists between the parties, and one avails himself of such a trust or confidence to mislead the plaintiff by a misrepresentation as to the legal effect of the transaction," we have an exception to the general rule stated above, and an action for deceit may lie."^ Per- haps, the distinction between a misrepresentation of law, and a mis- representation of mixed law and fact, has never been stated more clearly than by a learned English judge '- in these words: " A mis- representation of law is this, when you state the facts, and state a conclusion of law, so as to distinguish between facts and law. The man who knows the facts is taken to know the law. But when you state that as a fact which no doubt involves, as most facts do, a con- clusion of law, that is still a statement of fact and not a statement of law." Knowledge of the Untruth. Bad faith is the very essence of the common law tort of deceit. Accordingly, it is generally held that the plaintiff, who asks damages for deceit, must show, that the defendant knew that the false statement complained of was untrue, or that he made it without belief in its truth, or recklessly, careless whether it was true or false. It is not enough for him to show that the statement was false, and was made negligently, or without reasonable ground for belief in its truth. He must go further and show that it was actually fraudulent, that is, that the defendant did not have an honest belief in its truth.^' 210 (1880); Piatt v. Scott, 6 Blackf. 16 Barb. (N. Y.) 342 (1853); Hlrsh- (Ind.) 389, 39 Am. Dec. 436 (1843); field v. London Ry., 2 Q. B. D. 1, 46 Mayhew v. Phoenix Ins. Co., 23 L. J. Q. B. 94 (1876). Mich. 105 (1871); Starr v. Bennett, ^Jessel,. M. R., in Eaglesfield v, 5 Hill (N. Y.) 303 (1843). Londonderry, L. R. 4, Ch. D. 693, =°Westervelt v. Demarest, 46 N. J. 702, 35 L. T. 822 (1876). L. 37, 50 Am. R. 400 (1884); More- ^Derry v. Peek, 14 App. Cases, land V. Atchison, 19 Tex. 303 337, 58 L. J. Ch. 864 (1889), revers- (1857); Hubbard v. McLean, 115 ing Peek v. Derry, 37 Ch. D. 541, 57 Wis. 9, 90 N. W. 1077 (1902). L. J. Ch. 347 (1887). In Angus v. "Townsend V. Cowles, 31 Al. 428, Clifford, (1891), 2 Ch. 449, 463, 60 L. 436, (1858) ; " So, if the plaintiff J. Ch. 443, Lindley, L. J. said; was in fact ignorant of the law, and " Speaking broadly of Peek v. Der- defendant took advantage of such ry.. I take it, that it has settled, ignorance, to mislead him by a false once and for all, the controversy statement of the law, it would con- which was well known to have given stitute a fraud; " Cooke v. Nathan, rise to very considerable difference Deceit and Kindred Torts. 373 It should be borne in mind, however, that evidence of negligence on the part of defendant in making the false statement, as well as the want of reasonable ground for his belief in its truth, is always admissible in an action for deceit. To quote from the principal opinion in Peek v. Derry ; "* "I desire to say distinctly that when a false statement has been made, the question whether there were reasonable grounds for believing it, and what were the means of knowledge in the possession of the person making it, are most weighty matters for consideration. The ground upon which an alleged belief was founded is a most important test of its reality. I can conceive many cases where the fact, that an alleged belief was destitute of all reasonable foundation, would suffice of itself to con- vince the Court that it was not really entertained, and that the representation was a fraudulent one. So, too, although means of knowledge are a very different thing from knowledge, if I thought that a person making a false statement had shut his eyes to the facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated what was false." On the other hand, it is admissible for the defendant to give evi- dence, tending to show his honest belief in the truth of the statement, which was in fact false, and even to show the meaning, which he actually intended to convey by equivocal language.^^ of opinion, as to whether an action (1883) ; Iron Co. v. Bamford, 150 for negligent representation, as dls- U. S. 665, 14 Sup. Ct. 219, 37 L. Ed. tinguished from fraudulent repre- 1215 (1893); Simon v. Goodyear sentation, could be maintained. Co., 105 Fed. 573, 581 (190()). There was considerable authority "Herschell L., in Derry v. Peck, that it could, and there was consid- 14 App. Cas. 337, 370, 58 L. J. Ch. erable authority that it could not." 864 (1889). Wilman v. Mizer, 60 Ark. 281, 30 =» Angus v. Clifford, (1891) 2 S. W. 31 (1895); Watson v. Jones, Ch. 449, 60 L. J. Ch. 443, opinion of 41 Pla. 241, 25 So. 678 (1899); Bod- I.indley I.. J.; Nash v. Minn. etc.. dy V. Henry, 113 la. 462, 85 N. W. Co., 163 Mass. 574, 40 N. E. 1039. 771, 53 L. R. A. 769 (1901); Wil- 28 L. R. A. 753, 47 Am. St. R. 48.) kins V. Standard Oil Co., 70 N. J. L. (1895), " Inasmuch as the question 449, 57 At. 258 (1904); Daly v. Wise, involved is what was his state of 132 N. Y. 306, 312, 30 N. E. 837, 16 mind, and his actual intent as dis L. R. A. 236 (1892); Johnson v. tinguished from his apparent i.v Gate, 75 Vt. 100, 53 At. 329, (1902); tent, he is entitled to explain his Cooper V. Schlesinger, 111 U. S. 148, language as best he can, if it is sus- 152, 4 Sup. Ct. 360, 28 L. Ed. 382 ceptible of explanation, and to tes- 374 The Law of Torts. Other Remedies Available for Negligent Misrepresentation. Many of the courts, which hold most steadfastly to the doctrine that actual fraud must be shown to sustain an action for deceit, are care- ful to point out, that the law affords other remedies to the victim of innocent misrepresentation. He may maintain an action for breac'.i of warranty j""* or for rescission of the contract,''' or even for dam- ages caused by the defendant's negligent discharge of some du;y owing to the plaintiff.'*' In some jurisdictions, he is allowed to maintain an action for deceit, wherever the misrepresentation is of a character which would entitle him to rescission of the transaction.^" In others, the rule is declared to be that " if a statement of fact which is susceptible of actual knowledge is made as of one's own knowledge, and is false, it may be made a foundation of an action of deceit, without further proof of an actual intent to deceive." *° Intended' to Induce Plaintiff. Not only must the plaintiff show that the defendant dishonestly made a false statement of fact, but there must be evidence that he made it with the intention of inducing the plaintiff to act upon it. " A mere naked falsehood is tify what was in his mind in ref- erence to the subject to which the alleged fraud relates. In this respect his expressions, whether spoken or written, are not dealt with in the same way, as when the question is, what contract has been made be- tween two persons, who were mut- ually relying upon the language used in their agreements ";Kountze V. Kennedy, 147 N. Y. 129, 41 N. E. 414, 49 Am. St. R. 651, 29 L. R. A. 363 (1895). " Kountze v. Kennedy, supra. Stone V. Denny, 4 Met. (45 Mass.) 151, 156 (1842); Watson v. Jones, 41 Fla. 241. 25 So. 678 (1899). "Smith v. Bricker, 86 la. 285, 53 N. W. 250 (j.892); Foard v. Mc- Comb, 12 Bush. (75 Ky.) 723 (1877). ^Houston V. Thornton, 122 N. C. 365, 29 S. E. 8i7, 65 Am. St. R. 699 (1898). "Walters v. Eaves, 105 Ga. 58!. 32 S. E. 609 (1899); Gerner - Mosher, 58 Neb. 135, 78 N. W. 38', 46 L. H. A. 244 (1899); Shea v. Mabry, 1 Lea (69 Tenn.) 319, 342 (1878), "Culpable negligence in making false statements, to induce action by others, is in law equiva- lent to fraud; " Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. R. 592 (1888j; Hoffman v. Dixon, 105 Wis. 315. 81 N. W. 491 (1900). "Weeks v. Currier, 172 Mass. 53, 55, 51 N. E. 416 (1898), citing with other cases Chatham Furnace Co. v. Moffat, 147 Mass. 403, 18 N. E. 168, 9 Am. St. 727 (1888), holding that " forgetfulness of the existence of a fact after a former knowledge, or a mere belief on the subject, wi'l not excuse a statement of actual knowledge; " but see Nasb ~' Minn, etc. Co., 163 Mass. 574 at page 578. Deceit axd Kindred Torts. 375 not enough to give a cause of action ; the falsehood must have been told with the intention that it should be acted upon by the party injured." ** It is not necessary, however, that the falsehood be co:n- municated directly to the plaintiff by the defendant. It is enough that the false statement was intended to reach the plaintiff and operate upon his mind.*- One, who puts into circulation a bill of exchange, with a forged acceptance, thereby makes a representation of its genuineness to every one to whom it is presented.** One, who makes a false statement of his financial standing to a mercantile agency, intends that it shall be repeated by the agency to third per- sons who may be interested in his credit.** \\"hether a false state- ment by the directors of a financial institution, contained in a report which the law requires to be filed in a public office, may subject them, or the corporation for which they are acting, to a suit for deceit, should depend upon the facts of the case. If the statute requires this statement for the benefit of all, who may deal with the institution, or purchase its stock, then, the statement must be deemed intended to influence any of that class.*' Even if the statute ^as no such object, and requires the statement only for the information of "Langridge v. Licvy, 2 M. & W. 519 (1837), citing Pasley v. Free- man, 3 D. & E. 51 (1789) ; Thorp v. Smith, 18 Wash. 277, 51 Pac. 3»1 1897); Steiner Brothers v. Cllsby, 103 Al. 181. 192, 15 So. 612 (1893). " If the false representation is made to A to induce him to part with his money, and he does part with it. A must sue; but if made to him to induce B to part with his, and B is thereby induced to do so, he and not A is the party injured who may maintain the action," following Wells v. Cook, 16 O. St. 67, 88 Am. Dec. 436 (1865). «Comm. T. Call, 21 Pick. (38 Mass.) 515, 523, 32 Am. Dec. 284 (1839); Henry v. Dennis, 95 Me. 24, 49 At. 58, 85 Am. St. R. 365 (1901). •> Polhlll V. Walter, 3 B. & Ad. 114. 37 R. R. 344 (1832); same principle applied, in Denton v. G. N. Ry., 5 E. & B. 860, 25 L. J. Q. B. 129 (1856), to false statements in a railroad time table. "Eaton, Cole & Co. v. Avery, 83 N. Y. 31. 38 Am. R. 389 (1880); Tindle v. Birkett, 171 N. Y. 520, 64 N. E. 210 (1902); Hlnchman v. Weeks, 85 Mich. 535, 48 N. W. 790 (1891); Gainsvllle Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. 959 (1890). " Oerner v. Mosher, 58 Neb. 135. 78 N. W. 384, 46 L. R. A. 244 (1899); cf. Bedford v. Bagshaw, 4 H. & N. 538, 29 L. J. Ex. 59 (1S59), statements made to a committee of the London Stock Exchange; Peek V. Gurney, L. R. 6 H. L. 377, 43 L. J. Ch. 19 (1873), false statements, intended to deceive only the origi- nal allottees of shares, and not those who bought them from such allottees. 376 The Law of Torts. public officials, the question still remains, should the defendant have foreseen that reliance would be placed upon such a statement by the plaintiff, who is not a public official, but a creditor of the corporation or a purchaser of its stock ? The prevailing view is, that such a con- sequence is too remote, and that the plaintiff has no action for deceit.*" Corrupt Motive Unnecessary. If the defendant makes the false statement, with the intention of inducing the plaintiff to act upon it, and he does so act to his harm, the motive of the defendant becomes immaterial.*" " Misrepresentaions of this character are frequently made from inconsiderate good nature, prompted by a desire to benefit a third person and without a view of advancing the utterer's own interests. But the motive by which he was actuated does not enter into the inquiry. If he made representations produc- tive of loss to another, knowing such representations to be false, he is responsible as for a fraudulent deceit." *' Inducing Plaintiff to Act. If the false statement of fact, knowingly made by the defendant, really induces the plaintiff to act upon it to his harm, the defendant may escape liability for deceit by showing that the assertion was of such a character as not to justify the plaintiff in placing confidence in it. It is quite clear that a dealer in spectacles has no right to rely on the statement by the manufac- turer, that the glasses were of a superior quality, and treated by a chemical process which was known only to a person in the employ " Hunnewell v. Duxbury, 154 giving credit cannot maintain an Mass. 286, 28 N. E. 267, 13 L. R. A. action for deceit, though the repre- 733 (1891); Merchant's Nat. Bank sentations in the letter are untrue;" V. Armstrong, 65 Fed. 932 (1895) ; Barry v. Crosky, 2 Johns. & H. 1 Hindman v. 1st Nat. Bank, 86 Fed. (1861). 1013 (1898), s. c, 112 Fed. 931, 941, " Pasley v. Freeman, 3 D. & E. 51 50 C. C- A. 623 (1902); cf. English (1798); Foster v. Charles, 7 Bing. cases in last note; also. Clerk and 105 (1830); Rothmiller v. Stein, 143 1 indsell, on Torts (2 Ed.) pp. 466-- N. Y. 581, 38 N. E. 718, 26 L. R. A. 4C9; McCracken v. West, 17 O. 16 148 (1894). (1848), holding that if a person "Boyd's Exec. v. Browne, 6 Pa. write a letter to another, desiring 310 (1847); Allen v. Addington, 7 him to introduce the bearer to such Wend. (N. Y.) 9 (1831); N. Y. Imp. merchants as he may desire, and Co. v. Chapman, 118 N. Y. 288, 292, describing him as a man of prop- 23 N. E. 187 (1890); Bndsley v. erty and the bearer does not deliver Johns, 120 111. 479, 12 N. E, 247, 60 it to the addressee, but uses it to ob- Am. R. 572 (1887). tain credit elsewhere, the person so DlXEIT AND KiNIiREK TORTS. 377 of the company ; that this process imparted a quality to the glass that made it fit the eye indefinitely ; that the glasses once fitted would always adapt themselves to the eye.*' Some courts, as we have seen, treat false assertions concerning the cost of property, or of the price paid or offered for it, as state- ments, so commonly made hy persons having property for sale, that the buyer has no right to rely and act upon them.^'' Other courts " declare that wherever the interests of the plaintiff and defendant are adverse, it is the duty of the former to distrust the truthfulness of statements made by the latter. As a rule, however, the plaintiff is not to be turned out of court, because a shrewd, keen, ,skeptical bargainer would not have been deluded by the intentionally false statement of the defendant. '' It is as much actionable fraud willfully to deceive a credulous person, with an improbable falsehood, as it to deceive a cautious, sagacious person with a plausible one." '- Or, in the language of another court, " The design of the law is to protect the weak and credulous, as well as those whose vigilance and sagacity enable them to pro- tect themselves. * * * The law is not blind to the fact that com- munities are composed of individuals of several degrees of intelli- gence and capacity."' " Or, again, " No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is, by chance, a fool." " Means of Knowledge Immaterial. While the law requires men in ordinary business transactions to use their wits, and not to confide implicitly in trader's talk on the part of one whose business "Hirschberg Optical Co. v. Mich- the bond in question was secured aelson, (Minn.) 95 N. W. 461 by particular property worth half (1901). a million dollars, could not be ex- " Vernon v. Keys, 12 East 632, 4 cased as one of those generalities. Taunt. 488, 11 R. R. 499. (1810). which, whether true or not, are to Lord Mansfield is reported as say- be expected from a man who wants ing that a purchaser is at liberty to to sell his goods, do '■ what every seller in this town " Aetna Ins. Co. v. Reed, 33 O. does every day, who tells every St. 283 (]877). falsehood he can to induce the pur- '- Barndt v. Frederick, 78 Wis. 1, chaser to purchase; " Holbrook v. 47 N. W. 6 (1890). Connor, 60 Me. .^7S (1872), of. Whit- " Ingalls v. Miller, 121 Ind. 188, ing V. Price, 169 Mass. 576, 48 N. E. 22 N. E. 995 (1889.) 772, 61 Am. St. R. 307 (1897), hold- " Chamberlin v. Puller, 59 Vt. 256, ing that the representation, that 9 At. 832 (1886). 378 The Law of Torts. interests are antagonistic to theirs,*' it is not inclined to ignore or protect positive, intentional fraud, successfully practiced upon even the simple-minded and unwary. It is not disposed to look with favor upon the defense that the plaintiff was guilty of contributory negligence, in not presuming that the defendant's statement was false, and untrustworthy.^* Even when the defendant refers the plaintiff to a source of information, which would disclose the falsity of his statement, the plaintiff is not bound to avail himself of that source. He is entitled to stand upon the defendant's assurance of its truthfulness.'^ Of course, if he does pursue the investigation, suggested by the defendant, and acts upon its results, he cannot afterwards insist that he relied upon the defendant's representations.'* Nor can he be heard to say, that he was induced by the false representation to act to his harm, where he discovers the fraud before he acts."* Nor will a deliberate falsehood avail him, though made by the defendant, with a view to deceiving him, if it was not known to him when he acted,"" '^ Slaughter's Admin, v. Gerson, 13 Wall. (80 U. S.) 379 (1871); Salem India Rubber Co. v. Adams, 23 Pick. (40 Mass.) 256, 265 (1839); Long V. Warren, 68 N. Y. 426 (1877). °* Graham v. Thompson, 55 Ark. 296, 18 S. W. 58 (1892j; Cakes v. Miller, 11 Col. App. 374, 55 Pac. 193 (1898); Maxfleld v. Schwartz, 45 Minn. loO, 47 N. W. 448, 10 L. R. A. 606 (1890); Whiting v. Price, 172 Mass. 240, 51 N. E. 1084, 70 Am. St. R. 262 (1898); Arnold v. Teel, 182 Mass. 1 64 N. E. 413 (1902) ; Ward- er V. Whitish, 77 Wis. 430, 46 N. W. 540 (1890); Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444 (1897); Reynell v. Sprye, 1 Deg. M. & G. 660, 21 L. J. Ch. 633 (1852). " Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894) ; Thorne v. Prentiss, 83 111. 99 (1876) ; David v. Park, 103 Mass. 501 (1870) ; Hoist v. Stewart, 161 Mass. 516, 37 N. B. 755 (1894); Redding v. Wright, 49 Minn. 322, 51 N. W. 1056 (1891) ; Cotrill v. Krum, 100 Mo. 397, 13 S. W. 753 (189C); Albany bavings Bank v. Burdick, 87 N. Y. 40 (1881); Blacknall v. Row- land, 108 N. C. 554, 13 S. E. 191 (1891); Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432 (1892). ■^ Enfield v. Colbum, 63 N. H. 218 (1884); Halls v. Thompson, 1 Sm. & M. (Miss.) 443 (1843). =» Selway v. Fogg, 5 M. & W. 83, 8 L. J. Ex. 199 (1839); Kingman v. Stoddard, 85 Fed. 740, 57 U. S. App. 397, 29 C. C. A. 413 (1898); Fitz- patrick v. Flannagan, 106 U. S. 648, 660, 1 Sup. Ct. 369 (1882); Schmidt V. Mesmer, 116 Cal. 267, 48 Pac. 54 (1897); McEacheran v. Western etc. Co., 97 Mich. 479, 56 N. W. 860 (1893); Vemol v. Vernol. 63 N. Y. 45 (1875). •"Horsfall v. Thomas. 1 H. & vj. 90, 31 L. J. Ex. 322 (1862), a defect in a gun was artfully plugged avA concealed, but the gun was bought without inspection; Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376 (1899). Deceit and Kindred Torts. 379 nor if, although it were known to him, it did not cause him damage.** Need Not be Sole Inducement. \\ hile the plaintiff, in an action of deceit, is bound to show that he had a right to rely and did rely upon the defendant's false statement and was damaged as a proximate consequence thereof, it is not necessary for him to show that the falsehood was the sole inducement to his action, nor even the predominant motive. It is enough that the falsehood had a material influence upon him, although it operated in connection with other motives or inducements."- Functions of Court and Jury. The rule upon this subject has been laid down as follows : "'■'■ " Most of the questions involved in an action for deceit are (questions of fact for the jury. Whether the defendant made the alleged false representation, and whether, if he made it. he knew it to be false, and whether the plaintiff was ignorant of its falsity, and whether he relied upon it, and was thereby damaged, are undoubtedly questions of fact for the jury. But, assuming all these facts to be proved, the materiality of the repre- sensation is a question of law for the court." Applying the rule to the facts of the case then before the court, it was held that the false statement by the defendant, that as agent of the company, whose stock he was offering to the plaintiff, he had sold several •"undred shares to specified persons for the price-which he named to -lie plaintiff, and which the latter paid, was a material statement of f"ct and legfally sufficient to maintain the suit, if the other elements of fraud were proved. False Statement by Agent or Servant. Whether an action of deceit will lie against a morally innocent principal, whose agent or servant has fraudulently deceived the plaintiff, has been much discussed. Some judges have held that, as conscious wrongdoing on "Nye v. Merriam, 35 Vt. 438 618, 35 At. 884, 49 Am. St R. 794 (1862); Freeman v. Venner, 120 (1896). Mass. 424 (1876). "Caswell v. Hunton, 87 Me. 277. = Tatton v. Wade, 18 C. B. R. 371, 32 At. 899 (1895); Polland v. 25 L. J. C. P. 240 (18.56); Matthews Brownell, 131 Mass. 138 (1881); V. Bliss, 22 Pick. (39 Mass.) 48 Powers v. Fowler, 157 Mass. 318, 32 (1839); Light v. Jacobs. 183 Mass. N. E. 166 a892): Estell v. Myers. 206, 66 N. E. 799 (1903) ; Morgan V. 54 Miss. 174, 185 (1876); accord. Skiddy, 62 N. Y. 319 (1875); Davis v. Davis, 97 Mich. 419, 56 N. Handy v. Waldron, 19 R. I. W. 774 (1893), holds that the ma- teriality is for the jury. 38o The Law of Torts. the part of the defendant is of the essence of the tort of deceit, the action is not maintainable against a principal who has not authorized or ratified the agent's falsehood, and who is not morally culpable with respect to it. The victim may sue the agent for deceit, say the judges, but his remedies at law against the principal are limited to the rescission of any contract induced by it, and the recovery of any money paid, or property transferred to the principal, or of which he has had the benefit."* The prevailing view is, however, that the principal is liable for the deceit of his agent or servant, as he is for any other tort of such representative. Provided the agent or servant made the false representation in the course of his employment,"' the master is liable though he may not have authorized it, or known that it was made, or be morally responsible for it. Having put the agent or servant " in his place to do that class of acts, he must be answerable for the manner, in which the representative has conducted himself in doing the business, which it was the act of the master to place him in." «» § 2. SLANDER OF TITLE. Nature of the Tort. This wrong differs from Deceit in that the falsehood is intended not to induce the plaintiff to act to his " Udell V. Atherton, 7 H. & N. 172, Fed. 931, 50 C. C. A. 623 (1902); 30 L. J. Ex. 337 (1861); Western Am. Nat. Bk. v. Hammond, 25 Col. Bank of Scotland v. Addle, L. R. 1 367, 55 Pac. 1090 (1898); Wheeler H. L. Sc. 145 (1867); Kennedy v. v. Baars, 33 Pla. 696, 15 So. 584 McKay, 43 N. J. L. 288 (1881). (1894); Rhoda v. Annls, 75 Me. 17, "= Taylor V. Commercial Bank, 174 46 Am. R. 354 (1883); Haskell v. N. Y. 181, 66 N. B. 726, 95 Am. St. Starbird, 152 Mass. 117, 25 N. E. R. 564 (1903), holding that a bank 14, 23 Am. St. R. 809 (1890); Buseh cashier is not acting within the v. Wilcox, 82 Mich. 336, 47 N. W. scope of his authority in making a 328, 21 Am. St. R. 563 (1890); N. representation as to a customer's Y. Imp. Co. v. Chapman, 118 N. t. solvency. 288, 23 N. E. 187 (1890); Chester v. "Barwick v. Eng. Joint Stock Dickerson, 54 N. Y. 1 (1873) ; Brun- Bk., L. R. 2 Ex. 265, 36 L. J. Ex. 147 dage v. Mellon, 5 N. D. 72, ^3 N. W. (1867); Swire v. Francis, 3 App. 209 (1895); Peckham Iron Co. v. Cas. 113, 47 L. J. P. C. 18 (1877); Harper, 41 O. St. 100 (1884); Erie Strang v. Bradner, 114 U. S. 555, 5 City Iron Works v. Barber, 106 Pa. Sup. Ct. 1038, 29 L. Ed. 248 (1884); 125 (1884). Hindman v. 1st. Nat. Bank, 112 Deceit and Kindred Torts. 381 harm, but to induce third persons to refrain from buying the plain- tiff's property or from patronizing his business. It takes its name from the form which it most ■ frequently assumed in early English law, that of slandering the plaintiflf's title to goods "' or to land,*' for the purpose of preventing his sale of them. At present, however, it assumes a variety of forms and may be said to consist in the publica- tion of false statements, disparaging the title or property interests of the plaintiff, with the intention of causing him damage and result- ing in actual damage to him.** Falsity and Malice. These are not to be inferred from the fact of publication, as they are in the case of personal defamation,'" but must be established by evidence.'^ There is some authority for the proposition that one, wh6 disparages the title of another to his damage, is liable therefor, although he did not intend any injury; '^ but this view appears to have originated in the disposition of certain "In the Court Baron, (Selden Soc. Pub. Vol. 4) at p. 130 (1320) judgment is noted against " Alice Balls (3 d.) for that she defamed the lord's corn, whereby the other purchasers forebore to buy the lord's com, to the lord's damage." At. p. 136 (1323), "It is found by inquest that John Curteys and John Cordhant have slandered the hedge of Hugh Seld in the fen, whereby the said Hugh has lost fhe sale of the said hedge to his damage at 2s." «Mildmay's Case, 1 Coke 177b. (1584); (Jerrard v. Dickenson, Cro. Eliz. 196 (1589); Pennyman v. Ra- banks, Cro. Eliz. 427 (1596). "Pater v. Baker, 3 C. B. 868. 16 L. J. C. P. 124, 32 E. C. L. 161 (1847); Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 25 Am. St. R. 151 (1891) ; Webb v. Cecil, 9 B. Mon. (48 Ky.) 198, 48 Am. Dee. 423 (1848); Kendall v. Stone, 5 N. Y. 15, 18 (1851); Wier v. Allen, 51 N. H. 177 (1871), false statement that a breed- ing stallion was diseased; PauU v. Halferty, 63 Pa. 46 (1869), false as- sertion that ore in plaintiff's land would soon run out; Ratcliffe v. Evans, (1892) 2 Q. B. 524, 61 L. J. Q. B. 535, false statement that plaintiff had ceased to carry on his business. '° Supra, Chap. X. But the com- plaint neea not set out words, used by the defendant, that are action- able. It is enough that the defend- ant's conduct intimidated custom- ers from buying plaintiff's goods by threats of prosecution; McElwee v. Blackwell, 94 N. C. 261 (1886). '"Hatchard v. Mege, 18 Q. B. D. 771, 56 L. J. Q. B. 397 (1887); Stew- ard V. Young. L. R. 5 C. P. 122, 39 L. J. C. P. 85 (1870); McDaniel v. Baca, 2 Cal. 326, 56 Am. Dec. 339 (1852); Cardon v. McCormall, 120 N. C. 461, 37 S. B. 109 (1897). "Ross V. Pynes, 3 Call (5 Va.) 568, Wythe 69 (1790), " R. though he is believed not to have designed any injury, ought to make repara- tion for the loss." 382 The Law of Torts. judges to treat slander of title, as a species of personal defamation, and has long been thoroughly discredited.'* There is also some authority for the proposition that a rival trader is guilty of slandering the title, whenever he disparages the property of his competitors, by false assertions of the superiority of his own.'* Most courts, however, have repudiated this doctrine on the ground that it '■ would open a very wide door to litigation, and might expose every man, who said his goods were better than another's, to the risk of an action." '^ Dealing with a case of this character. Lord Chancellor Herschell wisely remarked : " That this sort of puffing advertisement is in use is notorious ; and we see rival cures adver- tised for particular ailments. The court would then be bound -to inquire, in an action brought, whether this ointment, or this pill, better cured the disease which it was alleged to cure — whether a particular article of food was in this respect, or that, better than another. Indeed, the courts of law would be turned into a ma- chinery for advertising rival productions, by obtaining a judicial determination which of the two was the better." '° Rival Claimants to Property. Where the false statement in disparagement of the plaintiff's title is made by one, who believes in good faith that he has a lawful claim upon the property in ques- tion, the occasion is privileged, and he is not liable for the damage which his misrepresentation causes to the plaintiff.'' If, however, "Pitt V. Donovan, 1 M. & S. 639, (1830); Johnson v. Hitchcock, 15 14 R. R. 535 (1813); Pater v. Baker, Johns (N. Y.) 185 (1818). 3 C. B. 868, 16 L. J. C. P. 124, 32 "White v. Mellen, (1895) App. E. C. L. 161 (1847); Hill v. Ward, Cases. 154, 165, 64 L. J. Ch. 308. 13 Al. 310 (1848); Walkley v. Bost- "Hill v. Ward, 13 Al. 310 (1848); wick, 49 Mich. 374, 13 N. W. 780 McDaniel v. Baca, 2 Cal. 326, 56 Am. (1882); Harrison v. Howe, 109 Dec. 339 (1852); Everett Piano Co. Mich. 476, 67 N. W. 527 (1896); v. Brent, 60 111. App. 372 (1895); Andrew v. Deshler, 45 N. J. L. 167 Stark v. Chetwood, 5 Ks. 141 (1883); Hovey v. Rubher Tip Co., (1869); Duncan v. Griswold, 92 Ky. 57 N. Y. 119, 15 Am. R. 470 (1874); 546, 18 S. W. 354 (1892); Gent v. Hopkins v. Drowne. 21 R. I. 20, 41 Lynch, 23 Md. 58, 87 Am. Dec. 558 At. 567 (1898). (1865); Swan v. Tappan, 5 Cush. "Western Counties Co. v. Lawes (59 Mass.) 104 (1849); John C. Chem. Co., L. R. 9 Ex. 218, 43 L. Novell Co. v. Houghton, 116 N. Y. J. Ex. 171 (1874). 520, 23 N. E. 1066, 6 L. R. A. 363 " Evans V. Harlow, 5 Q. B. 624, 13 (1889); Peiten v. Milwaukee, 47 L. J. Q. B. 130 (1843); Tobias v. Wis. 494, 2 N. W. 1148 (1879). Harland, 4 Wend. (.X. Y.) 537, 541 Deceit and Kindred Torts. 3Sj his claim is a sham, and his falsehood is intended to injure the plain- tiff and not to benefit his own legitimate interests, he is liable.'* While actual malice on the part of the defendant must be shown," it is not necessary to give direct proof of an intention to impair the value of the property. It is enough to show, (at least to take the mse to the jury on the question of fraudulent intention,) that the defendant's false statements were recklessly uttered, in disregard of the plaintiff s rights.*" Slander of Title and Damage. The rule has long been settled that " in the action for slander of title, there must be an express allegation of some particular damage resulting to the plain- tiff from such slander." *^ Accordingly, if the plaintiff makes no such allegation, or, having made it, fails to prove some particular damage which is the proximate result of the slander, he must fail in his suit.*- .Nor will it avail him to aver that the statement com- plained of was " false, scandalous, malicious and defamatory." *' These are but epithets, and the law requires the plaintiff to show, in what respect he has been actually harmed^ by the defendant's dispar- agement of his property. "Walden v. Peters, 2 Rob. (La.) 331, 38 Am. Dec. 213 (1842); Chese- bro V. Powers, 78 M?ch. 472, 44 N. W. 290 (1889); Gore v. Condon. 87 Md. 368, 739, 39 At. 1042, 46 L. R. A. 382, 67 Am. St. R. 352 (1898). "Andrew v. Deshler, 45 N. J. L. 167 (1883); Squires v. Wason Mfg. Co., 182 Mass. 137, 65 N. E. 32 (1902). "McDaniel v. Baca, 2 Cal. 326, 56 Am. Dec. 339 (1852); Gott v. Pulsi- fer, 122 Mass. 235, 23 Am. R. 332 (1877). " Malachy v. Soper, 3 Bing. N. C. 371, 3 Scott 373 (1836); Ratcliffe v. Evans (1892); 2 Q. B. 524, 532, 61 L. J. Q. B. 535, "The necessity of alleging and proving actual tem- poral loss, with certainty and pre- cision, in all cases of this sort, has l)een insisted upon for centuries. But it is an ancient and established rule of pleading, that the question of generality of pleading must de- pend upon the subject mattar." "^Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 13 L. R. A. 707 and note, 25 Am. St. R. 151 (1891); Dooling v. Budget Pub. Co., 144 Mass. 258, 10 N. E. 809, 59 Am. R. 83 (1887); Wilson v. Dubois, 35 Minn. 471, 29 N. W. 68 (1886); Haney Mfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073. (1889); Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 64 N. E. 163, 59 L. R. A. 310 (1902). In Dodge v. Colby, 108 N Y. 445, 15 N. B. 703 (1888), the al- legations of falsity, malice and spe- cial damage were admitted by the demurrer. « Evans v, Harlow, 5 Q. B. 624, 13 L. J. Q. B. 130 (1843); White v. Mellen (1895), App. Cas. 154, 64 L. J. Ch. 308, 384 The Law ok Torts. 8 3. UNFAIR COMPETITION. The Term is Modern, In a leading English case, the opinion was expressed that " to draw a line between fair and unfair com- petition, between what is reasonable and unreasonable passes the power of the courts." But the learned judge, who expressed that opinion, was careful to limit it to " mere competition ; for I have no doubt," he added; " that it is unlawful and actionable for one man to interfere with another's trade by fraud or misrepresenta- tion." '* It is interference of this exceptional character that has come to be characterized as " unfair competition." The term is quite modern. Sir Frederick Pollock assures us that it " is hardly known as yet in English courts." ^' During th^ '?st quarter of a century it has come into very general use ,^l..^mg judges,** and writers upon legal topics, in this country.*' The Nature of This Tort. As a wrong, remediable in a common law action for damages, unfair competition consists in- intentionally inducing third persons to buy the defendant's property or patronize his business, by false representations that the property or the business is that of the plaintiff.** In equity, the term may be "Fry, L. J., in Mogul Steamship unfair competition; " Hostetter Co. Co. V. McGregor, 23 Q. B. D. 598, v. Martinoni, 110 Pea. 524 (1901); 626, 58 L. J. Q. B. 465 (1898). Sterling Remedy Co. v. Spermine «» Law of Torts (6 Bd. 1901) 307. Med. Co., 112 Fed. 1000, (1901); There is no reference to the term Bissell Chilled Plow Works v. T. in the first edition of this work. In M. Bissel Plow Co., 121 Fed. 357, the last edition of Kerr, on Fraud 366 (1902); Kyle v. Perfec. Mat- and Mistake, (1902), it is used at tress Co., 127 Al. 39, 28 So. 545, 85 p. 379, but the cases cited, one of Am. St. R. 78 (1899). them as late as 1900, do not employ " " Certain cases analogous to the term. A very interesting art- Trade Marks," 4 Harv. Law Rev. icle on "The New German Law of 321 (1891); "Prevention of Unfair Unfair Competition " appeared in Competition in Business," 5 Harv. the Law Quarterly Rev., p. 156, Vol. Law Rev. 139 (1891); "Unfair 13, (London, 1897). Competition," 10 Harv. L. R. 275 "Lawrence Mfg. Co. v. Tenn. (1896; "Unfair Competition in Mfg. Co., 138 U. S. 537, 549, 11 Sup. Trade," note in. 30 C. C. A. Reports, Ct. 396, 34 L. Ed. 997 (1890); Gray 376 (1898); Hopkins, Law of Un- y. Taper-Sleeve Pulley Works, 16 fair Trade, (Chicago, 1900). Fed. 436, (1883), "Their complaint »" Sykes v. Sykes, 3 B. & C. 541, is against what they assert to be 5 D. & R. 292, 3 L. J. K. B. 46 Deceit and Kindred Torts. 385 even broader, including conduct uf the defendant which is unjustifi- ably harmful tn the plaintift", but which is not intentionally dis- honest.*' We shall not undertake to discuss, here, the equity side of this subject, as we are dealing with a branch of the common law, and not with equity jurisdiction. If the learned reader would pursue further his investigations of this rapidly expanding topic, he is referred to treatises on Trade Marks. Trade Names, and Unfair Trade. The tort, now under consideration, is frequently, indeed most commonly brought before the courts, in connection with a claim for the infringement of a trade-mark, but the two are quite distinct. When the plaintiff shows that he has an absolute right to the use of a particular word or words'as a trade-mark, an infringement of that right is an invasion of his right of property, without regard to the intention of the infringer. Accordingly, he is entitled to at least nominal damages in a suit at law,*" and to an injunction in equity against the further violation of his right of property."^ " But where the alleged trade-mark is not in itself a good trade-mark, yet the use of the word has come to denote a particular manufacturer or vendor, relief against unfair competition or perfidious dealing will be awarded, by requiring the use of the word by another to be confined to its primary sense, by such limitations as will prevent misapprehen- sion on the question of origin. In the latter class of cases, such cir- cumstances must be made out as will show wrongful intent in fact, or justify that inference, from the inevitable consequences of the act complained of." '" Infringement of Trade-Marks. When the plaintiff brings his action for violation of his right of property in a trade-mark or (1824); Marsh v. Billings, 7 Cush. .52 (1847); Coffeen v. Brunton, 4 Mc- (61 Mass.) 322 (1852). Lean (U. S. C. C. ) 516 (1849); *Orr, Ewing & Co. v. Johnston & Marsh v. Billings, 7 Cush. (61 Co., 40 L. T. N. S. 307 (1879); Vul- Mass.1 322 (1852). can V. Myers, 139 N. Y. 364, 368, 34 " McLean v. Fleming, 96 U. S. N. E. £04 (1893). 245, 24 L. Ed. 828 (1877); Law- •• Blofield V. Payne, 4 B. & Ad. 410, rence Mfg. Co. v. Tenn. Mfg. Co., 1 N. & M. 353. (1833); Thomson v. 138 U. S. 537, 549, 11 Sup. Ct. 396, Winchester, 19 Pick. (36 Mass.) 214 34 L. Ed. 997 (1890). (1837) ; Morison v. Salmon, 2 M. & " Elgin Nat. Watch Co. v. 111. G. 385, 2 Scott 449 (1841); Rodgers Watch Co., i79 U. S. fiK.5. «7.r., 21 V. Nowill. 5 C, B. 109, 17 L. J C. P. Sup. Ct. 270, 45 L. Ed. 365 (1900). 26 386 The Law of Torts. trade name, he is required to show that he has acquired an exclusivs right to its use. In order to show this he must prove " that the " name, device or symbol was adopted for tlie purpose of identifying the origin or ownership of the article to which it is attached," or he business with which it is associated ; or " that it points distinctly, either by itself or by association, to the origin, manufacture or owner- ship of the article on which it is stamped. It must also appear to be designed, as its primary object and purpose, to indicate the owner or producer of the commodity, and to distinguish it from like articles manufactured by others." He must also establish his prior- ity of appropriation of the name, symbol or device; that is to say, he must " have been the first to use or employ the same on like articles of production." °* " If the device, mark or symbol was adopted or placed upon the article for the purpose of identifying its class, grade, style or quality, or for any purpose other than a reference to or indication of its ownership, it cannot be sustained as a valid trade-mark."^ Such trade-mark cannot consist of words in common use as designating locality, section or region of country," or of an ordinary surname."* " Columbia Mill Co. v. Alcorn, 150 U. S. 460, 463, 14 Sup. Ct. 151, 37 L. Ed. 1144 (1893), citing Canal Co. V. Clark, 13 Wall. 311, 20 L. Ed. 581 (1871); McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828 (1877); Mfg. Co. V. Trainor, 101 U. S. 51, 25 L. Ed. 993 (1880); Goodyear India Rubber Glove Co. v. Goodyear Rub- ber Co., 128 U. S. 598, 9 Sup. Ct. 166, 32 L. Ed. 535 (1898); Lawrence Mfg. Co. V. Tenn. Mfg. Co., 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997 (1890). "Derringer v. Plate, 29 Cal. 292, 87 Am. Dec. 170 (1865) ; Hyman v. Soils Cigar Co., 4 Col. App. 475. 36 Pac. 444 (1894); Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526 (1888); George v. Smith, 52 Fed. 830 (1892) ; Ayer v. Rush- ton, 7 Daly (N. Y.) 9 (1877); Schneider v. Williams, 44 N. J. Eq. 391, 14 At. 812 (1888). "Three things are requisite to ihe acqui- sition of a trade-mark. First, the person desiring to acquire the title must adopt some mark not in use to distinguish goods of the sane class or kind, already on the mar- ket, belonging to another trader. Second, he must apply his mark to some article of traffic. Third, he must put his article marked with his mark on the market." " Oakes v. Candy Co., 146 Mo. 391, 48 S. W. 467 (1898); Spieker v. Lash, 102 Cal. 38, 36 Pac. 362 (1894); Larabee v. Lewis, 67 Ga. 561, 44 Am. R. 735 (1881); Ball v. Siegel, 116 111. 137, 4 N. B. 667, 56 Am. R. 766 (1886); C. P. Simmons Med. Co. V. Mansfield Co., 93 Tenn. 84, 23 S. W. 165 (1893). "Glendon Iron Co. v. Uhler, 75 Pa, 467, 15 Am. R. 599 (1874); Deceit and Kindred Torts. 387 It is not necessary to the validity of a trade-mark, that it be regis- tered, even in a jurisdiction where there is statutory provision for registration. " Property in trade-marks does not derive its existence from an act of Congress," "' nor from any other legislative act,"* in this country. In England, however, " The right to trade-marks now mainly depends upon statutes," ** and no person is entitled to insti- tute proceedings to prevent, or to recover damages, for the infringe- ment of a trade-mark, capable of being registered under the statutes, unless it has been duly registered. \A'hen a valid trade-mark exists, "it is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement." ^'"' In the lan- guage of another court, " while competition is essential to the life of connnerce, and is the consumer's certain defense against extortion, it should be fair and honest ; and the manufacturer who produces an article of recognized excellence in the market, and stamps it with the insignia of his industry, integrity and skill, makes his trade-mark a part of his capital in business, and thus acquires a property right in it. which a court of equity will protect, against all forms of com- mercial piracy."""^ Brown Chem. Co. v. Meyer, 139 U. S. jurisdiction to the Federal courts." 540, 11 Sup. Ct 625, 35 L. Ed. 247 "Clerk & Lindsell, Torts (2 Ed.) (1891). 625, referring to 46 & 47 Vict., Ch. "LaCroix v. May, 15 Fed. 236 37; and 51 and 52 Vict., Ch. 50. (1883), quoting from Trade-Mark '"Trade-Mark cases, 100 U. S. 82, Cases, 100 U. S. 82, 92, 25 L. Ed. 92. 25 L. Ed. 550 (1879); Bradley v. 550 (1879). Norton, 33 Conn. 157. 87 Am. Dec. «Oakes v Candy Co.. 146 Mo. 391, 200 (1865). 399, 48 S. W. 467 (1898); the op- "'Vulcan v. Myers, 139 N. Y. 364, posite doctrine in Whittier V. Dietz, 34 N. E. 904 (1893); Blackwell v. 66 Cal. 78 (1884), has been nulli- Wright, 73 N. C. 310 (1875)); Sax- fied by Sec. 3199 of the Political lehner v. Eisner & Mendelson Co., Code enacted in 1885. In Hennessy 179 V. S. 19, 2i Sup. Ct. 7, 45 L. Ed. V. Braunschweiger & Co., 89 Fed. 60 (1900); Kyle v. Perfec. Mattress 665, 668 (1898), it is said, "Regis- Co., 127 AI. 39, 28 So. 545, 85 Am. tration under the act of Congress is St. R. 78, with valuable note of but little, if any, value except (1900); Burt v. Tucker, 178 Mass. for the purpose of creating a per- 493, 59 N. E. 1111, 52 L. R. A. 112. manent record of the date of adoption 86 Am. St. R. 499 (1901); Regis v. and use of the trade-mark, or in J. .\. Jayne & Co., 185 Mass. 458, 70 cases where it is necessary to give N. E. 480 (1904), " If at common 388 The Law of Torts. Words, Symbols, and Devices Which are not Trade Marks. To these a person cannot acquire a right to exclusive use, in .the nature of a property right, no matter how long, or how widel}-, he has employed them, in connection with his property or his business. " But it is nevertheless true that even without any strict proprietary interest, as a trade-mark, in the terms or device employed, a party is entitled to protection against the unfair use of them by another, in the effort to take away from him the trade or custom which he has built up." "- Anyone who uses such terms or devices, not for the honest purpose of fair competition with a busi- ness rival, but for the purpose of palming oflF his goods or represent- ing his business as the goods or the business of that rival, in the hope of finding " more profit and less trouble in trading on another man's reputation than on his own," ""^ perpetrates a fraud, and is liable in damages to the rival who is injured by such unfair competition.^"* Deceit is the Basis of a suit brought to redress this wrong,"" whether it takes the form of a common-law action for damages^ or law, an action for damages caused to a manufacturer whose goods were put upon the market under a trade- mark and had acquired a distinctive value and reputation, could be maintained against another trader, who fraudulently copies and places upon the goods made by him a similar mark or label, in equity, relief can be granted not only as to damages already sutCered, but an injunction can be awarded restrain- ing such unlawful use in the fu- ture." "« Draper v. Skerrett, 116 Fed. 206 (1902), holding that "French Tissue " was not a valid trade-mark, but that defendant's imitation of plaintiff's symbols, devices and dis- play; was intended to deceive the public into buying defendant's emollient paper for plaintiff's. '""Lord Macnagbton in Reddaway V. Banham, (1896) App. Cas. 199, 217, 65 L. J. Q. B. 381. In this case, " Camel Hair Belting " wqs held not a valid trade-mark because not a fanciful term but fairly descriptive of the material used in the belting, but its use by the defendant was fraudulent. ■"Reddaway v. Banham, supra, " The fundamental rule is that one man has no right to put off his goods for sale as the goods of a rival trader; " Sterling Remedy Co. V. Gory, 110 Fed. 372 (1901). " Unless the defendant intended to infringe upon the rights of the complainant, he has gone to extra- ordinary pains in imitating the package of the complainant for no purpose," Sterling Rem. Co. v. Sper- mine Med. Co. 112 Fed. 1000, 50 C. C. A. 657, (1901). "There was here manifest attempt to put upon the public the goods of the defend- ant, as those of the complainant." '"Allen B. Wrisley Co. v. Iowa Soap Co., 122 Fed. 796, 59 C. C. A. 54 (1903), holding that "one who so names and addresses his product Deceit and Kindred Torts. 589 a suit in equity for an injunction as well as for pecuniary compensa- tion. Accordingly, if the plaintiff fails to make out a clear case of deceitful representation or perfidious dealing, either by direct or circumstantial evidence, he cannot recover.""" Where deception is the natural result of the defendant's simulation of the plaintiff's labels or other devices, however, positive proof of fraudulent intent need not be proved.'"' The Fraudulent Use of a Proper or Corporate Name. \\'hile the law does not permit a natural or artificial person to con- vert his name into a trade-mark, and thus monopolize its use, even in a particular business.'"' it does protect him against the fraudu- lent employment of the same name by another, however valid may be the other's right to the name. The following- statement of the that a purchaser, who exercises ordinary care to ascertain the sources of its manufacture, can readily learn that fact by a reason- able examination of the boxes or wrappers that cover it. has fairly discharged his duty to the public, and to his rivals, and is guiltless of that deceit which is an indis- pensable element of unfair compe- tition." "" Lawrence Mfg. Co. v. Tenn. Co., 138 U. S. 537. 551. 11 Sup. Ct. 396, 34 L. Ed. 1005 (1891), the letters •' L. L." did not constitute a valid trade-mark, and the defendant's brand was entirely dissimilar in ap- pearance to the plaintiff's: French Republic v. Saratoga Vichy Co., 191 U. S. 427. 24 Sup. Ct. 143, 49 L. Ed. 247 (1903). "The essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another; and it is only when this false representa- tion is directly or indirectly made, that the party who appeals to the court of equity can have relief. Ap- plying this doctrine to the case under consideration, we are clearly of the opinion that there is no such similarity in the labels as at pres- ent used, and that there is no such fraud shown in the conduct of the defendant, as would authorize us to say that the plaintiffs are en- titled to relief; " Postum Cereal Co. v. Health Pood Co., 119 Fed. 848. 56 C. C. A. 360 (1902), name and pack- age so dissimilar as not to mislead; Barrett Chem. Co. v. Stern, 176 N. Y. 27, 68 N. E. 65 (1903). "'Am. Wal. Watch Co. v. U. S. Watch Co.. 173 Mass. 85, 53 N. E. 141, 43 L. R. A. 826, 73 Am. St. R. 263 (1899); Wirtz v. Eagle Bottling Co.. 50 N. J. Eq. 164. 24 At. 658 (1892); Drake Med. Co. v. Glessner, 08 O. St. 337, 358, 67 N. E. 722 (1903). '"Robinson v. Storm, 103 Tenn. 40, 52 S. W. 880 (1899), "The law is settled that no one can acquire the right of a trade-mark, either in his own name or in that of another person, so as to exclude one of the same name from using it to identify goods which he sees proper to put upon the market, so long as in doing so the latter per- petrates no fraud thereby, or is guilty of no unfair artifice." yjo The Lajv of Torts. principle, taken from a decision of the U. S. Sup. Court, is in accord with the views which generally prevail, both in England, and in this country : " Every one has the absolute right to use his own name honestly in his own business, even though he may thereby incident- ally interfere with and injure the business of another having the same name. In such case, the inconvenience or loss to which those having a common right are subjected, is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the iden- tity of the business firm or establishment, or of the article produced by them, ami thus produce injury to the other beyond that which results from the similarity of name. Where the name is one which has previously thereto come to indicate the source of manufacture of particular devices, the use of such name by another, unaccom- panied with any precaution or indication, in itself amounts to an artifice calculated to produce the deception alluded to in the fore- going adjudications. Indeed the enforcement of the right of the public to use a generic name, dedicated as the results of monopoly, has always, where the facts required it, gone hand in hand with the necessary regulation, to make it accord with the private prop- erty of others, and the requirements of public policy. The courts have always, in every case without exception, treated the one as the co-relative or resultant of the other." '"* As intimated in the foregoing paragraph, a corporation cannot monopolize the name which it assumes, upon its organization. If, however, it has built up a business and gained a reputation which "• Singer Mfg. Co. v. June Mfg. use their own names in their own Co., 163 U. S. 169. 187, 16 Sup. Ot. business, is entirely clear; but this 1002, 41 L. Ed. 118 (1896); Stuart right is subject to the limitation, V. P. G. Stewart Co., 33 C. C. A. common to all rghts, that it is to 484, 91 Fed. 247, 63 U. S. App. 561 be so used as not to injure the (1889); Russia Cement Co. v. Le rights of others." Hence persons Page, 147 Mass. 206, 17 N. E. 304 named Remington were enjoined (1888); Higgins Co. v. Higgins from making and selling typewrit- Soap Co., 144 N. Y. 462, 39 N. E. ers as " Remington-Sholes" type- 490, 27 L. R. A. 42, 43 Am. St. H. writers, on the grouna that it 769 (1895); Montgomery v. Thomp- "would make confusion in the son, (1891) App. Cas. 217, 60 L. J. plaintilTs trade, and tend to pass Ch. 757; Wyckofl v. Howe Scale Co., off the new machines for the regu- 110 Fed. 521 (1901^, "That all per- lar Remington machines of tL3 sons have respectively the right to plaintiff." Deceit and Kindred Torts. 391 goes with that name, such priority of use may put another corpora- tion, which selects the same name, to a disadvantage. The new- comer into the field of competition must not palm off its goods, as those of the old and well known corporation.'"" '' Courts demand a high order of commercial integrity, in the use by competitors of a name under which a rival has gained a business reputation, whether that name is strictly a trade-mark or is descriptive of quality merely ; and frown upon all filching attempts to obtain the reputation of another." '" Hence, it does not matter that the name of the new- comer is not precisely that of the established corporation. Indeed, " similarity and not identity is the usual recourse, when one party seeks to benefit himself by the good name of another." ''- Imitating Packages and Buildings. Unfair trade consists, oftentimes, in imitating the bottles or packages, in which a rival manufacturer or dealer of established reputation puts up his goods;''* or the livery, or insignia worn by the servants, or agents of one conducting a particular business."* It has even resorted to the erection of a duplicate building alongside the mercantile house of a successful trader.'" But however protean its form, or ingenious "•Am. Wal. Watch Co. v. U. S. 891, 34 C. C. A. 118 (1899); Centaur Watch Co., 173 Mass. 85, 53 N. E. Co. v. Link, 62 N .J. Eq. 147, 49 At. 141, 43 L. R. A. 826, 72 Am. St. R. 828 (1901 J, "In the present case, 263 (1899); Elgin Nat. Watch Co. notwithstanding the difference in V. 111. Watch Case Co., 179 U. S. 665, the printed matter on the labels, 21 Sup. Ct. 270, 45 L. Ed. 365, I am unable to resist the conclusion, (1900). that the size and the shape of the '"Hostetter Co. v. Martinoni, 110 bottles, and the color and form of Fed. 524, 525 (1901); Higgins Co. the label were selected by the de- V. Higgins Soap Co., 144 N. Y. 462, fendant, for the purpose of leading 39 N. E. 470, 27 L. R. A. 42, 43 Am. some purchasers to take their com- St. R. 769 (1895). pound, under the supposition that "'Celluloid Mfg. Co. v. Cellonite they were getting what they had Mfg. Co.,. 32 Fed. 94 (1887); Peck always got, namely the medicine Bros. & Co. V. Peck Bros. Co., 113 made by the complainant." Robin- Fed. 291. 51 C. C. A. 251 (1902); son v. Storm, 103 Tenn. 40, 52 S. E. Bissell Chilled Plow Works v. T. M. 880 (1899j. Bissell Plow Co., 121 Fed. 357 ""Knott v. Morgan, 2 Keen 213 (1902). (1836); Marsh v. Billings. 7 Cush. "" VanHoboken V. Mohns, 112 Fed. (61 Mass.) 322 (1851); Stone v. 528 (1901), gin put up in bottles of Carlan, 13 Law Reporter (N. Y.) distinctive color, size and shape; 360 (1850). Centaur Co. v. Neathery, 91 Fed. "» Wetnstock v. Marks, 109 Cal. 392 Thk Law of Torts. its tricks may be, it falls under the condemnation of the law, when- ever the plaintiff can convince the proper tribunal, that its object is to induce the public to patronize the defendant, under the mistaken supposition, that it is patronizing the plaintiff. False and Misleading Trade Marks. When a person seeks an injunction or damages against one who has hurt his business by making false representations to the public, it is essential that he should not, in his trade-mark, or trade name, or in his advertise- ments or descriptions of his goods or business, be himself guilty of any false or misleading representations. A court will not protect him against a competitor, however unfair, if he is engaged in deceiv- ing and defrauding the public. In such a case it does not take into account the attitude of the defendant. It beats the plaintiff on the ground that the privilege of deceiving the public is not a legitimate subject of commerce ; that one has no legal right to complain, that, by the fraudulent rivalry of others, his own fraudulent profits are diminished."" But it is not every misstatement on the part of the plaintiflF, in his trade-mark, or his advertisements, that will defeat him. He may claim for his wares qualities which they do not possess. In the case of medicines, he may exaggerate their curative qualities. Still, if his conduct does not transgress the limits of ordinary mercantile deal- ing, and cannot fairly> be characterized as fraudulent towards the public, he will be entitled to relief.^" 529, 42 Pac. 142, 50 Am. St. R. 57 difEerent place of business from the (1895), "In its facts, we appre- plaintiff's." hend, no case like it can be found, "• Worden v. Cal. Fig. Syrup Co., either in this country or in Eng- 187 U. S. 516, 23 Sup. Ct. 161, 47 land. * * * The fact that the ques- L. Ed. 282 (1902); Manhattan Med. tion comes to us in an entirely new Co. v. Wood, 108 U. S. 218, 2 Sup. guise, and that the schemer had Ct. 436, 27 L. Ed. 706 (1882); concocted a kind of deception here- Joseph v. Macowsky, 96 Cal. 518, 31 tofore unheard of in legal jurlspru- Pac. 914, 19 L. R. A. 53 (1892); dence, is no reason why equity is Prince Mfg. Co. v. Prince's Metallic either unwilling or unable to deal Paint Co., 135 N. Y. 24, 31 N. E. 990, with him." Accordingly, the court 17 L. R. A. 129 (1892). commanded the defendant to dls- "'Marshall v. Ross, L. R. 8 Eq. tinguish his place of business from 651, 39 L. J. Ch. 225 (1869); Samuel that in which plaintiff was carrying Bros. v. Hostetter Co., 118 Fed. 257, on his business, so as to sufficiently 55 C. C. A. Ill (1902). "Much of Indicate to the public, that it was a the evidence in the case, taken on DrcKiT Axu Kindred Torts. 393 Abandonment and Laches. A person may lose his right to a valid trade-mark, or to words and devices analogous to a trade-mark, by voluntary abandonment; as, by dismissing a suit brought to restrain its use by others ;"« or, by disuse for a considerable period."" But abandonment is not established bv evidence of temporary discontinuance of its use. or of failure to enforce the plaintiff's rights under it.^-" The intent accompanying the discon- tinuance is important, and if the jury or trial court finds that the plaintiff, during the period of discontinuance, intended to resume business and the use of the trade-mark or name, abandonment is negatived'-^ " Simple laches, without more," it is said in a recent carefully considered decision,'-- " is not sufficient to interfere with a behalf of the appellant, was for the purpose of showing that the appel- lee's preparation is a quack medi- cine and an alcoholic stimulant, and, therefore, not entitled to the protection of a court of equity. Up- on the evidence in the case, this contention cannot be sustained. The record contains the testimony of many physicians, who have pre- scribed the preparation in their practice for the ailments mentioned on the label. It is argued, that no one preparation can possibly be a remedy for the numerous and divers ills, for which the label declares this preparation to be adapted. The court will not attempt minute in- vestigation of this field of inquiry. It is one upon which the experts differ. It is enough to advert to the fact, that the preparation purports to be a general tonic, and, as such, efficacious in restoring strength to those wealiened by various ail- ments; and that it has become wide- ly known and largely manufactured and used, and that it has a com- mercial value. The argument that it is a quack medicine, and that it is injurious to the human system, and is containdicated for some of the ailments which it purports to cure, comes with ill grace from those who imitate it, as closely as they may, without possessing a com- plete knowledge of its formula, and, by unfair trade, sell the simulated article as and for the genuine." Newbro v. Undeland, Neb. 96 N. W. 635 (1903). "' Browne v. Freeman, 12 W. R. 305, 4 N. R. 476 (1864). ""Blackwell v. Dibrell, 3 Hughes (U. S. Cir. Ct.) 151, 14 Off. Gaz. 633 (1878). '=° Taylor v. Carpenter, 2 Wood & M. (U. S. C. C.) 1 (1846); Chappell V. Sheard, 2 K. & J. 117, 1 Jur. N S. 996 (1855); Lazenby v. White, 41 L. J. Ch. 354 (1871); Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19, 21 Sup. Ct. 7, 4.5 L. Ed. 60 (1900). '"Burt V. Tucker, 178 Mass. 493, 59 N. E. 1111, 54 L. R. A. 112, 86 Am. St. R. 499. In Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526 (1888), it is said, that " abandonment requires proof of non-user by the owner, or general surrender to the use of the public." '=» Bissell Chilled Plow Works v. T. M. Bissell Plow Co.. 121 Fed. 357, 394 Tin-: Law of Torts. complainant's right to injunctive relief, though it may affect his right to damages for past infringement." In the case then before the court a delay of nearly six years was held not to defeat the com- plainant's right to damages for past infringement. 375 (1902), citing McLean v. Flem- ing, 96 U. S. 245, 24 L. Ed. 828 (1877), holding the plaintiff's delay so great as to forfeit his right to an acount; Menendez v. Holt, 128 U. S. 514, 9 Sup. Ct. 143, 32 L. Ed. 526 (1888), delay such as to preclude recovery of past damages; Saxlehn- er V. Eisner & Mendelson Co., 179 U. S. 19, 21 Sup. Ct. 7, 45 L. Ed. 60 (1900), holding that laches as to bottle and label did not defeat plain- tiff's right to injunction and dam- ages. CHAPTER XIV. NUISANCE. § I. PRIVATE NUISANCE. Definition. This tort consists in wrongfully disturbing one in the '" reasonably comfortable use and enjoyment of his property," ' or in the enjoyment and exercise of a common right.' Particular conrluct of the defendant may entitle the plaintiff to sue either for trespass or for nuisance.' If he chooses the former action, the gist of his complaint is the defendant's wrongful disturbance of his ' Lowe V. Prospect Hill Cem., 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237 (1899). = Harrop v. Hirst, L. R. 4 Ex. 43, 38 L. J. Ex. 1 (1868); McCartney V. Londonderry & Co., (1904) App. Cas. 301, cases where a riparian owner took more water from a run- ning stream than he was entitled to; Lynn v. Hooper, 93 Me. 46, 44 At. 127, 47 L. R. A. 752 (1899) and cases cited in the opinion; Morton V. Moore, 15 Gray (81 Mass.) 573, 576 (1860), "This right of the pub- lic confers upon every individual the privilege of traveling upon, using and enjoying a common high- way for any and all lawful purposes, and consequently no one can be deprived of the enjoyment of such an easement by any adverse or unlawful use or occupation of the way by an individual for his private purposes "; Haag v. Board of Com- missioners, 60 Ind. 511, 28 Am. R. 654 (1878), applying the following statutory definition, " Whatever is injurious to health, or indecent, or offensive to the senses, or an ob- struction to the free use of prop- erty, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action," Ind. Civ. Proc. S 289; Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310 (1859), and Sec. 3479 of the Cal. Civ. Code. "Fay v. Prentice, 1 C. B. 829, 14 L. J. C. P. 298 (1845), a cornice on defendant's building, which over- hung plaintiff's garden. Black- stone speaks of such overhanging constructions, as a species of tres- pass, 3 Comm. 217; Miles v. Worces- ter, 154 Mass. 511, 28 N. E. 676, 20 Am. St. R. 264, 13 L. R. A. 841 (1891). 395 396 The Law of Torts. possession. If he chooses the latter, the gist of his complaint is the discomfort caused him by the defendant. According to Bracton, actionable nuisances, in his day, were coa« fined to annoyances to freeholders in the enjoyment of their prop- erty ; * and Blackstone defines private nuisance as " anything done to the hurt or annoyance of the lands, tenements or hereditaments of another." ' At present, as appears from the definition and authorities given above, the term has a more extended meaning, and is no longer limited to discomforts to freeholders. Ordinarily the motive of the defendant is not material, in deter- mining whether he is maintaining a nuisance. Under some modern statutes, however, structures erected by a person are a nuisance «6 or not, according to the purpose for which he put them up." Legalizing Nuisances. Modern legislation frequently attempts to legalize that which at common law would be an actionable nui- sance. In Britain, where Parliament is practically omnipotent, the validity of such legislation cannot be questioned. '^ In this country, the courts may be, and often are called upon to decide whether such statutes exceed the constitutional bounds of legislative authority.' Both there and here, such statutes are subjected to a strict con- struction." * De Legibus Angliae, Vol. 3, chs. 28, 43-46. In chapter 43," this author points out the distinction, then existing, between nuisances which are tortious and hurtful, and those which are hurtful, but not tortious. "Commentaries, Vol. 3, p. 216. 'Lovell V. Noyes, 69 N. H. 263, 46 At. 25 (1898), applying the following statutory provision: " Any fence, or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erect- ed or maintained, for the purpose of annoying the owners or occu- pants of adjoining property, shall be deemed a private nuisance. Any owner or occupant injured, either in his comfort, or the enjoyment of his estate, by such nuisance. may have an action of tort for the damage sustained thereby." Pub. St. c. 143, §§ 28, 29. ' London & Brighton Ry. v. Tru- man, 11 App. Case. 45, 55 L. J. Ch. 354 (1895). ' Supra p. 45. Western Granite Co. V. Knickerbocker, 103 Cal. Ill, 37 Pac. 192 (1894); Beach v. Sterling Iron Co., 54 N. J. Eq. 65, 33 At. 286 (1895). ° Met. Asylum Dlst. v. Hill, 6 App. Cas. 193, 50 L. J. Q. B. 253 (1881); Att'y Gen. v. Gaslight Co., 7 Ch. D. 217, 47 L. J. Ch. 534 (1877). In Morton v. City of New York, 140 N. Y. 207, 35 N. E. 490, 22 L. R. A. 241 (1893), it is said: "But the statutory sanction which will jus- tify an injury to private property must be express, or must be given Nuisance. 397 Turning Lawful Acts Into Nuisances. Modern legisla- tion also attempts to put under the ban of nuisance many a thing, which was perfectly justifiable at common law. Here, again, the inquiry is important, in this country, whether the legislation is con- stitutional." In a carefully considered case," upon this subject, it is declared ; " Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. A law enacted in the exercise of the police power must in fact be a police law. If it be a law for the promotion of the public health, it must be a health law, having some relation to the public health." Oftentimes, the declaration of a nuisance is found in the ordi- nance of a municipal corporation. In such cases, the further inquiry i"; to be made, has the legislature undertaken to confer upon the municipality in question authority to extend the list of nuisances, or only to prohibit those things which are nuisances at common law. If the authority is of the latter kind, any ordinance declaring that to be a nuisance, which was not such at common law, is invalid." If the authority is of the former kind, the true test to be applied has been judicially stated ^' as follows: " Nuisances may thus be classi- by clear and unquestionable im- act entitled " An Act to improve plication from the powers expressly the public health, by prohibiting conferred, so that it can fairly be the manufacture of cigars and prep- said that the legislature contem- arations of tobacco in any form in plated the doing of the very act tenement houses, in certain cases which occasioned the injury"; etc," unconstitutional. Kobbe V. Village of New Brighton, "Board of Aldermen v. Norman, 48 N. Y. Supp. 990, 23 App. Div. 51 La. Ann. 736, 25 So. 401 (1899); 243 (1897); Holmes v. City of Pye v. Peterson, 45 Tex. 312, 23 Am. Atlanta, 113 Ga. 961, 39 S. E. 458 R. 608 (1876); State v. Mott, 61 (1901). Md. 297, 48 Am. R. 105 (1883). "Supra, 43; Fischer v. St. Louis, "Laugel v. City of Bushnell, 179 194 U. S. 361, 24 Sup. Ct. 673 111. 20, 63 N. E. 1086, 58 L. R. A. (1904), holding a city ordinance 266 (1902); City of Carthage v. valid, which prohibited dairies Munsell, 203 111. 474, 67 N. E. 831 within the city limits, without per- (1903); Ex Parte Lacey, 108 Cal. mission of the municipal assembly. 326, 41 Pac. 411, 38 L. R. A. 640, "Matter of Jacobs, 98 N. Y. ns, 49 Am. St. R. 93 (1895). ordinance 50 Am. R. 636 (1885), holding an held constitutional; Beiliug v, 398 The Law of Torts. fied : • First those v/hich in their nature are nuisances per se, or are so denounced by the common law, or by statute ; second, those which in their nature are not nuisances, but may become so by reason of their locality, surroundings, or the manner in which they may be conducted, managed, etc. ; third, those which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. The power, granted by the statute to the governing bodies of municipal corporations, to declare what shall be nuisances, and to abate the same, etc., authorizes such bodies to conclusively denounce those things, falling within the first and third of these classes, to be nuisances ; but, as to those • things falling within the second class, the power possessed is only to declare such of them to be nuisances as are in fact so." Nuisances Per Se. This class includes all wrongful dis- turbances of one's enjoyment of property or common rights, which have been constitutionally declared to be nuisances by statute or by judicial decision, or which are clearly actionable torts under established principles of the common law. " There are certain things and certain trades which are considered as nuisances of themselves ; as a slaughter-house in a thickly populated town, a pig-sty near a dwelling house," " a house of ill-fame," conduct amounting to Evansville, 144 Ind. 644, 42 N. E. 621, a mere arbitrary declaration in a 35 L. R. A. 272 (1895); ordinance city ordinance, and suppress it as as to slaughter houses constitu- such, is simply to confiscate the tional; Comm. v. Parks, 155 Mass. property and deprive the owner of 531, 30 N. B. 174 (1892), ordinance it without due process of law. It as to blasting constitutional; Ex also abridges the liberty of the Parte O'Leary, 65 Miss. 80, 3 So. owner to select his own occupation, 144, 7 Am. St. R. 640 (1887), ordi- and his own methods in the pursuit nance as to hogs unconstitutional; of happiness; and thereby prevents St. Louis V. Heltzeberg Packing Co., him from enjoying his rights, pri- 141 Mo. 375, 42 S. W. 954, 64 Am. vileges and immunities and de- St. R. 516 39 L. R. A. 551 (1897), prives him of the equal protection smoke ordinance held unconstitu- of the laws, secured to every person tional ; In re Kong Wah, 82 Fed. 623 by the constitution of the United (1897), ordinance prohibiting pub- States." lie laundries within city limits held "Att'y Gen. v. Steward, 20 N. J. unconstitutional. "To make an Eq. 415, 417 (1869); Evans v. Fer- occupation indispensable to the tllizing Co., 160 Pa. 209, 213, 28 health and comfort of civilized man. At. 702 (1894). and the use of the property neces-- '^Givens v. VanStuddiford, 86 sary to carry it on, a nuisance, by Mo. 149, 56 Am. R. 421 (1885); Nuisance. 399 public indecency," the fouling of springs, wells and streams." keep- ing a large quantity of explosives near dwellings,^' or keeping animals or other property dangerous to human life." In such cases the tort is established by proof of the existence of the thing, the prosecution of the trade, the maintenance of the establishment, or the acts and conduct in question. Lawful and Laudable Business. When a business of this character is attacked as a nuisance, the plaintiff must show that »t is conducted in an improper manner, or at an improper place. ■ The building of a limekiln is good and profitable," declared an .English court, three hundred years ago, " but if it be built so near a house that, when it burns, the smoke enters into the house, so that none can dwell there, an action lies for it." -" Even though the smoke and gases incident to such a commendable business do not drive the dwellers from the house, the business will still be adjudged a nuisance, if it renders the house uncomfortable, or if it materially injures trees, shrubs or vines growing upon the premises.-^ The erection and maintenance of a hospital may be a work of the highest philanthropy, but if it operates to destroy the peace, quiet and comfort of those in adjoining residences, and seriously and injuriously affects their health and depreciates their property, the Hamilton v. Whltridge, 11 Md. 128 "Campbell v. Seaman, 63 N. Y. (1857); Neaf v. Palmer, 103, Ky. 568, 20 Am. R. 567 (1876), "The 496, 45 S. W. 506 (1898); Cranford fact that the trees and vines are V. Tyrell, 128 N. Y. 341, 28 N. E. for ornament, or for luxury, en- 514 (1891). titles them no less to the protection "Hayden v. Tucker, 37 Mo. 214 of the law. Every one has the (1866); Nolin v. Franklin, 4 Yerg. right to surround himself with (12 Tenn.) 163 (1833). articles of luxury, and he will be " State v. Taylor, 29 Ind. 517 no less protected than one who sur- (1868); Beach v. Sterling Iron rounds himself only with articles Co., 54 N. J. Bq. 65, 33 At. 286 of necessity. The law will protect (1895). a flower or a vine as well as an "McAndrews v. Collerd, 42 N. oak. * * • The fact that the nui- J. L. 189. 36 Am. R. 508 (1880); sance is not continued and that Wilson V. Phoenix Powder Co., 40 injury is only occasional, furnishes W. Va. 413, 21 S. E. 1035, 52 Am. no answer to the claim. The nui- St. R. 890 (1895). sance has occurred often enough, "MuUer v. McKesson, 73 ^. Y. within two years, to do the plain- 195, 29 Am. R. 123 (1875). tiffs large damage." "Aldred's Case, 9 Coke, 59a, (1610). 400 The Law of Torts. court will not hesitate to adjudge it a private nuisance to those who are in no way responsible for its location and operation.-^ Public Cemeteries are most desirable but if "it can be clearly proved that a place of sepulture is so situated that the burial of the dead there will injure property or health, either by corrupting the surrounding atmosphere or the water of wells or springs," it will be adjudged a nuisance.^'' It will not be adjudged a nuisance, how- ever, simply because it offends the fancy, delicacy or fastidiousness of neighbors, or even depreciates the market- value of adjoining property.^* Injury to Property. When the gist of the nuisance consists of injury to property, the plaintiff is required to show a " tangible and appreciable injury,"^' an " injury which is certain and sub- stantial and not slight or theoretical." ^^ The damage must be such " as can be shown by a plain witness to a plain common juryman. * * * If the plaintiff is obliged to start with scientific evidence, such as the microscope of the naturalist or the tests of the chemist. " Deaconess Home and Hospital V. Bontjes, 207 111. 553, 69 N. E. 748, 64 L. R. A. 215 (1904), To the objection of the defendant that the question of nuisance had not been submitted to a jury, the court replied, that If there was doubt upon the evidence, whether a nui- sance existed or not, the question should be submitted to a jury, but as there was " no evidence tending to show that a nuisance does not exist," the court would grant an injunction without a finding by a jury. ^ Lowe v. Prospect Hill Cem. Ass'n., 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237 (1889). "A use made by one of his property which works an irreparable injury to the prop- erty of his neighbor; the use made by one of his property whereby the unwritten, but accepted, law of decency is violated; the use made by one of his property whereby his neighbor is deprived of the reason- ably comfortable use and enjoy- ment of his own property; the use made by one of his own property which will probably or likely en- danger the health and the life of his neighbor — is a private nui- sance." ='Monk V. Packard, 71 Me. 309, 36 Am. R. 315, 43 A. L. J. 366 (1880). '^ Campbell v. Seaman, 63 N. Y. 568, 577, 20 Am. R. 567 (1876); Lane v. City of Concord, 70 N. H. 485, 49 At. 687 (1900). ""Downing v. Elliott, 182 Mass. 28, 64 N. E. 201 (1902), "The fair import of the master's findings is, that^ while he cannot say that no soot and cinders were deposited on the plaintiff's ice, if any were de- posited they contributed only slightly, if at all, to the injury to the ice, and the damage done by them was insignificant as com- pared with that resulting from other causes." Nuisance. 401 for the purpose of establishing the damage itself, that evidence will not suffice." " When the plaintiff presents proof that the defendant's locomotive cast upon his land and salt vats such quantities of soot, cinders, dust and dirt as to injure the quality and quantity of his salt prod- uct, he is entitled to damages.^' On the other hand, if he com- plains of a cemetery as a nuisance to his water supply, but fails to prove any contamination from that source, his action must fail.-" So, if he complains of vibrations or shocks communicated to his property by machinery or blasting, on defendant's land, he must show not only sensible and certain harm to his property, but also unreasonable conduct on the defendant's part. " In the strict sense " remarked a learned judge, '" the use of machinery producing noise or vibration injures neighboring property. But to some extent such results must come to all who live in a busy, prosperous city. The hum and throb of mechanical life cannot be wholly con- fined to the walls of any structure. Hence the true test must be whether the use by the owner of the industry is reasonable, having due regard to all the interests affected, and the requirements of public policy." ^" Again, it is not a private nuisance to resort to blasting on one's own land, when this is necessary to fit it for a lawful business. If such blasting is done without negligence, and the injury sustained by the plaintiff is consequential, he has no redress.'^ Whether oil or gas wells are a nuisance to adjoining " Salvin v. North Brancepeth Co., use of the explosives constituted a L. R. 9 Ch. 705, 709, 44 L. J. Ch. nuisance, and that one who creates 149 (1874). or maintains a nuisance is liable for ^ Syracuse Solar-Salt Co. v. Rome any special injury resulting there- etc, Ry., 60 N. Y. Supp. 40; 43 App. from. * * * Whether a particular Div. 203 (1899), aflBrmed 168 N. Y. act done upon, or a particular use 650 (1901). of one's premises constitutes a vio- " Wahl V. Meth. Ep. Cem., 197 Pa. lation of the obligations of vicinage 197, 46 At. 913 (1900). would seem to depend upon the "Russell J. in Bowden v. Edison question whether such act or use Elec. Co., 60 N. Y. Supp. 835 (1899). was a reasonable exercise of the " Booth V. R. W. & O. Ry., 140 N. right of property, having regard to Y. 267, 35 N. E. 592, 24 I.. R. A. time, place and circumstances. It 105 (1893); "The fundamental is not everything in the nature of a proposition, upon which the plain- nuisancp which is prohibited. * * * tiff's counsel rests his argument in The rule governing the rights of support of the recovery, is that the adjacent landowners in the use of 26 402 The Law ok Torts. property depends on their location, capacity and management. If such wells and their necessary accompaniments subject neighboring buildings to constant danger of destruction by fire, they are a nui- sance, and if their owner wishes to gain the profit which they bring to him, he must pay to his neighbor the damages sustained by that neighbor for his pecuniary benefit, or stop his business.^^ Personal Discomfort. It is well settled that the acts of the defendant, or a condition of things for which he is responsible, may amount to a nuisance, although actual sickness is not caused or threatened thereby. It is enough that they produce material phys- ical discomfort and annoyance to persons of ordinary sensibility,^' having regard to the locality in which the alleged nuisance exists. " Everything is to be looked at from a reasonable point of view."'* Noises, odors, smoke or dust may constitute an actionable nuisance in one locality, when the same amount of either or all of them in another locality would not create a nuisance. " The reasonable use of one's property depends on the circumstances of each case. What would be permissible in one locality might be unlawful in another." '= their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering something of his abso- lute freedom, so that both may live. To exclude the defendant from blasting to adapt his lot to the con- templated uses, at the instance of the plaintiff, would not be a com- promise between conflicting rights, but an extinguishment of the rights of the one for the benefit of the other." See other cases and com- ments thereon, supra, p. 44. ^ McGregor v. Camden, 47 W. Va. 193, 34 S. B. 936 (1899). "Bishop V. Banks, 33 Conn. 118 (1865); bleating of calves kept overnight in a slaughter-house near plaintiff's dwelling; Dittman v. Repp, 50 Md. 517, 33 Am. R. 325 (1878), noise resulting from a law- ful business; Catlin v. Valentine, 9 Paige (N. Y.) 575 (1842), slaugh- ter-house in a city; Ross v. Butler, 19 N. J. Bq. 294 (1868), smoke, cin- ders, noise or odors, although not in a degree injurious to health, may amount to a nuisance; Rhodes v. Dunbar, 57 Pa. 274 (1868), noises disturbing sleep; Snyder v. Cabell, 29 W. Va. 48, 1 S. B. 241 (1886), roller-skating rink ; Crump v. Lamb- ert, L. R. 3 Bq. 409 (1867), "the real question is whether the annoy- ance is such as materially to inter- fere with the ordinary comfort of human existence." ** St. Helen's Smelting Co. v. Tip- ping, 11 H. L. C. 642, 35 L. J. Q. B. 66 (1865); Gaunt v. Fynney, L. R. 8 Ch. App. 8, 42 L. J. Ch. 122 (1872). ^Lord v. DeWitt, 116 Fed. 713 (1902); Hurlbut v. McKone, 55 Conn. 31, 10 At. 164, 3 Am. St. R. 17, 36 A. L. J. 168 (1887.); Nuisance. 403 Moreover, the source of noises, when these are complained of as a nuisance, is to be taken into account. If they proceed from ordi- nary musical instruments in the dwelling of a neighbor, or from his children, and are only such as are to be expected in the particu- lar neighborhood, they must be put up with. While the same amount of noise caused by horses in the basement of an adjoining house, will be an actionable nuisance.'® Discomfort to Ordinary Persons. The test to be applied.j in such cases as we are now considering, is whether the conduct of the defendant, or the state of things for which he is responsible subject ordinary persons in the neighborhood to material and unreasonable discomfort. It may be very unkind, or even inhuman, for one to continue a noise or a business on his premises, which shocks the nerves or sensibilities of his sick or fastidious neigh- bors. But, legal rights to the use of property are not to be deter- mined by such a fluctuating standard, as the personal peculiarities, or state of health of one's neighbor. The standard to be applied is the eflfect of such use upon the comfort of ordinary people in the vicinity .'' Norcross v. Thorns, 51 Me. 503 (1863); Rodenhansen y. Craven, 141 Pa. 546, 21 At. 774 (1891>, " What is a nuisance is very large- ly a question of fact, in determining which all the circumstances must be taken into consideration, with the right of the plaintiff and defend- ant to the use of their property." The court held that the evidence fully justified the finding, that de- fendant's stable and carpet cleaning establishment were a nuisance, in a residential neighborhood. "Ball V. Ray, L. R. 8 Ch. App. 467 (1873). " Rogers v. Elliott, 146 Mass. 349, 15 N. E. 768, 4 Am. St. R. 316 (1888), "Plaintiff's claim rests up- on the injuiy done him on ai( oiint of his peculiar condition. However this request should have been treat- ed by the defendant, upon consider- ations of humanity, we think he could not demand as of legal right that the bell should not be used." Wescott v. Middleton, 43 N. J. Eq. 478, 37 A. L. J. 93 (1887), defend- ant's business as undertaker affect- ed the tender sensibilities of the plaintiff; but the court found that it would not affect ordinary persons uncomfortably, and hence was not an actionable nuisance; Lord v. De- Witt, 116 Fed. 713 (1902), "The plaintiff's contention is that he is suffering from a disease and an operation which have left him in such an exceedingly enfeebled con- dition, that his heart has become very weak, and himself extremely sensHive to any shake or jar; that, in the opinion of his physicians, a jar such as might be occasioned by the slightest possible blast on the defendant's lot might cause his 404 The Law of Touts. Temporary Annoyance. The courts are agreed tnai there is a manifest distinction between acts and uses which are perma- nent and continuous, and temporary acts, which are resorted to in the course of adapting premises to some lawful use. For example, the erection of an iron building adjacent to a dwelling might, for the time being, cause as much noise and discomfort as would arise from conducting the business of finishing steam boilers on adjacent premises ; but this would not constitute a nuisance, and the owner of the dwelling would have no remedy." '' Even in the case of temporary annoyance, incident to the reason- able improvement or use of premises, the annoyer must act reason- ably. He cannot blast rock, or hammer metal, or operate noisy steam drills or hoisting machines, at all hours of the day and night. He must conform to the habits of the community, and not imreasonably disturb his neighbors, during ordinary non-working hours.'' Moreover, it is important to distinguish between acts, which merely annoy, and those which injure, or are calculated to injure seriously, adjoining property. As a rule, the latter will amount to an actionable nuisance, although their continuation for an indefinite period may not be intended by the defendant. The principle applicable to a temporary disturbance has been stated by an eminent judge as follows: "Those acts necessary for the I common and ordinary use and occupation of land and houses may |be done, if conveniently done, without subjecting those who do death; wherefore he contends that held not to be a nuisance, although the defendant should be enjoined had it been continuous and perma- from using his property in the nent, it would have amounted to a usual way, by excavating for a nuisance; Harrison v. Southwork building, until plaintift dies or re- etc., Co., (1891) 2 Ch. 409, 60 L. J. covers sufficiently to move away. Ch. 630. This is a startling proposition and "Peacock v. Spitzelberger, (Ky.) one which finds no support In the 29 S. W. 877 (1895), work in black- authorities. * * * Plaintiff has smith shop prohibited between 8 P. mistaken his forum. The only real M. and 6 A. M.; McDonald v. New- basis for his contention is common ark, 42 N. J. Eq. 136 (1886); Steven- humanity, and to defendant's hu- son v. Pucce, 66 N. Y. Supp. 712 manity, not to legal tribunals, his (1900), defendant was restrained appeal must be made." from commencing noise before 1 =» Booth v. R. W. & O. Ry., 140 N. A. M. and from continuing after 6 Y. 267, 35 N. E. 592, 24 L. R. A. 105 P. M.; Dennis v. Eckhart, 3 Grant's (1893). In this case, blasting was Cases (Pa) 390 (1862). NuisANCb:. 405 them to an action. * * * There is an obvious necessity for such a principle. It is as much for the advantage of one owner as an- other; for the very nuisance the one complains of, as the result of the ordinary use of his neighbor's land, he will create in the ordi- nary use of his own, and the reciprocal nuisances are of a compar- atively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live." *" Negligence Not Necessary. If the plaintiflf proves that he has been harmed by a nuisance, for which the defendant is respon- sible, it is unnecessary for him to show that the defendant was neg- ligent in the matter. " As a general rule, the question of care, or want of care, is not involved in an action for injuries resulting from a nuisance." *^ If a person stores on his land explosives, in such quantities and in such proximity to his neighbors, as to amount to a nuisance, it will be no answer for him when sued for damages caused by their explosion, that he exercised the greatest possible care in guarding them. Though their explosion may be due to a fire for which he is in no way responsible, or to lightning, or to the criminal act of a third person, he is legally answerable for the harm.*= "Bramwell B. in Bamford v. Turnley, 3 B. & S. 62, 83 (1862). The majority of the court held that this rule did not include the burn- ing of bricks on defendant's land, although the business was to be limited to bricks for use on the land. Approved in Colwell v. St. Pancras Borough Council, (1904) 1 Oh. 707, 73 L. J. Ch. 275, where the defendant claimed that the vibra- tion, caused by an electric generat- ing station, could be avoided after a time by experiment and altera- tion of machinery. "Laflin & Rand Powder Co. v. Tearney, Ibl 111. 322, 23 N. E. 390, 7 L. R. A. 262, 19 Am. St. R. 34 (1890). " Rudder v. Koopman, 116 Al. 332, 22 So. 601, 37 L. R. A. 489 (1896); Kleebauer v. Western Fuse Co., (Cal.) 69 Pac. 246, 60 L. R. A. 377 (1902); Cameron v. Kenyon-Cor- nell Co., 22 Mont. 312, 56 Pac. 358, 74 ^m. St. R. 602, 44 L. R. A. 508 (1899) ; McAndrews v. CoUerd, 42 N. J. 189, 36 Am. R. 508, (1880) ; Heeg V. Licht, SO N. Y. 579, 36 Am. R. 654 (1880) ; Prussak v. Hutton, 30 App. Div. 66, 51 N. Y. Supp. 761 (1898); Bradford Glycerine Co. v. St. Mary's Woolen Co., 60 0. St. 560, 54 N. E. 528, 45 L. R. A. 658, 71 Am. St. R. 740 (1899); Cheatham v. Powder Co., 1 Swan (31 Tenn.) 213, 55 Am. Dec. 734 (1851) ; Fort Worth Ry. V. Beauchamp, 95 Tex. 496, 500, 68 S. W. 502, 93 Am. St. R. 864, 58 L. R. A. 716 (1902); Wilson v. Phoenix Powder Co., 40 W. Va. 413, 21 S. E. 103b, 52 Am. St. R. 890 (1895). 4o6 The Law of Torts. If, however, the storing of explosives at the particular place does not amount to a nuisance, the defendant is not liable for damages caused by their explosion, in the absence of evidence that he was negligent in collecting or guarding them.*' When a business is carried on,"* or structures are erected or excavations are made, for which defendant is responsible, and which are private nuisances to the plaintiff, the defendant is liable for damages caused by them, whether he exercised due care in their construction and maintenance or not.*' The same rule applies in the case of a savage and dangerous animal, so kept as to be a nuisance.** As negligence is not the gist of the action in such cases, contribu- tory negligence on the plaintiff's part is no defense.*^ Coming to a Nuisance. Blackstone declared *' that if one fixes his habitation near a nuisance, he has no remedy for the damage which the nuisance causes him, on the ground of "volenti non fit injuria." This view has long been discarded, both in Eng- land *° and in this country. °'' If one property owner by devoting "Kinney v. Koopman, 116- Al. 310. 22 So. 593, 67 Am. St. K. 119, with note, 37 L. R. A. 497 (1896); Kleebauer v. Western Fuse Co., 138 Cal. 497, 71 Pac. 617, 94 Am. St. R. 62, 60 L. R. A. 377 (1903); Tuclia- shinsliy v. Lehigh etc. Co., 199 Pa. 515, 49 At. 308 (1901); Fort Worth Ry. V. Beauchamp, 95 Tex. 496, 68 S. W. 502, 93 Am. St. R. 864, 58 L. R. A. 716 (1902). " Bohan v. Port Jervis Gas Co., 122 N. Y. 18, 25 N. E. 246 (1890). " Hazeltine v. Edgmond, 35 Ks. 202, 10 Pac- 544, 57 Am. R. 157 (1886) ; Cork v. Blossom, 162 Mass. 330, 38 N. E. 495, 44 Am. St. R. 362, 26 L. R. A. 256 (1894). In this case, it was held that the structure was not a nuisance, unless unfit to with- stand ordinary gales. If so unfit, it was maintained by th^-defendant at his peril. Davis v. Rich, 180 Mass. 235, 62 N. E. 375 (1902); Cahill V. Eastman, 18 Minn. 324, 10 Am. R. 184 (1874) ; Davis v. Niag. Falls Power Co., 25 App. Div. 321 (1898), 171 N. Y. 336, 64 N. E. 4, 89 Am. S. R. 817, 57 L. R. A. 545 (1902). " Smith V. Pelah, 2 Strange, 1264 (1748); Card v. Case, 5 C. B. (57 Eng. C. L.) 622 (1848); Woolf v. Chalker, 31 Conn. 121, 130, 81 Am. Dec. 175 (1860); Muller v. McKes- son, 73 N. Y. 195, 29 Am. R. 123, (1878); Twigg v. Ryland, 67 Md. 380, 50 Am. R. 226 (1884); Mc- Caskell v. Elliott, 5 Strob. (S. C.) 196, 53 Am. Dec. 706 (1850). In Hayes v. Smith, 62 O. St. 161, 56 N. E. 879 (1900), the court holds that negligence in keeping even a vicious animal must be shown. "Authorities cited in preceding note. "Commentaries, Vol. 2, p. 403. "St. Helen's Smelting Co. v. Nuisance. 407 his premises to a particular trade, at a time when the surrounding property is vacant, can acquire a right to continue the business, however offensive it may be to dwellers coming into the neighbor- hood, then he has it in his power to virtually control the uses to which such property may be put, or to destroy its value. Nor is it any answer for the defendant, whose use of his premises amounts to a nuisance, that the place is a convenient one for him and for the public. " In the eye of the law, no place can be con- venient for the carrying on of a business which is a nuisance, and which causes substantial injury to the property of another. Nor can any use of one's land be said to be a reasonable use, which de- prives an adjoining owner of the lawful use and enjoyment of his property." '^ Undoubtedly, when a court of equity is asked to enjoin a useful and lawful business as a nuisance in a particular locality, regard will always be had to the inquiry whether the business has been carried on for a considerable period, and the erection of buildings and growth of population have been due to its existence.'^ If the development of the locality is due largely to the offensive business, and the thing complained of is not positively noxious but only disagreeable, an injunction may be denied.'^ If, however, the Tipping, 11 H. L. C. 642, 35 L. J. But see Anderson v. Chicago etc. Q. B. 66 (1865) ; Bamford v. Turn- Ry., 85 Minn. 337, 88 N. W. 1001 ley, 3 B. & S. 62, 66 (1862). (1902). " Hurlbut V. McKone, 55 Conn. 31, ■" Wier's Appeal, 74 Pa. 230, 241 10 A. R. 164, 3 Am. St. R. 17, 36 A. (1873). L. J. 168 (1887); Laflin & Rand " Ballentlne v. Webb, 84 Mich. 38, Powder Co. v. Tearney, 131 111. 322, 47 N. W. 485, 13 L. R. A. 321 23 N. B. 390, 19 Am. St. R. 34 (1890). James, L. J. said in Salvin (1890); Susquehanna Fertilizer Co. v. Brancepeth Coal Co., L. R. 9 Ch. V. Malone, 73 Md. 268, 20 At. 900, 705, 44 L. J. Ch. 149 (1874), "If 25 Am. St. R. 595 (1890) ; Bushnell some picturesque haven opens Its V. Robinson, 62 la. 540, 18 N. W. arms to invite the commerce of the 888 (1883); King v. Morris etc. Ry., world, it is not for this court to 18 N. J. Bq. 397 (1867); Campbell forbid the embrace, although the T. Seaman, 63 N. Y. 584, 20 Am. R. fruit of it should be the sights and 567 (1876); Sherman v. Langham, sounds and smells of a common sea- (Tex.) 13 S. W. 1042 (1890). port and shipbuilding town, which "Susquehanna Fertilizer Co. v. would drive the Dryads and their Malone, 73 Md. 268, 277 (1890). A masters from their ancient soU- contrary doctrine seems to be ap- tudes." See Dolan v. Chicago etc. plied in Dolan v. Chicago etc. Ry., Ry., 118 Wis. 362, 95 N. W. 385 118 Wis. 362, 95 N. W. 385 (1903). (1903). 4o8 The Law of Torts. business is actually harmful to health or destructive of property, it will be enjoined, although the cessation or removal, may entail a heavy burden upon the defendant.'* § 2. PUBLIC NUISANCE. Private Action For. The earliest and most frequent cases of public nuisances, which also subject the wrongdoer to a private action, involve obstructions to highways. Such an obstruction " is a common nuisance, and, being a wrong of a public nature, the remedy is by indictment. It is not in itself a ground of civil action by an individual, unless he has suffered from it some special and particular damage which is not experienced in common with other citizens. In such a case, the actual damage to the plaintiff consti- tutes the gist of the action." '' The difficulty in this class of cases has been to determine whether the plaintiff has sustained damage in his individual capacity, or only as one of the public.'" If the nuisance interferes with the rights of travel common to him and the public, his inconvenience and consequential injury are not deemed special damage.^' If, however, it compels him to unload goods and carry them around the obstruction in a more expensive way,'* or if it compels him to travel back and take a more circuitous route, with an obvious loss of time and profit, or to forego his business altogether ; '" or if it "Bohan V. Port Jervis Gas. Co., Ry., 137 Al. 649, 35 So. 30, 97 Am. 122 N. Y. 18, 25 N. E. 246 (1890); St. R. 69 (1902); Griffith v. Holman, Sullivan v. Jones & Laughlin Steel 23 Wash. 347, 63 Pac. 239, 83 Am. Co., 208 Pa. 540, 57 At. 1065 (1904), St. R. 831, 54 L. R. A. 178 (1900). The dissenting opinions in this '"Rose v. Miles, 4 M. & S. 101. case are worthy of careful perusal. ™Greasly v. Codling, 2 Bing. 263 "Houck V. Wachter, 34 Md. 265, (1824); Piscataqua Nav. Co. v. N. G Am. R. 332 (1870). Y. etc. Ry., 89 Fed. 362, (1898); ■^Knowles v. Penn. Ry., 175 Pa. Dudley v. Kennedy, 63 Me. 465 G23, 629-630, 34 At. 974, 52 Am. St. (1874); Farmers' Co-op. Co. v. Al- R. 860 (1896) ; Drayton v. Fall hermarle etc. Ry., 117 N. C. 579, 23 River 113 Mass. 218, 18 Am. R. 470 S. E. 43 (1895); Hughes v. Heiser, (1873). 1 Binn. (Pa.) 463, 2 Am. Dec. 459 "Fineux. V. Hovenden, Cro. Eliz. (1808); Knowles v. Penn. Ry., 175 664 (1600); Winterbottom v. Lord Pa. 623, 34 At. 974, 52 Am. St. R. Derby, L. R. 2 Ex. 316, 36 L. J. Ex. 860 (1896), plaintitt had a contract 194 (1867); Dennis v. Mobile etc. to haul dirt at 15c. a load; with Nuisance. 409 blocks up the only or principal means of ingress and egress to plaintiff's land or place of business ; '"' or if it unreasonably diverts custom from the plaintiff's place of business ; "• or if it invades the plaintiff's easement of light and air in the highway,"' a private action will lie. The rule that the law does not permit private actions to be brought for the abatement of public nuisances, or for damages caused thereby, unless special damage to the plaintiff is also shown, distinct not only in degree but in kind from that which is done to the whole public, " has never been extended to cases where the alleged wrong is done to private property, or the health of indi- viduals is injured, or their peace and comfort in their dwellings is impaired, by the carrying on of the offensive trades and .occupa- tions." "•' Moreover, it is the tendency o"f courts in this country to sustain a private action whenever the plaintiff can show that he has sustained a clear injury as an individual, however slight tha( may be.** § 3. PARTIES TO NUISANCE ACTIONS. Who may Bring the Action. Originally, as we have s( .,,i, only the owner of a freehold interest in lands could maintain an highway as obstructed by defendant, " First Nat. Bank. v. Tyson, 133 the cost of hauling would be 40c. Al. 459, 32 So. 144, 91 Am. St. R. 46, a load; nuisance was held a special 59 L. R. A. 399 (1902); Townsend injury to plaintiff. v. Epstein, 93 Md. 537, 49 At. 629, "Iveson V. Moor, 1 Ld. Ray 486, 86 Am. St. R. 441, 52 L. R. A. 409 1 Salk. 15. Garth. 451, Comber. 480, (1901). Holt. 10 S. C. as Jeveson v. Moor, "Wesson v. Washburn Iron Co., 12 Mod. 262, (1698): Roberts v. 13 Allen (95 Mass.) 95, 9& Am. Dec. Mathews, 137 Al. 523. 34 So. 624, 97 181. (1866); Roberts v. Mathews, Am. St. R. 56 (1902); Venard v, 137 Al. 523, 34 So. 6?4, 97 Am. St. Cross, 8 Ks. 248 (1871); Brayton v. R. 56 (1902); Adams Hotel Co. v. Fall River, 113 Mass. 218 (1873); Cobb, (Ind. Terr.) 53 S. W. 478 Smith V. Mitchell. 21 Wash. 536, 58 (1899); Reinhart v. Sutton, 58 Ks. Pac. 667, 7a Am. St. R. 858 (1899). 726, 51 Pac. 221 (1897); Downs v. " Wilkes V. Hungerford Mark. Co., City of High Point, 115 N. C. 182, 2 Bing. N. C. 2S1. 1 Hodges 281, 2 20 S. E. 385 (1894). accord. Scott 446 (1835);- Fritz v. Hobson. "Callahan v. Oilman, 107 N. Y. 14 Ch. D. 42, 49 L. J. Ch. 321 360, 14 N. E. 264, 1 Am. St. R. 831 (1880); Flynn v. Taylor, 127 N. Y. (1887); Pierce v. Dart, 7 Cowen (N. 596, 28 N. E. 418, 14 L. R. A. 556 Y.) 609 (1827), holding that the (1891). delay and expense of plaintiff, in 4IO The Law of Torts. action for a nuisance. This doctrine was long ago modified, and now a tenant in possession of premises, injuriously aflfected by a nuisance, is entitled to sue therefor, even though he became tenant after the nuisance was instituted. The measure of his damages will be, ordinarily, the depreciation in the rental value of the premises caused by the nuisance.°° If the nuisance operates to permanently injure the leased prem- ises, or create an easement over them, the reversioner has a right of action also. Indeed, for any injury to his rights as reversioner the owner may sue, although the same nuisance may be actionable in favor of a tenant as well.*" Nuisance to Health. When the nuisance does not operate to injure property, but affects the health or personal comfort of individuals, who have no estate or legal interest in adjoining premises, the courts are not agreed as to whether such individuals can maintain an action for nuisance. On the one hand it is held, that a private action on the case for nuisance consisting in offensive and noxious odors, smoke or noises, can be brought only by one who is the owner of, or has some legal interest, as lessee or other- wise, in land, the enjoyment of which is affected by the nuisance."^ On the other hand it is held, that any one who has sustained special damage, such as sickness, by reason of a nuisance, whether public or private, is entitled to sue for such damage, in an action on the case for nuisance, although he has no property rights in the premises, where he lawfully is when the injury is inflicted.''^ abating the nuisance, was sufficient Elec. Ry., 128 N. Y. 571, 29 N. E. special damage to sustain the ac- 69 (1891). tion. Contra, Winterbottom v. " Kavanagh v. Barber, 131 N. Y. Lord Derby, L. R. 2 Ex. 316, 36 L. 211, 30 N. E. 235, 15 L. R. A. 689 J. Ex. 194 (1867). (1892); Ellis v. Kansas City Ry., " Bly V. Edison Elevtric Light Co., 63 Mo. 131, 21 Am. Rep. 436 (1876). 172 N. Y. 1, 64 N. E. 745, 58 L. R. "Fort Worth etc. Ry. v. Glenn, A. 500 (1902); Smith v. Phillips. 8 97 Tex. 586, 80 S. W. 992, 65 L. Phil. (Pa.) 10 (1871). See Broder R. A. 818 (1904). "It seems to rs V. Salllard, 2 Ch. D. 692, 45 L. J. Ch. that the conflict of opinion has ari';- 414 (1876). en from confusing the dama^;. "Jones V. Chappell, L. R. 20 Eq. which results to property from : 539, 44 L. J. Ch. 658 (1875); Baker nuisance, with that special dama'-e V. Sanderson, 3 Pick. (20 Mass.) which may result to the individual 348 (1825); Francis v. Schoelkopf, from- the nuisance." Cf. Shipley v. 53 N. Y. 152 (1873) ; Hine v. N. Y. Fifty Associations, 106 Mass. 194, 8 Nuisance. 411 There can be no doubt that the plaintiff would be entitled to recover, upon proof of negligence on the part of the defendant, in the performance of any duty owing by him to the plaintiff."" Municipal Corporation as Plaintiff. As a property owner, a municipal corporation may maintain an action for a nuisance, precisely as though it were a private corporation or a natural person.'" When it is clothed with authority to keep highways in proper condition and to abate nuisances, it may be the plaintiff in an action for nuisance, without regard to special damage having been caused to its corporate interests, or to those of any of its citizens."^ Who May be Sued for a Nuisance. Certainly the per- son who creates and maintains a nuisance is liable to a suit there- for.'- It does not matter that his acts or omissions give rise to a nuisance on the land of a third person, whither he has no legal right to go, in order to abate it. He must still answer for its con- sequences.'^ Nor does it matter that the defendant is a corporation, or a master, and that the nuisance is due to the acts or omissions of officers, agents or servants ; although these various representatives may be liable also.'* Am. R. 318 (1870), an action for damages caused by the falling of snow from defendant's building upon plaintiff, while walking along the street. The court said : "For the purpose for which plaintiff was walking along the street, her rights were exactly the same as though she owned the soil in fee simple. * * * In contemplation of law, the person is at least as much entitled to protection as the state." "° Hunt V. Lowell Gas Light Co., 8 Allen (90 Mass.) 169, 85 Am. Dec. 097 (1864). ™U. S. V. Cole, 18 D. C. 504 (1889); Dayton v. Roberts, 1 Oh. Dec. 385 (1894). "Burlington v. Schwartzman, 52 Conn. 181, 52 Am. R. 571 (1884); Nor. Cen. Ry. v. Baltimore, 21 Md. 93 (1863) ; Town of Hutchinson v. Filk, 44 Minn. 536, 47 N. W. 255 (1890); City of Llano v. Llano County, 5 Tex. Civ. App. 132, 23 S. W. 1008 (1893), and authorities digested; Waukesha Hygeia Min. Spring Co. v. Waukesha, 83 Wis. 475, 53 N. W. 675 (1892). "= Dorman v. Ames, 12 Minn. 451 (1867); McDonald v. Newark, 42 N. J. Bq. 136 (1886) ; Bast Jersey Water Co. v. Bigelow, 60 N. J. L. 201, 38 At. 631 (1897). "Thompson v. Gibson, 7 M. & W. 456, 9 Dowl. P. C. 717 (1841); Miles V. Worcester, 154 Mass. 511, 28 N. B. 676, 26 Am. St. R. 264 (1891); Smith v. Elliott, 9 Pa. 345 (1848). "Supra, Chap. IV. § 3. Also Miles V. Worcester, 154 Mass. 511, supra; Jersey City v. Kiernan, 50 N. J. L. 246, 13 At. 170 (1888); Winn V. Rutland, 52 Vt. 481 (1880). 412 The Law of Torts. The creator of. a nuisance cannot escape liability for its conse- quences, in most jurisdictions, by leasing or selling it to another.'^ In an early Arnerican case on this subject it is said, " If the question, which this case presents, were now to be decided for the first time, it seems to us, that it would be very difficult to find a good reason, why the original wrongdoer should be discharged by conveyin; 450 and cases cited. "Draper v. Brown, 115 Wis. 361, "'Lord Chelmsford, in Crossley v. 91 N. W. 966 (1902), distinguishing Lightowler, L. R. 2 Ch. App. 478, Lull V. Fox etc. Co., 19 Wis. 100; 481 (1867). 4i6 The Law of Torts. condition, this consequence would follow ; that if the plaintiffs were to make terms with other pollutors of the stream, so as to have water free from impurities produced by their works, the defendants might say : ' We began tp foul the stream at a time when, as against you, it was lawful for us to do so, inasmuch as it was unfit for your use, and you cannot now by getting rid of the existing pollutions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to.' It may be that the defendant's misconduct, if operating simply would not amount to an actionable nuisance. If, however, a nui- sance results from its combination with noise, smoke or obstructions caused by others, the victim is entitled to relief against each of the wrongdoers. " *' § 4. REMEDIES FOR NUISANCE. Three Classes. Our law sanctions three forms of remedy for the tort of nuisance — abatement by self-help; an action at law for damages; and equitable relief by injunction. The first of these remedies has been discussed in a former con- nection.^"^ It is, perhaps, well to add, that, even when a statute confers the power of self-help upon a municipal corporation, the corporation is not bound to resort to such remedy. It may resort to the courts for judicial redress against the maintainer of the "'Lambton v. Mellish, (1894) 3 ""Am. Furniture Co. v. Town of Ch. 163. 63 L. J. Ch. 929, Thorpe v. BatesvUle, 139 Ind. 77, 38 N. E. 408 Brumfit, L. R. 8 Ch. App. 650 (1894). (1875). Said James L. J., "Sup- '"Goldsmith v. Tunbrldge Wells pose one person leaves a wheel-bar- Co., L. R. 1 Ch. 349, 355, 35 L. J. row standing on a way, that may Ch. 382 (1866); Gaunt v. Fynney, cause no appreciable inconvenience; L. R. 8 Ch. App 8, 42 L. J. Ch. 122 but if a hundred do so, that may (1872); Nelson v. Milligan, 151 111. cause a serious inconvenience, 462, 38 N. E. 239 (1894); Edwards which a person entitled to the use v. Allonez Mining Co., 38 Mich. 46 of the way has a right to prevent; (1878) ; Wahl v. M. B. Cem., 197 and it is no defense to any one per- Pa. 197, 46 At. 913 (1900), and son among the hundred' to say, that cases cited. what he does causes of itself no "" j^earned v. Castle, 78 Cal. 454, damage to the complainant." 18 Pac. 872, 21 Pac. 11 (1889), ™ Supra, Chap. V, § 2. damages fixed by the jury at $1.00; Nuisance. 417 Action For Damages. This is the form of remedy most frequently resorted to by the nuisance victim. Indeed, if the nui- sance is of temporary or intermittent character, or if its interference with a clear legal right of the plaintiff is comparatively trifling, he may be limited to this form of action.^"' The damages recoverable may be either nominal, compensatory or punitive. Oftentimes, nominal damages are all that the plain- tiff seeks, in the way of money recovery. His primary object is to secure a judicial affirmance of the legal right, which defendant is invading by the particular nuisance.^"* • When compensatory damages are sought, for a nuisance that is continuing, the plaintiff is usually limited to such damages as he shows he had sustained* at the time of bringing the action ; for " every continuance or repetition of the nuisance gives rise to a new cause of action, and the plaintiff may bring successive actions as long as the nuisance lasts." ^"^ Compensatory damages in the case of a permanent nuisance depreciating the value of property, will be measured ordinarily by the difference between the value of the property without the nuisance and with it.^°* If the nuisance is temporary, or if a tenant is the plaintiff, the ordinary rneasure of damages is the diminution of rental value during its continuance."^ In case special damages are Watson V. New Mllford Water Co., R. 395 (1899); Uline v. N. Y. C. 71 Conn. 442, 42 At. 265 (1899), etc. Ry., 101 N. Y. 98, 4 N. B. 536 diversion of water; Watson v. Town (1886). of New Mllford, 72 Conn. 561, 45 '" Bungenstock v, Nlshnabotna A*. 167 (1900), nuisance of sew- Draining Dist., 163 Mo. 198, 64 S. age, but no proof of personal dis- W. 149 (1901). comfort, or depreciation of prop- ™ Swift v. Broyles, 115 Ga. 885, 42 erty; Farley v. Gate City Gas L. Co., S. E. 277 (1902); Bly v. Edison 105 Oa. 323, 31 S. E. 193 (1898), " If Electric Co., 172 N. Y. 1, 64 N. B. a nuisance is shown, the law im- 745, 58 L. R. A. 500 (1902); Her- ports damages; " Tootle v. Clifton, bert v. Rainey, 162 Pa. 525, 29 At. 22 O. St. 247 (1871); Casebeer v. 725 (1894). Mowry, 55 Pa. 419, 93 Am. Dec. 766 '" Lockett v. Ft. Worth etc. Ry., (1867), the amount of damages 78 Tex. 211, 14 S. W. 564 (1890). awarded was three cents. '" Robb. v. Carnegie Bros. & Co., ™ Joseph Sehlitz Brewing Co. v. 145 Pa. 324, 341, 22 At. 649, 14 L. Compton, 142 111. 511, 32 N. E. 693 R. A. 329 (1891); Ducktown Sul- (1892); Bowers v. Miss. etc. Co., 78 phur etc. Co. v. Barnes, (Tenn.) 60 Minn. 398, 81 N. W. 2j08, 79 Am. St. S. W. 593 (1900). 37 4i8 The Law of Torts. shown, as the natural and proximate result of the nuisance, these may be recovered. For example, if members of the property owner's family are made sick and services are lost as well as medi- cal expenses are incurred, these form proper items of damage.'"* So, if crops or trees are destroyed, their value may be recovered.'"" If patronage is turned away from a hotel by the nuisance, the con- sequent loss to the proprietor, whether owner or tenant, is a proper item of damage.''" Punitive damages may be recovered, when the defendant persists in continuing an unmistakable nuisance, or when his misconduct in connection with it is in any other way willful or wanton."^ Mere negligence on the defendant's part, or a mistake of judgment, or a bona fide assertion of his right to maintain what is thereafter adjudged to be a nuisance, will not warrant punitive damages."" Relief by Injunction. The power of a court of equity to command the destruction of a nuisance,'" or to restrain its continu- ance,"^ is so well established and so frequently and effectively exer- cised, that the practicing lawyer of today is apt, to forget " that the jurisdiction 6i this court over nuisance by injunction at all is of recent growth." '" Less than a ^entury ago, Lord Eldon expressed the view that an injunction should never be issued, until the existence of the nuisance had been established by a trial."* This view no longer obtains, but a court of equity, when asked '™ Kelser v. Mahoney City Gas Co., ham added, that this " jurisdiction 143 Pa. 276, 22 At. 759 (1891). had not till very lately been much '" Paddock v. Somes, 51 Mo. App. exercised, and has at various times 320 (1892); Kelser v. Mahoney, 143 found great relueta»ce on the part Pa. 276, 291, 22 At. 759 (1891). of learned judges to use it, even in "" Morford v. Woodworth, 7 Ind. cases," where plaintiff's injury was 83 (1855 ) ; Willett v. St. Albans, 69 clear and great. Vt. 330, 38 At. 72 (1897). "'Att'y Gen. v. Cleaver, 18 Ves. "'Kelk V. Pearson, L. R. 6 Ch. 809 211 (1811), " The instances of the (1871). interposition of this court," said ""^ Henderson v. N. Y. C. Ry., 78 N. Lord Eldon, " upon the subject of Y. 423 (1879;. In this case, plain- nuisance are very confined and tiff sought damages, an abatement rare." In Att'y Gen. v. Nichol, 16 of the use of the railroad and an Ves. 338 (1809), the injunction was injunction restraining its opera- dissolved upon defendant's giving tion. an undertaking to remove the nui- '" Ripon, Earl of, v. Hobart, 3 M. sance, if the case at law went & K. 169, 180 (1834). Lord Broug- against him. Nuisance. 419 to prevent a threatened nuisance, or to enjoin an existing one, or to command its destruction or abatement, requires the complainant to make out " a case of strong and clear injustice, of pressing necessity, and imminent danger of great and irreparable damage, and not of that nature for vvhich an action at law would furnish a full and adequate remedy." ^^° It has been judicially declared to be " the rule in equity that where the damages sustained can be measured and compensated, equity will not interfere where the public benefit greatly outweighs private and individual inconvenience." ^"' In cases where the plaintiff goes into equity to enjoin the existence and continuance of a nuisance, he may claim and recover damages also. If his complaint enables the court to take jurisdiction of his entire controversy with the defendant, and settle and adjust all matters of difference between them touching the nuisance, a decree abating the nuisance, but making no provision for damages, will bar a subsequent action at law to recover such damages. In such cases, it is held that the plaintiff may recover, in the equity suit, damages down to the time of trial.^^' "= Eastman V. Amoskeag Mfg. Co., (1752), Lord Hardwicke said, "I 47 N. H. 78 (1866) ; Health Dep't know of no general rule of common of N. Y. V. Purdon, 99 N. Y. 237, 52 law which says that building so as Am. R. 22 (1885) ; Penn Lead Go's, to stop another's prospect is a nui- Appeal, 96 Pa. 116, 20 Am. L. Reg. sance. Was that the case, there 649, 23 A. L. J. 209 (1881). would be no great cities; and I "'Daniels v. Keokuk Water must grant injunctions to all the Works, 61 la. 549, 16 N. W. 705 new buildings in this town." (1883); Gallagher v. Flury, 99 "'Gilbert v. Boak Fish Co., 86 Md. 181, 57 At. 672 (1904); Up- Minn. 365, 90 N. W. 767, 58 L. R. John V. Board of Health, 46 Mich. A. 735, and cases cited in note, 542, 9 N. W. 845 (1881). In Att'y (1902). Gen. V. Doughty, 2 Ves. Sr. 453 CHAPTER XV. NEGLIGENCE. § I. NATURE OF THE TORT. Negligence is Relative. A learned court has recently declared that " negligence is not a thing but a relation. It implies a duty to use diligence, and such a duty may be owed to one person and not to another." ^ Another court has said : " Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and when it has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term." ^ Still another court has said : " In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled."' Accordingly, a plaintiff does not make out a cause of action for negligence by showing that the defendant has acted carelessly, or violated a duty towards some one, and that the plaintiff has suffered ' Boston & M. Ry. v. Sargeant. 72 to be actively cautious and vigilant N. H. 455, 57 At. 688 (1904), quot- is relative, and where that duty ing from Rigby L. J. in Mowbray v. has no existence between pa'**icular Merryweather (1895), 2 Q. B. 640, parties, there can be no such thing 647, 65 L. J. Q. B. 50. as negligence in the legal sense of ' Tonawanda Ry. v. Munger, 5 the term." Den. (N. Y.) 255, 49 Am. Dec. 239 'Sweeny v. Old Col. etc. Ry., 10 (1848). In this case the animals of Allen (92 Mass.) 368 (1865). De- plaintiff below trespassed upon the fendant was held to have induced R. R. track, and were killed. In plaintiff to cross the tracks, and Morris v. Brown, 111 N. Y. 318, 326, was thereby under a duty of care 18 N. E. 722, 7 Am. St. R. 751 towards him. (1888), it is said: "But the duty 420 Negligence. 421 damage therefrom. He must show that he had a legal right to care and caution on the part of the defendant, which right was violated to his injury by the defendant.' That violation, it is true, may result either from omission or commission ; " but neither doing nor failing to do a particular thing is a tort, unless it invades some person's legal rights." Distinguishable from Intentional Wrongdoing. Negli- gence is of a negative character. It does not involve the idea of a willful or intentional act or omission on the part of another. The harm which it causes is not designed but inadvertent. The distinc- tion between negligence and fraud has been stated as follows : " Fraud is a deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some way to do him an injury. It is always positive ; the mind concurs with the act ; what is done, is done designedly and knowingly. But in negligence, whatever may be its grade, there is no purpose to do a wrongful act, or to omit the performance of a duty. There is, however, an absence of proper attention, care or skill. Negligence, in its various degrees, ranges between pure accident and actual fraud, the latter commencing where negligence ends ; " ' though it is said, that " an act may be so grossly negligent that it may be presumed to have been willfully or intentionally done." * It has also been said, " While the term ' willful and wanton negligence ' means something more than simply ' negligence,' or even ' gross negligence,' it does * Smith V. Tripp, 13 R. I. 153 sion to perform a duty which is (1880). prescribed by law, or it arises from 'Railroad Co. v. Jones, 95 U. S. the situation of the parties and cir- 439, 24 L. Ed. 506 (1887). In this curastances surrounding the trans- case, the railroad company's negli- action; " Sias v. Rochester Ry., 169 gence of omission was held not to N. Y. 118 62 N. E. 132, 56 L. R. A. avail Jones, because the company 850 (1901); Baltimore & 0. Ry. v. did not owe him any duty of dill- Cox, 66 O. St. 276, 64 N. E. 119 gence. (1902); Dobbins v. M, K. & T. Ry., •Smith V. Trimble, (Ky.) 64 S. 91 Tex. 60, 41 S. W. 62, 38 L. R. A. W. 915 (1901); McCaughna v. 573, 66 Am. St. R. 856 (1897). Owosso etc. Co., 129 Mich. 407, 89 ' Beardsley J, In Gardner v. N. W. 73 (1902); Kelly v. Mich. Heartt, 3 Den. (N. Y.) 232, 236 Cen. Ry., 65 Mich. 186, 31 N. W. 904, (1846). 8 Am. St. R. 876 (1887), " Negll- «Hays v. Railway, 70 Tex. 602, gence is in law a relative term, and 606, 8 S. W. 491, 8 Am. S. R. 624 Implies the non-observance or omis- (1888). 422 The Law of Torts. not include the element of malice, or an actual intent to injure another."' Degrees of Negligence. Whether negligence is divisible into degrees,, corresponding to degrees of care incumbent on the defend- ant, is a question which has elicited much discussion and a great variety of opinions. Speaking broadly, the various theories may be reduced to three classes. First, that there are three degrees of care required by the law, slight, ordinary and great ; and conse- quently there are three degrees of negligence, — gross, or the failure to exercise even slight care ; ordinary, or the the failure to exercise ordinary care ; and slight, or the failure to exercise great care.^* Second, that but two degrees of care are required ; the care ordinarily exercised by a specialist in the matter in hand, and the care ordinarily exercised by a non-specialist in the same matter. A failure to exercise the former of these degrees of care is termed ordinary negligence, while a failure to exercise the latter kind of care is termed slight negligence.^^ Third, that there are no degrees of care or of negligence; that " negligence is, in all cases, the same thing, namely, the absence of due care." According to this view, " it is in each case practically a question of fact for the jury, whether the proper degree of care has been taken — the jury being guided by considerations of what a reasonable and prudent man would have done under the circum- stances." ^* "Slonlker v. Great Nor. Ry., 76 '^Wharton, Negligence, (2 Ed.) § Minn. 306, 79 N. W. 168 (1899). 636. " Where a person discovers another " Clerk and Lindsell, Torts (2 In a position of peril, although the Ed.) p. 393. In Wilson v. Brett, 11 latter Is a trespasser, and negli- M. & W. 115, 12 L. J. Ex. 264 gently placed himself in such posi- (1843), Rolfe B. said, " I can see no tion, and the former, after so dis- difference between negligence and covering him, can by the exercise gross negligence — it is the same of ordinary care avoid Injuring thing, with the addition of a vit- him, but omits to do so, he evinces uperatlve epithet." Similar views such reckless disregard of the are expressed by Willes and Mon- safety of others as to constitute, in tague Smith JJ. in Grill v. Gen. law, willful and wanton negli- Iron Screw Collier Co., L. R. l.C. gence." P. 612, 35 L. J. C. P. 321 (1866); " Sherman and Redfleld, Negli- by Curtis J., In Steamboat New gence (5 Ed.) Chap. Ill; Whit- World v. King, 16 How. (U. S.) 469, taker's Smith, Negligence (2 Ed.) 14 L. Ed. 1019 (1853); and by Brad- pp. 22-25. ley J., in Railroad v. Lockwood, 17 Negligence. 423 While many courts have expressed, themselves, during the last half century, in terms similar to those quoted in the last note, others have expressed their approval of the theory, which recognizes three degrees of negligence. This theory was accepted without question by judges and legal writers, until recently." It commands the sup- port of some of the best courts in this country,'* and is recognized in various statutory provisions in many of our States.'^ This classification, it is submitted, is a desirable one, and one that ac- cords with the various gradations of legal right, invaded by the tort of negligence. Accordingly, in our further discussion of this topic, we shall use slight negligence to designate the want of great diligence, gross negligence to designate the want of slight diligence, and ordinary negligence to designate the want of diligence between these two extremes, that is, the want of ordinary diligence.'^ Wall. (U. S.) 357, 21 L. Ed. 627 (1873); and by Sanborn J., in Purple V. U. P. Ry., 114 Fed. 123, 51 C. C. A. 564 (1902); and by Ragan C, in Village of Culbertson V. Holliday, 50 Neb. 229, 69 N. W. 853 (1897). "Coggs V. Bernard, 2 Ld. Ray. 909, Com. 133, Salk. 26, Holt, 13 (1704); Sir William Jones, Bail- ments, p. 21; Story, Bailments (9 Ed.) § 17. "Redington v. Pos. Tel. Co., 107 Cal. 317, 40'Pac. 432, 48 Am. St. R. 132 (1895) ; Chicago etc. Ry. v. Johnson, 103 111. 512, 522-523 (1882); French v. Buffalo etc. Ry., 4 Keyes 108, 114, 2 Abb. App. Dec. (N. Y.) 201 (1868); First Nat'l Bank of Carlisle v. Graham, 85 Pa. 91, 27 Am. R. 628 (1885); I. & G. N. Ry.v. Cocke, 64 Tex. 151 (1885). "'Galbraith v. West End Ry., 165 Mass. 572, 43 N. B. 501 (1896), cit- ing several statutes, and declaring that it has never been the law of that state, that gross negligence means no more than a want of or- dinary care; Sullivan v. Boston Elec. Co., 181 Mass. 294, 63 N. E. 904 (1902); Davis v. Atlanta etc. Ry., 63 S. C. 370, 41 S. E. 468 (1902). '° Chicago etc. Ry. v. Johnson, 103 111. 512, 522-3 (1882); 111. Central Ry. V. Stewart, (Ky.) 63 S. W. 596 (1901), defining gross negligence as " the failure to take such care as a person of common sense and reasonable skill in business, but of careless habits, would observe in avoiding injury to his own person, or life, under circumstances of equal danger; " Louisville & N. Ry. V. Walden, (Ky.) 74 S. W. 694 (1903.) "This court has repeated- ly decided that gross negligence is the absence of slight care; " Lock- wood V. Belle City Ry., 92 Wis. 97, 111-112, 65 N. W. 866 (1896), citing earlier cases in that state and ap- proving the three classes, slight, ordinary and gross negligence. See also National Bank v. Graham, 100 U. S; 699, 25 L. Ed. 750, (1879), affirming judgment in the same case in 85 Pa. 91 (1877) ; and declaring the bank guilty of gross negligence. 424 The Law of Torts. Examples of the three degrees. The case of National Bank v. Graham, referred to in the last note, was dealt with by the Supreme Court of Pennsylvania as one involving the liability of a gratuitous bailee. Against such an one, whether a banker, or a common car- rier, the bailor has not the legal right which he possesses against a bailee for hire. His right is limited to exacting slight care, and if the property is harmed or lost while under the control of the bailest the bailor is bound to show, in a suit for negligence, that the bailee did not exercise slight care or diligence in guarding it.^' Another example of this class, in which gross negligence must be proved, is afforded by the bare licensee. He has not the right to the exercise of more than slight care or diligence by the licensor. As a general rule " a licensee goes upon land at his own risk, and must take the premises as he finds them." ^* An example of liability for slight negligence is afforded by the common carrier of passengers for hire ; " by the owner of danger- ous animals ; -" and by him who employs dangerous agencies, such as guns, explosives and the like.-^ These persons are not absolute insurers of the safety of those, who are likely to be harmed by the prosecution of their business ; but they are botmd to exercise an ex- traordinary degree of care, as we .shall see hereafter — a degree of care commensurate with the risk to which their business subjects others. An example of liability for ordinary negligence is afforded by the landowner who impliedly invites persons upon his premises. The measure of his duty is to exercise reasonable prudence and care.-- and holding that gross negligence (U. S.) 468, 486,. 14 L. Ed. 502 on the part of a gratuitous bailee (1852). Is a tort. ™ Picken v. Jones, 28 Cal. 618, 625 "Giblin v. McMullen, L. R. 2 P. (1865); Baird v. Vaughn, (Tenn.) C. 317, 337, 38 L. J. P. C. 25 (1868) ; 15 S. W. 734 (1890). Louisville & N. Ry. v. Gerson, 102 =■ Dixon v. Bell, 5 M. & S. 198, 17 Al. 40S, 14 So. 873 (1894). R. R. 308 a816) ; Carter v. Towne, " Reardon v. Thompson, 149 Mass. 98 Mass. 567, 96 Am. Dec. 682 267, 21 N. E. 369 (1889). (1868); Thomas v. Winchester, 6 "Treadwell v. Whittier, 80 Cal. N. Y. 397, 57 Am. Dec. 455 (1852). 574, 585, 22 Pac. 266, 5 L. R. A. 498, » Griffien v. Manice, 166 N. Y. 188, 13 Am. St. R. 175 (1889); Warren 198, 59 N. E. 925, 52 L. R. A. 922, V. Fitchburg Ry., 8 Allen (90 Mass.) 82 Am. St. R. 630 (1901), disting- 227, 85 Am. Dec. 700 (1864); Phil. Dishing the liability of a landowner & Reading Ry. v. Derby, 14 How. for defects in a passenger elevator. Negligence. 425 ) § 2. PROVING NEGLIGENCE. Burden of Proof. The litigant who bases his case or his de- fense upon negligence, is bound to prove that his opponent was negligent. The presumption of law is that every person performs his legal duty.=-- Accordingly, the burden of proving negligence, in any litigation, rests throughout the case on the party asserting it ; although, as ih other cases, the burden of giving evidence may shift from one side to the other, during the progress of the trial. If an ordinary bailee of goods for hire is sued for their loss, the bailor makes out a prima fade case of neghgence by evidence of . the bailee's failure to return the goods upon demand. If the bailee then shows that the goods were stolen from him or destroyed, the prima facie case is met, and plaintiff must go further and prove that the loss was due to " some negligence or want of care, such as a prudent man would take under similar circumstances of his own property."-* Presumption, when Contract is Broken. The same evidence may or may not establish a prima facie case of negligence on the part of the defendant, according as it shows a breach of contract on the defendant's part or not. For example, a stage coach up- sets : -''' or a railroad train is suddenly jolted ; ''* or a steamship is used for the convenience of those be used on its railroad by defend- visiting the building, from the lia- ant; and that by reason of the par- bility 01 the common-carrier of pas- ticular defects, pointed out and in- sengers. sisted on by plaintiff, the boiler ^^ Huff V. Austin, 46 O. St. 386, exploded and injured him ; " Nor- 387, 21 N. E. 864, 15 Am. St. R. 613 folk etc. Ry. v. Cromer, 99 Va. 763, (1889). 40 S. E. 54 (1901). " Claflin V. Meyer, 75 N. Y. 260, ^ Stokes v. Saltonstall, 13 Pet. (U. 31 Am. R., 467 (18/8). In Tex. & S.) 181, 10 L. Ed. 115 (1839); Boyce P. Ry. V. Barrett, 166 U. S. 617, 619, v. Cal. Stage Co., 25 Cal. 460 (1864) ; 17 Sup. Ct. 707, 41 L. Ed. 1136 Wall. v. Livezay, 6 Col. 465 (1882). (1896), it is said of an employee, ^Railroad Co. v. Pollard, 22 Wall, who sues his employer for failure to (U. S.) 341, 22 L. Ed. 877 (1874). provide suitable appliances: "The In Loudon v. Eighth Ave. Ry., 162 burden of proof is on the plaintiff N. Y. 380, 56 N. E. 988 (1900), the throughout the case to show, that plaintiff joined two street car comp- the boiler and engine, which ex- anies in an action for injuries sus- ploded, were improper appliances to tained in a collision. The court 426 The Law of Torts. thrown with extraordinary force against a wharf ; ^^ or a train is derailed by obstacles on the track, or by defective rails or defective rolling stock; ^* and a passenger is injured. The accident itself af- fords prima facie evidence of the carrier's negligence, for he con- tracted to carry the passenger safely. Had a servant of the carrier been harmed in the same accident, " a different rule would obtain in his case. The fact of accident would carry with it no presump- tion of negligence, on the part of the employer " ; and the employee would be bound to establish, as an affirmative fact, that the em- ployer had been guilty of negligence.'" A similar difference is generally recognized "' between actions founded in negligence, where a contract rejation existed between the parties, and those in which the defendant owed no duty, other than to use such ordinary care and caution, as the nature of the business demanded to avoid injury to others." '" Res Ipsa Loquitur. Except in cases, where the defendant has bound himself by contract to do something safely, or where a valid statute imposes a similar obligation,'^ the phrase, res ipsa held that a presumption of negli- gence was raised against the Eighth Ave. Co., by the fact of the collision, as the plaintiff was its passenger; but no such presumption arose against the other company. "Inland etc. Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270 (1890). ^ Gleeson v. Virginia Mid. Ry., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458 (1890); Virginia C. Ry. v. Sanger, 15 Gratt. (Va.) 230 (1859). "^Patton V. Texas & P. Ry., 179 U. S. 658, 21 Sup. Ct. 275, 45 T.,. Ed. 361 (1900); Mountain Copper Co. v. VanBuren, 123 Fed; 61, 59 C. C. A. 279 (1903). =° Cosulich V. Standard Oil Co., 122 N. Y. 118, 126, 25 N. E. 259, 19 Am. St. R. 475 (1890); Huff v. Austin, 46 O. St. 386, 21 N. E. 864, 15 Am. St. R. 613, (1889) ; Thompson, S. D., in 10 Cen. L. J. 261 (1880) ; Spees v. Boggs, 198 Pa. 112, 47 At. 875, 52 L. R. A. 933. 82 Am. St. R. 792 (1901) ; Veith V. Hope Salt Co., 51 W. Vi. 96, 41 S. E. 187, 57 L. R. A. 410 (1902). " Atchinson etc., Ry. v. Matthews, 174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909 (1898) ; Clark v. Russell, 97 Fed. 900, 38 C. C. A. 541 (1899), re- ferring to statutes imposing liabil- ity upon railroad companies wholly independent of negligence; Stewart V. Ferguson, 164 N. Y. 553, 58 N. E. 662 (1900); Marino v. I^hmaier, 173 N. Y. 530, 66 N. E. 572, 61 L. R. A. 811 (1903); True & True Co. v. Woda, 201 111. 315, 66 N. E. 369 (1903), violation of city ordinance as to height of lumber piles; Chesley v. Nantasket etc. Co., 179 Mass. 469, 61 N. E. 50 (1901), vio- lation of act of Congress as to sounding bell or fog-horn; Jones v. 111. Central Ry., 75 Miss. 970, 23 So. 358 (1898) violation of ordinance as to speed of train; Elmore v. Sea- Negligknck. 427 loquitur, is rarely to be applied literally. In other words, the plain- tiff rarely makes out a case of negligence by merely showing that some harm has been inflicted upon him by an accident, in connection with the defendant's afifairs. To quote from a modern decision ; '- " in no instance can the bare fact that an injury has happened, of itself and divorced from all surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. . . . This phrase {res ipsa loquitur), which literally translated means that the 'thing speaks for itself,' is merely a short way of saying that the circumstances attendant upon an accident' are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident." ^* A plaintiff who shows that he was injured by the falling of a building into the street,^* or by the falling of the pole of a toll-gate as he was passing thereunder,^' makes out a prima facie case of neg- ligence ; while one who proves that he was injured by the bursting of a fly-wheel used by the defendant;^** or the bursting of a boiler or engine,'*^ or the fall of an elevator "* does not make out such a board etc. Co., 132 N. C. 865, 44 b. L. R. 6 Q. B. 759, 40 L. J. Q. B. 285 E. GIO (1903), violation of statute (1871); Cummings v. Nat'l Furnace requiring automatic couplings; Co., 60 Wis. 603, 18 N. W. 742, 20 Kelley v. Anderson, 15 S. D. 107. 87 N. W. 665 (1884), accord. N. W. 579 (1901), violation of sta- '* Mullen v. St. John, 57 N. Y. 567, tute as to setting stubble fires in 15 Am. R. 530 (1874) ; Murray v. certain months; Norfolk Ry. v. Cor- McShane, 52 Md. 217, 36 Am. R. 369 letto, 100 Va. 355, 41 S. E. 740 (1879), a brick fell on plaintiff from (1902), violation of statute as to defendant's dilapidated wall. speed of train. In all of these cases ^ Hyde's Ferry Turnpike Co. v. it was held, that a prima facie case Yates, 108 Tenn. 428, 67 S. W. 69 of negligence is made out, by evi- (1902). dence of the violation of the sta- »' Piehl v. Albany Ry., 162 N. Y. tute or ordinance. 617, i)7 N. E. 1122 (1900). "" Benedick v. Potts, 88 Md. 52, 40 ^Losee v. Buchanan, 51 N. Y. 476. At. 1067, 41 L. R. A. 478 (1898). 10 Am. R. 623 (1873); Marshall v. ^City of Atlanta v. Stewart, 117 Wellwood, 38 N. J. L. 339, 20 Am. Ga. 144, 43 S. E. 443, (1903); Byrne R. 394 (1876). v. Boadle, 2 H. & C. 722, 33 L. J. 's Griften v. Manice, 166 N. Y. 188, Ex. 13 (1863); Kearney v. London 59 N. E. 925, 52 L. R. A. 922, 82 Am. etc. Ry., L. R. 5 Q. B. 441 (1870), St. R. 63u (1901). 428 The Law of Torts. case. In the one set of cases, the circumstances are such as to dffo.vl just ground for a reasonable inference that according to ordinary experience, the accident would not have occurted except for want of due care; while in the other set, they do not warrant such an inference.'"' Functions of Court and Jury. A learned English writer, after alluding to the fact that the discussions concerning the sev- eral functions of the court and the jury, in negligence cases, have not been carried on by modern judges in the manner best fitted to promote the clear statement of principles, and declaring that it is difficult to sum up the results of these discussions or to reconcile them, expresses the opinion that the tendency of modern judicial rulings in England has been, if not to enlarge the province of the jury, to arrest the process of curtailing it.*" It is doubtful whether the same tendency exists in this country.*' True, courts will not lightly take cases from the jury. " Jurors are the recognized triers of questions of fact, and, ordinarily, negli- gence is so far a question of fact as to be properly submitted to and " Judson V. Giant Powder Co. 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718 (1895); Wadsworth v. Boston El. Ry., 182 Mass. 572, 66 N. E. 421 (1903); Johnson v. Walsh, 83 Minn. 74, 85 N. W. 910 (1901); Paynter v. Bridgeton etc. Co., 67 N. J. L. 619, 52 At. 367 (1902); Cole v. N. Y. Bottling Co., 23 App. Dlv. 177 (1897); Weidner v. N. Y. El. Ry., 114 N. Y. 462, 21 N. E. 1041 (1889); Vo^kmar v. Man. Ry., 134 N. Y. 418, 31 N. E. 870, 30 Am. St. R. 678 (1892); Shafer v. Lacock, 168 Pa. ■197, 32 At. 44, 29 L. R. A. 254 (1895) ; Stearns v. Ontario Spinning Co., 184 Pa. 519, 39 At. 292, 63 Am. St. R. 807 (1898); Richmond etc. Co. V. Hudgins, 100 Va. 409, 41 S. E. 736 (1902); The Joseph B. Thomas, 86 Fed. 658, 30 C. C. A. 333, 56 U. S. App. 619, 46 L. R. A. 58 (1898). "Pollock, Torts (6 Ed.) p. 426. " Hunter v. Cooperstown & S. V. Ry., 112 N. Y. 371, 19 N. E. 820, 8 Am. St. R. 75, 2 L. R. A. 832 (1889) ; s. c. again 126 N. Y. 18, 26 N. B. 958, 12 L. R. A. 429 (1891). The judgment on a verdict for the plain- tiff was reversed, because in the opinion of a majority of the Court of Appeals, (a majority of four to three when the case was before that court the second time), the evi- dence failed to make out a case of negligence on the part of the de- fendant, and did clearly establish contributory negligence on plain- tiff's part. Gavett v. Man. & L. Ry., 16 Gray (82 Mass.) 501, 77 Am. Dec. 422 1 1860), affirming a judgment on a verdict directed by the trial court in defendant's favor, on the ground that there was no proof of due care, and no facts were shown from which an inference of such care could by any possibility be drawn by reasonable men. Negligenxe. 429 determined by them. At the same time the judge is primarily liable for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determi- ation, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility. He has the same opportunity that the jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record, and when in his deliberate opinion there is no excuse for a verdict save in favor of one party, and he so rules by instruction to that effect, an appellate court will pay large respect to his judgment." *^ An admirable discussion of this topic is to be found in a modern Connecticvit case,*^ an otftline of which is presented in the head- notes as follows : " The conception of negligence involves the idea 01 a duty to act in a certain way towards others and a violation of that duty by acting otherwise. It involves the existence of a standard with which the given conduct is to be compared and by which it is to be judged.** Where this standard is fixed by law, the question whether the conduct in violation of it is negligence, is a question of law. And where the standard is fixed by the general agreement of men's judgments, the court will recognize and apply the standard for itself." But where it is not so prescribed or fixed, but rests on the particu- lar facts of the case and is to be settled for the occasion by the exercise of human judgment upon these facts, as where the stand- ard is the conduct in the same circumstances of a man of ordinary prudence, there the question is one of fact and not of law." *" ** Brewer J., in Patton v. Texas Fernandes v. Sac City Ry., 52 Cal. etc. Ry., 179 U. S. 658, 21 Sup. Ct. 45, 50 (1877). 275, 45 L. Ed. 361 (1900), affirming "Solomon v. Manhattan Ry., 103 a judgment upon a verdict for de- ^f. Y. 437, 442, 9 N. E. 430, 57 Am. fendant, directed by the trial judge, R. 760 (1886). "It is, we think, and affirmed by the Circuit Court the general rule of law, that the of Appeals. boarding or alighting from a mov- " Farrell v. Waterbury Horse Ry., ing train is presumably and gener- 60 Conn. 239, 21 At. 675, 22 At. 544 ally a negligent act per se;" Flem- (1891). ing V. Wes. Pac. Ry., 49 Cal. 253 "Detroit & M. Ry. v. Van Stein- (1874). Cleveland etc. Ry. v. Craw- burg, 17 Mich. 99, 119-123, (1868) ; ford, 24 O. St. 631, 15 Am. R. 633 (1874). "See next page. 430 The Law. of Torts. § 3. COXTRIBUTORY NEGLIGENCE. Consequences of. At common law, contributory negligence on the part of the plaintiflf is an absolute bar to his recovery. In the language of a learned judge;*' " In an action for injuries arising from negligence, it always was a defense that the plaintiff had failed to show that, as between him and the defendant, the injury had happened solely by the defendant's negligence. If the plaintiff by some negligence on his part directly contributed to the injury, it was caused by the joint negligence of both, and no longer by the sole negligence of the defendant, and that formed a defense." Such is not the consequence of contributory negligence in an ad- miralty action. "In the case of a collision between two vessels by the fault of both, the maritime law everywhere, by what has been called the rusticum judicium, apportions equally between both ves- sels the damages done to both." *' It often happens that the plaintiff has his option of suing, either in a common law tribunal or in an admiralty court. In such cases he should not hesitate to go into admiralty, if there is any possibility of contributory negli- gence on his part.*' "McCully V. Clarke, 40 Pa. 399, 80 Am. Dec. 584 (1861). "When the standard of care shifts with the circumstances of the case, it is in its very nature incapable of being determined as a matter of law and must be submitted to a jury." " Lord Esher, M. R., in Thomas v. Quatermaine, L. R. 18 Q. B. 685, 688, 56 L. J. Q. B. 340 (1887). '"Ralli V. Troop, 157 U. S. 386, 406, 15 Sup. Ct. 657. 39 L. Ed. 742 (1894), citing The North Star, 106 U. S. 17 (1882), which held that if the losses were unequal, the en- tire damage was to be divided equally between the vessels, and half the difference between their respective losses was to be decreed in favor of the one that suffered most, so as to equalize the burden; and the Max Morris, 137 TJ. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586 (1890), which left open the question wheth- er the decree should be for exactly one-half the damages, where the de- fendant suffered no harm, or whether a greater or less portion might be decreed, according as the plaintiff was more or less negligent than defendant. See The Victory, 68 Fed. 395, (1895), and Wm. John- son Co. V. Johansen, 86 Fed. 886 (1898), approving the view, that the liability of a marine tort- feasor should be measured by his degree of fault. " In Atlee v. Packet Co., 21 Wall. (U. S.) 389. 395, 22 L. Ed. 619 ( 1874 ) , the court said : " The plain- tiff Jias elected to bring his suit in an admiralty court, which has juris- Negligence. 431 Burden of Proof. Whether contributory negligence is an affirmative defense, or whether the plaintif5f is bound to show, as a part of his case, that he was free from contributory negligence, is a question upon which the courts are divided. In England, it is well settled " that the onus of proving affirmatively that there was contributory negligence on the part of the person injured, rests, in the first instance, upon the defendant, and that in the absence of evidence tending to that conclusion, the plaintiff is not bound to prove '■he negative in order to entitle " him to recover."'" The same rule has been laid down by the Supreme Court of the United States "1 and by the courts of last resort in a majority of our States." diction ol' the case notwithstanding the concurrent right to sue at law. In this court, the course of proceed- ing is, in many respects, different and the rules of decision are dif- ferent. The mode of pleading is different; the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference, as regards this case, is the rule for estimating damages. ' * * This rule of the Admiralty commends itself quite as favorably in its influence in secur- ing practical justice, as the com- mon law rule." In some States, the admiralty rule, or its equivalent, has been adopted by statute. See, Ala. etc. Ry. v. Coggins, 88 Fed. 455 (1898), applying §§ 2972, 3034, of the Georgia Code. •"Lord Walson in Wakelin v. London & S. W. Ry., 12 App. Cas. 41, 47, 56 L. J. Q. B. 229 (1886). It is said that Lord Esher is the only English judge, who has supported the opposite doctrine. Clerk & Lindsell, Torts (2 Ed.) p. 438 n. (i). '' Inland etc. Co. v. Tolson. 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270 (1890). '-■ See Chap. XV., Beach, Contrib- utory Negligence (2 Ed.), where the authorities are classified, an- alyzed and discussed with ability. Alabama, Arizona, Arkansas, Cali- fornia, Colorado, Georgia, Idaho, Kansas, Kentucky, Maryland, Min- nesota, Missouri, Nebraska, New Hampshire, New Jersey, Ohio, Ore- gon, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, West Virginia, Utah and Wisconsin follow the U. S. Supreme Court. In Weiss V. Penn. Ry., 79 Pa. 387, 390 (1875), Sharswood J. says, "The presumption of law is that the plaintiff has done all that a prudent man would do under the circum- stances " to save himself from harm. Mr. Beach declares (§ 423) that the statistics of litigation show that no such presumption ought to be indulged in by the courts. " When the average plaintiff comes into court with his action of negli- gence, the mathematical chance is more than six to one, at the very lowest, that when the evidence is all in, it will give the defendant the verdict on the ground of plaintiff's own concurring and participating default." 432 The Law of Torts. In many jurisdictions, however, the burden is held to be upon the plaintiff of showing affirmatively, either by direct evidence or by the drift of surrounding circumstances, his freedom from con- tributory negligence. The reasoning leading to this conclusion is fairly indicated in the following extract from a Connecticut case ; " It is necessary for the plaintiff to prove, first, negligence on the part of the defendant; and second, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, he must show that such injury was not caused, wholly, or in part by his own negligence; for although the defend- ant was guilty of negligence, if the plaintiff's negligence contributed essentially to the injury, it is obvious that it did not occur by rea- son of defendant's negligence. Hence, to say that the plaintiff must show the absence of contributory negligence, is only saying that he must show that the injury was owing to the negligence of the defendant." "' Of course, in either class of jurisdictions, if the plaintiff's own evidence discloses contributory negligence on his part, his case breaks down, and the defendant is entitled to a verdict or nonsuit.'^* What amounts to Contributory Negligence within the rule which bars the plaintiff's recovery, in cases where it exists, is a question which gave the courts considerable trouble for a time, but which appears to be fairly well settled now, on both sides of the Atlantic. The older view in England *^ and one which still obtains " Park V. O'Brien, 23 Conn. 339, rule of evidence." Other States fol- 345 (1852). In Brockett v. Fair lowing this doctrine are, Illinois, Haven & W. Ry., 73 Conn. 428, 433-4, Indiana, Iowa, Louisiana, Maine, 47 At: 763 (1900), it is said, " When Massachusetts, Michigan, Missis- an injury to one results from the sippi. New York and North Caro- fault of both, the equitable rule Una. would be that each should suffer in "Ryan v. Louisville etc. Ry., 44 proportion to his wrong. But, on La. Ann. 806, 11 So. 30 (1892); grounds of public policy, the law has Baltimore etc. Ry. v. Whitacre, 35 established an arbitrary rule that O. St. 627, (1880); Tolman v. Syra- when the injury complained of has cuse etc. Ry., 98 N. Y. 198, 50 Am. been caused by the culpable negli- R. 649 (1885) ; Weiss v. Penna. Ry.. gence of both plaintiff and defend- 79 Pa. 387 (1875). ant, it has not been caused by the ^ Martin v. Great Nor. Ry., 16 C. defendant, and so the plaintiff can- B. 179, 3 C. L. R. 817 (1855); not recover for the injury. This Brett J.'s charge to the jury, in Rad- arbitrary rule not only affects a ley y. London etc. Ry., as given in right of action, but operates as a 1 App. Gas., at p. 755 (1876). Negligence. 433 in a few jurisdictions in this country,"" is that any negUgence on the part of the plaintiff which can be said to have a causal connection with his injury, whether remote or proximate, is to be deemed con- tributory negligence within the rule. In other words the plaintiff is bound to prove that the harm was due solely to defendant's negligence. The present view is, that contributory negligence which defeats the plaintiff is negligence on his part, which is a proximate cause of his harm. In a leading English case," the following charge to the jury was held to contain an accurate statement of the true doc- trine : " If both parties were equally to blame, and the accident was the result of their joint negligence, the plaintiff could not be entitled to recover ; that, if the negfigence or default of the plaintiff was in any degree the proximate cause of the damage, he could not recover, however great may have been the negligence of the defendant ; but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might not, by the exercise of ordinary care, have avoided it." °* The Supreme Court of the United States has recently declared ; "" that the generally accepted and most reasonable rule of law appli- cable to actions in which the defense is contributory negligence, may be thus stated: Although the defendant's negligence may " Norfolk & W. Ry. v. Cromer, injustice might be done, if in apply- 99 Va. 763, 40 S. E. 54 (1901); "The Ing the doctrine of contributory question to be determined In every negligence to a case of this sort, (a case is not whether the plaintiff's collision between a ship and a tug,) negligence caused, but whether it the maxim, causa proxima, non re- contributed to the injury of which mota, spectatur, were lost sight of. he complains." « * * ^^ omission ought not to " Tuff V. Warman, 2 C. B N. S. be regarded as contributory negli- 740 (1857), 5 C. B. N. S. 573, 27 L. gence if it might, in the circum- J. C. P. 322 (1858). stances which actually happened, ''Approved in Radley v. London have been unattended by danger, etc. Ry., 1 App. Cas. 754, 46 L. Ex. but for the defendant's fault; and 573 (1876), declaring incorrect, Mr. if it had no proper connection, as Justice Brett's direction to the jury, cause, with the damage which fol- that plaintiff must satisfy them, lowed as its effect." that the harm happened solely by "'Grand Trunk Ry. v. Ives, 144 U. defendant's negligence. In Spalght S. 408, 429, 12 Sup. Ct. 679, 36 L. Ed. V Tedcastle, 6 App. Cas. 217, 219 J 85 (1892). (1891), Selborne L. C. said: " Great 28 434 The Law or Torts. have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained, if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years, that the contributory negli- gence of the party injured will not defeat the actipn, if it be shown that defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence." *" The Last Clear Chance. The qualification, mentioned in the foregoing extract, is often spoken of as the " doctrine of the last clear chance." A recent writer,"* after an exhaustive examination of modern decisions, summarizes the results as follows : " The foregoing review of authorities, while disclosing much difference of opinion with reference to the ultimate question as to defendant's liability to one guilty of negligence, under a given set of facts and circumstances, seems nevertheless, when proper distinctions are observed, to show a decided tendency on the part of the courts to apply the doctrine of the last clear chance to any omission of duty on the part of defendant, whether before or after discovering the peril in which the plaintiff or deceased had placed himself, or his property, by his antecedent negligence, if the breach of duty inter- vened or continued after the negligence of the other party had ceased. The criticism that is often made, that the doctrine of the last clear chance in effect abrogates the doctrine of contributory negligence, does not seem to be well founded." "^ ■" The following are a few of the see dissenting opinion ; Wheeler v. cases which hold that contributory Grand Trunk Ry., 70 N. H. 607, 5(1 negligence must be the proximate At. 103 (1901); Doolittle v. South- cause of the harm; Purcell v. Chic- ern Ry., 62 S. C. 130, 40 S. E. IZi ago etc. Ry., 109 la. 629, 80 N. W. (1901); Cooper v. Georgia C. & N. 682, 77 Am. St. R. 557 (1899); Ward Ry., 61 S. C. 345, 39 S. B. 543 V. Maine C. Ry. 96 Me. 136, 51 At. (1901); Chatanooga Light & Power 947 (1902); Holwerson v. St. Louis Co. v. Hodges, 109 Tenn. 331, 70 S. etc. Ry., 157 Mo. 216, 57 S. W. 770, W. 616 (1902); Internat. etc. Ry. v. 50 L. R. A. 850 (1900); Gates v. Williams, 20 Tex. Civ. App. 587, 50 Met. St. Ry., 168 Mo. 535, 68 S. W. S. W. 732 (1899); Mauch v. City of 906, 58 L. R. A. 447, (1902); Cos- Hartford, 112 Wis. 40, 87 N. W. 816 tello V. Third Ave. Ry., 161 N. Y. (1901). 317, 55 N. B. 897 (1900); Rider v. "Note in 55 L. R. A. pp. 418-4«.'-.. Syracuse, etc., Ry., 171 N. Y. 139, 63 •' Harrington v. Los Angeles Ry., N. E. 836, 58 L. R. A. 125 (1902), 140 Cal. 514, 74 Pac. 15, 63 L. R. A. Negligence. 435 Cause of Danger Distinguished from Cause of Harm. It often happens that a person puts himself in a place which he knows to be dangerous, or conducts himself without due care in a position of danger, and yet is not guilty of contributory negligence with respect to an injury which befalls him. A person drives an unsafe horse near a train of cars ;«' or becomes a railroad passenger, while intoxicated ; "* or takes a place on a scaflfold,"' or in a car,"" 238 (1903); Western & A. Ry. v. Ferguson, 113 Ga. 708, 39 S. E. 306 (1901) ; Bogan v. Carolina Ry., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418 (1901), accord. Chicago, B. & Q. Ry. V. Lilley, — Neb. — . 9S N. W. 1012 (1903), contra. "To adopt the doctrine of the so-called ' last clear chance ' decisions, would be to re- quire, not only of railway engin- men, but of all other users of dan- gerous or ponderous machinery, the constant exertion of that extreme degree of vigilance and care, which ordinarily prudent men employ only in cases of extreme and un- usual peril. To our minds, such a requirement would be impracticable and unjust; but if the 'last clear chance ' rule is to be adopted it should be done frankly and openly, without any o- the delusive limita- tions and qualifications of the juris- diction of its origin, which, in prac- tice, do not limit or qualify; and the hitherto prevailing rule as to contributory negligence ought to be explicitly and decisively abrogated and set aside. The rule of law is not diflBcult of statement, and busi- ness men, litigants, and lawyers have a right, if it is adopted, to its unequivocal announcement." " Nashua Iron Co. v. Worcpster, etc.. Ry„ 62 N. H. 159 (1882), If due care on the part of either at the time of the injury would pre- vent it, the antecedent negligence of one or both parties is immaterial. except it may be as one of the cir- cumstances by which the requisite measure of care is to be determined. In such a case, the law deals with their behavior in the situation in which it finds them, at the time the mischief is done, regardless of their prior misconduct. The latter * * * is the cause of the danger; the former is the cause of the injury." " Wheeler v. Grand Trunk Ry., 70 N. H. 607, 50 At. 103 (1901). In Smith V. Norfolk, etc., Ry., 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287 (1894), the plaintiff's intestate had fallen on the defendant's track while intoxic.=.ted, but defendant could not avoid the accident after discovering him; Bageard v. Con- sol T. Co., 64 N. J. L. 316, 45. At. 620. 49 L. K. A. 424, 81 Am. St. R. 498 (1900). "= Smithwick v. Hall, 59 Conn. 261, 21 At. 924, 12 U R. A. 279, 21 Am. St. R. 104 (1890). Plaintiff was warned not to stand at a particular place on a scaffold, because it had no railing there. He was knocked from that point by the falling of a wall, due to defendant's negligence. His conduct was held not a cause of his injury, but a condition. " If he had not changed his position, he might not have been hurt. And so, too, if he had never been born, or had remained at home, on the day of the injury." "Ky. Cen. Ry. v. Thomas, 79 Ky. 160, 164, 42 Am. R. 208 (1880), 436 The Law of Torts. or elsewhere "' which he is notified is dangerous, and is injured through the defendant's negligence. If at the time the mischief is done, the defendant was under a duty of care towards the plaintiff, notwithstanding the latter's misconduct ; and, had he discharged that duty, no injury would have befallen the plaintiff, then it is clear that the proximate cause of the injury was defendant's negligence. Any precedent fault, on the part of the plaintiff, was at most a cause of the danger, not a cause of the harm."* At times, it is very easy to apply this doctrine, and courts are able in such cases to declare that there was,*" or was not,'" con- tributory negligence on the plaintiff's part. At other times the members of the court will draw such diverse inferences from the same evidence, as to lead to their disagreement, not only about the plaintiff's contributory negligence, but about the propriety of send- ing that question to a jury." Careless Conduct Induced by Defendant. When a person's safety is imperiled by the negligence of another, and he is forced to act upon the spur of the moment, without time for reflection or the exercise of cool judgment, all that is required of him is, that he shall act with reasonable prudence under the conditions and cir- Dunn V. Grand Tr. Ry., 58 Me. 187, N. J., 163 N. Y. 108, 57 N. E. 292 4 Am. R. 267 (1870); Jones v. Chi- (1900); Houston etc. Ry. v, Clem- cago etc. Ry., 43 Minn. 279, 45 N. mons, 55 Tex. 88, 40 Am. R. 799 W. 444 (1890). N. Y. etc. Ry. v. (1881); Gahagan v. Bos. & M- Ry., Ball, 53 N. J. L. 283, 21 At. 1052 70 N. H. 441, 50 At. 146, 55 L. R. A. (1893); Webster v. Rome, etc. Ry., 426 (1900); Sewell v. N. Y., etc., 115 N. Y. 112, 21 N. E. 725 (1889). Ry., 171 Mass. 302, 50 N. E. 541 "Fickett V. Lisbon Falls Co., 91 (1898); Seyfer v. Otoe County, 66 Me. 268, 39 At. 996 (1898); Gray v. Neb. 566, 92 N. W. 756 (1902); Gll- Scott, 66 Pa. 345, 5 Am. R. 371 bert v. Erie Ry., 97 Fed. 747 (1899). (1870). ™ Interna"'! etc Ry. v. Williams, « In Fla. So. Ry. v. Hirst, 30 Fla. 20 Tex. Civ. App. 587, 50 S. W. 732 1, 11 So. 506, 16 L. R. A 631 (1892). (1899); Martin v. W. U. Ry., 23 it was held, however, that it is Wis. 437, 99 Am. Dec. 189 (1868). contributory negligence for a pas- Mather v. Rillston, 156 U. S. 391, senger to ride in an express car, in 15 Sup. Ct. 464, 39 L. Ed. 414 violation of a known rule of the (1895). company. " Rider v. Syracuse, etc. Ry. 171 »• Davis V. Cal. etc. Ry., 105 Cal. N. Y. 139, 63 N. E. 836, 58 L. R. A. 131, 38 Pac. 647 (1894); Bait. Con- 125 (1902); Hord v. Southern Ry., sol. Ry. V. Foreman, 94 Md. 226, 51 129 N. C. 305, 40 S. E. 69 (1901). At. 83 (1902); Mearns v. Cen. Ry. Negligence. 437 cumstances, as they appear to him at the moment. If he so acts, " his conduct is recognized by the law as a consequence of the defendant's mismanagement, for which the latter is responsible."'" Even though the plaintiff's conduct is of such a character as to be clearly negligent, but for the choice of risks unjustifiably put upon liim by the defendant, and though that conduct be the proximate cause of his harm, it is not chargeable to him as contributory negligence." The same rule is applied, when the defendant's misconduct has imperiled the lives of others than the plaintiff. " The law has so high regard for human life that it will not impute negligence to an effort to preserve it, unless made under circumstances constituting rashness, in the judgment of prudent persons." '* And when the danger is imminent, a deliberate balancing of chances is not to be expected. '" The attendant circumstances must be regarded ; the alarm, the excitement and confusion usually present on such occa- sions; the uncertainty as to the proper move to be made; the promptness required, and the liability to mistake as to what is best to be done, suggest that much latitude of judgment should be allowed to those who are thus forced by the strongest dictates of humanity to decide and act in sudden emergencies." " The Su- preme Court of Nebraska,'" referring to the attempt of a servant, in charge of a hand-car, to remove it from the railroad track and "Gannon v. N. Y. etc. Ry., 173 29 Am. St. R. 553 (1891). Accord. Mass. 40, 52 N. E. 1075, 43 L. R. A. Cen. Ry. v. Crosby, 74 Ga. 737, 58 833 (1899); Mobus v. Town of Am. R. 463 (1885); Penn. Co. v. Waitsfleld, 75 Vt. 122, 53 At. 775 Roney, 89 Ind. 453, 46 Am. R. 173, (1902). (1883); Peyton v. Tex. etc., Ry., 41 " L. Wolff Mfg. Co. V. Wilson, 152 La. Ann. 861, 6 So. 690 (1889); Md. r.l. 9, 38 N. E. 694, 26 L. R. A. 229 Steel Co. v. Marney, 88 Md. 482, 42 (1892) ; Sears v. Dennis, 105 Mass. At. 60, 71 Am. St. R. 441, 42 L. R. A. 310 (1870); Ellick v. Wilson, 58 842 (1898); Linnehan v. Sampson, Neb. 584, 79 N. W. 152 (1839); 126 Mass. 506, 30 Am. R. 692 Chic. etc. Ry. v. Winfrey, 67 Neb. (1879); Donahoe v. Wabash etc., 13, 93 N. W. 526 (1903); Coulter v. Ry., 83 Mo. 560, 53 Am. R. 594 Am. etc. Co., 56 N. Y. 585 (1874). (1884); Corbin v. Philadelphia, 195 Jones V. Boyce, 1 Stark. 493, 18 R. Pa. 461, 45 At. 1070, 49 L. R. A. 715, R. 812 (1816). 78 Am. St. R. 825 (1900); Cottrill '• Eckert v. Long Is. Ry., 43 N. Y. v. Chic. etc. Ry., 47 Wis. 634. 32 502, 3 Am. R. 731 (1871). Am. R. 796 (1879). " Penn. Co. v. Langendorf, 48 O. " Omaha etc., Ry. v. Krayenbuhl, St. 316, 28 N. B. 172, 13 L. R. A. 190, 48 Neb. 553, 67 N. W. 447 (1896). 438 The Law of Torts. thus obviate a possible train wreck, costing many lives, said : " Siicli conduct was not negligence but heroism." And the New York Court of Appeals," dealing with a case where the father had plunged into a canal to save his child who had fallen through a defective bridge, declared ; " It would have been in contradiction of the most common facts in human experience, if the father had not plunged into the canal to save his child." Attempts to Savs Property, are not encouraged by the courts, when they subject the rescuer to grave personal danger.'* .A.nd where the defendant has not been guilty of actionable negligence, plaintiff acquires no right of suit against him, by sacrificing himself for the benefit of a third person." Forgetfulness of Danger. The fact, that one has known that a particular source of danger exists, is admissible against him as evidence of contributory negligence, in case he voluntarily subjects himself to the danger and incurs harm therefrom. Such evidence, however, does not show conclusively that he has been guilty of contributory negligence. If the source of danger is a defect in the highway, the traveler is entitled to presume that it has been re- paired. Even if he knows that it still exists, he is not bound to " Gibney v. State,, 137 N. Y. 1, 33 272, 73 N. W. 648, 68 Am. St. R. 524 N. B. 142, 33 Am. St. R. 690, 19 (1897); Liming v. 111. etc. Ry., 81 L. R. A. 365 (1893). The court la. 246, 47 N. W. 66 (1890) ; Pullman added, "But while the immediate Car Co. v. Laack, 143 111. 242, 32 cause of the peril to which the N. E. 285, 18 L. R. A. 215 (1892) ; father exposed himself was the Wasmer v. D. L. & W. Ry., 80 N. Y. peril of the child, for the purpose of 212, 36 Am. R. 608 (1880), where the administering legal remedies, the injured person, or his represent- cause of the peril in both cases may ative, recovered; his effort to save be attributed to the culpable negli- property being reasonably prudent gence of the State, in leaving the in the circumstances, bridge in a dangerous condition.-" ™ Bvansville etc. Ry. v. Hiatt, 17 "Cook V. Johnson, 58 Mich. 437, Ind. 102 (1861), defendant was 25 N. W. 388, 55 Am. R. 703 (1885) ; guilty of no negligence whatever; McGill v. Me. etc. Co., 70 N. H. 125, Kelley v. Boston, 180 Mass. 233, 62 46 At. 684, (1900); Morris v. R. R. 1>. E. 259 (1902), the Massachusetts Co., 148 N. Y. 182, 186, 42 N. E. 579 statute imposes liability upon cities, (1898); Chattanooga Light Co. v. for defective highways, in favor Hodges, 109 Tenn. 331, 70 S. W. 616 only of travelers, and plaintiff wa-, (1902); Seale v. Gulf etc. Ry., 65 not a traveler, when she descended Tex. 274, 57 Am. R. 602 (1886). Cf. into an open catch-basin, to rescue Berg v. Great Nor. Ry., 70 Minn, her child. Negligence. 439 keep his thoughts fixed at all times on such defect. Momentary forgetfulness does not necessarily establish contributory negli- gence,*" although there is now and then a case which seems to hold that it does." Assumption of Risk. The distinction, between this defense and that of contributory negligence, has been pointed out in a former connection. That distinction has not always been observed by the courts, and not a few tribunals, as we saw, have deliber- ately ignored or repudiated it. Two Minnesota cases,'^ reported in the same volume, will illustrate the distinction. In the earlier of these cases, the plaintiff, with full and present knowledge of the defective condition of a sidewalk, and of the risks incident to its use, voluntarily attempted to walk upon it, when she could have gone around the defective part easily. The court held that she took her chances of injury — she voluntarily assumed a known risk — and injury having ensued, she had only herself to blame.*' "■Kelly V. Blackstone, 147 Mass. 448, 18 N. E. 217, 9 Am. St. R. 730 (1888); Maloy v. City of St. Paul, 54 Minn. 398, 56 N. W. 94 (1893); Weed V. Ballfton Spa, 76 N. Y. 329 (1879) ; Knoxvllle v. Cox, 103 Tenn. 368, 53 S. W. 734 (1899); McQuillan V. City of Seattle, 10 Wash. 464, 38 Pac. 1119, 45 Am. St. R. 799 (1895) ; Simonds v. Baraboo, 93 Wis. 40, 67 N. W. 40, 57 Am. St. R. 895 (1896). "Davis V. Cal., etc., Ry., 105 Cal. 131, 38 Pac. 647 (1894). '"Wright V. City of St. Cloud, 54 Minn. 94, 55 N. W. 819 (1893); Maloy V. City of St. Paul, 54 Minn. 398, 56 N. W. 94 (1893). In Burns V. Bos. El. Ry., 183 Mass. 96, 66 N. E. 418 (1903), it was held that a passenger, who rode on the front platform, knowing that there was a sign on the car, that " passengers riding on the front platform do so at their own risk," accepted the risk. There was no evidence that the rule had been waived by the company, as in Sweetland v. Lynn & B. Ry., 177 Mass. 574, 59 N. E. 443, 51 L. R. A. 783 (1901). Risk was assumed in McGorty v. South- ern etc. Co., 69 Conn. 635, 38 At 359, 61 Am. St. R. 62 (1897); Lam- son V. Am. Ax. & T. Co., 177 Mass. 144, 58 N. E. 585 (1900); Phelps v. Chic. etc. Ry., 122 Mich. 171, 8) N. W. 101 (1899); Dillenberger v. Weingartner, 64 N. J. L. 292, 45 At. 638 (1900); Langlois v. Dunn Worsted Mills, 25 R. I. 645, 57 At. 910 (1904); Norfolk etc., Ry. V. Mar- pole, 97 Va. 594, 34 S. E. 462 (1899). '-■'■ Cf. Jones V. Canal etc. Co., 109 La. 213, 33 So. 200 (1902); Cattano V. Met. Ry., 173 N. Y. 565, 66 N. E. 563 (1903). The majority opinion proceeds upon the theory that plain- tiff did not take the risk; Cincin- nati etc. Ry. V. Lohe, 68 Oh. St. 101, 67 N. B. 161 (1903); Smith v. City of New Castle, 178 Pa., 298, 35 At. 973 (1896), plaintiff, it was held, did not take the risk, reversing de- cision of trial court; Phillips v. Ritchie Co., 31 W. Va. 477, 7 S. B. 440 The Law of Torts. In the latter case; the defect (a hole in the sidewalk) was tem- porarily concealed by a light snow, and the plaintiff testified that she was not thinking of the defect when she stepped into it and fell. The court held that the case presented a question for the jury, whether the plaintiff's inattention to the known defect amounted to contributory negligence on her part.** Comparative Negligence. It is well settled that where both the plaintiff and defendant are equally guilty of a mere want of ordinary care, the plaintiff cannot recover.*^ The negligence in such cases is often spoken of as concurrent. Where the negligence of the plaintiff, however, is small in comparison with that of the defendant, although operating concurrently with it to prodtice the harm, courts have often remarked upon the harshness of the com- mon law rule of contributory negligence, and some have substituted for it a doctrine known as that of comparative negligence. It has been stated as follows : " The degrees of negligence must be meas- ured and considered, and whenever it shall appear that the plaintiff's negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action." '* The doctrine has been rejected in the State of its origin,''' and probably does not obtain now in any jurisdiction.*' It appears to have been the result of an unsuccessful attempt to state the doctrine of decisive or proximate negligence, already discussed." 427 (1888); Bormann v. City of Ry. v. Rollins, 5 Ks. 167, (1869), Milwaukee, 93 Wis. 522, 67 N. W. but repudiated in Atchison etc. Ry. 924 (1896) ; Reed v. Stockmeyer, 74 v. Henry, 57 Ks. 154, 45 Pac. 576 Fed. 186, 20 C. C. A. 881, 34 U. S. (1896). Possibly it obtains in Ne- App. 727 (1896). braska. Village of Orleans v. Perry, " Gf. Moshenvel v. Dist. Columbia, 24 Neb. 831, 836, 40 N. W. 417 191 U. S. 247, 24 Sup. Ct. 57 (1903); (1888). In a few states, a similar ^'an Duzen Gas Co. v. Schelies, 61 doctrine has been enunciated in O. St. 298, 55 N. B. 998 (1899). statutes. See Fla. So. Ry. v. Hirst, "' Little V. Supervior etc. Ry., 88 30 Fla. 1, 11 So. 506, 32 Am. St. R. Vis. 402, 60 N. W. 705 (1894). 17, 16 L. R. A. 631 (1892); Ala. etc., "'Galena etc. Ry. v. Jacobs, 20 Ry. v. Coggins, 88 Fed. 455 (1898). n. 478 (1858) ; Chicago v. Stearns, " In Inland etc. Co. v. Tolson. 139 105 111. 554 (1883). U. S. 551, 559, 11 Sup. Ct. 653, 35 "City of Lanark v. Dougherty, L. Ed. 270 (1891) it is said; "The 153 111. 163, 166, 38 N. E. 892 jury might well be of the opinio* (1894). that while there was some negli- " It was adopted in Union Pac. gence on his part, in standing Negligence. 441 Young Children and other Incapables. A minor may be guilty of contributory negligence, whenever it is shown that he is capable of taking ordinary care of himself in the situation in ques- tion. Whether he has such capacity is a question of fact, althougli the undisputed evidence in a particular case may sliow to the satis- faction of the court, either that he was,"" or that he was not,"' capa- ble of contributory negligence. Generally speaking, " the standard of responsibility is the average capacity of others of the same age and exj.erience, and to this standard a child should be held, in the absence of evidence on the subject." "- One, who is so devoid of intelligence, as to be unable to appre- hend ap]iarent danger, and to avoid exposure to it, cannot be guilty of contributory negligence ; because he is incapable of exer- cising ca\ ». Still, other persons are not bound to observe special precautioi.s for the safety of such an incapable, unless they have notice of his incapacity, or mental deficiency.'"' When the incapacity comes froi T voluntary intoxication, it is no excuse for contributory negligence ; ®* although, if the defendant knew of the intoxication, «rhere and ds he did, yet, that the officers of ti.e boat knew just where and how he stood, and might have avoided iujiirlng him, if they had UFed reasonable care to prevent the steamboat from striking the wharf, with unusvial and unnecessary vio- lence. If Each were the facts, the defendant's negligence was the proximate, direct, and efficient cause of the Injury." "■Killelea i. Cal. H. Co., 140 Cal. e02, 74 Pae. 157 (1903); Evans v. Josephine Miils, 119 Ga. 448, 46 S. B. 074 (1904); iShelley v. City of Aus- tin, 74 Tex. 61)8, 12 S. W. 753 (1889). " Carney v. Concord St. Ry., 72 N. H. 364, 57 At. 218 (1903); O'Brien V. Wis. C. Ry., 119 Wis. 7, 96 N. W. 424 (1903); Kunz v. City of Troy. 104 N. Y. 344, 10 N. E. 442, 58 Am. R. 508 (1887). "Parker v. «t. Ry., 207 Pa. 438, 441, 56 At. 1001 (1903); Lafferty v. Third Ave. Ry., 85 App. Div. 592, 598, 83 N. Y. Supp. 405, 176 N. Y. 594 (1903); Stone v. Dry Dock etc. Ry., 115 N. Y. 107, 21 N. E. 712 (1889) ; Cleveland Rolling M. Co. v. Corrigan, 46 O. St. 283, 20 N. E. 466, 3 L. R. A. 385 (1889) ; Robinson V. Cone, 22 Vt. 213, 54 Am. Dec. 67 (1850) ; Kucera v. Merrill L. Co., 91 Wis. 637, 65 N. W. 374 (1895). " Worthington v. Mencer, 96 Al. 310. 11 So. 72, 17 L. R. A. 407 (1892). " Johnson v. Louisville etc. Ry., 104 Al. 241, 16 So. 75, 53 Am. St. R. 39 (1893); Bwke v. Chic, etc., Ry., 108 111. App. 565 (1903). Meyer v. Pac. Ry., 40 Mo. IP' (1867) ; Bageard v. Consol. Tr. Co., 64 N. J. L. 316, 45 At. 620, 49 L. R. A. 424, 81 Am. St. R. 498 (1900); Smith V. Norfolk etc. Ry., 114 N. C. 728, 19 S. E. 863. 25 L. R. A. 287 (1894). 442 The Law of Torts. and could have avoided harming the plaintiff, by the exercise of due care, his failure to exercise such care will constitute decisive negligence, and be the proximate cause of the harm.°° § 4. IMPUTED NEGLIGENCE. Master and Servant. We have seen, in an earlier chapter, that the negligence of the servant, using that term in its generic sense, is imputable to the master, when the latter is a defendant. It is likewise imputable to him when he is a plaintiff, provided, as in the former case, that the negligence of the servant is within the ap- parent scope of his authority.** Accordingly, a person who sues for the value of his slave, killed by defendant's negligence, may be defeated by evidence of contributory negligence on the slave's part.°' Moreover, a husband who sues for damages for the loss of the society and services of his wife, as well as for the medical expenses, due to injuries caused by the defendant's negligence, is subject to the defense of contributory negligence by the wife." Whether an action by the wife for personal injuries is subject to the defense of contributory negligence on the husband's part, depends upon the question whether he was acting as her representative at the time ; at least, in jurisdictions where she is entitled to sue alone, and is also entitled to the recovery.*" If the husband must join as a plain- tiff, and especially if the recovery belongs to him, his contributory negligence will bar a recovery."" Carrier and Passenger. There is some authority for the prop- osition that a passenger is so far identified with the carrier, that the negligence of the latter, or of his servants, is to be imputed to " Edgerly v. Union St. Ry., 67 N. Fed. 39, 12 C. C. A. 190, 27 U. S. H. 312, 36 At. 558 (1892). App. 196, 26 L. R. A. 42 (1894); *> St. Louis etc. Ry. v. Hecht, 38 Winner v. Oakland, 158 Pa. 405, 27 Ark. 357 (1882); Louisville etc. At. 1110 (1893). Ry. V. Stommel, 126 Ind. 35, 25 N. "Davis v. Guarnieri, 45 O. St. B. 863 (1890); La Riviere v. Pem- 470, 15 N. E. 350, 4 Am. St. R. 548 berton, 46 Minn. 5, 48 N. W. 406 (1887); Bailey v. City of Center- (1891); Puterbaugh V. Reasor, 9 0. ville, 115 la. 271, 88 N. W. 379 St. 484 (1859). (1901). "Sims V. Macon etc. Ry. 28 Ga. '""Penn. Ry. v. GoodenougU, 55 93 (1859). N. J. L. 577. 28 At. 3, 22 L. R. A. "Chicago etc. Ry. v. Honey, 63 460 (1893). Negligence. 443 the passenger ; although neither the carrier nor his emplo3'ees sus- tain the relation of servants to the passenger, but are independent contractors.'"^ This doctrine has been repudiated, however, in most of the jurisdictions, which once enforced it, and never found much favor in this country.'"- -\ learned English judge, referring to the reasoning in Thorogood v. Bryan, said;""" " I do not think it well grounded either in law or in fact. What kind of control has the passenger over the driver {cf. an omnibus or street car) which would make it reasonable to hold the former affected by the negli- gence of the latter ? — And when it is attempted to apply this reason- ing to passengers travelling in steamships or on railways, the un- reasonableness of such a doctrine is even more glaring." Parent and Child. Whether the negligence of the parent, or of one ill loco parentis, should be imputed to a child who is incapable of exercising care on his behalf, is a question upon which the courts ""■Thorogood v. Bryan, 8 C. B. 115, 18 L. J. C. B. 336 (1849); rayne v. Chic. etc. Ry., 39 la. 523 (1874); Lockhart v. Lichtenthaler, 46 Pa. 151 (1863); Carlisle v. Sheldon. 38 Vt. 440, 447 (1886). In Cuddy v. Horn, 46 Mich. 596, 41 Am. R. 178 (1881), and Prideaux V. Mineral Point, 43 Wis. 513, 28 Am. R. 558 (1878), the doctrine is laid down that a passenger in a private conveyance is identified with the driver, because if the lat- ter does not obey the former's di- rections, the passenger can refuse to commit his safety any longer to the driver's care. ""The Bernina, 12 Prob. Div. 58, 56 L. J. P. D. & A. 17 (1887), aff'd sub nom. Mills v. Armstrong, 13 App. Cas. 1, 57 L. J. P. D. & A. 65 (1888); Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652 (1886); Mo. Pac. Ry. v. Tex. Pac. Ry., 41 Fed. 316 (1890); Lit- tle etc. Ry. V. Harrell, 58 Ark. 454, 25 S. W. 117 (1894); Larkin v. Burlington etc. Ry., 85 la. 492, 52 N. W. 480 (1892); Pittsburg etc. Ry. V. Spencer, 98 Ind. 186 (1884); Danville etc. Turnpike Co. v. Stewart, 2 Met. (Ky.) 119 (1859): Holzab V. New Orleans etc. Co., 28. La. Ann. 185, 58 Am. R. 177 (1886) ; Randolph v. O'Riordon, 155 Mass. 331, 29 N. E. 583 (1892); Cuddy v Horn, 46 Mich. 596, 41 Am. R. 178 (1881); Flaherty v. Minn. etc. Ry., 39 Minn. 328, 40 N. W. 160, 12 Am. St. R. 654, 1 L. R. A. 680 (1888); Koplitz v. City of St. Paul, 86 Minn. 373, 90 N. W. 794 (1902); Becke v. Mo. Pac. Ry., 102 Mo. 544, 13 S. "W. 1053, 9 L. R. A. 157 (1890); N. Y. etc. Ry. v. Steinbren- ner, 47 N. J. L. 161, 54 Am. R. 126 (1885); Chapman v. New Haven Ry., 19 N. Y. 341, 75 Am. Dec. 344 (1859); Dean v. Penn. Ry., 129 Pa. 514, 18 At. 718 (1889) ; Covington Tr. Co. v. Kelly, 36 O. St. 86 (1880); Markham v. Houston etc. Co., 73 Tex. 247, 11 S. W. 131 (1889). ""Lord Herschell in Mills v. Armstrong, 13 App. Cas. at p. 8. 444 The Law of Torts. of this country are divided. The argument in favor of imputing the parent's contributory negligence to the child, as stated in the leading case on this topic is as follows: The law enjoins the duty of mutual care upon persons, who are in the highway or in similar positions, where the presence of either limits to some extent the freedom of action of the other. Small children are not exempt from this rule when they bring actions for redress of injuries, and the only waj- to enforce the rule is to require due care from those, to whom the law and the necessity of the case have delegated the exercise of that discretion, which the small child does not possess. Such a child, it is said, is not stii juris. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper and agent for this purpose ; and in respect of third persons, his act must be deemed that of the infant ; his neg- lect, the infant's neglect. When the infant complains of wrongs to himself, the defendant has a right to insist that he should not have been the heedless instrument of his own injury. If his proper agent and guardian has suffered him to incur mischief, it is much more fair that he should look for redress to that guardian, than that the latter should negligently allow his ward to be in the way of trav- ellers, or like persons, and then harrass them in courts of justice, recovering heavy verdicts for his own misconduct.^"* This argument has been deemed unsound by the majority of our courts which have dealt with this question. It is admitted that the law puts the infant under the care of an adult, but how, it is asked, can this right to be cared for and protected be construed into an obligation to waive or forfeit any of the infant's legal rights? If the parent or guardian were to contract with the defendant, that the latter should not be liable to the infant for any harm inflicted upon him by the joint negligence of the parent and defendant, such engagement, it is declared, would be invalid, both because it would be against good morals, and, also, beyond the legal authority of the parent. More- '" Hartfleld v. Roper, 21 Wend. Holly v. Bos. Gaslight Co., 8 Gray (N. Y.) 615 (1839); followed in (74 Mass.) 123, 69 Am. Dec. 233 Daly V. Hintz, 113 Cal. 366, 45 Pac. (1857); Fitzgerald v. St. Paul etc. 693 (1896); Atch. etc., Ry. v. Cal- Ry., 29 Minn. 336, 13 N. W. 168, vert, 52 Ks. 547, 552, 34 Pac. 976, 43 Am. R. 212 (1882); Decker v. (1893); Leslie v. Lewiston, 62 Me. McSorley, 111 Wis. 91, 86 N. W. 554 468 (1873); Baltimore etc. Ry. v. (1901); D. L. & W. Ry. v. Devore. McDonnell, 43 Md. 534, 551 (1875); 114 Fed. 155, 52 C. C. A. 77 (1902). Negligence. 445 over, if the parent's negligence is imputable to the infant, so as to defeat an action for injuries sustained by him, it is equally imputa- ble, for the purpose of subjecting him to actions for the harmful consequences to third persons from such negligence; a conclusion for which there is no shadow of legal authority. And, finally, it is said, the conversion of the infant, who is entirely free from fault, into a wrongdoer by imputation, is a logical contrivance uncongenial with the spirit of jurisprudence; while there is no injustice, no hard- ship in requiring all wrongdoers to be answerable to a person, who is incapable either of self-protection, or of being a participant in their misfeasance.^"' Of course, when the parent sues, in his own right, for his loss of the child's services, or for expenditures rendered necessary by the child's injuries, his own negligence in caring for and guarding the child is a valid defense.^"* § 5. LIABILITY OF L.\NDOWNER OR OCCUPIER ; AND OF OTHERS ENGAGED IN EXTRA HAZARDOUS UNDERTAKINGS. . Doctrine of Rylands v. Fletcher. In this leading English ""Newman v. Phillipsburg, etc. 19 N. W. 623, 49 Am. R. 716 (1884) ; Co., 52 N. J. L. 446, 19 At. 1102, Warren v. Manchester St. Ry., 70 8 L. R. A. 842 (1890). Accord, N. H. 352 47 At. 735, with full col- Govt. St Ry. V. Hanlon, 53 Al. 70 lection of authorities, (1900) ; Bot- (1875); St. Louis etc. Ry. v. Rex- toms v. Seaboard etc. Ry., 114 N. C. road, 59 Ark. 180, 26 S. W. 1037 699, 19 S. E. 730, 25 L. R. A. 784, 41 (1894); Daley v. Norwich etc. Ry. Am. St. R. 799 (1894); Bellefon- 26 Conn. 591, 68 Am. Dec. 413 taine etc. Ry. v. Snyder, 18 O. St. (1858); Chic. City Ry. v. Wilcox, 399, 98 Am. Dec. 175 (1868); Gal- 138 111. 370, 27 N. E. 899, 21 L. R. veston etc. Ry. v. Moore, 59 Tex. A. 76 (1889) ; City of EJvansville v. 64, 46 Am. R. 265 (1883) ; Diclcen Senhenn, 151 Ind. 42, 47 N. B. 634, v. Liverpool etc. Co., 41 W. Va. 511, 68 Am. St. R. 218, 41 L. R. A. 728 23 S. E. 582 (1895); Robinson v. (1897), overruling Pittsburg etc. Cone, 22 Vt. 213, 54 Am. Dec. 67 Ry. V. Vining, 27 Ind. 513, 92 Am. (1850); Chicago etc. Ry. v. Kow- Dec. 269 (1867); Westei«eld v. alski, 92 Fed. 310, 34 C. C. A. 1, Levis, 43 La. Ann. 63, 9 So. 52 with note classifying decisions, (1891); Westbrook v. Mobile etc. (1899). Ry., 66 Miss. 560, 6 So. 321, 14 .A.m. ""Bellefontaine etc. Ry. v. Snyder, St. R. 587 (1889); Winters v. Kan. 24 O. St. 670 (1874); Erie City Ry. City. Ry., 99 Mo. 509, 12 S. W. 052, v. Schuster, 113 Pa. 412, 6 At. 269, 6 L. R. A. 536, 17 Am. St. R. 591 57 Am. R. 471 (1886); Williams v. (1889); Huff v. Ames, 16 Neb. 139, Tex. etc., Ry., 60 Tex. 205 (1883). 446 The Law of Torts. case, it was judicially declared;"' "That the true rule of law is that the person who for his own purposes brings on his lands, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does not do so, is prima facie liable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiflf's default ; or, perhaps, that the escape was the consequence of vis major, or the act of God.^"' * * * -phe general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by-the water from his neighbor's reservoir,^"" or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome va- pors of his neighbor's alkali works, is damnified without any fault of his own ; and it seems but reasonable and just that the neighbor, who has brought something on his own property, which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous, if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue; or, answer for the natural, and an- ticipated consequences. And upon authority, this we think is estab- lished to be the law, whether the things so brought be beasts, or water, or filth or stenches." This bold generalization of Mr. Justice Blackburn, has been ex- '" Blackburn J. In Fletcher v. Ry- held that a reservoir owner is not lands, L. R. 1 Ech. 265, 279-280, liable for the escape of water due 35 L. J. Ex. 154 (1866)), approved to the act of a stranger, which de- in Rylands v. Fletcher, L. R. 3 H. lendant had no reason to anticipate. L. 330, 339-340, 37 L. J. Ex. 161 "» In Rylands v. Fletcher, the (1868), by Cairns, Ld. Ch., and plaintiff's harm came from water Cranworth, L. J.; also in Smith v. percolating through an ancient coal Giddy. (1904) 2 K. B. 448. shaft, long filled up and not known '"■ Nichols v. Marsland, T.,. R. 2 to defendant or his agents, from a Ex. 1, 46 L. .T. Ex. 174 (187C). so reservoir built by defendant on his holds; and in Box v. Jubb. 4 Ex. D. land. 76, 48 L. J. Ex. 417 (1879), it was NEGLIGE^-CE. 447 travagantly praised "" and extravagantly censured."' Having been accepted by the House of Lords, it has fixed the rule for England ; and yet, we are assured, " the tendency of later decisions has been rather to encourage the discovery of exceptions than otherwise. * * * No case has been found, not being closely similar in its facts, or within the same previously recognized category, in which the un- qualified rule of liability without proof of negligence has been enforced." '" Rylands v. Fletcher not Generally Approved in America. While the decision has been cited frequently by our courts, few of them have given it unqualified approval, while many have emphat- ically rejected its doctrine. Perhaps the supreme judicial court of Massachusetts has given it countenance beyond most of our trib- unals, but even in that jurisdiction, the rule is limited, apparently, to cases of trespass and nuisance.^" As thus limited, it is neither novel nor objectionable.^" "° Professor Wigmore, in 7 Harv. Ljfw Rev. pp. 454, 455 speaks of Mr. Justice Blackburn's generaliza- tion as ■■ epochal in its conse- quences." He adds; " The practical effect of that great jurist's opinion has been to furnish us with three main categories of acts to which re- sponsibility is affixed with refer- ence to specific harm, viz. (1) acts done willfully with reference to that harm; (2) acts done at peril with reference to that harm; (3) acts done negligently with refer- ence to that harm." "' Mr. mshop, in his Non-Con- tract law, § 839, note 3, after quo- ting the passage given above, re- marks; " It is needless to say that such is not the law in any common law country. * * * The reasoning so far as it proceeds on grounds, other than negligence, is the indi- vidual reasoning of the judges, and not the reasoning of the law." ■"Pollock. Torts (6 Ed.) 472, 473. "" Fitzpatrick v. Welch, 174 Mass. 486, 55 N. E. 178, 48 L. R. A. 278 (1899), where defendant collected water on his roof and discharged it into a gutter, from which it neces- sarily flowed upon plaintiff's land, unless diverted by defendant. Said Holmes C. J.; "The danger is so manifest, so constant and so great as to impose upon defendant the duty of preventing, at his peril, harm from coming to pass." He cited Shipley v. Fifty Associates, 106 Mass. 194, 8 Am. R. 318 (1870), where defendant maintained a French roof, so near the street, as to cause snow and ice to fall upon travellers; and Jutte v. Hughes, 67 N. Y. 267, (1876), where defendant's drains and privies discharged watei and filth upon plaintiff's land. "' Supra, Chaps. 11 and 14. Also, Berger v. Minn. Gaslight Co., 60 Minn, 296, 301, 62 N. W. 336 (1895) ; '■ It is only those things, the natu- ral tendency of which is to become a nuisance, or to do mischief, if they escape, which the owner keeps 443 The Law of Torts. In a recent Massachusetts case, the Rylands v. Fletcher rule, it is said, applies only " to unusual and extraordinary uses of one's property which are so fraught with peril to others, that the owner should not be permitted to adopt them for his own purposes, with- out absolutely protecting- his neighbors from injury or loss by rea- son of the use; * * * unless he provides safeguards whose perfec- tion he guarantees." "^ Such a rule, it was declared, is not applicable to the construction and maintenance of the walls of an ordinary build- ing near the land of an adjacent 6wner. " As it is desirable that buildings and fences should be put up, the law does not throw the risk of that act, any more than of other necessary conduct, upon the actor, or make every owner of a structure insure against all that may happen, however little to be foreseen." ^^^ The duty of a land owner, or occupier, in such case of lawful use, is to make the con- ditions safe, so far as it can be done by the exercise of ordinary care. If, however, the walls of building become ruinous and~ thus a nuisance to neighbors, or those lawfully near them, the owner is under the duty of not suffering the structure to remain, without using such care in the maintenance of it as will absolutely prevent injuries, except from such causes as vis major, acts of public ene- mies, or wrongful acts of third persons, which human foresight could not reasonably be expected to anticipate and prevent.^^' The New York Court of Appeals has refused to accept the rule laid down in Rylands v. Fletcher, declaring that it is in direct con- flict with the law as settled in this country.^*' Similar disapproval of the rule has been expressed by the courts of last resort in other States."' In the New Jersey case, cited in the last note, it is said ; " The fallacy in the process of argument by which judgment is at his peril; " thus limiting Cahill 397, 62 N. E. 748, 57 L. R. A. 132 V. Eastman, 18 Miiin. 324, 10 Am. (1902); Simmons v. Everson, 121 R. 184 (1872), which followed Ry- N. Y. 319, 26 N. E. 911, 21 Am. St. lands V. Fletcher. R. 677 (1891). "' Ainsworth v. Lakin, 180 Mass. "' Losee v. Buchanan, 51 N. Y. 397, 62 N. E. 746, 57 L.' R. A. 132 476, 487, 10 Am. R. 623 (1873). (1902). '"Brown v. Collins, 53 N. H. 442, "•Quinn v. Crlmmings, 171 Mass. 16 Am. R. 372, and note (1873); ■^r.S, r.O N. R. C24, 42 I.. R. A. 101, Marshall v. Wellwood, 38 N. J. L. CS Am. St. R. 420 (1898). 339, 20 Am. R. 394 (1876). '" Ainsworth v. Lakin, 180 Mass. Negligence. 449 reached, in the case of Fletcher v. Rylands, appears to consist in this : that the rule mainly applicable to a class of cases, which should be regarded as. in a great degree exceptional, is. amplified into a general if not universal principle." Let us consider these excep- tional cases. Liability for Cattle and Nuisances. We have seen in a former chapter "-" that a person acts at his peril in maintaining a nuisance ; and, in another chapter/-' that the owner of trespassing cattle is answerable for all the harm done by them, whether he have notice of their disposition to do the particular harm or not. But we also saw, that the owner of cattle is not liable for harm done by them while driven along the highway without negligence on his part, and without notice of their vicisusness ; nor is he liable for mischief done by them to the person or personal property of another, at other times, when the action is not one of trespass qiiare clausutn fregit, without proof that he had notice of their viciousness, or that he was Dtherwise negligent.'-^ Clearly it cannot be said that the common law imposed upon the owner of cattle the liability of an insurer against all damage done by them, if they escaped from his land.'-^ Vicious Animals. When these are not useful for any lawful purpose, or are so kept, as to be a menace to human beings, while engaged in lawful pursuits, they are fairly classed as a nuisance. Hence they may be killed without incurring liability ; and, if they do damage, their owner or responsible keeper must answer there- ior.'=* When, however, the vicious animal, such as a watch-dog, may be lawfully kept for useful purposes, the liability of the owner or keeper is for negligence in the manner of keeping it.'^° He is, of ""Chapter XIV. 214, 31 At. 97G (1891); Aldrich v. "« Cnapter XL Wright, 53 N. H. 398, 16 Am. R. "^Van Leuven v. Lyke, 1 N. Y. 339 (1873); Muller v. McKesson, 73 515, 51G, 49 Am. Dec. 346 (1848); N. Y. 195, 29 Am. R. 129 (1878). Annapolis etc. Ry. v. Baldwin, 60 "^ Knickerbocker Ice Co. v. Finn, Md. 88, 45 Am. R. 711 (1882). 80 Fed. 483 (1897); Baldwin v. En- '='In Chapter XI, it was shown sign, 49 Conn. 113, 44 Am. R. 205 that custom and legislation have (1881); Hahnke v. Friederlck, 140 modified the common law liability N. Y. 224, 35 N. E. 487 (1893 )*; of cattle owners materially. Duval v. Barnaby. 7^ App. Div. 154, «* Jones v. Carey, 9 'Houst. (Del.) 77 N. Y. Siipp. 337, 11 N. Y. Anno- 29 450 The Law of Torts. course, bound to exercise a degree of care, commensurate with the danger to others which will follow the dog's escape from his cus- tody, to so secure it that it will not injure anyone who does not un- lawfully provoke or intermeddle with it, or invite an attack from it.i" Care of Fire and Electricity. The common law held the per- son starting a fire, even for necessary and lawful purposes, to an absolute responsibility for its consequeitices. The doctrine of a care- fully considered case, decided in 1400 A. D.,"' is thus stated in Rolle's Abridgment: " If my fire by misfortune burns the goods of another man, he shall have an action against me. * * * If my ser- vant put a candle or other fire in a place in my house and it falls and burns my house and the house of my neighbor, an action on the case lies against me." ^^' The only defense available to the one, on whose premises a fire originated, was that the fire was due to the unauthorized act of a stranger, or of one for whose act defendant was not legally answerable. * This doctrine was modified by statute in 1707,^^" so as to exempt land holders from liability for accidental fires ; but for the conse- quences of fire negligently or intentionally started for any purpose, the originator is absolutely liable still,^^^ save in cases where he has received statutory authority to maintain a fire, as in the case of railroad companies.^'^ tated Cas. 227 and note (1902) ; Jenkinson v. Coggins, 123 Mich. 7, Benolt V. Troy etc. Ry., 154 N. Y. 81 N. W. 974 (1900) ; Peck v. W:i- 223, 48 N. E. 524 (1897) ; Hayes v. liams, 24 R. I. 583, 54 At. 381 Smith, 62 O. St. 161, 182, 56 N. E. (1903). 879 (1900); Crowley v. GrooneM, 73 '" Beaulieu v. Plnglam, 2 H. IV., Vt. 45, 50 At. 546, 55 L. R. A. 876, 18 pi. 6. 86 Am. St. R. 790 (1901), a big dog '=« Action Sur. Case, Pur. Fewe, whose assault may have been play- B. 1 and 3. ful, but was dangerous. '^ Allen v. Stephenson, 1 Lutw. 90 "•DeGray v. Murray, 69 N. J. L. (1700). 458, 55 At. 237 (1903); Worthen v. '^Chap. 31, Sec. 6, of 6 Anne, sup- Love, 60 Vt. 285, 14 At. 461 (1888). erceded by 14 Geo. 3, Chap. 78, Sec. In some states the liability of the 86. owner or keeper of dogs has been "• Filliter v. Phlppard, 11 Q. B. made nearly absolute. See Dillehay 347, 17 L. J. Q. B. 89 (1847), re- y. Hickey, (Ky.) 71 S. W. 1 (1902); jecting Blackstone's and Lord Carroll v. Marcoux, 98 Me. 259, 56 Lyndhurst's understanding of the At. 848 (1903); Riley v. Harris, 177 statutes. Mass. 163, 58 N. E. 584 (1900); '" Jones v. Festiniog Ry., L. R. 3 Negligence. 45 r The same extraordinary liability rests upon one, who brings elec- tricity upon his premises, whence it escapes to the harm of his neighbors."* In this country, the common law liability for fire has never been enforced. A person does not start a fire on his land at his peril. If it spreads beyond his premises and harms others, his liability for the harm must be grounded on his negligence. The same is true of his liability for electricity escaping from his control. In both cases, however, the care which he must exercise in guarding the dangerous element, varies with the hazard to which it exposes others.^'* In some states, the liability for the consequences of fire is regu- lated by statute.^'" Liability for Explosives. This, under the doctrine of Rylands V. Fletcher, should be absolute, and such seems to be the holding in England.^** In this country, the liability is absolute, only when ihe defendant's cofiduct amounts to the maintenance of a nui- sance.^'' Otherwise, his liability is for negligence. If he is igno- rant of the character of the explosive, and his ignorance is not due to fault on his part, his duty of care is fixed by the apparent char- acter of the article.^^' Otherwise, he is bound to exercise a degree Q. B. 733, 37 L J. Q. B. 214 (1868); Powell V. Fall, 5 Q. B. D. 597, 49 L. J. Q. B. 428 (1880). '"'Nat. Tel. Co. v. Baker, (1893) 2 Ch. 186, 62 L. J. Ch. 699. '=* St. Louis etc. Ry. v. Yonley, 53 Ark. 503, 14 S. W. 800 (1890); Bur- roughs V. Housatonic Ry., 15 Conn. 124, 38 Am. Dec. 64 (1842) ; Hauch V. Hernandez, 41 La. Ann. 992, 6 So. 783 (1889); Batchelder v. Heag- an, 18 Me. 32 (1840) ; Hewey v. Nourse, 54 Me. 257 (1866); Clark V. Foot, 8 Johns. (N. Y.) 421 (1811). Liahility for electricity. Southern Bell Tel. Co. v. McTyer, 137 Al. 601, 34 So. 1020 (1903); Knowlton v. DesMoines etc. Co., 117 la. 451, 90 N. W. 818 (1902); Thomas v. Mays- ville Gas Co., 108 Ky. 224, 56 S. W. 154 (1900) ; Gerrlsh v. Whitfield, 73 N. H. 222 55 At. 551 (1903) ; Mitch- ell V. Raleigh Elec. Co., 129 N. C. 166, 39 S. E. 801 (1901); Daltry v. Media Elec. Co., 208 Pa. 403, 57 At. 833 (1904); Cumberland etc. Co. v. United Elec. Ry., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236 (1894); Joyce, Electric Law, Chap. 22. '" Shearman & Redfield, Negli- gence (5 Ed.) Sec. 671, and author- ities there cited. ""Clerk and Lindsell, Torts (2 Ed.) 375. •" Heeg V. Licht, 80 N. Y. 579, 36 Am. R. 654 (1880); and authorities cited in the chapter on Nuisance. '" The Nitro-Glycerine case, 15 Wall. (U. S. 524, 21 L. Ed. 206 (1872). The third head note is as follows: "Where there is nothing to excite the suspicion of a com- 452 The Law of Torts. of care commensurate with the hazard to which his possession, use or sale of the explosive subjects others,^^' who are free from con- tributory fault."" Poisons and Other Dangerous Articles. Here, again, the lia- bility of the manufacturer, seller, lender or user is not that of an msurer of safety. He does not act at his peril in lawfully making, selling, lending, or using such articles. He does incur liability, however, even to persons with whom he has no contract relations, when he fails to exercise such care as is fairly necessary to the pro- tection of others against the extraordinary hazard to which these articles subject them."' Accordingly, if a drug dealer sells to a mon carrier as to the contents of a package, it is not negligence * * * to handle it in the same manner as other packages, of similar outward appearance, are handled." At p. 538, after referring to cases arising from fire, blasting and similar causes, the court says: " The rule deducible from them is, that the measure ol care against accident, which one must take to avoid re- sponsibility, is that which a person of ordinary prudence and caution would use, if his own interests were, to be affected, and the whole risk were his own." '^Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682 (1868); Welling ton V. Downer Ker. Oil Co., 104 Mass. 64 (1870); Weiser v. Holz- man. 33 Wash. 87, 73 Pac. 797 (1903). In the last cited case, plaintiff alleged " negligence in the manufacture and bottling of a dan- gerous explosive, called champagne cider; " and the complaint was held upon demurrer to state a good cause of action. In Walker v. Chic. etc. Ry., 71 la. 658, 33 N. W. 224 (1887). plaintiff failed, because she did not give evidence of negligence on de- fendant's part. See Binford v. John- son,. 82 Ind. 42G, 48 Am, R. 508 (1882); Waters-Pierce Oil Co. v. Davis. 24 Tex. Civ. App. 508, 60 S. W. 453 (1900); Smith v. Clark Hardware Co., 100 Ga. 163, 28 S. E. 73, 39 L. R. A. 607 (1897). '" Birmingham Water Works Co. V. Hubbard, 85 Al. 179, 4 So. 607 (1887) ; the jury exonerated the plaintiff from contributory negli- gence. In Carter v. Towne, 103 Mass. 507 (1870), it appeared that the plaintiff, a child of eight, had handed gun-powder to her mother, after buying it from the defendant, and thus the latter escaped the lia- bility, which he was held in 98 .lass. 567, supra, to have incurred; his negligent sale, and delivery to the child was not the proximate cause of the child's injury from the explosion. See Gartin v. Meredith, 153 Ind. 16, 63 N. E. 936 (1897). '" Salisbury v. Erie Ry., 66 N. J. L. 233, 50 At. 117, 55 L. R. A. 578, 88 Am. St. R. 480 (1901); defend- ant held liable for negligent use of handcar, by one to whom foreman had loaned it; Winkler v. Car. & N. W. Ry., 126 N. C. 370, 35 S. E. 621, 78 Am. St. R. 663 (1900); defend- ant held liable for negligently main- taining a barbwire fence. Negligence. 453 druggist a jar of belladonna, negligently labeled '" extract of dan- delion," he is liable to any one who sustains injury by using the drug as dandelion."^ Again, a person, who sells or rents an article, which he knows, or is legally bound to know, is imminently dan- gerous to life or limb, to another, without giving notice of its quali- ties, is liable to any person who suffers injury therefrom, which might have been reasonably anticipated."™ Especially is this true, when the defendant has been guilty cf fraudulent or unjustifiable concealment of dangerous defects."* Cases coming within these principles are to be distinguished from those falling within the general rule that a contractor, manufacturer, vendor or bailor is not liable to third parties, who have no con- tractual relations with him, for negligence, as distinguished from fraudulent or wanton conduct in the construction, manufacture, sale or bailment of property.^*^ It is frequently difficult to determine '"Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455 (1852); Ac- cord, Blood-Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118. 5 L. R. A. 612, 20 Am. St. R. 324 (1889) ; Norton v. Sswall, 106 Mass. 143, 8 Am. R. 298, (1870); Davis v. Guarnieri, 45 O. St. 470, 15 N. E. 350, 4 Am. St. R. 548 (1887) ; Wise v. Morgan, 101 Tenn. 273, 48 S. W. 971 (1898); Peters v. Johnson, 50 W. Va. 644, 41 S. E. 190 57 L. R. A. 428 (1902); George v. Skivington, L. R. 5 Ex. 1, 38 L. J. Ex. 8 (1869). '"Lewis V. Terry, 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 Am. St. R. 146 (1898), a folding bed; Hayes V. Phil. etc. Ry., 150 Mass. 457, 23 N. E. 225 (1890) ; Neeker v. Harvey, 49 Mich. 517, 14 N. W. 503 (1883); Barrett v. Lake Ont. Co., 174 N. Y. 310, 66 N. E. 968, 61 L. R. A. 829 (1903); Schutte v. United Elec. Co., 68 N. J. L. 435, 53 At. 204 (1902); Carson v. (Jodley, 26 Pa. Ill, 67 Am. Dec. 404 (1856); Elkins v. McKean, 79 Pa. 493 (1875); Elliott v. Hall, 15 Q. B. D. 315, 54 L. J. Q. B. 518 (1885); Parry v. Smith, 4 C. P. D. 325, 48 L. J. G. P. 731 (1879). '" Langridge v. Levy, 2 M. & W. 519, 46 R. R. 693 (1837); Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. R. 559 (1892); Kahner v. Otis, Elevator Co., 96 App. Div. 169, 89 N. Y. Supp. 185 (1904); contra, Knelling v. Roderick Lean Mfg. Co., 88 App. Div. (N. Y.) 309 (1903). '■" Heizer v. Kingsiand etc. Co., no Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. R. 481 (1892); Curtin v. Somerset, 140 Pa. 70, 21 At. 244, 12 L. R. A. 322, 23 Am. St. R. 220 (1891); McCaffrey v. Moss- berg etc. Co., 23 R. L 381, 50 At. 651, 55 L. R. A. 822 (1901); Bragdon v. Perkins- Campbell Co., 87 Fed. 109, 58 U. S. App. 91, 30 C. C. A. 567, (1898); Stand. Oil Co. v. Murray, 119 Fed. 572, 57 C. C. A. 1, with valuable note (1902); Huset v. J. I. Case etc. Co., 120 Fed. 865, 57 C. C. A. 237 (1903), a very valuable case. See also Ulshowski v. Hill, 61 N. J. L. 375, 39 At. 904 (1898) ; Styles v. 454 The Law of Torts. to which of the foregoing classes a particular case belongs, and different courts have drawn inconsistent inferences from similar states of fact. But the rule of law applicable when the question of fact has been settled, is not in dispute. Common Carriers, Liverymen, Caterers, etc. Persons engaged in the foregoing and similar callings, whose business directly in- volves the personal safety and lives of others, and who assume to be specially skilled in their occupations, ^^° are bound, it is said,"' to exercise "the most watchful care and the most active diligence; anything short of this is negligence and carelessness, and would furnish clear ground of liability if an injury was thereby sustained." This doctrine has been applied with no little rigor to common car- riers, who employ modern methods of transportation. While they are not insurers of the safety, even of passengers with whom they have contracted, they are bound to exercise a degree of care and vigilance, commensurate with the risk which their route, their rate of speed, and the other conditions, for which they are responsible, subject third persons, whether passengers or those having no con- tract relation with them. At times, this requires from them the " exercise of extraordinary vigilance aided by the highest skill," and they are liable for " the slightest negligence or fault in this re- gard." ^" At other times " a less degree of care is required," they F. R. Long Co., 70 N. J. L. 301 57 negligence may be enough, Home At. 448 (1904); Slattery v. Colgate, v. Meakin, 115 Mass. 326 (1874). 25 R. I. 220, 55 At. 639 (1903). '" Penn. Co. v. Roy, 102 U. S. 451, ""Bishop V. Weber, 139 Mass. 411, 456, 26 L. Ed. 141 (1880); Ingalls 1 N. E. 154, 52 Am. R. 715, (1885), v. Bills, 9 Met. (59 Mass.) 1, 43 Am. case of Caterer. Physicians are Dec. 346 (1845); Hegeman v. West- bound to exercise such skill and em Ry 13 N. Y. 9, 64 Am. Dec. care, as are exercised generally by 517 (1855) ; B. & O. Ry. v. Wight- physicians of ordinary care and man, 29 Gratt (Va.) 431, 445, 26 skill, in similar circumstance^. Am. R. 384, (1877); "The slightest Burk V. Foster, 114 Ky. 20, 69 S. neglect, against which human pru- W. 1096 (1902); Gillette V. Tucker, dence and foresight might have 67 O. St. 106, 65 N. E. 865 (1902). guarded, and by reason of which "' Hadley v. Cross, 34 Vt. 586, 588, his death may have been occasion- 80 Am. Dec. 699 (1861); liverymen ed, renders such company liable in are not insurers, however, of the damages for such death; " Searle safety of their patrons. They are v. Kanawha Ry., 32 W. Va. 370, 9 liable only for negligence; Cope- S. E. 248 (1884); Redhead v. Mid- land V. Draper, 157 Mass. 558, 39 N. land Ry., L. R. 4 Q. B. 379, 38 L. E. 944, 19 L. R. A. 283, 34 Am. St. J. Q. B. 169 (1869); Hyman v. Nye, R. 314 (1893). Although slight 6 Q. B. D. 685, 44 L. T. 919 (1881). Negligence. 455 are " bound simply to exercise ordinary care in view of the dan- gers to be apprehended." "° Liability of Landowners to Lawful Passers-By. In the ab- sence of a statute imposing speciiic duties upon landowners and oc- cupiers,"' they are not absolutely liable to persons lawfully passing by their premises, for harm sustained by such persons from causes originating thereon, unless these sources of harm are nuisances,"^ or unless the harm is due to an act of trespass for which the land- owner is responsible."^ The measure of duty resting upon the landowner, in other than these exceptional cases, is to make a rea- sonable and proper use of his land. Whether he has been negligent in the performance of this duty ; whether his use of his land is an unnecessary interference with the rights of passers-by, and subjects them to unnecessary danger, must depend upon the facts of each case.^°' When he has been thus negligent, and his misconduct has caused harm to a lawful passer-by, he must answer for it."* Liability of Landowner to Invited Persons. Towards those expressly or impliedly invited upon one's premises, for mutual ad- vantage, the inviter owes the duty of ordinary care. He is not the "• Kelly V. Manhattan Ry., 112 Morris v. Whipple, 183 Mass. 27, 69 N. Y. 443, 450, 20 N. E. 383, 3 L. R. N. E. 199 (1903); Fielders v. Nor. A. 74 (1889). Accord, Ark. Mid. Jersey Ry., 68 N. J. L. 343, 53 At. Ry. V. Canman, 52 Ark. 517, 13 S. 404, 59 L. R. A. 455, 96 Am. St. R. W. 280 (1889). In the New York 552 (1902); Brendle v. Spencer, 125 case, the negligence consisted in al- N. C. 474, 34 S. E. 635 (1899). De- lowing the steps of a station stair- fendant blew a locomotive whistle, way to become slippery. In the near the highway, for the purpose Arkansas case, the plaintiff contend- of frightening plaintiff's horses, ed that it was negligence, to run and thereby caused them to run mixed passenger and freight trains. away. Jury found this conduct ™ Smith v. Milwaukee etc. Ex- was willful and wanton, change, 91 Wis. 360, 64 N. W. 1041, '" Crogan v. Schiele, 53 Oonn. 186, 30 L. R. A. 504, 51 Am. St. R. 912 55 Am. R. 88 (1885); Haughey v. (1895). Hart, 62 la. 96, 17 N. W. 189 '"Parker v. Union Woolen Co., (1883); Detzur v. Stroh Brewing 42 Conn. 399, 402 (1875). Co., 119 Mich. 282, 77 N. W. 948, 44 ""Smethurst v. Barton Square L. R. A. 500 (1899); Jager v. Church, 148 Mass. 261, 19 N. E. 387, Adams, l23 Mass. 26, 25 Auk R- 7 2 L. R. A. 695, 12 Am. St. R. 550 (1877); Weller v. McCormick, 52 N. (1889). J. L. 470, 19 At. 1101, 8 L. R. A. 7£8 •"Wolf V. DesMoines Elec. Co., (1890); Beck v. Carter, 68 N. Y. 126 la. 659, 98 N. W. 301 (1904); 283, 23 Am. R. 175 (1877). 456 The Law of Torts. insurer of their safety, nor is he bound to exercise extraordinary care in guarding them from harm, unless the nature of his enter- prise subjects them to extraordinary danger. Nor is he bound to guard them against harm, to which they unnecessarily expose them- selves. But he is under the duty of having those parts of his prem- ises to v*^hich they are invited, in a reasonably safe condition for them.^'" This class of persons includes those who enter stores, or hotels, or other business places, in accordance with ordinary usage ; "" tenants of portions of a building and their business callers ; '^" per- sons calling to pay or collect debts, or make estimates for work in the customary manner ; '°* and others of like sort. Whether a per- son is within this class, or upon premises as a mere licensee, appears to depend upon the application to the facts of the particular case of " the principle that invitation is inferred, where there is a common interest or mutual advantage, while a license is inferred, where the object is the mere pleasure or benefit of the person using the premises." ^'^ Liability to Licensees. Inasmuch as a licensee is upon the premises of another for his own benefit or pleasure, we should ex- "= Indemauer v. Dames, L. R. 1 C. '"' Crane Elev. Co. v. Llppert, 63 P. 274, 35 L. J. C. P. 184 (1866); Fed. . 942 (1894); Wilcox v. Zane, L. R. 2 C. P. 311, 36 L. J. C. P. 181 167 Macs. 302, 45 N. E. 923 (1897); (1867); Crogan v. Schiele, 53 Conn. Swords v. Edgar, 59 N. Y. 28, 17 186, 1 At. 899, 55 Am. R. 88 (1885); Am. R. 295 (1874); Stenberg v. D'Amico V. City of Boston, 176 Wilcox, 96 Tenn. 163, 33 S. W. 917, Mass. 599, 58 N. E. 158 (1900); 24 L. R. A. 615 (1896); Miller v. Land v. Fitzgerald, 68 N. J. L. 28, Hancock, (1893) 2 Q. B. 177. In 52 At. 229 (1902). Hart v. Cole, 156 Mass. 475, 31 N. """Sweeney v. Old Colony Ry., 10 E. 645, 16 L. R. A. 557 (1892), it was Allen (Mass.) 368, 87 Am. Dec. 644 held that a person attending a (1865); Brotherton v. Manhat. wake, without special request, was Beach Co., 48 Neb. 563, 67 N. W. not an invited person within the 479 (1896), S. C. 50 Neb. 214, 68 rule. N. W. 757 (1897); public bathing • ™ Peake v. Buell, 90 Wis. 508, 63 beach; Dinnihan v. Lake Ont. Co., N. W. 1053, 48 Am. St. R. 946 8 App. Div. 509, 40 N. Y. Supp. 764 (1895). (1896); toboggan slide at a bath- ""Campbell, N^ligence § 33, ing resort; Houston etc. Ry. v. quoted with approval in Bennett v. Phlllio, 96 Tex. 18, 69 S. W. 994, Ry. Co., 102 U. S. 577, 26 L. Ed. 59 L. R. A. 392 (1902); Hupfer v. 235 (1880). Nafl Dist. Co., 114 Wis. 279, 90 N. W. 191 (1902). Negligence. ■457 pect the licensor to be liable only for gross negligence. And such is the view taken in England, and, generally, in this country. He who is receiving the gratuitou's favors of another has no such rela- tion to him, it is said, as to create a duty to make safer or better, than it happens to be, the place where hospitality is tendered. The licensee must take the premises as he finds them.^"" At most, he can claim only that the licensor shall abstain from entrapping him to his harm ; ^"' shall not create^ new and undisclosed sources of danger, without warning him of the change of situation. '"- Whether the invited private guest is to be classed with licensees, or w\th invited persons, is a question upon which judicial opinion is spmewhat at variance. In England it is well settled that he is a » Hounsell v. Smyth, 7 G. B. N. S. 731, 29 L. J. C. P. 203 (I860) ; Gaut- ret V. Egerton, L. R. 2 O. P. 371, 36 L. J. C. P. 191 (1867); Rooney V. Woolworth, 74 Conn. 720, 52 At. 411 (1902); 111. C. Ry. v. Eicher, 202 111. 556, 67 N. E. 376 (1903); Lary v. Clev. etc. Ry., 78 Ind. 323, 41 Am. R. 572 (1881); Cumberland etc. Co. V. Martin, 116 Ky. 554, 76 S. W. 394 (1903); Settoon v. Tex. etc., Ry., 48 La. Ann. 807, (1896); Dixon V. Swift, 98 Me. 207, 56 At. 761 (1903); Reardon v. Thompson, 149 Mass. 267, 21 N. B. 369 (1889); Taylor v. Haddonfield etc. Co., 65 N. J. L. 103, 46 At. 707 (1900); Larmore v. Crown Pt. Co., 101 N. Y. 391, 4 N. E. 752 (1886); Ann Arbor Ry. v. Kinz, 68 O. St. 210, 67 N. E. 479 (1903); Paolino v. McKendall, 24 R. I. 4S2, 53 At. 268, 60 L. R. A. 133, 3B Am. St. R. 736 (1902); Clapp v. LaGnll, 103 Tenn. 164, 52 S. W. 134 (1899); Felton V. Aubrey, 74 Fed. 350 (1896); Ells- worth V. Methipney, 104 Fed. 119 (1900). '«' Corby v. Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318 (1858) ; Gallagher V. Humphrey, 6 L. T. R. N. S. 684, 10 W. R. 664 (1862); Byrne v. N. Y. C. Ry., 104 N. Y. 362, 10 N. E. 539 (i88Z) ; Harriman v. Pittsburg etc. Ry., 45 0. St. 11, I2' N. E. 451, 4 Am. St. R. 507 (1887), torpedoes placed on track by defendant's ser- vants, in mere wantonness; Camp- bell V. Boyd, 88 N. C. 129, 43 Am. R. 740 (1883); Davis v. Chic. etc. Ry., 58 Wis. 646, 17 N. W. 406, 46 Am. R. 667 (1883), repudiating the distinction between active and pas- sive negligence in such cases. '"^ Beck V. Carter, 68 N. Y. 283, 23 Am. R. 175 (1877). The case of Lepnick v. Gaddes, 72 Miss. 200, 16 So. 213, 26 L. R. A. 686, with note, 48 Am. St. R. 547 (1894), was de- cided on the pleadings, the defend- ant having demurred to the declara- tion; and the court held that a cause of action against the licen- sor was set forth. When the case came to trial, however, the plain- tiff failed to show "that he had been entrapped, by any inducement of the defendant. The evidence dis- closed that the defendant was not invited, or even licensed, to cross defendant's vacant lot, upon which was an uncovered cistern. See S. C. 18 So. 319 (1895). 458 The Law of Torts. licensee.^"' This, it is submitted, is the true doctrine, whenever he is enjoying gratuitous hospitality.^'* In some of our jurisdictions, however, there is a disposition to work out a species of estoppel against even the private host.'"' It is well settled, that the guest of a tenant has no greater rights against the landlord than the tenant has "" and one invited upon premises for a particular purpose, be- comes either a licensee or a trespasser, if he uses it for any other purpose.^"'. Liability of Trespassers. We have seen in a previous chapter that a trespasser is not an outlaw. The landowner is bound not to attack him ; nor set spring guns or similar dangerous traps for him, without proper warning ; '"* nor subject him to harm by wilful, reck- less or wanton conduct. '"' He is under no duty, however, to anti- "" Southcote V. Stanley, 1 H. & N. 247, 25 L. J. Ex. 339 (1856); Pol- lock C. B. said; " The same prin- ciple applies to the case of a visitor at a house; whilst he remains there, he is in the same position as any other member of the establishment, so far as regards the negligence of the master or his servants; and he must take his chance with the rest;" Bramwell, B., rested his opinion upon the fact, that the fall- ing of the glass from a door upon the plaintifC was due to defendant's omission, as distinguished from commission. "' ahearman and Redfleld, Negli- gence (5 Ed.) § 706; Thompson's Commentaries on Negligence (2 Ed.) Vol. 1, § 971; Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. R. 463 (1892), semble. ""Barman v. Spencer, (Ind.) 49 N. E. 9, 44 L. R. A. 815 (1898). Gf. Atlanta Oil Mills Co. v. Coffey, 80 Ga. 145, 4 S. E. 759, 12 Am. St. R. 244 (1887), where plaintiff was on defendant's land to take away goods, given by the latter to the former; Phillips v. Library Co., 55 N. J. L. 307, 27 At. 478 (1893); Davis V. Cent. Cong'l. Soc, 129 Mass. 367, 37 Am. R. 368 (1880). '" McConnell v. Lemley, 48 La. Ann. 1443, 20 So. 887, 34 L. R. A. 609, 55 Am. St. R. 319 (1896); Roche V. Sawyer, 176 Mass. 71, 57 N. E. 216 (1900). ""Ryerson v. Bathgate, 67 N. J. L. 337, 51 At. 708, 57 L. R. A. 307 (1902). '" Supra, Chap. 3. But a tres- passer who goes upon land, know- ing it is thus defended against un- lawful intruders, takes the risk of the situation. Magar v. Hammond, 171 N. Y. 377, 64 N. E. 150, 59 L. R. A. 315 (1902). "* Marble v. Ross, 124 Mass. 44 (1878), defendant kept a vicious stag in a pasture; held to be reck- less misconduct. In Quigley v. Clough, 173 Mass. 429, 53 N. E. 884, 45 L. R. A. 500 (1899), the court held that a barb-wire fence, put up to prevent persons from taking a short cut across his lawn, was to be distinguished from an active source of harm, such as a spring- gun or a vicious animal; and a verdict, directed by the trial judge for the defendant, was sustained. Negligence. 459 cipate the presence of trespassers, or to regulate his business con- duct with a view to safeguarding them. His duty to a trespasser, it is generally agreed, '" is merely negative. He must not go on ma- liciously, or with disregard for obvious consequences, when he knows of the peril. He is not required to use care to anticipate and discover the peril of such a person, but only to do so after the dis- covery of the danger. Until then, no legal duty is imposed, b?- cause no one by a wrongful act can impose a duty upon another." '"" Examples of wilful, reckless, or wanton conduct towards a known, or anticipated trespasser, are afforded by the cases noted below. ^'^ Alluring Infant Trespassers. An exception to the rule of non- liability to trespassers has developed in several jurisdictions, in favor of children. It is stated as follows in a leading case:''- "Al- though a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser, yet the owner may be liable, if the things causing the injury have been left ""Louisville & N. Ry. v. Hocker, 111 Ky. 707, 64 S W. 638, 65 S. W. 119 (1901); Christian v. 111. C. Ry., 71 Miss. 237, 15 So. 71 (1894); Buch V. Amory Mfg. Co., 69 N. H. 257, 44 At. 809 (1898); Cleveland etc. Ry. V. Marsh, 63 O. St. 236, 245, 58 N. E. 821 (1900); Rathbone v. Ore- gon Ry., 40 Or. 225, 66 Pac. 909 (1901); Singleton v. Felton, 101 Fed. 526 42 C. C. A. 57 (1900). "' Western & A. Ry. v. Bailey, 105 Ga. 100, 31 S. B. 547 (1898), run- ning a train at a reckless rate of speed, and without sounding whistle or bell, after discovering the tres- passer; 111. C. Ry. V. Lelner, 202 111. 624,67 N. E. 398 (1903), no at- tempt made to avoid a collision; the terms willful and wanton are discussed, at length, in this case; F'Jtlmer v. Gordon, 173 Mass. 410, 53 N. E. 909 (1899), defendant spilled water on a hot stove to frighten plaintiif, and scalded him; Carney V. Concord St. Ry., 72 N. H. 364, 57 At. 218 (1903); starting a car, under which a child nad been caught, instead of lifting it; Smith v. Savannah Ry., 100 Ga. 96, 27 S. E. 725 (1896); Kansas City Ry. v. Kelly, 36 Ks. 655 14 Pac. 172 (1887); Smith v. Louisville & N. Ry., 95 Ky. 11, 23 S. W. 652 (1893); Farber v. Mo. etc. Ry., 139 Mo. 272, 40 S. W. 932 (1897); Southern Ry. V. Shaw, 86 Fed. 865, 31 C. C. A. 70 and note (1898). In the last Ave cases, trespassers were recklessly ejected from moving cars. ™City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484, 45 Am. St. R. 114, 27 L. R. A. 206 (1895). The city owned unenclosed lots, where- on were water and timoers, with which children were accustomed to play. The city was held liable for the drowning of a trespassing child, in this alluring flood. 460 The Law of Torts. exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and in- stincts. Unguarded premises, which are thus supplied with danger- ous attractions are regarded as holding out implied invitations to such children." The argument in favor of this exception rests chiefly upon the assumption that the child is allured by the landowner, and hence cannot be regarded as a voluntary trespasser. But it rests to some extent upon the feeling that landowners ought to have a special regard for the safety of children. ^'^ In reply to this argument it is urged that, if carried to its logical conclusion, it would render the owner of a fruit tree liable for dam- ages to a trespassing boy, who, in attempting to get the fruit, should fall from the tree and be injured, or who should be made sick by eating green, or harmful fruit; that it would charge the duty of protecting children upon every member of the community, "except upon their own parents.^'* Authorities for the Infant. These begin with Lynch v. Nur- din,^" in England, and Stout v. Sioux City Ry.,^'* in this country. ™In Keffe v. Mil. etc. Ry., 21 Minn. 207, 18 Am. R. 393 (1875); the court said; "Now, what an ex- press invitation would be to an adult, the temptation of an attract- ive play ground is to a child of tender years. If the defendant had left its turntable, unfastened, for the purpose of attracting young children to play upon it, knowing the danger into which it was allur- ing them, it would certainly be no defense to an action by the plain- tiff, who had been attracted upon the turntable and injured, to say, that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass." In Thompson's Commentaries on Negligence (2 Ed.) 1026, the learned author says; " One doctrine under this head is, that if a child trespasses upon the premises of the defendant, and is injured In conse- quence of something that befalls him while trespassing, he cannot recover damages, unless the injury was wantonly inflicted, or was due to the recltlessly careless conduct of the defendant. This cruel and wicked doctrine, unworthy of a civ- ilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and in- firmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the conse- quences of his trespass, just as though he were an adult." '" Brinkley Car Works v. Cooper, 70 Ark. 331, 67 S. W. 752 (1902). "=1 Q. B. 29, 10 L. J. Q. B. 73 (1841). ™ Stout v. Sioux City etc. Ry., 2 Dillon (U. S. C. C.) 294, Fed. Cases, 13, 504 (1872). Affirmed as Ry. Co. V. Stout, 17 Wall, (U. S.) 657, 21 L. Ed. 745 (1873). Negligence. 461 In the English case, the defendant's carman went into a house, leav- ing his horse and cart unwatched and unfastened in the street for half an hour. During this period, the plaintiff, a lad of seven, and several other children began playing vk^ith the outfit. He got upon the cart ; and was thrown under the wheel and run over, by reason of one of his companions starting the horse. At the trial, defend- ant's counsel asked the court to direct the jury that the plaintiff could not recover, as his own negligence brought the mischief upon him. This was refused, and the jury were told that it was for them to say, first, whether it was negligent to leave the horse and cart as they were left ; and, second, whether that negligence occasioned the accident. This refusal and direction were upheld by the appellate court. The Lord Chief Justice declared, that the case presented more than the want of care on the plaintiff's part. " We find in it," he said, '' the positive misconduct of the plaintiff — an active instru- ment towards the effect. W'e have here express authorities for our guidance.'' He then proceeds to discuss the spring-gun ^''^ and dog- spike "' cases, as the proper authorities for the case in hand. After stating them, he proceeds ; " A distinction may be taken between the willful act done by the defendant in those cases, in deliberately plant- ing a dangerous weapon in his ground with the design of destroy- ing trespassers, and the mere negligence of the defendant's servant in leaving his cart in the open street. But between willful mischief and gross negligence, the boundary line is hard to trace ; I should say, impossible." Accordingly he concludes, it was for the jury to say whether the defendant's misconduct amounted to gross negli- gence and so brought him within the doctrine of Bird v. Hol- brook.^''' He says, '" They would naturally inquire whether the horse was vicious or steady ; whether the occasion required the servant to be so long absent from his charge, and whether in that case no assistance could have been procured to watch the horse ; whether the street was at that hour likely to be clear or thronged with a noisy multitude ; especially whether large parties of young children might be reasonably expected to resort to the spot. If this last mentioned fact were probable, it would be hard to say that a case of gross negligence was not fully established." '" Ilott V. Wilkes, 3 B. & Aid. 304, "« Deane v. Clayton, 7 Taunt 22 R. R. 400 (1820); Bird v. Hoi- 48!). 18 R. R. 553 (1817). brook, 4 Bing. 628, 29 R. R. 657 '■' Supra, note 177. (1828). 462 The Law of Torts. Although this case has been approved recently in England,^'" it has also been doubted by eminent judges,'*^ and its doctrine is cer- tainly inconsistent with some later cases,^*- unless it is to be limited to misconduct toward trespassing children, which is positively un- lawful or wanton.^'* Railroad Company v. Stout. '"^ 1= In this case, it appeared that the railroad company maintained a turntable on its land, which had been constructed and was used in the ordinary way, in the com- pany's business. It was about a quarter of a mile from the com- pany's station-house, in an unfenced lot. There were but few houses in the neighborhood, and plaintiff's house was three quarters of a mile away. He, a boy of six years, with two other boys a little older, went to the turntable and finding it unlocked and unwatched, began playing with it. His comrades turned it, and his foot was caught and crushed, while he was attempting to step from the main track upon it. The trial judge charged the jury, that they were to >'" In Han-old v. Watney, (1898) 2 Q. B. 320, 67 L. J. Q. B. 771, one of the judges spoke of Lynch v. Nurdin, as never having been ques- t;oned; and cited it as authority for the court's decision in the case at bar. This judge unhesitatingly de- clared, that defendant's fence ad- joining the highway was so inse- cure as to be a nuisance; that had an adult leaned against it to tie his shoe-string and it had fallen on him. as it fell on plaintiff, while trying to scale it, the adult would have had an action. The case does not range itself on the side of the turn-table and similar cases in this country. '*• Alderson B., in Lygo v. New- bold, 9 Exch. 302, 305, 23 L. J. Ex. 108 (1854). '^Hughes V. Macfie, 2 H. & C. 744, 33 L. J. Ex. 177 (1863). De- fendant had raised Lis cellar-flap p-ainst the wall of his house and rl?Jntiff, a child of 'seven, wrong- fully played with it and was in- jured. No recovery was allowed; Mangan v. Atterton, L. R. 1 Ex. 239, 35 L. J. Ex. 161 (1866). A machine for crushing oil cake was left in a public place, and plaintiff, a child of four, had his fingers smashed, while playing with it. No recovery was allowed. '''Clark V. Chambers, 3 Q. B. D. 327. 47 L. J. Q. B. 427 (1878), de- fendant unlawfully obstructed with chevaux-de-frise plaintiff's road. Plaintiff stumbled over the obstruc- tion in the dark and put out an eye. Defendant was held liable. See Clerk and Lindsell, Torts (2 Ed.) pp. 436-437, where it is declared, that Lynch v. Nurdin cannot be re- garded as law in opposition to Hughes V. Macfle and Mangan v. Atterton. Beven Negligence (2 Ed.) Vol. 1, pp. 183-190, and Pollock, Torts (6 Ed.) 43, 457, support the doctrine of Lynch v. Nurdin, as to trespassing rhildren. '""=17 Wall. (U. S.) 657, (1873). Negligence. 463 decide whether the turntable in the situation, condition and place where it was, was a dangerous machine ; that if it was not danger- ous, the company was not Hable for negUgence; that they were to further consider whether, situated as it was on defendant's property in a small town, somewhat remote from habitations, there was neg- ligence in not anticipating that injury might occur, if it was left un- locked and unguarded; that if the company did not have reason to anticipate that children would be likely to resort to it, or that they would be likely to be injured if they did resort to it, then there was no negligence. The jury found a verdict for $7,500 for the plain- tiff. Upon appeal, the judgment entered upon this verdict was affirmed by the supreme court of the United States. Mr. Justice Hunt, delivering the unanimous judgment of this court, declared that " while a railway company is not bound to the same degree of care in regard to mere strangers, who are unlawfully upon its prem- ises, that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negli- gence." He also said; "That the turntable was a dangerous ma- chine, which would be likely to cause injury to children who re- sorted to it, might be fairly inferred from the injury which actually occurred to the plaintifif. There was the same liability to injure him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury by his foot being caught between the fixed rail of the road-bed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such ac- cidents. So, in looking at the remoteness of the machine from in- habited dwellings, when it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable upon other occasions, and within the observation and to the knowledge of the employees of the defendant, the jury were justified in believing that children would probably resort to it, and that the defendant should have an- ticipated that such would be the case. As it was in fact upon this occasion, so it was to be expected that the amusement of the boys would have been found in turning this table while they were on or about it. This could certainly have been prevented by locking the turntable when not in use by the company. It was not shown that this would cause any considerable expense or inconvenience to the 464 The Law of Torts. ~ y defendant. It could probably have been prevented- by the repair of the broken latch. This was a heavy catch, v^'hich by dropping into a socket, prevented the revolution of the turntable. There had been one on this table, weighing some eight or ten pounds, but it had been broken off and had not been replaced. It was proved to have been usual with railroad companies to have upon their turn- tables a latch or bolt, or some similar instrument. The jury may well have believed that if the defendant had incurred the trifling expense of replacing this latch, and had taken the slight trouble of putting it in its place, these very small boys would not have taken the trouble to lift it out, and thus the whole difficulty would have been avoided. Thus reasoning, the jury would have reached the conclusion that the defendant had omitted the care and attention it ought to have given ; that it was negligent, and that its negligence caused the injury to the plaintiff." The doctrine of this case has been repeatedly affirmed by the su- preme court,"* and has been adopted by many state tribunals. In one of the earliest and ablest opinions ^*° upon this side of the con- troversy, it is said, that " what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years " ; that while the defendant did not leave the turn- table unfastened for the purpose of injuring young children, yet ■ the defendant knew that by leaving this turntable unfastened and unguarded, it was not merely inviting young children to come upon the turntable, but was holding out an allurement which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger ; and having thus knowingly allured them into a place of danger, without their fault ( for it cannot blame them for not resisting the temptation it has set before them), it was bound to use care to protect them from the danger into which they were thus led; and from which the\- could >" Hayes v. Railroad Co., Ill U. running over the unfenced slack- S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410 pit, where he received his injuries. (1884); Union P. Ry. v. McDonald, ■*'Keefe v. Mil. etc. Ry., 21 Minn. 152 U. S. 262, 14 Sup. Ct. 619, 38 L. 207, 18 Am. R. 393 (1875). The Ed. 484 (1893). In the latter case, opinion of the trial judge who the Railroad Co., had failed to fence granted a motion for judgment for the slack-pit, as it was required by defendant on the pleadings, may be statute to do; and its servants de- read in 2 Cent. L. J. 170. liberately frightened plaintiff into Negligence. 465 not be expected to protect themselves. — the difference between the plaintiff's position and that of a voluntary trespasser, capable of using care, consists in this, that the plaintiff was induced to come upon the defendant's turntable by the defendant's own conduct, and that, as to him, the turntable was a hidden danger, — a trap." Alluring Nuisances. Situations of this kind are often spoken of as attractive or alluring nuisances. " One may not bait his prem- ises," it is said, " with some dangerous instrument or quality, allur- ing to the incautious or vagrant, and then deny responsibility for the consequences of following the natural instincts of curiosity or amusement aroused thereby, without taking reasonable precautions to guard against the accidents liable to ensue. Rights can only be enjoyed subject to those limitations which regard for the weaknesses and deficiencies of others dictate to be humane and just. This rule has been applied, not only in the turntable cases, but to others in which dangerous situations have been negligently maintained, and especially to cases of death or injury by falling into unguarded pools or vats of water." "* Converting Trespassers into Baited Victims. It will be ob- served that the foregoing doctrine rests upon the conversion of the infant trespasser into an innocently baited victim. And this con- version is wrought by the magic of a legal fiction. The landowner does not construct the turntable, or reservoir, nor make the excava- tion or other change in his premises, with a view to bait "^ children isa Price V. Atchinson Water Co., Tcnowledge and prudence, is so en- 58 Ks. 551, 50 Pac. 450, 62 Am. St. ticing to others excusably lacking R. 625 (1897). Plaintiff's son of in intelligence and caution as to in- eleven years was drowned while duce thelu to venture into it; " and fishing In defendant's reservoir. declared, that the rule of liability The trial court non-suited the plain- for resulting injuries " applies to tiff, but the appellate court held one, who maintains on his own that whether the defendant was premises a dangerous instrumental- negligent, in maintaining danger- ity, not in itself attractive, but ous reservoirs, and whether plain- placed in such immediate proximity tiff was guilty of contributory neg- to an attractive situation, on the ligence were questions for the jury. premises of another, ^s to form In Consol. Elec. Co. v. Healy, 65 with it a dangerous whole, notwith- Ks. 798, 70 Pac. 884 (1902), the standing the attractive situation on roiirt defined an attractive nuisance (he other premises may not of it- as " a place which, though patently self be dangerous." dangerous to those of ordinary »' Townsend v. Wathen, 9 East. 30 466 The Law of Torts. to their destruction, but with a view to the beneficial use of his land. Nothing is further from his wish or thought than alluring anybody to his premises. And yet, if the lawful changes in his property do allure vagrant infants, whose parents are unable or unwilling to properly control them, the law imposes upon him a duty of care towards them which, it is admitted, he owes to nobody else. In rejecting this doctrine, the supreme court of Michigan re- cently said ; " We have only to add that every man who leaves a wheelbarrow, or lawnmower, or spade, upon his lawn ; a rake with its sharp teeth pointing upward, upon the ground, or leaning against a fence ; a bed of mortar prepared for use in his new house ; a wagon in his barnyard, upon which children may climb, and from which they may fall ; or who turns in his lot a kicking horse or a cow with calf — does so at the risk of having the question of his negligence left to a sympathetic jury. How far does this rule go? Must his barn door, and the usual apertures through which the acciimulations of the stable are thrown, be kept locked and fastened, lest 12 year old boys get in and be hurt by the animals, or by climbing into the haymow and falling from the beams ? May a man keep a ladder or a grindstone or a scythe or a plow or a reaper without danger of being called upon to reward trespassing children, whose parents owe and may be presumed to perform the duty of restraint? Does the new rule go still further and make it necessary for a man to fence his gravel pit or quarry? And if so, will an ordinary fence do, in view of the known propensity and ability of boys to climb fences ? Can a man safely nowadays own a small lake or fish pond? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than twenty years after the decision of Railroad Com- pany V. Stout, when with due deference, we think some of the courts: 277 (1808), is usually cited on this suiting from such intentional traps, point. But in that case, plaintiff In Pouting v. Noakes (189f) 2 Q. alleged, and gave evidence tending B. 281, 63 L. J. Q. B. 549, defendant to prove, that the defendant delib- was held not liable for the death of erately set the traps "wrongfully plaintiff's horse, due to the latter's intended to catch, maim and de- eating from a yew tree, which was stroy the plaintiff's dogs." No one wholly on defendant's land; the would say that a landowner who court distinguishing Townsend v. actually intended to entrap and in- Wathen, as a case where the wrong- jure trespassing children, or adults, ful intention was the gist of the would not be liable for injuries re- action. Negligenxe. 467 left the solid ground of the rule, that trespassers cannot recover for injuries received, and due merely to negligence of the persons tres- passed upon." '" Hardship for the Landowner. The courts which impose upon the landowner a special guardianship over vagrant infants, trespass- ing upon his alluring premises, declare that there is no real hard- ship in this doctrine. When such a trespasser is a mere " hoodlum, disregarding property rights from mere love of mischief, and taking risks out of mere bravado, or in conscious defiance of moral and legal restraint, and is thus injured, we may pity his folly, but justly say, as the law says, that having intelligently assumed the risk, he ought not to recover damages." ^** But, who is to say whether the trespassing infant comes within the category of " hoodlum " or of " baited victim." ? The jury, say these courts. The jury will also be called upon to determine whether the premises are dangerously alluring, and whether the defendant has used proper care in guard- ing his alluring premises. As a practical result, the landowner is saddled with the responsibility of an insurer of infants, who are curious and agile enough to trespass upon lands, having alluring improvements, which may be dangerous for them.^"" Reaction from Railroad Company v. Stout. In a number of states, whose courts followed the lead of the supreme court, in the turntable cases, a halt has been called, and a disposition is shown to limit the doctrine of those cases, rather than to extend it. The su- "^ Ryan v. Towar, 128 Mich. 463, is reasonable care, they should take 87 N. W. 644, 92 Am. St. R. 481, 55 into account not only the desirabil- L. R. A. 310 (1901). • ity of preserving innocent children '" Edgington v. Burl. etc. Ry., 116 from harm, hut also the desirability la. 410, 90 N. W. 95, 57 L. R. A. 561 of making beneficial use of land. (T902). Accord, Ala. G. S. Ry. v. How much weight will the jury al- Crocker, 131 Al. 584, 31 So. 561 low to the latter consideration, (1901); C. B. & Q. Ry. v. Krayen- when put in competition with the buhl, 65 Neb. 889, 91 N. W. 880 former, in a concrete case, appeals (1902). ing to their sympathies? How '°° Professor Jeremiah Smith, much consideration will they give I andowner's Liability to Children, to the general impolicy of hamper- II Harv. L. R. 349, 434, At. p. 438, ing the use of land with trouble- he says: "Suppose even that the some and expensive restrictions, judge goes still further, (much fur- when they have before them a ther indeed it is believed than maimed child, or tne mourning judges have usually gone) and tells relatives of a deceased Infant?" the jury that, in determining what 468 The Law of Torts. preme court of Georgia has frankly avowed this purpose; and has ruled, that even a railroad company is not bound to fence or guard an excavation upon its premises, so as to prevent injuries to chil- dren trespassing thereon, although the excavation and its surround- ings have an alluring attraction for children.'*^ A similar reaction is observable in California,^*^ Missouri ^'^ and Texas. ^°* In the last cited case, the supreme court of Texas said of the " turntable cases " ; ^''^ " This line of decisions has not been uni- formly followed, and has met with much adverse criticism, and it seems to us that, with respect to the care which the owner of land is required to exercise, in order to secure from injury children who may trespass upon it, they go to the limit of the law. They proceed upon the ground that turn-tables are attractive to children. In "'" Savannah etc. Ry. v. Beavers, 113 Ga. 398, 39 S. B. 82, 54 L. R. A. 314 (1901). The court quotes at length from Prof. Jeremiah Smith's articles, in 11 Harv. L. R. 349, 434, and commends them as a learned and exhaustive treatise upon the subject of the liability of land- owners to children. The court had committed itself to the doctrine of Ry. Co. v. Stout, in a turntable case, Ferguson v. Col. etc. Ry., 75 Ga. 637, 77 Ga. 102 (1886)— but expressed its determination to " limit the doctrine to the turntable cases." The same determination was stated, again, in O'Connor v. Brucker, 117 Ga. 451, 453, 43 S. B. 731 (1903), a case where a tres- passing child was allured into a vacant house, by reason of its be- ing unlocked. ™ In Barrett v. Southern Pac. Ry., 91 Cal. 296, 27 Pac. 666, 25 Am. St. R. 186 (1891), the Su- preme Court followed Ry. Co. v. Stout, in a turntable case, but de- clined to extend the doctrine to an alluring pond, in Peters v. Bow- man, 115 Cal. 345, 47 Pac. 114, 598 56 Am. St. R. 106, (1896), and to alluring street cars left unattended upon the car tracks at the end of the line, in George v. Los Angele3 Ry., 126 Cal. 357, 58 Pac. 819, 46 L. R. A. 829 (1899). ™Koons V. St. Louis etc. Ry., 65 Mo. 592 (1877), committed the court in a turntable case; but in Overholt v. Veiths, 93 Mo. 422, 6 S. W. 74 (1887), the court refused to apply the doctrine against the owner of an abandoned but allur- ing quarry; and in Barney v. Han- nibal, etc. Ry., 126 Mo. 372, 28 S. W. 1069, 26 L. R. A. 847 (1894), it refused to apply the doctrine against a railroad company which failed to fence in its freight yard. '"Missoiu-i K. & T. Ry. v. Ed- wards, 90 Tex. 65, 36 S. W. 430, 32 L. R. A. 825 (1896), reversing S. C. in 32 S. W. 815 (1895). ™Evanisoh v. Gulf etc. Ry., 57 Tex. 126, 44 Am. R. 586 (1882); and Ry. Co. V. Stout, 17 Wall. 657, 21 L. Ed. 745 (1873), w^re cited as samples of this class of cases. N E(;lil;i:nce. 469 both of the cases cited, stress was laid upon this fact, and also upon the fact that the use of turn-tables by the children was known to the servants of the defendants. The ruling in these cases, we think, must be justified upon one of two grounds ; either that the turn- tables possess such peculiar attractiveness, as playthings for chil- dren, that to leave them exposed should be deemed equivalent to an invitation to use them, or that, when unsecured, they are so ob- viously dangerous to children that, when it is discovered that they are using them, it is negligent on the part of the owner not to take some steps to guard them against the danger. But when it is said that it is enough that the object or place is attractive or alluring to children, and when it is said, as has been intimated, that the fact that they resort to a peculiar locality is evidence of its attractiveness, the question suggests itself, what object or place is not attractive to very young persons who are left free to pursue their innate pro- pensity to wander in quest of amusement? What object at all un- usual is exempt from infantile curiosity? What place, conven- iently accessible for their congregation, is free from the restless feet of adventurous truants ? " Repudiation of Railroad Company v. Stout. In many juris- dictions/°° the doctrine announced by Railway Company v. Stout has been squarely repudiated, and the rule has been laid down, that " no distinction exists between adults and infants when entering uninvited upon lands of another, with relation to the duty which the owner or occupier of such lands owes to them." ^°^ The learned judge, writing the opinion in the case last cited, said; " It must be conceded, I think, that the rule which imposes liability upon the landowner is a hard one, so far as he is concerned in this respect ; that no matter how carefully he may endeavor to protect himself by discharging the duty which the law places upon him, the probability of failure is great. When contemplating the alteration of his land, from the condition in which nature left it, for the purpose of ob- "«Some of the cases not hereto- 61 N. J. L. 314, 40 At. 614 (1898); fore nor hereafter cited are the McAlpjn v. Powell, 70 N. Y. 126 following: Brinkley Car Works v. (1877); Cooper v. Overton, 102 Cooper, 70 Ark. 331, 67 S. W. 752, Tenn. 211, 52 S. W. 183, 45 L. R. A. 57 L. R. A. 724 (1902); Schauf's 591 (1899). Admin'r v. City of Paducah, 106 '" D. L. & W. Ry. v. Reich, 61 N. Ky. 228, 50 S. W. 42, 90 Am. St. R. J. L. 643, 40 At. 682, 41 L. R. A. 220 (1899); Turess v. N. Y. etc. Ry., 831, 68 Am. St. R. 727 (1898). 470 The Law of Torts. taining a more beneficial user therefrom, he must first consider whether the alteration will render it attractive to children of tender years, and, if so, whether they will be subjected to danger if they succumb to the attraction. If he honestly concludes that the change will not operate to attract children, and that, therefore, although it may make his property dangerous, he is under no obligation to pro- vide for their safety, or if he concludes that, although the alterations may render his property attractive to children, they will not incur danger by coming upon it, and for either of these reasons fails to take precautions for their safety, it will be for the jury to say whether he must answer for the result, if injury to a child follows upon his omission ; and their verdict will depend upon whether, in their opinion, he had a reasonable ground for his conclusion. So too, if he appreciates that the change which he proposes to make will Tender his premises dangerously attractive to children, and takes precautions to exclude them therefrom, it is still possible that they may elude his vigilance, and receive hurt while trespassing; and when that occurs, it at once becomes a question for the jury to say, whether or not the injury was the result of the care, on the part of the landowner, in affording that protection which his duty re- quired. What the conclusion of the jury would be in any given case, of course, no one can tell. The fact, however, is suggestive that in every reported case, so far as I have examined them (and I have examined many), where this doctrine has been under con- sideration, it has always been the landowner, and never the injured child, who was trying to avoid the result of the verdict of the jury. It is only in those cases, where the action of the jury has been con- trolled by the trial court, that the injured child has sought a review. The probability that the landowner will not be able to avoid liability for injuries to children who come upon his lands without invitation, no matter how careful he may have been, while it affords no reason for denying the existence of the rule which holds him to responsibil- ity, certainly requires that we should not accept it as sound unless it rests upon a solid foundation." Similar views have been announced by the courts of other states.*"' It is quite apparent, therefore, that the tide of judicial "'Daniels v. N. Y. etc. Ry., 154 Frost v. Eastern etc. Ry., 64 N. H. Mass, 349, 28 N. E. 283, 13 L. R. A. 220, 9 At. 790, 10 Am. St. R. 396 248, 26 Am. St. R. 253 (1891); (1886); "Walsh v. Fitchburg Ry., Negligence. 47^ opinion is setting strongly against the doctrine of Railroad Cor.i- pany v. Stout. This has been admitted by one of the most cii..hn- siastic advocates of the doctrine."" The present writer docs not share that learned and lamented author's regret over this change in the tide. On the other hand, he views it as the result of the sober, second thought of the bench and the bar. 145 N. Y. 301, 39 N. E. 1068, 27 L. molen v. Boggs Run Co., 50 W. Va. R. A. 724, 45 Am. St. R. 615 (1895); 457, 40 S. B. 410, 55 L. R. A. 911, Gillespie v. McGowan, ICO Pa. 144, 88 Am. St. R. 884 (1901). 45 Am. R. 365 (1882); Paolino v. ""Thompson, Commentaries on McKendall, 24 R. I. 432, 53 At. 268, Negligence, Vol. 1, § 1031 (1901). 60 L. R. A. 133, (1902); Utter- CHAPTER XVI. ,TORT LIABILITY OF TELEGRAPH AND TELE- PHONE COMPANIES. § I. Their Legal Status, Is It That of Common Carrier? There is some judicial authority for the view that these companies are common carriers. The Supreme Court of CaHfornia declared in an early case/ " There is no difiference in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or a package along a route. The physical agency may be dif- ferent, but the essential nature of the contract is the same. The process of ascertaining damages is the same in this as in other cases of carriers." In a more recent case the Supreme Court of Indiana, after referring to the fact that the telephone is a discovery of recent date, said : " The relations which it has assumed towards the public make it a common carrier of news, a. common carrier in the sense in which the telegraph is a common carrier, and impose upon it certain well defined obligations of a public character." ^ In some of our States the legal status of telegraph and telephone companies is fixed by constitutional or statutory provisions as that of common carriers.'' It is apparent from the statutes cited in the ' Parks V. Alta California Tel. Co., messages for reward must use great 13 Cal. 422. 73 Am. Dec. 589 (1859). care and diligence in the trans- Accord. Wes. Un. Tel. Co. v. Meek, mission and delivery of messages." 49 Ind. 53 (1874). This doctrine ^Hockett v. The State, 105 Ind. has been changed by the Civil Code 250, 258, 5 N. E. 178, 55 Am. Rep. of California; "§ 2168. Everyone 201 (1885). who offers to the public to carry = Constitution of Ky., § 199, "All parsons, property, or messages, ex- such companies are hereby declared cepting only telegraphic messages, to be common carriers and subject Is a common carrier of whatever to legal control." he thus offers to carry." It is pro- Minn. Rev. Laws, 1905, § 2928, vided by § 2162, that, " A carrier of declares that they are common car- 472 Liability of Telegraph and Telephone Companies. 473 last preceding note that the present tendency of legislation is to- wards the adoption of the early California and the Indiana doctrine. The Prevailing View, in the absence of statutory or consti- tutional provision, is that telegraph and telephone companies are not to be classed as common carriers. Perhaps, the best state- ment of the reasons for this view is found in the following extract from a leading Massachusetts case.* " The liability of a telegraph company is quite unlike that of a common carrier. A common carrier has exclusive possession and control of the goods carried, with peculiar opportunities for embezzlement or collusion with thieves. The identity of the goods received with those delivered cannot be mistaken ; their value is capable of easy estimate, and may be ascertained by inquiry of the consignor, and the carrier's compensation fixed accordingly; and his liability in damages is measured by the value of the goods. A telegraph ccwnpany is en- trusted with nothing but an order or message, which is not to be carried in the form in which it is received, but is to be trans- mitted or repeated by electricity, and is peculiarly liable to mis- take ; which cannot be the subject of embezzlement ; which is of no intrinsic value; the importance of which cannot be estimated except by the sender, nor ordinarily disclosed by him without danger of defeating his own purposes ; which may be wholly value- less, if not forwarded immediately; for the transmission of which there must be a simple rate of compensation ; and the measure of damages for a failure to transmit or deliver which, has no relation to any value which can be put on the message itself." ^ riers and must serve all without & E. Co. v. West Un. Tel. Co. — Okla. discrimination or preference, for d, — , 89 Pac. 235 (1907); South reasonable compensation. Consti- Carolina, Constitution of 1895, Art. tution of Miss. § 195: "Express, ix, § 3. South Dakota, Revised telegraph, telephone and sleeping Codes, of 1903, §§ 564, 1576, 1577, car companies are declared common 1604; Laws 1907, ch. 239, § 2. carriers in their respective lines of * Grinnell v. Western Un. Tel. Co., business, and subject to liability as 113 Mass. 299, 18 Am. Rep. 485 such." Nebraska, Laws 1907, ch. 90, (1873). § 4. Nevada, Laws 1907, ch. 44, " Similar reasons were assigned or Title of Act. North Dakota, Re- approved in the following cases: vised Codes, 1905, SS 5671, 5672, Tyler v. Western Un. Tel. Co., 60 5699, Oklahoma. Wilson's Rev. & 111. 421, 14 Am. Rep. 38 (1871); Ann St. 1903, § 700; Blackwell M. Smith v. Western Un. Tel. Co., 83 474 The Law of Torts. In a few States, we have a statutory declaration that telegraph and telephone companies are not common carriers." Bailees for Hire. Occasionally the courts of a State have classified these companies as bailees for hire, thus exempting them from the common carrier's liability as insurer/ and also withdraw- ing them, to some extent, from the category of public service corporations.* In the South Carolina case referred to in the second preceding note, the court said: "Our opinion is that telegraph companies, as to the work which they engage to do, belong to that department known as bailment, especially to that class styled locatio operis faciendi, ^and that they are governed by the principles of law which have been long since established in reference to this department." They Are Public Service Corporations. In all jurisdictions, and without the aid of statutes, the courts have decided, unhesi- tatingly, that telephone and telegraph companies are public service corporations. They are organized to serve the public; they hold Ky 104, 112, 4 Am. St. Rep. 126 (1885), nullified by Constitution, § 199: Fowler v. Western TJn. Tel. Co., 80 Me. 381, 387, 15 At. 29, 6 Am. St Rep. 211; Klley v. Western Un. Tel. Co., 109 N. Y. 231, 16 N. B. 75 (1888) ; Western Un. Tel. Co. v. Griswold, 37 Oh. St. 301, 309, 41 Am. Rep. 500 (1881); Western Un. Tel. Co. V. Nelll, 57 Tex. 283, 288, 44 Am. Rep. 589 (1882); Hibbard v. Western Un. Tel. Co., 3S Wis. 558 (1873); Primrose v. Western Un. Tel. Co., 154 U. S. 23, 14 Sup. Ct. 1098, 38 L. Ed. 883 (1893). "California Civil Code § 2168; Montana Civil Code § 2870. ' Birney v. New York & Western Un. Tel. Co. 18 Md. 341, 81 Am. Dec. 607 (1862); "This telegraph com- pany is not a common carrier, but a bailee, performing, through its agents a work for its employer, ac- cording to certain rules and regula- tions, which Tinder the law, it has a right to make for its govern- ment. The appellee is supposed to know that the engagements of the appellant are controlled by those rules and regulations, and does himself, in law, engraft them in his contract of bailment and is bound by them." In Western Un. Tel. Co. V. Fontaine 58 Ga. 433 (1877), it was declared By the court that a telegraph company oc- cupied " the legal status of a bailee for hire and not that of a common carrier." Plnckney Bros. v. Western Un. Tel. Co., 16 S. C. 71, 85, 45 Am. Rep. 765 (1882). ' In Gillis V. Western Un. Tel. Co., 61 Vt. 461, 464, 17 At. 736, 15 Am. St. Rep. 917 (1889), the court criticised this doctrine, " because telegraph companies are engaged in a business of a public nature, nni are precluded by rights and duties incident thereto from occupying the legal status of an ordinary bailee for hire, whose duties arise wholly from the contract of employment." Liability of Telegraph and Telephone Companies. 475 themselves out as servants of the public ; they have become im- portant if not indispensable to the community, and, generally, they have a practical monopoly in their line of business, within each locality.* In the language of Alvey, C. J. : " The appellant (a telephone company) is in the exercise of a public employment, and has assumed the duty of serving the public while in that em- ployment. * * * The telegraph and telephone are important instruments of commerce, and their services as such have become indispensable to the commercial and business public. They are public vehicles of intelligence, and they who own and control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railroad company, as a common carrier, can rightfully refuse to -perform its duty to the public." ^° The Supreme Court of Massachusetts ^"^ has de- "Hockett V. The State, 105 Ind. 250, 257, 5 N. E. 178, 55 Am. Rep. 201 (1885). "The telephone has become as much a matter of public convenience and of public necessity, as were the stage coach and sailing vessel a hundred years ago, or as the steamboat, the railroad and the telegraph have become in later years ": Central Union Telephone Co. V. Falley, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114 (1888), with valuable note at pp. 128-136; Fowler v. Western Un. Tel. Co., 80 Me. 381, 387, 15 At. 29, 6 Am. St. R. 211, " Telegraph companies are engaged in what may appropriately be called a public employment": Turnpike Company v. News Com- pany, 43 N. J. L. 381 (1881). " The telegraph has become as essential to the transaction of the business of the country as the railroads; and * * * the implication would be very strong that the legislature, in bestowing the franchise, intended to charge the companies with a duty to the public; " Gardner v. Providence Telephone Co., 23 R. I. 262, 268, 49 At. 1004, 55 L. R. A. 113 (1901); State v. Telephone Co., 61 S. C. 83, 94, 39 S. E. 257, 85 Am. St. Rep. 870, 55 L. R. A. 139 (1901) ; " The telephone has become a pub- lic servant; " Gillis v. Telegraph Co., 61 Vt. 461, 464, 17 At. 736, 15 Am. St. Rep. 917 (1889); Telegraph Company v. Telephone Company, 61 Vt. 241, 249, 17 At. 1071, 15 Am. St. Rep. 893 (1888); Western Union Tel. Co. V. Reynolds Bros. 77 Va. 173, 46 Am. Rep. 715 (1883). ■"Chesapeake & Pot. Telephone Co. V. Bal. & O. Tel. Co., 66 Md. 399, 7 At. 809, 59 Am. Rep. 167 (1886). In State ex rel. Webster v. Nebraska Telephone Company, 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404 (1885), it is said: " While there is no law giving it a monopoly of the business in the territory covered by its wires, yet it must be ap- parent to all that the mere fact of this territory being covered by its "a Pierce v. Drew. 136 Mass. 75, 77, 49 Am. Rep. 7 (1883). 476 The Law of Torts. clared that the public nature of the business of these companies " has been recognized by the legislation of Congress, the decisions of the United States courts and of many of the States. So far as known to us, it has not been held otherwise anywhere." § 2. Their Duties to the Public. To Serve All. Inasmuch as these companies are public service corporations, they are charged with certain duties to the public, among which are those of furnishing for a reasonable compensa- tion to any inhabitant of the locality served by them, telegraphic or telephonic service for legitimate purposes, without unfair dis- crimination, either^as to manner of service or rate.^' Their prop- erty has been employed by them, voluntarily, in such a manner as to become " affected with a public interest," as that term has been defined by the Supreme Court of the United States ; ^^ " Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the con- trol." 1* plant, from the very nature and 61 Vt. 241, 17 At. lOTl, 15 Am. St. character of its business gives it a Rep. 893 (1888). monopoly of the business which it '^ Munn v. Illinois, 94 U. S. 113, transacts. * * * No statute has 126, 24 L. Ed. 77 (1876). been deemed necessary to aid the "Accord. Interocean Pub. Co. v. courts in holding that when a per- Associated Press, 184 111. 450, 56 N. son or company undertakes to sup- E. 822, 48 L. R. A. 568, 75 Am. St. ply a demand which is 'affected Rep. 184 (1900); Hockett v. The with a public interest,' it must State, 105 Ind. 250, 5 N. E. 178, 55 supply all alike who are like Am. Rep. 201 (1885) ; State ex rel. situated." Webster v. Neb. Telephone Co., 17 " Nebraska Telephone Co. v. State Neb. 126, 22 N. W. 237, 52 Am. Rep. ex rel. Yeiser, 55 Neb. 627, 76 N. W. 404 (1885); Nebraska Telephone 171, 45 L. R. A. 113 (1898); Tele- Co. v. State ex rel. Yeiser, 55 Neb. graph Co. v. Telephone Company, 627, 76 N. W. 171, 45 L. R. A. 113 (1898). Liability of Telegraph and Telephone Companies. 477 In case a telegraph or telephone company refuses, without lawful excuse, to serve any member of the community, or imposes im- proper conditions upon its performance of services, it renders itself liable to a tort action'* for this breach of its common law duty,'" and also to a writ of mandamus or injunction. 1* It is under no legal obligation, however, to render services in aid of unlawful undertakings. Accordingly, it cannot be compelled to install a telephone in a house of ill-fame,^' or supply telegraphic information to bucket shops or other gambling resorts.'* It may refuse to transmit messages, or to allow its lines and instruments to be used in transmitting messages which are defamatory or in- decent.'* If the illegality^ or immorality of a proflfered message is fairly doubtful, the doubt should be resolved in favor of the sender by the company, as it would be by a court, in case the "Cumberland TeL & Tel. Ce. v. Hobart, 89 Miss. 252, 42 So. 349 (1906), verdict for $150 was af- firmed, although plaintiff's damage was " largely composed of Incon- venience and annoyance"; Gwynn V. Citizens' Telephone Co., 69 S. C. 434, 48 S. B. 460, 67 L. R. A. Ill, 104 Am. St. Rep. 819 (1904). '* Supra, pp. 5, 7, 16 and authori- ties there cited. " Western Union Tel. Co. v. State ex rel. Hammond Elevator Co., 165 Ind. 492, 76 N. B. 100, 3 L. R. A. N. S. 153 (1905); Gwynn v. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870 (1901). "Godwin v. Telephone Company, 136 N. C. 258, 48 S. E. 636, 67 L. R. A. 251, 103 Am. St. Rep. 941 (1904). " It is argued that a common car- rier would not be authorized to re- fuse to convey plaintiff, because she keeps a bawdy house. Nor Is the defendant refusing her a tele- phone on that ground, but because she wishes to place the telephone in a bawdy house. A common carrier could not be compelled to haul a car for that purpose. • * * For like reason a mandamus will not lie to compel a water company to furnish water, or a light company to supply light to a house used for carrying on an illegal business. The courts will enjoin or abate, not aid, a public nuisance." "» Smith V. Western Un. Tel. Co., 84 Ky. 664, 2 S. W. 483 (1887); Central Stock & Grain Ech. v. Board of Trade, 196 IlL 396, 63 N. E. 74ft (1902); Western Union TeL Co. v. State ex rel. Hammond, 165 Ind. 492, 76 N. E. 100, 3 L. R. A. N. S. 153 (1905); Bryant v. Western Un. Tel. Co., 17 Fed. 825, and note, (1883). "Western Un. Tel. Co. v. Fergu- son, 57 Ind. 495 (1877); Peterson v. Western Un. Tel. Co., 65 Minn. 18, 67 N. W. 646, 33 L. R. A. 302 (1896); Pugh v. City etc. Tel. Co., 25 Al. L. J. 163, 9 Law Bal. 104, 8 Dec. Reprint 644, affd. 13 Law Bal. 190, Ohio (1883), 4;8 The Law of Torts. company was prosecuted for defamation or other illegal conduct because of its connection with the message.-" These companies are under a duty to treat their patrons de- cently ; and, if they insult and humiliate a patron by abusive lan- guage, without lawful excuse, they are liable to him in tort.^^ Must Not Discriminate Unfairly. Engaged as these com- panies are, of their own volition, in performing a public service, they are bound by the principles of the common law to render services to all patrons on equal terms under like conditions ; and not to so discriminate in their rates to their patrons, as to give any one an undue preference over another.^^ If they were allowed to give such preferences, they would be able, oftentimes, to secure a monopoly of a particular line of business to a favored patron, or to bring financial rum upon one discriminated against.^' These principles, however, do not preclude telegraph and tele- phone companies from charging different rates to different patrons, provided the differences in the services are fairly commensurate =°Gray v. Western Un. Tel. Co., 87 Ga. 350, 354, 13 S. E. 562, 14 L. R. A. 95, 27 Am. St. Rep. 259 (1891): "When a dispatch is am- biguous, the law would give the benefit of the ambiguity to the com- pany in dealing with it either civilly or criminally for transmit- ting the dispatch, and hence, it would be the duty of the company, in deciding whether to transmit it or not, to give the benefit of the doubt to the sender. On no other rule would it be practicable for tele- graph companies to perform their legitimate functions as servants of the general public"; Western Un. Tel. Co. V. Ferguson, 57 Ind. 495 (1877); Commonwealth v. Western Un. Tel. Co., 112 Ky. 355, 67 S. W. 59, 57 L. R. A. 614 (1901). ^'Dunn v. Western Un. Tel. Co., Ga. , 59 S. E. 189 (1907), citing and applying text, supra, p. 101. == Western Un. Tel. Co. v. Call Publishing Co., 44 Neb. 326, 62 N. W. 506, 2 7 L. R. A. 622 (1895); 58 Neb. 192, 78 N. W. 519 (1899); 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765 (1901); Chesapeake & Pot. Tel. Co. V. Bal. & Oh. Tel. Co., 66 Md. 399, 59 Am. Rep. 167 (1886). " The law requires them to be im- partial, and to serve all alike"; Telegraph Co. v. Telephone Com- pany, 61 Vt. 241, 249, 17 At. 1071, 15 Am. St. Rep. 893 (1889). "^ State ex rel. Webster v. The Nebraska Telephone Co., 17 Neb. 126, 133-4, 22 N. W. 237, 52 Am. Rep. 409 (1885). "It is shown to be essential to the business interests of the relator that his office be furnished with a telephone. The value of such property is of course, conceded by respondent, but by its attitude it says it will destroy those interests and give to some one in the same business, who may have been more friendly, this ad- vantage over him." Liability of Telegraph and Telephone Companies. 479 with the differences in the rates.-* " There is no cast-iron line of uniformity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines." -^ The patron who complains of ill-treatment by the company, in the respect now under consideration, must show that the discrimination against him has been unjust. In the case last cited, the telegraph company charged the Call Publishing Company five dollars per hundred words, while it charged the State Journal Company (a rival newspaper published in the same city) but one dollar and a half per hundred words, and the action was brought to recover sums which the Call Publishing Company had been thus wrongfully compelled by the telegraph company to overpay. The telegraph company insisted that the difference in the rates charged to the companies was due to the fact that the Call Company received its dispatches during the day, when the services of the telegraph company were more valuable than at night, when the Journal Company received its dispatches. Not- withstanding this defense, however, the jury gave its verdict for plaintiff for $975. On appeal, the judgment was set aside because " There was no evidence to show that the rate charged the Call Company was unreasonably high ; there was no evidence to show that the rate charged the Journal Company was unreasonably low; there was no evidence to show what difference in rates was de- manded or justified by exigencies of the difference in conditions of service." ^® Upon the second trial, such evidence was given, and a judgment for the plaintiff was affirmed by the Supreme Court of the State,^' and the Supreme Court of the United States.^' Statutory Provisions are found in many States affirming and extending the common law principles stated above. In Maine, " Every corporation authorized by its charter to grant telephone privileges, including the leasing of instruments and other appli- ances, shall grant such privileges upon equal and uniform terms "Cases in the last two notes. 62 N. W. 506, 27 L. R. A. 622, 48 =» Brewer, J., in Western Un. Tel. Am. St. Rep. 729 (1895). Co. V. Call Publishing Co., 181 U. "Western Un. Tel. Co. v. Call S 92 101, 21 Sup. Ct. 561, 45 L. Ed. Publishing Co., 58 Neb. 192, 78 N. 765 (1901). W. 519 (1899). » Western Union Tel. Co. v. The =» Ibid. 181 U. S. 92, 21 Sup. Ct. Call Publishing Co., 44 Neb. 326, 561, 45 L. Ed. 765 (1901). 48o The Law of Touts. and conditions." ^° Maryland prohibits telephone companies trom imposing any conditions or restrictions upon an applicant for tele- phone connections or facilities that are not imposed impartially upon all persons in like situation, and from discriminating against any individual or company engaged in any lawful business."" Tel- egraph companies are required to receive and transmit messages, in accordance with their established rules, and in the order in which they are received, with impartiality and -good faith, provided that arrangements may be made with newspapers for the transmission of public intelligence out of its order.''! North Dakota affirms the common law duty of telegraph companies,"^ and prescribes the following order for the transmission of messages which have accu- mulated: " I. Messages from public agents of the United States, or of this State, on public business. 2. Messages intended in good faith for immediate publication in newspapers, and not for any secret use. 3. Messages giving information relating to the sickness or death of any person. 4. Other messages in the order in which they were received." ^* In some States, the rates to be charged by these companies for business within the State's limits have been fixed by statute, or by commissioners who have been authorized by legislation to estab- lish or revise rates. ^* When rates have been thus established, they must be observed by the companies, unless they are confiscatory ; ■" and are not to be evaded by such shifts as were resorted to in the Indiana cases cited in the last note.^° =» Revised Statutes, 1903, ch. 55, son v. State, 113 Ind. 143, 15 N. E. § 12. 215; Nebraska Telephone Co. v. "Public General Laws, Art. 23, State ex rel. Yeiser, 55 Neb. 627, 76 § 336. Minn. Rev. Laws, 1905, § 2928 N. W. 171, 45 L. R. A. 113 (1898). requires these companies to serve ^ Smyth v. Ames, 169 U. S. 4G6, all without discrimination and for IS Sup. Ct. 418, 42 L. Ed. 819 a reasonable compensation. (1898); Johnson v. State, 113 Ind. =' Public Gen. Laws, Art. 23, S 328. 143, 15 N. E. 215 (1887); Central A similsir provision is found in Un. Tel. Co. v. State, 118 Ind. 194, Conn.; R. S., § 3912. 19 N. E. 604, 10 Am. Sf. Rep. 114 '^Revised Codes, §§ 5671, 5673, (1888); Mayo v. Western Un. Tel. 5676, Accord. South Dak. Rev. Code, Co., 112 N. C. 343, 16 S. E. 1006 1903, Civil Code, §§ 1576, 1577. (1893). '"Revised Codes, § 5699. South =° See Leavell v. Western Un. Tel. Dak. Civil Code, U 564, 1604. Co., 116 N. C. 211, 21 S. E. 391, 27 ''Hockett V. The State, 105 Ind. L. R. A. 843, 47 Am. St. Rep. 798 250, 55 Am. Rep. 201 (1885); John- (1895). Liability of Telegraph and Telephone Companies. 481 § 3. Their Rights. To Reasonable Compensation. Telegraph and telephone com- panies are entitled to a reasonable compensation for their servic'es. If they demand an unreasonable price, the patron is entitled to relief, either by bringing his grievance before a State Board of Commissioners or similar body, where he may have a reasonable rate fixed ; "' or by an action for a penalty when that is imposed by statute ; ^' or by an action for damages when he has been compelled to pay an unreasonable rate ; ^° or by a writ of mandamus compel- ling the company to serve him for a fair rate, or of injunction pro- hibiting the withdrawal of such service.*" From the foregoing authorities and the principles stated in the preceding sections, it is apparent that the State has the power to determine what rate is reasonable for service rendered or offered by one of these companies, in its quasi-public capacity. It has not such power, however, to prescribe what a company shall charge for services rendered in a department of its business which is of a purely private nature.*' Moreover, if a State Legislature or Board fixes a rate for these quasi-public services which is so low as to deprive a company of the beneficial use of its property, such rate will be annulled by the courts.*- " Nebraska Telephone Co. v. State Manning, 186 U. S. 238, 22 Sup. Ct. ex rel. Yelser, 55 Neb. 62T, 76 N. W. 881, 46 L. Ed. 1144 (1902). Brewer, 171, 45 L. R. a. 113 (1898). J. said: "It appears that some por- "^Conn. Gen. Statutes, §§ 3912, tlon of the defendant's business is 3913; Florida, L. 1907, ch. 5628 of a purely private nature, the re- (No. 33) § 1; Western Un. Tel. Co. ceipts whereof are spoken of in its V. Pendleton, 95 Ind. 12, 48 Am. reports as private rentals, and as to Rep. 692 (1883). such business congress could not, ™ Western Un. Tel. Co. v. Call if it would, prescribe what shall be Publishing C6., 58 Neb. 192, 78 N. charged therefor." W. 519 (1899), affd. 181 U. S. 92, "Western Un. Tel. Co. v. Myatt, 21 Sup. Ct. 561, 45 L. Ed. 765 98 Fed. 335 (1899): The court de- (1901). elded: " 1. That the proofs ad- "N. Y. & C. Grain & S. Exch. v. duced in this cause show prima Board of Trade, 127 111. 153, 19 N. facie that the maximum rates for E. 855, 2 L. :^ A. 411 (1889); telegraphic, service prescribed by Gwynn v. Citizens' Tel. Co., 61 S. C. chapter 38 of the laws enacted by 83, 39 S. E. 257, 55 L. R. A. 139, 85 the legislature of the state of Kan- Am. St. Rep. 870 (1901). sas at the special session of 1898 "Chesapeake & P. Tel. Co. v. are less than the. cost pf perforni- 31 482 The Law of Touts. Not only is a telegraph or telephone company entitled to reason- able compensation for its services, but it has a right to demand payment in advance,*** including a deposit for an answer, which is requested.** This right to prepayment may be waived.*' To Establish Proper Regulations. In common with all who are engaged in like quasi-public callings, these companies have the right to make and enforce reasonable regulations for the conduct of their business.*" Whether particular regulations are reasonable is a question for judicial decision.*^ Even regulations which are generally fair, may become oppressive and unreasonable in special circumstances, and these companies " must exercise ordinarily pru- dent discretion in relaxing their regulations in such cases." *' Some of the more important regulations are those fixing the business hours of a company's various offices,*^ prescribing the ing the service, and are, therefore, unreasonable, and confiscatory; and that the enforcement of such rates, which is threatened, would operate to deprive the telegraph company of its property without due process of law, and would be a denial of the equal protection of the laws." '"Langley v. West. Un. Tel. Co., 88 Ga. 777, 15 S. E. 291 (1892); West. Un. Tel. Co. v. Power, 93 Ga. 543, 21 S. B. 51 (1893); Western Un. Tel. Co. v. Mossier, 95 Ind. 29 (1883). "West. Un. Tel. Co. v. McGuire, 104 Ind. 130, 2 N. E. 201 (1885); Hewlett V. West. Un. Tel. Co., 28 Fed. 181 (1886). "West. Un. Tel. Co. v. Cunning- ham, 99 Ala. 314, 14 So. 579 (1893). "Birney v. N. Y. etc. Tel. Co., 18 Md. 341, 81 Am. Dec. 607 (1862); Pittsburg etc. Ry. v. Lyon, 123 Pa. 140, 16 At. 607, 2 L. R. A. 489, 10 Am. St. R. 517 (1888) ; West. Un. Tel. Co. v. Reynold Bros., 77 Va. 173, 184, 46 Am. Rep. 715 (1883). "West. Un. Tel. Co. v. Crider, 10'7 Ky. 600, 54 S. W. 963 (1900); True V. Intern. Tel. Co., 60 Me. 9, 18, 11 Am. Rep. 156 (1872); Smith V. Gold etc. Tel. Co., 42 Hun (N. Y.) 454 (1886); West. Un. Tel. Co. v. Griswold, 37 Oh. St. 300, 313, 41 Am. Rep. 500 (1881), "if they fail to accord with sound public policy they are void "; Gillls v. West. Un. Tel. Co., 61 Vt. 461, 17 At. 736, 15 Am. Rep. 917 (1889); Helmann v. West. Un. Tel. Co., 57 Wis. 562 (1883); West. Un. Tel. Co. v. Rey- nolds Bros., 77 Va. 173, 184, 46 Am. Rep. 715 ,(1883). "This reason- ableness will be dependent upon the circumstances of the case and the rulings of the court applying the law to the facts." "Hewlett V. West Un. Tel. Co., 28 Fed. 181, 184 (1886); Conrad v. West. Un. Tel. Co., 162 Pa. 204, 29 At. 888 (1894). The regulation that claims for damages must be presented within six days is ordin- arily reasonable,* but is unreason- able at times, as in this case, and then will not be enforced. "Sweet v. Postal Tel. Co., 22 R. I. 344, 47 At. 881, 53 L. R. A. 732 Liability of Telegraph and Telephone Companies. 483- form in which messages must be presented for transmission, and the time within which claims for damages must be made.^" To Contract for Exemption from Common Law Liability. All courts are agreed that these companies may limit the measure of their responsibility to a reasonable extent by contracts fairly entered into with their patrons.^' What limitations and exemptions are reasonable is a question upon which courts are at variance, as, we have seen in a former connection, they are with regard to at- tempted contract exemptions of common carriers. ^^ This difference of opinion is due principally to the varying conceptions of public policy held by different courts. The standard form, provided by telegraph companies for mes- sages, contains a clause to the effect that " it is agreed between tlie sender of the following message and this company, that said com- pany shall not be liable for mistakes or delays in the transmission or delivery, or non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." Some courts have de- clared that this stipulation does not violate any sound public policy. They say : " To guard against error from causes to which this (1901); West. Un. Tel. Co. v. Neel, the company, requiring claims to 86 Tex. 368, 25 S. W. 15, 40 Am. be presented within sixty days, was St. Rep. 847 (1894). held unfair and unenforceable =° Young V. West. Un. Tel. Co., 65 against this plaintiff. N. Y. 163 (1875); Wolf v. West. "Harkness v. West. Un. Tel. Co., Un. Tel. Co., 62 Pa. 82, 1 Am. Rep. 73 la. 190, 193, 34 N. W. 811, 5 Am. 387 (1869); Conrad v. West. Un. St. Rep. 672 (1887); Primrose v. Tel. Co., 162 Pa. 204, 29 At. 888 West. Un. Tel. Co., 154 U. S. 1, 14 (1894). In the last case, the mess- Sup. Ct. 1098, 38 L. Ed. 883 (1893). age was sent from Philadelphia to " By the regulation now in ques- China and did not call for a reply tion, the telegraph company has not by wire, but the reply, in the or- undertaken to wholly exempt itself dinary course of business would be from liability for negligence; but by letter with bill of lading. only to require the sender of the " From the nature of the message, message to have it repeated and to the distance between him who sent pay half as much again as the usual and those to whom it was sent, the price, in order to hold the company neglect of the defendant was not liable for mistakes or delays": known and could not in the ordin- Camp v. West. Un. Tel. Co., 1 Met. ary course of business have been (58 Ky.) 164 (1858). l:nown, until after the expiration of '''Supra, Chap. Ill, § §. the sixty days." Hence the rule of 484 The Law or Torts. mode of conveying intelligence is peculiarly exposed, it is deemed but a reasonable and fair precaution to secure entire correctness that the message should -be .returned, so that it will be certainly known it has been correctly carried to the person to whom it is addressed, with the added compensation for its transmission both ways."'' Other courts treat such a stipulation as "contrary to public policy and void." They hold that the customer and the telegraph com- pany do not stand upon an equality in entering into such a con- tract. " The public is compelled to accept the services of the tele- graph company and to rely upon its discharging its duty. In this and other respects, the employments of the telegraph company and the common carrier of goods are strongly analogous. The business in which each is engaged is almost equally important to the public; vast interests are committed to each, and good faith and diligence in the discharge of the duties of each are essential to the interest of the public. In both cases the demands of a sound public policy alike forbid any stipulations to relieve them of the duty to use the care and diligence resting upon them. To hold otherwise would be to give license and immunity to carelessness and negligence on the part of each, and would be disastrous to the interests of the public."" ==Lassiter v. West. Un. Tel. Co., the company of ascertaining, by 89 N. C. 334 (1883). Accord. Red- repetition, the correctness of the path V. West. Un. Tel. Co., 112 Mass. translation of the messages de- 71, 17 Am. Rep. 69 (1873); Breese livered to them for transmission." V. U. S. Tel. Co., 48 N. Y. 132, 8 "West. Un. Tel. Co. v. Short, 53 Am. Rep. 526 (1871); Pearsall v. Ark. 434, 440, 14 S. W. 649 (1890). West. Un. Tel. Co., 124 N. Y. 256, Accord. West. Un. Tel. Co. v. Man- 26 N. E. 534, 21 Am. St. Rep. 662 chard, 68 Ga. 299, 45 Am. Rep. 480 (1891); West. Un. Tel. Co. v. (1882). " Any rule of the company Stevenson, 128 Pa. 442, 18 At. 441, which seeks to relieve it from per- 15 Am. St. Rep. 687 (1889); Mc- forming the duty belonging to its Andrew v. Elec. Tel. Co., 17 C. B. 3, employment with integrity, skill 84 Eng. Com. L. 3 (1855). In the and diligence, contravenes public last case Jervis, C. J. said: " So far policy, as well as the law, and un- from that being as my brother der it the party at fault cannot seek Byles suggests, an unreasonable refuge": Tyler v. West. Un. Tel. qualification or limitation of the Co., 60 111. 421, 14 Am. Rep. 38 company's liability, it seems to me (1871); West. Un. Tel. Co. v. Gris- to be perfectly just and reasonable wold, 37 Oh. St. 301, 41 Am. Rep. that means should be afforded to 500 (1^81); Thompson v. West. Un. Liability of Telkgraph and Telephone Companies. 485 The latter view, that these companies cannot exempt themselves by contract from liability for their negligence, including the negli- gence of their servants, has been embodied in the statutes of several States." Contracting for Exemption from Gross Negligence. There is substantial unanimitj' that a telegraph company cannot exempt itself from liability for gross negligence, either on the part of its managers, or of its servants ; '" as it cannot from liability for wilful misconduct.^" A\Tiile some judges have professed to find difficulty in defining gross negligence,^* the term is generally employed to designate the absence of even slight care, in the circumstances of the particular case.'® §4- Tort Actions by Sender of Telegram. Sender's Option To Sue in Contract or in Tort. As a rule, the sender enters into a contract with the telegraph company for the transmission of his telegram. If the company breaks this Tel. Co., 64 Wis. 531, 54 Am. Rep. 644 (1885). =»FIa. L. 1907, ch. 5628 (No. 33), S 1; Iowa Code, 1897, Tit. X. ch. 8, § 2163; Kentucky Constitution, § 196, construed in West. Un. Tel. Co. V. Eubanks, 100 Ky. 593, 38 S. W. 1068 (1897) overruling Camp v. West. Un. Tel. Co., 1 Met. (58 Ky.) 164 (1858); Micliigan Compiled Laws, 1897. § 5268; Minnesota Rev. Laws, 1905, § 2928; Nebraska, Aanotated Statutes, 1903, S 1146; West. Un. Tel. Co. v. Seals, 56 Neb. 415, 76 N. W. 903, 71 Am. St. Rep. 682 (1898). "West. Un. Tel. Co. v. Crall, 38 Kan. 679, 17 Pac. 309, 5 Am. St. Rep. 795; Redpath v. West. Un. Tel. Co., 112 Mass. 71, 17 Am. Rep. 69 (1873); Grinnell v. West. Un. Tel. Co., 113 Mass. 299, 302, 18 Am. Rep. 485 (1873); West. Un. Tel. Co. V. Goodbar. (Miss.) 7 So. 214 (1890); Will v. Postal Tel. Co., 3 App. Div. 22, 37 N. Y. Supp. 933 (1896); Altman v. West. Un. Tel. Co., 84 N. Y. Supp. 54 (1903), the negligence In this case was held not to be gross; Pegram v. West. Un. Tel. Co., 97 N. C. 57, 2 S. E. 256 (1887); Jones v. West. Un. Tel. Co., 18 Fed. 717 (1883). "Hart V. West. Un. Tel. Co.. 66 Cal. 579, 583, 56 Am. Rep. 119 (1885); U. S. Tel. Co. v. Gilder- sleeve, 29 Md. 232, 248, 96 Am. Dec. 519 (1868); West. Un. Tel. Co. v. Neill, 57 Tex. 283, 291, 44 Am. Rep. 589 (1882); Womack v. West. Un. Tel. Co., 58 Tex. 176, 179, 44 Am. Rep. 614 (1882). ^Pearsall v. West. Un. Tel. Co., 124 N. Y. 256, 266, 26 N. E. 534. 21 Am. St. Rep. 662 (1891); West. Un. Tel. Co. v. Griswold, 37 Oh. St 301. and cases cited pp. 311-12, 41 Am. Rep. 500 (1881). "Cases cited supra, p. 423; West. Un. Tel. Co. v. Howell, 38 Kan. 685, 17 Pac. 313 (1888). 486 The Law of Torts. contract to the damage of the sender, is the latter limited to an action upon contract, or may he sue in tort, if he prefers that form of action? It would seem upon principle that he has the option. As the company is engaged in a quasi-public employment, it is clearly under a common law duty, as well as under a contract obligation, to transmit the message with due care, skill and promptness. For a breach of such duty the company should be liable in tort ;"" and the weight of American authority is in favor of such liability even to the sender. "1 Of course, it may secure exemption from such Ha- "Supra, pp. 7-10, 17; Bretherton V. Wood, 3 Bred. & Bihf. 54 (1821), distinguishing Max v. Roberts, 12 East 89 (1810) as a case where the defendants " had no duty cast on them but what arose by contract." In Brown v. Boorman, 11 CI. & P. 1, 44 (1844); Lord Campbell de- clared: "Whenever there is a con- tract, and something to be done in the course of that employment, the plaintiff may either recover in con- tract or In tort." In Rich v. N. Y. Cent. & H. R. Ry., 87 N. Y. 382, 395 (1882), Judge Finch, writing for the court, said : " Unless the con- tract creates a relation, out of which springs a duty, independent of the mere contract obligation, though there may be a breach of contract, there Is no tort, since there is no duty to be violated. And the Illustration given is the common case of a contract of af- freightment, when beyond the con- tract obligation to transport and deliver safely, there is a duty, bom of the relation to do the same thing." " Garrett v. West. Un. Tel. Co., 83 la. 257, 49 N. W. 83 (1891); Hen- dershott v. West. Un. Tel. Co., 106 la. 529, 76 N. W. 828, 68 Am. St. Rep. 313 (1898); Cowan v. West. Un. Tel. Co., 122 la. 379, 98 N. W. 281, 64 L. R. A. 545, 101 Am. St. Rep. 268 (1904); Smith v. West. Un. Tel. Co., 83 Ky. 104, 113, 4 Am. St. Rep. 126 (1885); Birkett v. West. Un. Tel. Co., 103 Mich. 361, 61 N. W. 645, 33 L. R. A. 404, 50 Am. St. Rep. 374 (1894); Shinglend V. West. Un. Tel. Co., 72 Miss. 1030, 1035, 18 So. 425, 48 Am. St. Rep. 604, 30 L. R. A. 444 (1895); Alex- ander V. West. Un. Tel. Co., 66 Miss. 161, 175, 5 So. 397, 3 L. R. A. 71, 14 Am. St. Rep. 556 (1888), sender may sue in tort because the law imposes upon the company the duty of serving the public without negli- gence or unreasonable delay; West. Un. Tel. Co. v. Cook, 54 Neb. 109, 74 N. W. 395 (1898); Baldwin v. U. S. Tel. Co., 45 N. Y. 744, 748, 6 Am. Rep. 175 (1871); West. Un. Tel. Co.,— 83 Fed. 992, 28 C. C. A. 46, 55 V. S. App. 211. In the following cases the sender sued on contract; Corland v. West. Un. Tel. Co., 118 Mich. 369, 76 N. W. 762, 43 L. R. A. 280, 74 Am. St. Rep. 394 (1898); Kemp V. West. Un. Tel. Co., 28 Neb. 661, 44 N. W. 1064, 26 Am. St. Rep. 363 (1890); West. Un. Tel. Co. v. Wilhelm, 48 Neb. 410. 67 N. W. 870 (1896); Gillis v. West. Un. Tel. Co. 61 Vt. 461, 17 At. 736, 15 Am. St, Rep. 917 (3889). Liability of Telegraph and Telephone Companies. 487 bility by a valid contract with the sender therefor.*- Whether a particular agreement for exemption is a valid contract depends upon principles, discussed in the preceding sections. The view taken by the courts, which limit the plaintiff to a con- tract action against a telegraph company, is fairly represented in the following extract : " This action is not in tort, but on contract : its gist and grievance being the breach of the contract, the duties and obligations growing out of which are regulated by the statute, which itself becomes a part of it. The best test of this is the fact that such action could not be maintained without pleading and proving the contract."'' An action for a statutory' penalty, whether by the sender or the addressee of the message, is one in tort, according to the prevailing view."* § 5. Tort Action by Sendee of Telegram. None in England. The person to whom a telegram is sent has no action of any kind against the company in England, when he is a stranger to the transaction between the sender and the com- pany,'' and when there is no wilful alteration or misstatement by the company which can furnish ground for an action in deceit.®" As "inland communication by telegraph is now in the hands of the Postmaster General ",*' who is not subject to suit, for the reasons " Shaw V. Cable Company, 79 Co., L. R. 4 Q. B. 706, 38 L. J. Q. B. Miss. 670, 31 So. 222, 56 L. R. A. 249 (1869). 486, 89 Am. St. Rep. 666 (1901); "Blakeney v. Pegus, (No. 2), 6 Kiley v. West. Un. Tel. Co., 109 N. N. S. W. 223 (1885). Defendant a Y. 231, 16 N. E. 75 (1888). "telegraph mistress," mistakenly " Francis v. West. Un. Tel. Co., 58 but in good faith sent a telegraphic Minn. 252, 261, 59 N. W. 1078, 25 message to plaintiff, which was in- L. R. A. 406, 49 Am. St. Rep. 507 tended for another, and which (1894); Accord. Olympe de La caused plaintiff to Incur consider- Grange v. South Western Tel. Co., able expense, before the mistake 25 La. Ann. 383 (1873). was corrected. The damage was " Bait. & Oh. Tel. Co. v. Lovejoy, held not actionable, as there was no 48 Ark. 301, 3 S. W. 183 (1886); evidence of intentional falsity on West Un. Tel. Co. v. Merediths, 95 the part of the defendant, and the Ind. 93 (1883). relation between a telegraph com- " Dickson v. Renter's Tel. Co., 3 pany and its patrons is solely that C. P. D. 1, 47 L. J. C. P. 1 (1877), of contract. affg. S. C. 2 C. P. D. 62 (1877), and "Pollock on Torts (8th Ed.) 553. following Playford v. U. K. El. Tel. 488 The Law of Torts. stated on a former page,"' the judicial consideration of this topic by the House of Lords can be obtained only in actions growing out of foreign telegrams, and none of that character have come before that august tribunal. When Sendee Is Principal. In case the sender of the mes- sage is but the agent of the sendee in the particular transaction, the latter's rights to sue the company either for breach of contract or for tort are the same as though he were the nominal sender.*"" This is true, whether his position as principal was disclosed at the time of making the contract for sending the message '"' or was undis- closed.'' In the latter event, it is true, the principal would be sub- ject to any defense which was available against the agent when the disclosure of the principal was made to the company,'^ and would be bound by any stipulations of the agent limiting the company's liability which are binding upon the agent.'' When the Sendee Is a Stranger to the Contract for Trans- mission. In England, as we have seen, such a sendee cannot maintain an action against the company for negligent misconduct respecting the message which injures him. Not on contract, for he is not a party to any contract with the company, and, in that coun- try, he gains no contract rights by showing that the contract in question was intended for his benefit, when he is not the principal " Supra, ch. 3, § 4, p. 39. tlon of the duty which the defend- ^ Milliken v. West. Un. Tel. Co., ant owed as a public corporation, 110 N. Y. 403, 18 N. E. 251, 1 L. R. or as a common agent of sender A. 281 (188o). and receiver, at least nominal dam- ™Daugherty v. Am. Tel. Co., 75 ages could be recovered"; Thomp- Ala. 168, 51 Am. Rep. 435 (1883); son v. West. Un. Tel. Co., 107 N. C. West. Un. Tel. Co. V. Wilson, 92 Ala. 449, 12 S. E. 427 (1890); West. 32, 9 So. 414, 30 Am. St. Rep. 23 Un. Tel. Co. v. Broesche, 72 Tex. (1890). 654, 10 S. W. 734, 13 Am. St. Rep. ■'West v. West. Un. Tel. Co., 39 843 (1889). But see West. Un. Tel. Kan. 93, 17 Pac. 807 (1888); Young Co. v. Schriver, 141 Fed. 538, 72 v. West. Un. Tel. Co., 107 N. C. 370, C. C. A. 596, 4 L. R. A. N. S. 678 11 S. B. 1044, 22 Am. St. Hep. 883 (1905). (1890). "Upon authority and rea- "Harkness v. West. Un. Tel. Co.. son, we think it clear that the 73 la. 190, 34 N. W. 811, 5 Am. St. plaintiff could maintain the action; Rep. 672 (1887). and whether it is an action ex con- " Colt v. West. Un. Tel. Co., 130 tractu, for breach of the contract Cal. 657, 63 Pac. 83, 53 L. R. A. 678, for speedy and safe transmission, or 80 Am. St. Rep. 153 (1900). ex delicto for negligence and viola- Liability of Telegraph and Telephone Companies. 489 of the sender.'* Nor can the action be brought in tort, for the company is under no legal duty to the sendee to transmit and de- liver the message to him at all, much less to do it with care, skill and promptness. '° In this country, the sendee who has sustained damage which is the proximate result of the company's negligence, can maintain an action against the company ; although the ground of such action has been variously described by our courts. In a North Carolina case,^^ the reasons for sustaining such actions are summarized as follows: " I. That a telegraph company is a public agency and re- sponsible as such to anyone injured by its negligence ; or, at least, it is the common agent'^' of sender and receiver, and responsible to each for any injury sustained by them, respectively, by its negli- gence. 2. That when the receiver is the beneficiary of the con- tract, the injury, if any, caused by the company's negligence, must be to him." 3. The message is the property of the party addressed in analogy to a consignee of goods." The Prevailing Theory, upon which these actions are sup- ported, is that suggested in the first clause of the foregoing quota- tion : that a telegraph company is engaged in a quasi-public calling, and, by reason thereof, comes under a common law duty, not only towards those Sending dispatches, but also towards those to whom they are sent. This common law duty it violates when it negli- "Playford v. U. K. TeL Co., L. R. another, unless that misrepresenta- 4 Q. B. 706, 10 B. & S. 759, 38 L. J. tion is fraudulent or careless. But Q. B. 249 (1869). it is never laid down that the ex- '" Dickson v. Reuter's Tel. Co., 3 emption from liability for an inno- C. P. D. 1, 6, 47 L. J. C. P. 1 (1877). cent misrepresentation Is taken Bramwell, L. J. said: "That duty away by carelessness. It seems to to take care can only arise in one me, therefore, that that point also of two ways, namely, either by con- fails the plaintiff." tract or by the law imposing it. " Young v. West. Un. Tel. Co., 107 * * * Does that duty arise by N. C. 370, 372, 11 S. E. 1044, 22 Am. law? If it did, the consequence St. Rep. 883 (1890). would be that the general rule "N. Y. & W. Printing Tel. Co. v. which has been admitted to exist is Dryburg, 35 Pa. 298, 303, 78 Am. inaccurate, and that it ought to be Dec. 338 (1860). laid down in these terms, that no "Wadsworth v. West. Un. Tel. action will lie against a man for a Co., 86 Tenn. 695, 8 S. W. 574, 6 misrepresentation of facts whereby Am. St. Rep. 864 (1888). damage has been occasioned to 490 Thk Law of Torts. gently fails to correctly transmit and to promptly deliver a message which it has duly received for transmission^® As said by the Illi- nois court in the case cited in the last note : " Telegraph companies are the servants of the public, and bound to act whenever called upon, their charges being paid or tendered. They are, in that re- spect, like common carriers, the law imposing upon them a duty which they are bound to discharge. The extent of their liability is to transmit correctly the message as delivered. Hence, when the receiver of a dispatch suffers loss from the careless and negli- gent performance of its duty by such a company, he is entitled to recover damages for the tort, and the proper remedy is an action on the case." Sendee Not Bound by Company's Arrangement with Sender. In jurisdictions where the theory just stated obtains, the stranger sendee is not affected by stipulations imposed by the company on the sender. The latter has no authority to bind the sendee by such stipulations ; and the sendee brings his action in tort for the com- pany's violation of its legal duty to him.*" ™Colt V. West. Un. Tel. Co., 130 Cal. 657, 663, 63 P4c. 83, 53 L. R. A. 678, 80 Am. St. Rep. 153 (1900); Western Un. Tel. Co. v. Dubois, 128 111. 248, 21 N. E. 4, 15 Am. St. Rep. 109 (1889); West. Un. Tel. Co. v. Tenton, 52 Ind. 1, 4 (1875); Ment- zer V. West. Un. Tel. Co., 93 la. 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294 (1895); Alexan- der V. West. Un. Tel. Co., 66 Miss. 161, 5 So. 397, 3 L. R. A. 71, 14 Am. St. Rep. 556 (1888); Teleg. & Cable Co. v. Wells, 82 Miss. 733, 739, 35 So. 190 (1904); Walker v. West. Un. Tel. Co., 75 S. C. 512, 56 S. B. 38 (1906); Ferrero v. West. Un. Tel. Co., 9 D. C. App. 455, 467, 35 L. R. A. 548 (1896). =»McCord V. West. Un. Tel. Co., 39 Minn. 181, 183, 39 N. W. 315, 12 Am. St. Rep. 638 (1888); "As re- spects the receiver of the message, it is entirely immaterial upon what terms or consideration the tele- graph company undertook to send the message. It is enough that the message was sent over the line, and received in due course by plaintiff, and acted on by him in good faith"; Blsey v. Postal Tel. Co., 20 N. Y. State Rep. 97 (1888): Halsted v. . Postal Tel. Co., 120 App. Div. 433, 440, 104 N. Y. Supp. 1016 (1907). "Telegraph companies being under a public duty (i. e., a duty arising out of the public service which they are licensed or incorporated by govern- ment to perform) to receivers of messages, senders of messages can- not by contract lessen or do away with that duty. They may only do so in respect of the duty due to themselves" — dissenting opinion of Gaynor and Hooljer, JJ.; N. Y. & Wash. P. Tel. Co. v. Dryburg, 35 Pa. 298, 78 Am. Dec. 338 (1860); "He (the receiver) did not know whether the message had been re- Liability of Telkgrapii and Telephone Companies. 491 This view seems clearly right, and yet some courts have repudi- ated it. According to their reasoning, the telegraph company comes under a legal duty to the sendee of a message only because it has entered into a contract with the sender to transmit and de- liver it. Hence, that duty must be measured by the terms of that contract.'! " j^ is difficult to see," said the Massachusetts court, in the case cited in the last note, " how the plaintiff, who claims through the contract entered into by the sender of the message with the defendants, which created the duty and obligation resting on the defendants, can claim any higher or different degree of diligence than that which was stipulated for by the parties to the contract. Certainly a derivative or incidental right cannot be greater or more extensive than that which attached to the principal or source, whence such right accrued or was derived." The vice of this reasoning, it is submitted, consists in the assump- tion that the company's duty to the sendee of a message has its source in the contract between the company and the sender; when, in fact, its source is in the public service character of the company. Undoubtedly, the company's opportunity to injure the sendee is found in the contract relation which subsists between it and the sender. But the injury inflicted upon the sendee, by delivering to him a message that was never sent, or by failing to deliver one that was sent, is not a mere incident of the contract between the sender and the company; and the sendee's right to redress is not derivative from such contract. A common carrier receives goods for transportation, under a contract that it shall not be liable therefor to the shipper beyond the sum of fifty dollars. The shipper gives due notice to the carrier to stop the goods in transit. Through the carrier's negligence in complying with this order of stoppage, they are lost. The shipper, it has been held, and, it is submitted, properly held, can recover peated back to Le Roy (the send- of these cases the sender had er) or not;" Tobin v. West. Un. assented to a stipulation in the Tel. Co., 146 Pa. 375, 23 At. 324, message blank, that, if the message 28 Am. St. Rep. 802 (1891). was not repeated back, and one-half " Ellis V. Am. Tel. Co., 95 Mass. rates paid therefor, the company (13 Allen) 226, 238 (1886) ; Hal- should not be liable for mistakes sted V. Postal Tel. Co., 120 App. in the transmission, and the mes- Div. 433, 436, 104 N. Y. Supp. 1016 sages had not been repeated. (1897), prevailing opinion. In both 492 The Law of Torts. the value of the goods, notwithstanding the stipulation in the transportation contract. The action is founded on the neglect of the carrier's common law duty, not on its contract of carriage."^ Certainly, the sendee of a message is quite as free from the con- tract stipulations of the sender, who is neither his agent or prin- cipal, as the unpaid vender of goods is from his own contract- stipulations in the character of shipper. Delay in Delivering Message. The services of a tele- graph company are sought by its patrons because of the celerity with which messages can be transmitted. It is of the very essence of the company's undertaking that there shall be no unreasonable delay in sending and delivering messages which it has duly re- ceived.'^ Whether the time between the reception and delivery of a particular message amounts to unreasonable delay is generally a question of fact determinable from all of the circumstances of the case.'* As a rule, the delay is not unreasonable when the message is promptly delivered during the ordinary business hours of the terminal oflSce ; although the message may have been received at such office some time before the opening of business hours.'° If the office is open for business and messenger boys are present, when the dispatch is received, the fact-that it was not within office " Rosenthal v. Weir, 54 App. Div. peculiar circumstances of the case. 275 (1900); affd. 170 N. Y. 148, 63 "Having received the plaintiff's N. E. 65; 23 L. R. A. 239 (1902). money, knowing his object in send- '^West. Un. Tel. Co. v. Hender- Ing the message, and that the ob- son, 89 Ala. 510, 516, 7 So. 419, 18 ject could only be obtained by Am. St. Rep. 148 (1889); Hendricks prompt transmission and delivery v. West. Un. Tel. Co., 126 N. C. 304, to the person addressed, it could 35 S. B. 543, 78 Am. St. Rep. 658 not legally urge its rules as to of- (1900) ; Blackwell M. & E. Co. v. fice hours as an excuse for not de- West. Un. Tel. Co., — Okl. , 89 livering the dispatch until the next Pac. 234 (1907). day." See West. Un. Tel. Co. v. «' Sherrill v. West. Un. Tel. Co., Neel, 86 Tex. 368, 371, 25 S. W. 15. 116 N. C. 655, 21 S. E. 429 (1895); 40 Am. St. Rep. 847 (1894). s c, 117 N. C. 352, 23 S. E. 277 ''West. Un. Tel. Co. v. Harding, (1896); In this case there was evi- 103 Ind. 505, 3 N. E. 172 (1885); dence of diligent inquiry by the West. Un. Tel. Co. v. Neel, 86 Tex. company for the sendee's resi- 368, 25 S. W. 15, 40 Am. St. Rep. dence: West. Un. Tel. Co. v. 847 (1894) ; Davis v. West. Un. Tel. Broesche, 72 Tex. 654, 10 S. W. 734, Co., 46 W. Va. 48, 32 S. E. 1026 13 Am. St. Rep. 843 (1889); delay (1899); Bonner v. West. Un. Tel. held unreasonable because of the Co., 71 S. C. 303, 51 S. E. 117 (1904). Liability of Telegraph and Telephone Companies. 493 hours will not avail the company for delay in delivering the message.*" Non-Delivery of Message. Telegraph companies ordinarily stipulate that " messages will be delivered free within the estab- lished free-delivery limits of the terminal office ; for delivery at a greater distance, a special charge will be made to cover the cost of such delivery." This stipulation has generally been accounted a reasonable one ; and if the non-delivery is due to the fact that the sendee resides outside the free delivery limits, the company is not liable.'^ Nor is the company liable for the non-delivery of a message, where such failure to deliver is not due to its negligence f^ much less, when it is due to the conduct of the plaintiflf,*" or of one for whose conduct he is chargeable."" " Ordinarily, the measure of the duty of the telegraph company in respect to delivery is a diligent effort to deliver a message at the place to which it is sent, and within the free-delivery limits of the place, if such limits exist. Usually the failure to prepay or to "Bright V. West. Un. Tel. Co., 132 N. C. 317, 325, 43 S. B. 841 (1903). "West. Un. Tel. Co. v. Hender- son, 89 Ala. 510, 518, 7 So. 419, 18 Am. St. Rep. 148 (1889); "Free de- livery is a conditional obligation, contingent on the sendee's resi- dence being within the area of free delivery; and until that condition is shown, the telegraph company is not put in default; " Hendricks v. West Un. Tel. Co., 126 N. C. 304, 35 S. E. 543, 78 Am. St. Rep. 658 (1900); West. Un. Tel. Co. v. Ma- thews, 107 Ky. 663, 55 S. W. 427 (1900); West. Un. Tel. Co. v. Cross, 116 Ky. 5, 74 S. W. 109 J (1903); West. Un. Tel. Co. v. Jennings, 98 Tex. 465, 84 S. W. 1056 (1905). The rule of the company fixed the limits of the free delivery district as within the radius of half a mile from the office, held that this meant one-half mile in a straight line and not by the road. "Thomas v. West Un. Tel. Co., 120 Ky. 194, 85 S. W. 760 (1905); West. Un. Tel. Co. v. Cross, 116 Ky. 5. 74 S. W. 1098 (1903); Reynolds v. West. Un. Tel. Co., 81 Mo. App. 223 (1899); West. Un. Tel. Co. v. Swearingen, 95 Tex. 420, 67 S. W. 1080 (1902). *Gainey v. West. Un. Tel. Co., 136 N. C. 261, 48 S. E. 653 (1904). The message was directed to " G. (P. O. Idaho), Fayetteville, N. C." and called for an answer by mail. The court held that the company was justified in sending the dis- patch to Idaho by mail from Fay- etteville. " Hinson v. Postal Tel. Cable Co., 132 N. C. 460, 43 S. E. 945 (1903). "The negligence of a person in whose care a telegram is sent will be imputed to the sendee an^ nol to the telegraph company." 494 The Law of Torts. arrange for delivery beyond the free-delivery limits will excuse non-delivery outside those limits." "' A more stringent rule is applied in some States, under statutes which declare that " a carrier of messages by telegraph must use the utmost diligence therein." "- Negligence on the part of the company will be presumed, or to put it in another way, a prima facie case of negligence is estab- lished when it is shown that a different message is delivered from that which was sent,"' or when unreasonable delay in delivery appears,"* or when the message is not delivered at all.'" This presumption has received statutory recognition in several States.'^ Non Repetition of Messages. Even in jurisdictions where the company is permitted to stipulate for a repetition of the mes- sage as a condition of liability for mistakes in transmission, this " West. Un. Tel. Co. v. Harvey, 67 Kan. 729, 731, 74 Pac. 250 (1903). Accord. Dodd Grocery Co. v. Postal Tel. Co., 112 Ga. 685, 37 S. E. 981 (1900); Hurlburt v. West. Un. Tel. Co., 123 la. 295, 98 N. W. 794 (1904); Thomas v. West. Un. Tel. Co., 120 Ky. 194, 85 S. W. 760 (1905) ; Green v. "West. Un. Tel. Co., 136 N. C. 489, 49 S. E. 165, 67 L. R. A. 985 (1904). "Negligence in the transmission of a telegram is shown by the making of such a change in the name of the sendee that a person answering to the sub- stituted name cannot be found" — Mrs. Knoblee changed to Mrs. Jno. B. Lee. In West. Un. Tel. Co. v. Whitson, 145 Ala. 426, 41 So. 405 (1906), it was held that the deliv- ery of a telegram to the eleven year old son of the sendee, while at play with other boys near his home, is as a matter of law no delivery to the sendee. ■"Blackwell M. & E. Co. v. West. Un. T. Co., — Okl. , 89 Pac. 235 (1906), applying Wilson's Rev. & Ann. St. 1903, § 699. Similar statu- tory provisions exist in Cal. Civil Code, § 2162; Mont. Civil Code, § 2861; North Dak. Rev. Codes, 1905, § 5671; South Dak. Rev. Codes, 1903, § 1576. »= Walker v. West. Un. Tel. Co., 75 S. C. 512, 56 S. B. 38 (1906), and cases in preceding notes; Reed V. West. Un. Tel. Co., 135 Mo. 661, 673, 37 S. W. 904, 34 L. R. A. 492, 58 Am. St. Rep. 609 (1896). '* Green v. West. Un. Tel. Co., 136 N. C. 489, 49 S. B. 165, 67 L. R. A. 985 (1904), and cases cited in the opinion; Hellams v. West. Un. Tel. Co., 70 S. C. 83, 87, 49 S. E. 12 (1904). » Fowler v. West. Un. Tel. Co., 80 Me. 381, 390, 15 At. 29, 6 Am. St. Rep. 211. "Fla. L. 1907, ch. 5628 (No. 33), § 2; Iowa Code, 1897, Tit, X, ch. 8, i 2164. Liability of Telegkaph and Telephone Companies. 495 stipulation has been declared not to absolve the company from liability for the non-delivery of the message."' § 6. Damages. For Refusal or Failure to Serve, We have seen that these companies are under a legal duty to serve, without discrimination and upon proper terms, all persons who properly apply for such service.'* A breach of this duty, without legal justification, sub- jects the company to a tort action ;'" and if the breach is attended with personal abuse of the patron, he may recover damages for the humiliation and shame to° which he was unlawfully subjected.^"" Nominal Damages. The person wronged by the company's breach of duty to serve the public,"' or by its breach of a contract for service into which it has entered^*"' is entitled to at least nom- inal damages. Compensatory Damages. When a telegraph or telephone company refuses to serve a patron, without legal excuse, it is liable to him for such damages as he can show he has sustained by reason of the company's breach of duty. These damages, it has been declared, are not confined to the pecuniary loss which plain- tiff has suffered, but include a fair compensation for the incon- venience and annoyance which the defendant's breach of duty has caused the plaintiff. *"' Of course, when the plaintiff xlaims for "Purdom Naval Stores Co. v. 107 N. C. 370, 373, 11 S. E. 1044 West. Un. Tel. Co., 153 Fed. 327 (1890). (1907); Francis v. West. Un. Tel. ""Kennon v. West. Un. Tel. Co., Co., 58 Minn. 252, 259, 59 N. W. 126 N. C. 232, 35 S. E. 468 (1900); 1078, 25 L. R. A. 406, 49 Am. St. Hibbard v. West. Un. Tel. Co., 33 Rep. 507 (1894). Wis. 558, 14 Am. Rep. 775 (1873); "Supra, ch. XVI, § 1. West. Un. Tel. Co. v. Hall, 124 U. "Cumberland T. & T. Co. v. S. 444, 8 Sup. Ct. 577 (1888). Allen, 89 Miss. 832,42 So. 666 (1906). ""Cumberland T. & T. Co. v. Ho- "" Dunn V. West. Un. Tel. Co., — bart, 89 Miss. 252, 42 So. 349 Ga. , 59 S. E. 189 (1907), cit- (1906), the jury awarded $150 ing text of First Ed. p. 101, and damages, which the court declared cases there noted. was not excessive. "'Young V. West. Un. Tel. Co., 496 The Law of Torts. actual pecuniary loss, he must sustain his claim by competent evidence.^"* Damages Recoverable by the Sender. We are not con- cerned, at present, with actions brought by the sender for breach of contract, but only with tort actions. In jurisdictions where the sender may sue in tort, for the company's breach of its legal duty, he will find it to his advantage, generally, to bring his action for the tort, rather than for the breach of contract."*' If his action is ex contractu, the sender is limited to " such damages as may reasonably be supposed to have been contemplated by the parties, when making the contract as the probable result of the breach." i"" Accoi-dingly, if the special circumstances under which the contract is made are communicated to the company by the sender, the latter can recover the amount of injury which would ordinarily follow from a breach of the contract under these special circumstances so known by the company.^*" But if the special circumstances are not communicated to the company, the latter can be supposed to have had in its contemplation, when breaking the contract, only the amount of damages which would arise in the ordinary case, un- affected by these special circumstances.^"' '^ Cumberland T. & T. Co. v. «" West. Un. Tel. Co. v. Bates, 93 Hicks, 89 Miss. .270, 42 So. 285 Ga. 352, 20 S. E. 639 (1893), in- (1906). creased expenses of journey; Wesl. '"Sitpro, chap. II, p. 16; Cowan TJn. Tel. Co. v. Hines, 96 Ga. 688, V. West. Tin. Tel. Co., 122 la. 379, 23 S. E. 845, 51 Am. St. Rep. 159 98 N. W. 281, 64 L. R. A. 545 (1895); West. Un. Tel. Co. v. (1904); Bal. City Pass. Ry. v. Woods, 56 Kan. 737, 44 Pac. 989 Kemp, 61 Md. 619, 625, 48 Am. Rep. (1896); Reed v. West. Un. Tel. Co., 134 (1883). 135 Mo. 666, 37 S. W. 904, 34 L. R. '•"Francis v. West. Un. Tel. Co., A. 492 (1896); West. Un. Tel. Co. 58 Minn. 252, 59 N. W. 1078, 25 L. v. Wilhelm, 48 Neb. 910, 67 N. W. R. A. 406, 49 Am. St. Rep. 507 870 (1896); West. Un. Tel. Co. v. (1894). In Minnesota, damages for Church, 3 Neb. unofficial, 22, 90 N. mental anguish are allowed in tort W. 878, 57 L. R. A. 905 (1902); actions for the breach of a legal U. S. Tel. Co. v. Wenger, 55 Pa. duty owing by defendant to plain- 262, 93 Am. Dec. 751 (1867). tiff, Sanderson v. Nor. Pac. Ry., "«West. Un. Tel. Co. v. Short, 53 88 Minn. 162, 92 N. W. 542, 60 L. Ark. 434, 14 S. W. 649 (1890), ex- R. A. 403, 97 Am. St. Rep. 509 penses of journey recoverable, but (1902), but they are not allowed not loss in business caused by clos- in actions ex contractu, as held in ing plaintiff's mill during journey; the Francis case. Smith v. West. Un. Tel. Co., 83 Ky. Liability of Telegraph and Telephone Companies. 497 On the other hand, if the action is brought ex delicto, the plain- tiff is not Hmited to damages, which can be shown to have been within the actual contemplation of the parties, as the probable result of defendant's wrongdoing, but he is entitled to recover all the direct injury resulting from such wrongful act, although the extent or special nature of the resulting injury could not with certainty have been foreseen or contemplated as the probable result of the defendant's misconduct.*"' This is in accordance with the rule which obtains in tort actions by a passenger against a common carrier.ii" Damages Recoverable by the Sendee. The general rule applicable here is that the _ company is answerable in damages for all losses and injuries that may be traced directly, or with reason- able certainty, to its breach of legal duty to plaintiff.** * Accord- ingly, a physician, or attorney, to whom a message has been duly 104, 4 Am. St. Rep. 126 (1885); Squire v. West. Vn. Tel. Co., 98 Mass. 232, 93 Am. Dec. 157 (1867); Mackay v. West Un. Tel. Co., 16 Nev. 222 (1882); Baldwin v. U. S. Tel. Co., 45 N. Y. 744, 6 Am. Rep. 165 (1871); First Nat. Bank v. West. Un. Tel. Co.. 30 Oh. St. 555, 27 Am. Rep. 485 (1876) ; Ferguson V. Anglo-Am. Tel. Co., 178 Pa. 377, 35 At. 979, 35 L. R. A. 554, 56 Am. St. Rep. 770 (1896); Primrose v. West. Un. Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883 (1893); West. Un. Tel. Co. v. Coggin, 68 Fed. 137, 15 C. C. A. 231, and ex- tended note (1895); West. Un. Tel. Co. V. Morris, 83 Fed. 992, 28 C. C. A. 56, and note (1897). ""West. Un. Tel. Co. v. DuBols, 128 111. 248, 21 N. E. 4, 15 Am. St. Rep. 109 (1889); Mentzer v. West. Un. Tel. Co. 93 la. 757, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294 (1895); McPeek v. West. Un. Tel. Co., 107 la. 356, 362, 78 N. W. 63, 43 L. R. A. 214, 70 Am. St. Rep. 205 (1899); Cowan v. West. Un. Tel. Co., 122 la. 379, 386, 98 N. W. 281, 64 L. R. A. 545 (1904); Young V. West. Un. Tel. Co.. 107 N. C. 370, 375. 11 S. E. 1044. 9 L. R. A. 669. 22 Am. St. Rep. 883 (1890); Barnes v. West. Un. Tel. Co., 27 Nev. 438, 76 Pac. 931, 103 Am. St. Rep. 776, 65 L. R. A. 666 (1904); West. Un. Tel. Co. v. Wells, 50 Fla. 474, 39 So. 838, 111 Am. St. Rep. 129 (1905). ""Halt. City Pass. Ry. v. Kemp, 61 Md. 74. 81 (1883); Sloan v. Southern Cal. Ry. Ill Cal. 668. 44 Pac. 320, 32 L. R. A. 193 (1896); Brown v. Chic. M. & St. P. Ry., 54 Wis. 342, 11 N. W. 356, 41 Am. Rep. 41 (1882); McKeon v. Chic. M. & St. P. Ry., 94 Wis. 477. 69 N. W. 175, 35 L. R. A. 252, 59 Am. St. Rep. 909 (1896). "'Alexander v. West. Un. Tel. Co., 66 Miss. 161, 5 So. 397, 3 L. R. A. 71, 14 Am. St. Rep. 556 (1888). This action was brought by the sender, but the rule is the same for the sendee. 32 498 The Law of Torts. sent, but who fails to receive it through the neghgence of the company, and thus loses a fee, is entitled to recover from the com- pany the amount thus lost.^*^ So a person who loses the profits of a business transaction, because of the company's negligent fail- ure to promptly deliver a message,i*^ or of its negligent failure to correctly transmit it.'i* is entitled to compensatory damages. It will be observed that plaintiff's damages, in order to be re- coverable, must be the proximate result of the company's breach of duty to the plaintiff.^ ^^ Exemplary or punitive damages may be recovered, when the defendant's negligence is gross, or its misconduct causing harm to plaintiff is wilful or wanton.i^" Damages for Injuries to the Feelings. This subject has been considered in a former connection. ^i^ The multitudinous cases which have been brought before the courts, in the States "= West. Un. Tel. -Co. v. McLaurin, 70 Miss. 26, 13 So. 36 (1892); at- torney entitled to recover statutory penalty and the loss of fees; Fairly V. West. Un. Tel. Co., 73 Miss. 6, 18 So. 796 (1895), physician enti- tled to recover penalty and the loss of fees; West. Un. Tel. Co. v. Long- well, 5 N. Mex. 308, 21 Pac. 339 (1889), physician held entitled to recover difference between fee he would have earned, and what he did earn at home, fixed by the court at $100. In Wood v. West. Un. Tel. Co., 40 S. C. 524, 19 S. E. 67 (1893), the court declared that the physi- cian's loss in such a case is special damages which must be specially pleaded. "= Western Un. Tel. Co. v. Fat- man, 73 Ga. 285 (1884); Walden V. West. Un. Tel. Co., 105 Ga. 275, 31 S. E. 172 (1898); Perrero v. West. Un. Tel. Co., 9 App. D. C. 455, 35 L. R. A. 548 (1896). "' Propeller Towboat Co. v. West. Un. Tel. Co., 124 Ga. 478, 52 S. E. 766 (1905) ; Reed v. We-t Un. Tel. Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 58 Am. St. Rep. 609 (1896) ; West. Un. Tel. Co. v. Craw- ford, 110 Ala. 460, 20 So. Ill (1896); West. Un. Tel. Co. v. Seals, 56 Neb. 415, 76 N. W. 903, 71 Am. St. Rep. 682 (1898). ""West. Un. Tel. Co. v. Merrill, 144 Ala. 618, 626, 38 So. 121, 113 Am. St. Rep. 66, 71 (1905), whether the damages were proximate in this case was held to be a question for the jury; Bowyer v. West. Un. Tel. Co., 130 la. 324, 106 N. W. 748 (1906); Stansell v. West. Un. Tel. Co., 107 Fed. R. 668 (1900). "'West. Un. Tel. Co. v. Lawson, 66 Kan. 660, 72 Pac. 283 (1903); Accord. West. Un. Tel. Co. v. Seed, 115 Ala. 670, 22 So. 474 (1896); $1,500 not excessive; Young v. West. Un. Tel. Co., 65 S. C. 93, 43 S. E. 448 (1902); Butler v. West. Un. Tel. Co., 65 S. C. 510, 44 S. B. 91 (1902); Telegraph Co. v. Frith, 105 Tenn. 167, 58 S. W. 118 (1900), $1,000 not excessive. "'Supra, chap. Ill, pp. 102-104. Liability of Telegraph aa'u Telephone Companies. 499 where these damages are recoverable from telegraph companies, since the first edition of this work was published, show that the Texas doctrine has opened a prolific source of litigation.' i' "'Roberts v. Western Un. Teh Co., 73 S. C. 520, 53 S. E. 985, 114 Am. St. Rep. 100, and note (1906) ; defendant's breach of duty must be such as to convince a jury that it ■would have brought mental anguish to a reasonable human being in plaintiff's situation; Cowan v. West. Un. Tel. Co., 122 la. 379, 98 N. W. 281 (1904); Green v. West. Un. Tel. Co., 136 N. C. 489, 49 S. E. 165, 67 L. R. A. 985 (1904); Kennon v. West. Un. Tel. Co., 126 N. C. 232, 35 S. E. 468 (1900), containing enumeration of cases in which re- covery has been allowed. CHAPTER XVII. INJUNCTION AS A TORT REMEDY. § I. Purpose and Scope of This Chapter. Limited to Tort Actions. It is not the purpose of this chap- ter to discuss the equitable remedy of injunction, in all its bearings, but only in connection with suits for the redress of torts; and our attention will be directed to the general principles in accordance with which injunctions are obtained and enforced in such actions. In the first edition, the present topic was not discussed separately nor at length, although the use of injunctions was referred to in connection with varioiis torts.' But the frequency with which this remedy has been resorted to during the last decade, the objections which have been raised to its employment, especially in labor, liquor and commerce cases,^ and its potency either for good or evil, have led to the belief that the reader will welcome a brief discussion of this topic, even in a treatise which is studiously confined to common law doctrines. Modern Application of Established Principles. The ex- tent to which the use of injunctive relief has increased, during a half century may be seen almost at a glance by comparing any late American treatise on this topic with one of the earlier English works.' Our courts are careful, however, to declare that in using ' Supra, pp. 196, 286, 389, 407, 418. Government by Injunction, 11 ^Equity applied to crimes and Harv. L. Rev. 487 (1898); Govern- misdemeanors, 31 Am. L. Reg. N. ment by Injunction, 13 L. Quar. S. 1 (1892): Editorial Notes, 31 Rev. 347 (1897); Injunction and Am. L. Reg. N. S. 782 (1892); A Organized Labor, 17 Am. Bar. As- Protest Against Administering soc. Rep. 299 (1894). Criminal Law by Injunction, 33 'Compare the latest edition of Am. L. Reg. N. S. 879 (1894); In- High on Injunctions with Eden on junctions Against Liquor Nui- Injunctions, sances, 9 Harv. L. Rev. 521 (1896); 500 Injuxction as a Tort Remkdv. 501 the injunction more freely in tort cases than formerly, they are not exercising a new power, but are only making " an application of the writ to a new condition of things that exists in our day by reason of the advancement in civilization."* They are careful, also, to refuse this form of relief, when, in their opinion, it would interfere improperly with the liberties of the citizen.^ But the mere fact that a particular application for an injunction is novel does not furnish a fatal objection to its employment." Classification of Tort Injunctions. Judge Story enumer- ated the most important ones as follows: "To restrain waste; to restrain nuisances ; to restrain trespasses ; and to prevent other irreparable mischiefs." ' « It is the last of the foregoing classes which has multiplied most rapidly during recent years, and over the employment of which great controversy has arisen.* The mat- ter is largely controlled by definite legislative enactments in many of our States." *U. S. ex ret. Guaranty Trust Co. V. Haggerty, 116 Fed. 510, 515 (1902). Judge Jackson said: "It is true that our courts have been criticised severely by persons who are inimical to the use of it, and have denounced the courts for 'gov- erning by injunctions.' But this criticism is so obviously unjust to the courts that it is unnecessary to enter into any defense of them. For five or six centuries back it was not an uncommon thing for the courts of our English ancestors to grant a prohibitory writ, as well as a writ of restitution, against per- sons who combine for any unlawful purpose." = New York, N. H. & H. Ry. v. Interstate Commerce Commission, 200 U. S. 361, 404, 26 Sup. Ct. 272, 50 L. Ed. 515 (1906), "To accede to the doctrine relied upon (by the commission) would compel us, un- der the guise of protecting freedom of commerce, to announce a rule which would be destructive of the fundamental liberties of the citi- zen." " Nashville, C. & St. L. Ry. v. Mc- Connell, 82 Fed. 65, 76 (1897). ' Story's Equity Jurisprudence, § 873 (13th Ed.). ' Modern Use of Injunctions, 1 Polit. So. Quarterly, 189 (1895). •California Code of Civ. Proc, §S 525-533, chap. 235 L. 1903, provides that persons engaged In trade dis- putes shall not be " indictable or otherwise punishable for the crime of conspiracy, if such act commit- ted by one person would not be punishable as a crime, nor shall such agreement, combination or contract be considered in restraint of trade or commerce, nor shall any restraining order or injunction be issued with relation thereto;" New York Code of Civil Proc, §| 602- 630; North Carolina Code of Civil Proc, §§ 806-821, 502 The Law of Torts. § 2. To Restrain Waste. Common Law Remedies Insufficient. Blackstone, after de- scribing the common law remedies for waste, tells us that besides these " the courts of equity, upon bill exhibited therein, complaining' of waste and destruction, will grant an injunction in order to stay waste, until the defendant shall have put in his answer, and the court shall thereupon make further order. Which is now become the most usual way of preventing waste.'"'" Story closes his review of the cases, in which equity has intervened in behalf of victims of waste, with the following statement : " The inadequacy of the remedy at common law, as well to prevent waste as to give redress for waste already committed, is so unquestionable that there is no wonder that the resort to the courts of law has, in a great measure, fallen into disuse. The action of waste is of rare occurrence in modern times, an action on the case for waste being generally substituted in its place, whenever any remedy is sought at law. The remedy by a bill in equity is so much more easy, expeditious and complete, that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but an account may be decreed and compensation given for past waste. Besides an action on the case will not lie at law for permissive waste, but in equity an injunction will be granted to restrain permissive waste as well as voluntary waste.''^^ Requisites for the Injunction." Without stopping to define the various kinds of waste, and referring the reader to treatises upon real property law, for such definitions, let us consider very "Commentaries, Vol. 3, p. 227. strained the waste complained of. "Story's Equity Jurisprudence, See Denny v. Brunson, 29 Pa. 382 § 917 (3d Ed.). In Jefferson v. (1857), in which waste is referred Bishop of Durham, 1 Bos. & P. 105, to as a tort restralnable at common 121 (1797), Eyre, Ch. J., and, at p. law by writ of estrement, but also 129, Heath, J., discussed the com- by an injunction in equity, as the mon law writ of prohibition against common law remedies for waste- waste and reached the conclusion had been found inadequate, that the Court of Common Pleas "For a full discussion of this could not grant it in that case, al- topic the reader is referred to High though the intimation is thrown on Injunctions, chap. XI, and sim- out that equity might have re- ilar treatises. Injunction as a Tort Remedy. 503 briefly the conditions upon which a court of equity will grant an injunction against waste. As a rule, the plaintiff is required to shov/ that his clear rights are unlawfully invaded by the defendant's conduct, which is sought to be enjoined.'^ If he admits that his rights are disputed by the defendant, and the subject of litigation, an injunction will not be granted >* unless he shows that " irremediable mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal " during the pendency of the Htigation.i' If the injunction is asked because of irreparable mischief, threat- ened or in progress, the plaintiff must state facts which show that the mischief is of the character charged.^® If the mischief is a thing of the past, an injunction will be denied, for in such a case the plaintiff's remedy is at law.^' But if the acts of waste are "Nethery v. Paine, 71 Ga. 374 (1883); Snyder v. Hopkins, 31 Kan. 557, 3 Pac. 367 (1884); Amelang v. Seekamp, 9 G. & J. (Md.) 468, 472 (1838); Higgins v. Woodward, Hopk. Ch. (N. Y.) 342 (1825); Tacoma Ry. & Power Co. v. Pacific Traction Co., 155 Fed. 259, 261 (1907). " Plllsworth V. Hopton, 6 Ves. 51, 1 Keener's Cases on Eq. Jurisdic- tion, 543 (1801). Lord Eldon said: " I remember perfectly being told from the bench very early in my life, that if the plaintiff filed a bill for an account, and an injunction to restrain waste, stating that the defendant claimed by a title ad- verse to his, he stated himself out of court as to the injunction." Ac- cord. Cases in preceding note; also, West V. Walker, 3 N. J. Eq. (2 Green's Ch.) 279 (1835); Miller v. Rushforth, 4 N. J. Eq. (3 Green's Ch.) 177 (1842); Kerlin v. West, 4 N. J. Eq. 448 (1844); Le- Roy v. Wright, 4 Sawy. (U. S. C. C.) 530 (1864). '^ Erhardt v. Boaro, 113 U. S. 537, 538, 5 Sup. Ct. 565, 28 L. Ed. 1116 (1885). "It was formerly the doc- trine of equity not to restrain the use and enjoyment of the premises by the defendant when the title was in dispute, but to leave the complaining party to his remedy at law. A controversy as to the titi^ was deemed sufficient to exclude the jurisdiction of the court. * * * This doctrine has been greatly mod- ified in modern times." Accord. Jerome v. Ross, 7 Johns. Ch. 315, 332, 11 Am. Dec. 484 (1823); West Point I. Co. V. Reymert, 45 N. Y. 703 (1871); West v. Walker, 3 N. J. Eq. (2 Green's Ch.) 279, Note A, 285-290 (1835); Wallula Pac. Ry. Co. V. Portland & S. Ry. Co., 154 Fed. 902 (1906). "Bogey V. Shute, 54 N. C. (1 Jones Eq.) 180 (1854); Hamilton V. Ely, 4 Gill (Md.) 34 (1846). "Godwin v. Phifer, — Fla. . 41 So. 597, 601 (1906); Owen v. Ford, 49 Mo. 436 (1872); Carlin v. 504 The Law of Torts. recent and show that the defendant intends to continue his mis- conduct, an injunction will be granted. ^^ Some of the forms of waste which have been frequently en- joined are the destruction of trees, i" the destruction of buildings, or their irreparable injury,-" the wrongful interference with valu- able springs or other waters,^' or with gas or petroleum, =- or with mines and quarries;-' where the defendant's conduct amounts to a destruction or wasting of the very substance of the estate. § 3. To Restrain Nuisances. A Modern Remedy. The resort to injunctive relief against nuisances is quite modern, as has been stated on a former page,-* and, until the last half century, was not much encouraged even by equit)' judges.-^ At present, however, it is frequently employed, Wolf, 154 Mo. 539, 51 S. W. 679, 55 S. W. 441 (1899). " Barry v. Barry, 1 Jac. & W. 651 (1820). '"Abrahall v. Bubb, 2 Swanston, 172 (1679); Skelton v. Skelton, 2 Swanston, 170 (1677); Packington V. Packington, Dickens, 101 (1745); Kinsler v. Clarke, 2 Hills, Ch. (S. C.) 617 (1837), the chief value of the land was the timber, and it was probable that defendant was not financially able to pay the dam- ages; Davis V. Hull, 67 la. 479, 25 N. W. 740 (1885); Buskirk v. King, 72 Fed. 22, 18 C. C. A. 418 (1896). '"'Vane v. Lord Barnard, 2 Vern. 738, 1 Salk. 161, Free. Ch. 454 (1716); Dooly v. Stringham, 4 Utah, 107, 7 Pae. 405 (1885). It is no answer for the defendant that he intends to put up better build- ings in the place of those he threat- ens to destroy. ='Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 64 L. R. A. 236, 99 Am. St. Rep. 35 (1903); Meadow Valley Mining Co. v. Dodds, 6 Nev. 261, 8 Am. Rep. 709 (1871); Por- bell V. City of New York, 164 N. Y. 522, 58 N. E. 644, 51 L. R. A. 695, 79 Am. St. Rep. 666 (1900). =" Manufacturers' Gas & O. Co. v. Ind. Nat. G. & O. Co., 155 Ind. 461. 57 N. E. 912, 50 L. R. A. 768 (1900); Louisville Gas Co. v. Kentucky Heating Co., 117 Ky. 71, 77 S. W. 368, 25 Ky. L. R. 1221 (1903); Wil- liamson v. Jones, 39 W. Va. 231, 19 S. E. 436, 25 L. R. A. 222 (1894); Freer v. Davis, 52 W. Va. 1, 43 S. W. 164, 59 L. R. A. 556, 94 Am. St. Rep. 895 (1903). "West Point Iron Co. v. Hey- mert, 45 N. Y. 703, 705 (1871). See Bishop of London v. Web, 1 Peere Williams, 527 (1718), defendant was enjoined from converting the soil into bricks. "" Supra, p. 418, and authorities cited. ==Earl of Ripon v. Hobart, 3 M. & K. 169, 180 (1834); "The juris- diction of this court over nuisance by injunction at all is of recent growth, and has at various times Injunction as a Tort Remedy. 505 not only on behalf of the State in cases of pubHc nuisances,^* bi.t on behalf of individuals who have been especially harmed by a public nuisance/' or who have been the victims of nuisances of r. private nature."' The Principles Upon Which It Is Granted. These hav been stated by Lord Brougham as follows: "If the thing souglii to be prohibited is in itself a nuisance, the court will interfere t.) stay irreparable mischief, without waiting for the result of a trial ; and will, according to the circumstances, direct an issue, or allow an action, and, if need be, expedite the proceedings, the injunction being in the meantime continued. But where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may. according to the circumstances, prove so, the court will refuse to interfere until the matter has been tried at law, generally by action, though, in particular cases, an issue may be directed for the satisfaction of the court where an action could not be framed so as to meet the question."-" In short, a court of equity, in granting injunctions to restrain nuisances, acts in aid of the plaintiff's legal right, and with a view to his protection from irremediable loss, or from an injury which could not be adequately redressed in a common law suit. An injunction will not be denied to restrain y. nuisance simply found great reluctance on the part R. A. 393 (1893) ; Coast Company of the learned judges to use It." v. Mayor of Spring Lake, 58 N. J. Accord. Fishmongers' Company v. Eq. 586, 17 At. 1131, 51 L. R. A. East India Co., 1 Dickens, 163 657 (1897) ; U. S. v. Duluth, 1 Dill. (1752); Bush v. Western, Finch's 469 (1870); North Bloomfield G. Prec. in Ch. 530 (1720); Anony- M. Co. v. U. S., 88 Fed. 664, 32 C. mous, 1 Ves. Jr. 140 (1790). C. A. 84 (1898). ^Attorney General v. Cleaver, 18 "Crawford v. Tyrrell, 128 N. Y. Ves. 211 (1811); Attorney General 341, 28 N. B. 514 (1891); Callahan V. Sheffield Gas Consumers' Co., 3 v. Gilman, 107 N. Y. 360, 14 N. E. De G., M. N. & G. 304 (1853), con- 264, 1 Am. St. Rep. 831 (1887). taining a full discussion of the ^ Salvln v. North Brancepeth Coal topic, but holding a case for injunc- Co., L. R. 9 Ch. App. 705, 44 L. J. Ch. tion had not been made out; Atto- 149 (1874); Campbell v. Seaman, ney General v. Brighton & Hove 63 N. Y. 568, 20 Am. Rep. 567 Co-Op. S. Assoc. (1900), 1 Ch. 276, (1876). 69 L. J. Ch. 204; Smith v. McDow- "Earl of Ripon v. Hobart, 3 M. ell, 148 111. 51, 35 N. E. 141, 22 L. & K. 169, 179 (1834), 5o6 The Law of Torts. because the maintenance of that nuisance is also a crime.^" Nor will it be denied, necessarily, even though the loss inflicted upon the defendant by the injunction is greater than the pecuniary harm caused by the nuisance to the plaintiff.^^ Examples of Nuisance Injunctions have been disclosed by the cases already cited. It will be observed that they include nui- sances to running streams, or springs, or wells,"- to the personal comfort of the plaintiff ;^^ to his health;** to his real property easements,^' and the like. But whether an injunction will be " Tedescki v. Berger, — Ala. , 43 So. 960, 11 L. R. A. N. S. 1060 (1907), the keeping of a house of prostitution was restrained; Co- lumbian Athletic Club v. State ex rel. McMahon 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727 (1895), re- straining prize-fighting; State v. Crawford, 28 Kan. 726, 42 Neb. Rep. 182 (1882), restraining an il- legal drinking saloon; Weakley v. Page, 102 Tenn; 178. 53 S. W. 551, 46 L. R. A. 552, house of ill-fame. '•Tucker v. Howard, 128 Mass. 361 (1880). Damage to plaintiff's estate was $200, and the expenses to defendant of abating the nuis- ance would be $530, but a manda- tory injunction was issued, because " a court of equity will not allow the wrong-doer to compel innocent persons to sell their right at a val- uation, but will compel him to re- store the premises, as nearly as may be, to their original condi- tion.'' Accord. O'Brien v. Good- rich, 177 Mass. 32, 34, 58 N. B. 151 (1900); Lynch v. Union Inst, for Savings, 158 Mass. 394, 33 N. E. 603, 159 Mass. 306, 34 N. E. 364, 20 L. R. A. 843 (1893). But in Elm- hirst V. Spencer, 2 M. N. & G. 45 (1849); English v. Progress El. L. & M. Co., 95 Ala. 259, 10 So. 134 (1891), and Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770 (1892), injunction was denied because (in part) the harm to the defendant would have been so much greater than to the plaintiff, that the writ would have operated inequitably and oppressively. '''Gardner v. Village of New- burgh, 2 Johns. Ch. 162, 7 Am. Dec. 526 (1816); Corning v. Troy I. & N. Factory, 40 N. Y. 191 (1869); Bailey v. Schnitzins, 45 N. J. Eq. 178, 16 At. 680 (1888). ''Soltau V. DeHeld, 2 Sim. N. S. 133 (1851), containing a full dis- cussion of principles and prece- dents; English V. Progress El. L. & M. Co., 95 Ala. 259, 10 So. 134 (1891); Hennessy v. Carmony, 50 N. J. Eq. 616. 25 At. 374 (1892). " Turner v. Mirfield, 34 Beav. 390 (1865); People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 737 (1890); Lowe V. Prospect Hill Cem. Assoc, 58 Neb. 94, 78 N. W. 488, 46 L. R. A. 237 (1889). "Jackson v. Duke of Newcastle, 3 DeG. J. & S. 275 (1864); injunc- tion dissolved, because not shown that plaintiff's wrongs could not le redressed by damages; Salvin t. North Brancepeth Coal Co., L. K. 9, Ch. App. 704, 44 L. J. Ch. 149 (1874); Gal way v. Met. El. Ry., Injunction as a Tort Remedy. 507 granted in any specific case falling within either of these classes, depends upon the circumstances of that case.'" Moreover, if the damage caused by the nuisance has been consummated, the court will not grant an injunction, as the plaintiff's remedy at law is sufficient.-" Nor will the court enjoin the erection of a proposed structure which may be i nuisance to plaintiff, unless it is clear that it will so infringe his legal rights as to amount to a nuisance, which he would be entitled to abate.'^ § 4. To Restrain Trespasses. General Rule. Formerly, it was not considered the duty of a court of equity to employ the extraordinary writ of injunction in a case of naked trespass, where there was no privity of title, and where a legal remedy foi damages existed;^' even though the trespasser was insolvent.*" Lord Eldon repeatedly expressed sur- prise that the jurisdiction by injunction was taken so freely in waste, and not in trespass,*^ yet he made no attempt to revoiution- 128 N. Y. 132, 28 N. E. 479, 13 L. R. A. 788 (1891); Williams v. Los Angeles Ry., 150 Cal. 592, 89 Pac. 330 (1907), temporary injunction denied, because threatened damage was chiefly monetary and not irre- mediable; Dewire v. Hanley, 79 Conn. 454, 65 At. 583 (1907). "McCord V. Iker, 12 Oh. 387 (1843). "We wish to lay down no rule which will at all interfere with the wholesome and necessary prin- ciple, that where the injury com- plained of will be irreparable, go- ing to the ruin or destruction of the property, equity will interfere; but we must say that the present case does not warrant its exercise." '' Herbert v. Penn. Ry. Co., 43 N. J. Eq. 21, 10 At. 872 (1887). "The complainant's building is now bad- ly wrecked and deserted by its ten- ants, and the possible future dam- age to bim will be small in com- parison to the injury which the is- suance of either a preventive or mandatory injunction, at this time, will certainly work to the defend- ant. In such a situation, the plain- tiff must be left to his legal rem- edy." ^Whitmore v. Brown, 100 Me. 410. 65 At. 516 (1907). ""Mogg v. Mogg, Dickens, 670 (1786); Stevens v. Beekman, 1 Johns. Ch. 318 (1814); Garstin v. Asplin, 1 Madd. Ch. 150 (1815); Deere v. Guest, 1 M. & Craig, 516 (1836). " Mechanics' Foundry v. Ryall, 75 Cal. 601 (1888); Centreville & A. B. T. Co. V. Barnett, 2 Ind. 537 (1851). "Smith V. Collyer, 8 Ves. 89 (1803); Crockford v. Alexander, 15 Ves. 138 (1808); Thomas v. Oakley, 18 Ves. 184 (1811). 5o8 The Law of Torts. ize the practice in this respect, but contented himself with granting "the writ in solitary cases, of a special nature, and where irrepar- able damage might be the consequence if the act continued."*" At present, the English courts feel themselves authorized by the judicature acts to grant injunctions against trespasses with great freedom.^' When Granted. The first recorded instance of an injunction to restrain trespass, as distinguished from waste, is in Flamang's case,** which is described by Lord Eldon as "very near waste;" a precedent followed by him in cases " partaking of the nature of waste." *^ In some cases, the trespass sought to be enjoined partakes of the nature of a nuisance,*" or becomes a nuisance by reason of its con- tinued repetition,*** and is enjoined because of this characteristic. The usual ground, however, for granting an injunction to re- strain trespasses is that, in the particular case, an action at law for damages cannot afford the plaintiff full and adequate relief.*' This may be due to the fact that the trespass amounts to a " taking of the substance of the estate," ** especially if the trespasser is in- " Chancellor Kent, In Stevens v. Beekman, 1 Johns. Ch. 318 (1814); and see Livingston v. Livingston, 6 Johns. Ch. 497 (1822); Mitchell V. Dors, 6 Ves. 147 (1801); Han- son v. Gardiner, 7 Ves. 305 (1802); Smith V. Collyer, 8 Ves. 89 (1803). '"Shaw V. Earl of Jersey, 3 C. P. D. 359, 361, 48 L. J. 308 (1879). " There could be no precedent for a case like this before the Judica- ture Acts, 1873, 1875"; Stocker v. Planet Building Soc, 27 W. R. 877 (1879). " Referred to in Mitchell v. Dors, 6 Ves. 147 (1801) and Hanson v. Gardiner, 7 Ves. 305 (1802), and decided by Lord Thurlow. "Smith v. Collyer, 8 Ves. 89 (1803); Courthorpe v. Mapplesden, 10 Ves. 290 (1804). The case of Hamilton v. Worsefold, Register's Book A. 1876, fol. 1, (reported in Romilly's note to Courthorpe v. Mapplesden, supra,) seems to have been decided by Lord Thurlow, upon the same principle. "Supra, ch. XIV, § 1. p. 395: Henderson v. N. Y. Cen. Ry., 78 N. Y. 423 (1879); Whittaker v. Stang- vick, 100 Minn. 386, 111 N. W. 295, 10 L. R. A. N. S. 921 (1907); O'Brien v. Murphy, 189 Mass. 353, 357, 75 N. E. 700 (1905). *°a Central Iron & Coal Co. v. Vandenhenk, 147 Ala. 546. 41 So. 145 (1906); Wilson v. Meyer, 144 Ala. 402, 39 So. 317 (1905). "Moore V. Perrell, 1 Ga. 7, 10 (1846); Livingston v. Livingston, 6 Johns Ch. (N. Y.) 497 (1822); N Y. Printing & D. Estab. v. Fitch, 1 Paige (N. Y.) 97 (1828). "Thomas v. Oakley, 18 Ves. 184 (1811) ; Lowndes v. Bettle, 33 L. J. Ch. 45, 10 Jur. N. S. 226 (1864). Injunction as a Tort Remedy. 509 solvent ; *' or it may be due to the fact that plaintiff would be put to a multiplicity of suits at law, if he could not secure from a court of equity preventive relief by injunction.'^'* But the right to this sort of relief is not limited to any particular set of circumstances, nor is the court governed by any hard and fast rule, in granting or refusing it. If the court is convinced that the expense of suits at law for trespasses will be excessive and disproportionate to the damages, especially if the defendant is trespassing wilfully and with- out color of legal right ; ^^ or if, for any other reason, common law relief is clearly inadequate, an injunction will issue."- In the first case cited in the last preceding note, Mce Chancellor Bruce said: " It is, I think, certainly true, that the court of chancery does not treat questions of destructive damage to property now exactly as it did forty or fifty years back — that its protection in such respects is more largely afforded than it then generally was." " It appears to me that the case comes under the head of irreme- diable waste, as defined by Lord Eldon, that is, destruction of the substance of the estate." ^Musselman v. Marquis, 64 Ky. (1 Bush.) 463, 89 Am. Dec. 637 (1866); Ladd v. Osborne, 79 la. 93, 44 N. W. 235 (1890). "Kellogg V. King, 114 Cal. 378, 46 Pac. 166, 55 Am. St. Rep. 74 (1896) ; Bolsa Land Co. v. Burdick, Cal. , 90 Pac. 532 (1907) ; Kell V. Wright, la. . 112 N. W. 633 (1907); Hal&in v. Mc- Cune, 107 la. 494, 78 N. W. 210 (1899); Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. 67, 2 Am. St. Rep. 405 (1888); Ladd v. Osborne, 79 la. 93, 44 N. W. 235 (1890); Goodsoo V. Richardson, L. R. 9 Ch. App. 221, 43 L. J. Ch. 790 (1874); Griffith V. Hilliard, 64 Vt. 643, 25 At. 427 (1890). "Goodson V. Richardson, L. R. 9 Ch. App. 221, 43 L. J. Ch. 790 (1874); Providence F. R. & N. S. Co. v. City of Fall River. 183 Mass. 535, 543, 67 N. E. 647 (1903) ; Lynch V. Union Inst, for Savings, 158 Mass. 394, 33 N. E. 603 (1893); S. C. again 159 Mass. 306, 308, 34 N. E. 1072 (1893). "Haigh V. Jaggar, 2 Collyer, 231 (1845); Stanford V. Hurlstone, L. R. 9 Ch. App. 116 (1873), injunction against cutting down trees, follow- ing Lowndes v. Bettle, 33 L. J. Ch. 451, 10 Jur. N. S. 226 (1864); Hen- derson v. N. Y. Cen. Ry., 78 N. Y. 423 (1879); Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 565, 28 L. Ed. 1116 (1885); Keil v. Wright la. , 112 N. W. 633 (1907), in- junction restraining defendant's do- mestic fowls from trespassing on plaintiff's premises. 5IO The Law b¥ Torts. § 5. To Prevent Other Mischiefs. Growth of This Class. It is this class of injunctions, which has grown most rapidly in recent years. In England, the power of the courts at the present time to issue an injunction extends to any case where it is right and just to grant it.°^ While the courts of this country have not received from legislation so extensive authority, the frequency with which they grant injunctions, especially in litigations growing out of labor troubles has excited much com- ment,"* and has become to some extent a political issue."' Not Granted in Purely Political Controversies. It is to be borne in mind, that the injunctive remedy has for its primary and legitimate purpose the protection of property rights against irre- parable injury. Such rights are clearly distinguishable from the political rights of the citizen, and courts of equity have never un- dertaken by injunction to prevent the invasion of purely political rights,""^ nor to control public officers and tribunals in the exercise of purely legislative or governmental functions, unless specially au- thorized 'by law to interfere."" They do, however, enjoin public officers, " who are attempting to act illegally, or without competent authority, to the injury of the public or individuals.""^ "'Beddow v. Beddow, L. R. 9 Ch. VII.), ch. 47, limiting the tort lia- 89, 47 L. J. Cli. 585 (1878). "In bility of parties to Trade Disputes, my opinion, having regard to these "'a Fletcher v. Tuttle, 151 111. 41, two Acts of Parliament (Common 37 N. E. 683, 25 L. R. A. 143, 42 Law Proc. Act, 1854, and Judicature Am. St. Rep. 220 (1894); State v. Act, 1873), I have unlimited power Alve, 152 Mo. 466, 54 S. W. 494, 47 to grant an injunction in any case L. R. A. 393 (1899); Winnett v. where it would be right or just to Adams, 71 Neb. 817, 99 N. W. 681 do so; and what is right or just (1904); Alderson v. Commissioners, must be decided not by the caprice 32 W. Va. 640, 9 S. E. 868, 5 L. R. of the judge, but according to suffi- A. 334, 25 Am. St. Rep. 540 (1889) ; clent legal reasons or on settled McDonald v. Lyon, Tex. Civ. legal principles." App. , 95 S. W. 67 (1906) ; " The Modern Use of Injunctions, Green v. Mills, 69 Fed. 859, 16 C. C. by F. J. Stimson, 10 Polit. Sc. A. 516, 30 L. R. A. 90 (1895) ; Giles Quar. 189 (1895), and authorities v. Harris, 189 U. S. 475, 23 Sup. Ct. therein cited. 639, 47 L. Ed. 909 (1902). "See California, Laws 1903, ch. -""Mann v. County Court, 58 W. 235, prohibiting injunctions in cer- Va. 651, 656, 52 S. E. 776 (1906). tain cases of trade disputes; The "Davis v. Am. Society for Prev. Trade Disputes Act, 1906, (6 Ed. Cruelty to Animals, 75 N. Y. 362, Injunction, AS a Tort Remedy. 511 Nor to Restrain Crimes. It is well settled that equity will not interfere by injunction to restrain the commission of crimes. To assume such a jurisdiction would be to invade the domain of courts of common law, and to substitute for trial by jury a different form of trial.*' Still, a court of equity is not precluded from granting an injunc- tion against threatened wrong-doing simply because it is punish- able criminally. " If it would be also a violation of property rights, and the party aggrieved has no other adequate remedy for the pre- vention of the irreparable injury which will result from the failure or inability of a court of law to redress such rights," the wrong- doing may be enjoined, although it is of a character which would subject its author to criminal punishment.^" 369 (1873); People v. Canal Board, 55N. Y. 390 (1874). ™ Paulk V. Mayor of Sycamore, 104 Ga. 24, 30 S. E. 417, 41 L,. R. A. 772, 69 Am. St. Rep. 128 (1898) ; Salter v. City of Columbus, 125 Ga. 96, 54 S. B. 74 (1906); Payer v. Village of Des Plaines, 123 111. 111. 13 N. E. 819, 5 Am. St. Rep. 494 (1887); Crighton v. Dahmer, 70 Miss. 602, 13 So. 237, 21 L. R. A. 84, 35 Am. St. Rep. 666, with a valuable note, (1893); Pleasants v. Smith, Miss. , 43 So. 475 (1907) ; Davis v. Am. Soc. for Prev. Cruelty to Animals, 75 N. Y. 362 (1878); Pre-digested Food Com- pany V. McNeal, 1 Oh. N. P. 266 (1895); Arbuckle v. Blackburn, 113 ^ed. 616, 625, 51 C. C. A. 122, 65 h. R. A. 864 (1902), in which Day, J. said : " This is quite a different proposition from enjoining criminal proceedings alleged to be indirectly destructi;ye of property rights. Many criminal prosecutions may affect the property of the person accused. * • * Every citizen must submit to such accusations, if lawfully made, looking to the vin- dication of an acquittal and such remedies as the law affords for the recovery of damages. It is often a great hardship to be wrongfully ac- cused of crime, but it is one of the hardships which may result in the execution of the law, against which courts of equity are powerless to re- lieve "; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402 (1888), no power to restrain the mayor and committee of a city from removing a city officer upon charges filed against him for malfeasance in oflSce. "Port of Mobile v. Louisville & N. Ry., 84 Ala. 115, 126, 4 So. 106, 5 Am. St. Rep. 342 (1887), injunc- tion against the enforcement of a void city ordinance, which would have worked irreparable injury to the railroad company; Pratt Food Company v. Bird, Mich. , 112 N. W. 701 (1907), state dairy and food commissioner enjoined from disseminating circulars, which charged that plaintiff's goods were put upon the market in violation of law; Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514 (1891). 512 The Law of Torts. Nor to Restrain Libel. In this country there is judicial unani- mity that an injunction will not issue to restrain the threatened pub- lication of a libel.'" " If a court of equity could interfere and use its remedy in such cases, it would draw to itself the greater part of the litigation belonging to courts at law." " It would go far, it is said, towards nullifying the constitutional guarantee of the freedom of the press and of the right to trial by jury.°^ Nor can an injunction be obtained by showing that the threatened libel will injure plaintiff pecuniarily as well as in reputation."' If, " That the perpetrator of the nuis- ance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a private person to recover for injury sustained, and for an injunction against the con- tinued use of his premises in such a manner"; Hamilton Brown Shoe Co. V. Saxey, 131 Mo. 212, 32 S. W. 1106, 52 Am. St. Rep. 622 (1895). " In such case the court does not interfere to prevent the commission of a crime, although that may in- cidentally result, but it exerts its force to protect the individual's property from destruction, and ignores entirely the criminal por- tion of the act. There can be no doubt of the jurisdiction of a court of equity in such a case " : In re Debs, 158 U. S. 564, 593, 15 Sup. Ct. 900, 39 L. Ed. 1092 (1895); Ameri- can School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90 (1902) ; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169 (1904). '° Singer Manuf. Co. v. Domestic Sewing Mach. Co., 49 Ga. 70, 15 Am. Rep. 674 (1873). "Not that libel or slander is not a wrong, nor the wrong might not be irreparable, but simply because courts of chancery, in the exercise of the extraordinary powers lodged In them, have uni- formly refused to act in such a case, leaving parties to their remedy at law"; Christian Hospital v. The People, 223 111. 244, 250, 79 N. E. 72 (1906); Covell v. Chadwick, 153 Mass. 263, 26 N. E. 856, 25 Am. St. Rep. 625 (1891); Worthington v. Waring, 157 Mass. 421, 423, 32 N. E. 744, 20 L. R. A. 342, 34 Am. St. Rep. 294 (1892) ; " the rights alleged to have been violated, are personal rights as distinguished from rights of property"; Meyer v. The Jour- neymen Stonecutters' Association, 47 N. J. Bq. 519, 20 At. 492 (1890); Kldd V. Horry, 28 Fed. 773 (188S) and authorities digested by Brad- ley, J.; Balliet v. Cassidy, 104 Fed. 704 (1900). "'Francis v. Flinn, 118 U. S. 385, 6 Sup. Ct. 1148, 30 L. Ed. 165 (1886). " If the publications in the newspapers are false and injurious, he can prosecute the publishers for libel." " Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 392, 64 N. E. 163, 59 L. R. A. 310 (1902). "Mead v. Stirling, 62 Conn. 586, 27 At. 591, 23 L. R. A. 227 (1892). " The wrongful acts for the preven- tion of which injunctions will be granted are those which affect prop- erty or its healthful and beneficial Injunction as a Tort Remedy. 513 howe\-er, the threatened pubhcation is but part of an illegal scheme of defendant, which has for its chief purpose the destruction of plaintiff's business, or the infliction of irreparable damage upon his property interests, a court of equity will aflford him injunctive relief." Within this class fall cases for the injury to trademarks and trade names by defamatory statements, and for slander of title."^ In such cases, however, the complainant will not be granted in- junctive relief, when because of his inability to prove special damages he has no remedy at law.^" In England, the doctrine which prevails in this country has been modified, since the enactment of statutes which give to judges au- thority to grant injunctions in any case where that form of relief is right and just." Accordingfly, injunctions are granted there, not only after verdict establishing the actionable character of the de. famatory publication,*^* but before a trial of the defamation use, and never those which affect reputation merely"; Brandreth v. Lance, 8 Paige. (N. Y.) 24, 34 Am. Dec. 368 (1839). "An injunction to restrain a publication can only be granted in cases where the pub- lication will interfere with the com- plainant's right either of literary or other property, in the subject matter of the publication "; Edison v. Thos. A. Edison Jr. Chem. Co., 128 Fed. 957 (1904). "Pratt Food Co. v. Bird, Mich. , 112 N. W. 701 (1907). The state dairy and food commis- sioner was enjoined from publish- ing statements that plaintiff's food preparations for animals were within the terms of an Act of the legislature which required them to be licensed, and warning the public against buying or selling them, on the ground that these false state- ments would intimidate people from dealing with plaintiff and exclude his business from the state; Beck V. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13, 42 L. R. A. 407, 74 Am. St. Rep. 421 (1898) ; American School of Mag- netic Healing, 187 U. S. 94, 23 Sup. Ct. 33, 47 L. Ed. 90 (1902) ; Emack V. Kane, 34 Fed, 46 (1888); Adrl- ance, Piatt & Co. v. Nat. Harrow Co., 98 Fed. 118 (1899). "Supra, Chap. XIII, §§ 2 and 3; Atlas Assurance Co. v. Atlas Insur- ance Co., la. , 112 N. W. 232 (1907). " Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 64 N. E. 163, 59 L. R. A. 310 (1902); Butterick Pub. Co. V. Typographical Union No. 6 (1906), 100 N. Y. Supp. 292, 50 Misc. 1 (1906). "Beddow v. Beddow, L. R. 9 Ch. 89, 47 L. J. Ch. 585 (1878); Quartz Hill Mining Co. v. Beall, 20 Ch. D. 501, 511, 51 L. J. Ch. 874, 46 L. T. 746 (1882). "a Trollope v. London B. T. Fed., 12 Times L. R. 373 (1896) injunc- tion, which had been granted, Ibid. 11 Times L. R. 228 (1895) made perpetual. 33 5 14 The Law- of Torts. action has been had."' An ad interim injunction will be granted, however, only in cases where the statement complained of is clearly libelous,"' and is not justifiable,™ or privileged,'' and there is evidence that the defendant intends to continue its publication,"* and that such continued circulation will inflict irreparable or very serious injury upon the complainant.''^ It will be seen from the authorities above cited that even in Eng- land, the publication of libels is restrained by injunctions only in rare cases.'* By statute, the repetition of a publication of a false statement of fact, in relation to the personal character of a candidate for parli- ament may be restrained by interim or perpetual injunction by the High Court of Justice.'* To Restrain Boycotts, Combinations and Conspiracies. It is the employment of injunction to restrain conduct, which is described by these and similar terms, which has been most severely criticised and strenuously opposed. Notwithstanding this opposition and criticism, the courts, both in England and in this country, do not hesitate to grant injunctive relief to the victims of a boycott provided that it amounts to an actionable tort, and that a suit at law for dam- ages would be inadeauate.'* "Monson v. Tussauds Limited, 501, 51 L. J. Ch. 874, 46 L. T. 746 (1894), 1 Q. B. 671, 63 L. J. Q. B. (1882). 454, 70' L. T. 335, opinions in Queen's "a Quartz Hill Gold Mining Co. Bench Division; Collard v. Mar- v. Beall, 20 Ch. D. 501, 509 (1882). shall, (1892) 1 Ch. 571, 61 L. J. Ch. "Trollope v. London B. F. Fed. 11 268, 66 L. T. 248, 8 Times L. R. 265. Times L. R. 228, 72 L. T. 342 "Cases in last two notes; London (1895); injunction granted; Lloyds & Northern Bk. v. George Newnes, Bank Limited v. Royal British Bank 16 Times L. R. 76 (1899); Punch Limited, 19 Times L. R. 548 (1903), V. Boyd, 16 Ir. L. R. 476 (1885). injunction denied. '° Monson v. Tussauds Limited, " Coulson ^ Son v. Coulson & Co., (1894) 1 Q. B. 671, 63 L. J. Q. B. 3 Times L. R. 846 (1887). 454, 70 L. T. 335, opinions in Court " Corrupt and Illegal Practices of Appeal; Bonnard v. Parryman, Prevention Act, 1895, (58 and 59 (1891), 2 Ch. 269, 284, 60 L. J. Ch. Vict. Ch. 40, §§ 1 and 3); Bayley v. 617, 65 L. T. 506. Edmunds, 11 Times L. R. 537 "Searles v. Scarlett, 8 Times L. (1895). R. 562 (1892), 2 Q. B. 56, 61 L. J. ''Supra, cases cited in notes on Q. B. 573, 60 L. T. 837; Quartz Hill pp. 70-73; Goldberg, etc., Co. v. Gold Mining Co. v. Beall, 20 Ch. D. Stablemen's (Union, 149 Cal. 429, Injunction as a Tort Remedv. 515 They deal in the same way with appHcations for injunctions against every kind of combination " and of conspiracy," which has 434, 86 Pac. 806 (1906), intimating that Chap. 235, L. 1903, prohibiting the use of injunctions in certain cases of trade disputes, would be unconstitutional if it forbade an in- junction in such a case as was then before the court; Plant v. Woods, 176 Mass. 492, 57 N. B. 1011, 51 L. R. A. 339, 79 Am. St. Rep. 330 (1900); Gray v. Building Trades Council, 91 Minn. 171, 97 N. W. 663, 63 L. R. A. 753. 103 Am. St. Rep. 477 (1893). "A boycott may be ds- fined to be a combination of sev- eral persons to cause a loss to a third person by causing others against their will to withdraw from him their beneficial business inter- course through threats that, unless a compliance with their demands be made, the persons forming the combination will cause loss or in- jury to him; or an organization formed to exclude a person from business relations with others by persuasion, intimidation, and other acts, which tend to violence, and thereby cause him through fear of resulting injury to submit to dicta- tion in the management of his af- fairs. Such acts constitute a con- spiracy, and may be restrained by Injunction "; Walsh v. Assoc, of Master Plumbers, 97 Mo. App. 280, 71 S. W. 455 (1902); Alfred W. Booth & Bro. v. Burgess, N. J. Eq. , 65 At. 226 (1906); George Jonas Glass Co. v. Glass Bottle Blowers' Assoc, N. J. Eq. , 66 At. 953 (1907); Erdman v. Mit- chell, 207 Pa. 79, 56 At. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783 (1903); Purvis V. United Brotherhood, 214 Pa. 348, 63 At. 585 (1906); Casey V. Cincinnati Typographical Union, 45 Fed. 135, 12 L. R. A. 193 (1891); Thomas v. Cincinnati, etc., Ry., 62 Fed. 803 (1894); Lowe v. California State Fed. of Labor, 139 Fed. 71 (1905), the form of the injunction is given on pp. 85-86. "Jetton — Dekle Lumber Co. v. Mather, Fla. , 43 So. 590 (1907): "If a combination of workmen for their own benefit operate an injury to the property of others, and that combination is clearly against the criminal laws of the state, a court of equity may in- tervene to protect the property right, even though the criminal courts may also be resorted to for enforcing the penalties imposed. Such seems to be the current hold- ing of the courts in this country. Yet, where there is serious doubt as to the facts alleged constituting a crime, it would seem best to leave the solution of the doubt to the forum appointed by the Constitu- tion directly and specifically for the trial of criminal causes " ; Jack- " Erdman v. Mitchell, 207 Pa. 79, 56 At. 327, 63 L. R. A. 534, 99 Am. St. Rep. 783 (1903); Consolidated Steel & Wire Co. v. Murray, 80 Fed. 811 (1897); Hopkins v. Oxley Stave Co., 83 Fed. 912, 28 C. C. A. 99, 49 U. S. App. 709 (1897); Arthur v. Oakes, 63 Fed. 310, 11 C. C. A. 209, 24 U. S. App. 239, 25 L. R. A. 414 (1894); Pope Motor Car Co. v. Kee- gan, 150 Fed. 148 (1906); Evenson V. Spaulding, 150 Fed. 517, 82 C. C. A. 263, 9 L. R. A. N. S, 904 (1907). 5i6 The Law oF Torts. for its object the infliction of unlawful and irreparable injury upon the applicant. Injunction on behalf of the Government. In a leading case"* upon this point, the Supreme Court of the United States has held, that the United States have a property in the mails which en- titles the government to an injunction against a combination of persons, who are illegally preventing their transportation. More- over, having constitutionally assumed jurisdiction over interstate commerce carried upon railroads, the government is under a duty to keep these highways free from unlawful obstructions, and may apply to the courts for an injunction against such obstructions, as it may against any public nuisance. Courts are not ousted of their jurisdiction, to grant injunctive relief in such cases, by the fact that the government might employ physical force to abate the nuisance or remove the obstructions ; '* nor by the fact that the son V. Stanfleld, 137 Ind. 592, 36 N. B. 345, 23 L. R. A. 588 (1894); Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. R. 443 (1896); Southern Ry. Co. V. Machinists' Local Union, 111 Fed. 49 (1901), combination of strikers resorted to violent picket- ing; Allis-Chalmers Co. v. Iron Holders' Union, 150 Fed. 155 (1906). " The action of pickets established by strikers may amount to coercion and intimidation of workmen of an employer; and a violation of an in- junction against the use of such means although no act is done which would be unlawful if done by a single individual, where the mere number of pickets acting together and their persistent following of the workmen to and from their work, day after day for months, is in itself a constant threat producing fear and alarm among the work- men." "a In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092 (1895). " It must be borne in mind that this bill was not simply to enjoin a mob and mob violence. It was not a bill to command a keeping of the peace; much less was its purport to re- strain the defendants from aban- doning whatever employment they were engaged in. The right of any laborer, or any number of laborers, to quit work was not challenged. The scope and purpose of the bill was only to restrain forcible ob- structions of the highways along which interstate commerce travels and the mails are carried. And the facts set forth at length are only those facts which tended to show that the defendants were en- gaged in such obstruction." ™ Borough of Stamford v. Stam- ford Horse Railroad, 56 Conn. 381, 15 At. 749 (1888). "As a rule, in- junctions are denied to those who have adequate remedy at law. Where the choice is between the or- dinary and the extraordinary pro- cesses of law, and the former are sufficient, the rule will not permit the use of the latter. In some Injunction as a Tort Rkmedy. 517 conduct of the persons to be enjoined subjects them to criminal punshment. The government, in employing the injunction, is not engaged in suppressing rebellion, or in conducting the political affairs of the country, but simply in protecting property rights, either of the United States or of citizens. § 6. The Obligation of Injunctions. Upon Defendants. The earlier English doctrine was that an injunction would issue against those tort feasors only who had been brought into court.'^ At present, however, the injunction may include also the attorneys, agents and servants of a defendant.^" And third persons may be punished for contempt, who aid and abet a defendant in committing a breach of the injunction.*! This is not on the ground that the writ is obligatory upon them, as it is upon the defendant, but that it is harmful to public interests that the course of justice should be obstructed.*^ Persons not Served and Not Named. In this country, the practice has grown up of directing the injunction against all per- sons engaged in the illegal conduct complained of, although some may not be formally named as defendants in the suit, or served with process.*^ This is done on the principle that if the persons are cases of nuisance, and in some cases " Lewes v. Morgan, 5 Price, 42 of trespass, the law permits an in- (1817); Lord Wellesley v. Earl of dividual to abate the one and pre- Mornington, 181 (1848). In Hod- vent the other by force, because son v. Coppard, 29 Beav. 4 (1860), such permission is necessary to the the court refused to extend the in- complete protection of property junction to tenants of the defend- and person. When the choice is ant. between redress or prevention of "^Seaward v. Paterson, (1897), 1 injury by force and by peaceful Ch. 545, 66 L. J. Ch. 267. process, the law is well pleased if '=■ Toledo, Ann Arbor & N. M. Ry. the individual will consent to waive v. Pennsylvania Co., 54 Fed. 746 his right to the use of force, and (1893); Ex parte Lennon, 64 Fed. await Its action. Therefore, as be- 320, 12 C.-C. A. 134 (1894), affd. tween force and the extraordinary 166 U. S. 548, 17 Sup. Ct. 658, 41 writ of injunction, the rule will L. Ed. 1110 (1897) ; American Steel permit the latter." & Wire Co. v. Wire Drawers' etc. "Iveson V. Harris, 7 Ves. 251, Union, 90 Fed. 598, 60a (1898); 256 (1802). Pope Motor Car Co. v. Keegan, 150 "Seaward v. Paterson, (1897), 1 Fed. 148, 151 (1906); George Jonas Ch. 545, 551, 66 L. J. Ch. 267, 270. Glass Co. v. Glass Bottle Blowers' Si8 The Law of Torts. numerous, certain ones may be made parties defendant as icpre- sentatives of the class.'* Assoc. — N. J. Eq. , 06 At. 953 (1907). This practice is criticised by Charles C. Allen, in " Injunction and Organized Labor," Reports Am. Bar Assoc. Vol. 17, p. 299 (1894), and William H. Dunbar, in " Gov- ernment by Injunction," 13 L. Quar. Rev. 347 (1897). " Pickett V. Walsh, 192 Mass. 572, 590, 78 N. E. 753, 6 L. R. A. N. S. 1067 (1906). INDEX. ABATEMENT. of nuisance, a form of self-help 194, 416 plea in 225 ABSOLUTE RIGHTS of land-owner 62, 63 ABDUCTION 274, 279- 285 ACCIDENT. • ancient rule respecting 51, 57 as a defense to a tort action 51, 340 inevitable, what is 59 insanity, should render harm an 60, 62 modern doctrine of 58 trespass by 338 ACT. accidental, liability, for 51 of parties as a form of discharge 221- 227 ACT OF GOD 446 ACTION. against master and servant jointly 185- 187 brought in another's name 264 for damages, the ordinary tort remedy 196 for deceit 365 for unfair competition 384- 392 in quasi-contract 25 local, for tort 213 parties to, for nuisance 409- 416 private, for public nuisance 408 transitory, for tort 214- 218 ACTS OF STATE. are not torts, though harmful 37 include acts by Prince, or accredited representative 38 infrequency of 37 reasons for rule 37, 38 wrongs to fellow-citizens are not 39 520 Index, PAGE ADMIRALTY. actions for tort in 11 contributory negligence in 430 ADOPTION OF TORTS 145 AGENT. See Master and Servant. as tort-feasor 9 indemnity to 218 AGREEMENT. See Contract, and Assumption of Risk. ALLURING NUISANCES. doctrine of 46.5, 466, 467 excavations, as' 465n horses and carts in street as 461 infant victims of 459- 471 reaction against doctrine of 467- 469 repudiation of doctrine of 469, 471 trespassers, as baited victims of 465 turntables as 460, 462 water, ponds of, as 465, ANIMALS. as a nuisance 56, 449 cats and dogs as trespassers 342 defense against .* 56 driven along highway 343 trespass by 341, 343, 446, 449 vicious, liability for 449 ANTIQUITY OF TORTS 1 ARBITRATOR. See Judicial Officers. ARREST. See Falxk Imprisonment. under judgment for a tort 18 of innocent person 29 master's liability for, by servant 149, 154 reasonable cause for 246, unreasonable detention after 247 without warrant 244- 246 without color of authority 244 ASPORTATION. in conversion 349- 352 ASSAULT AND BATTERY 266-272 assented to by plaintiff 76- 78 by conductor 155 damages for 270, 271 distinction between 266- 269 Index. 521 ASSULT AND BATTERY— Continued. page excusable 269 fraud as the equal of force in 268 in college rush 77 in defense of self or property 55 justifiable - 269, 270 master's liability for servant's 153- 156 negligence distinguished from 271 right invaded by 266 servant's, in defense of master 286 upon insensate property 343 ASSENT BY PLAINTIFF 74- 85 ASSUMING RISK. as an absolvent of statutory duty 83, 85 as a term of servant's contract 83, 169, 221 distinguishable from contributory negligence 84, 170, 439 of unlawful situation 82, 85 of fellow-servant's fault 172- 183 servant exempts master by 169, 171, 221 servant's knowledge of danger as 171 versus public policy 84 BAD FAITH. See Deceit. BAILEE. breach of contract by 17 conversion by 18 n. 357, 361 interpleader by 362 liable to tort action, when 17, 474 telegraph company as 474 BALLOON. liability of manager of 338, n. 11 trespass by 338 BANKER. dishonoring customer's check 17, 293 BANKRUPTCY. of tort-feasor 236 of tort-victim , 236 BATTERY. See Assault and Batteby. BOYCOTTING. as a means of coercion 71 as a form of competition 72 different opinions of, explained 72, 73 injunction against 514- 51G 522 Index. bracton. page definition of nuisance by 396 BUILDINGS. llbality for 445- 45S BURDEN OP PROOF. in negligence cases ...-. 425-431 CAMPBELL'S ACT. compensating for death 232 conflict of laws in actions under 217 construction of 234, 235 created a new cause of action 233 damages under 234 followed in this country 233- 235 nominal damages in actions under , . 235 CARE, DEGREE OP. affected by defendant's conduct 436 classes of 422- 424 greatest, when required 445, 449, 494 in defense of self and property 58 in negligence 420 in using dangerous instruments 59, 445, 448 liverymen, carriers, etc 454 ordinary, duty of 426 telegraph companies 472- 499 CARRIERS. contract exemption of 74- 76 liability of common 7, 75 liability of, commensurate with risk 454 telegraph companies as. 471- 473 CASTLE. One's house is his 55 CATTLE. liability for, at common law 341, 446 liability for, under modern statutes 341, 343 CHARITABLE CORPORATIONS. as parts of governmental machinery 113 las private institutions 114 liability of, in tort 113- 115 COMITY. international, in tort actions 215 COMPARATIVE NEGLIGENCE 440 Index. 523 COMPETITION. PA^eE adjustment of conflicting rights under 67 bycotting as a form of 72 Intimidation of third persons is not 71 fraudulent injury to business is not 70, 73 free, is worth more than it costs 68 illustrated by Mogul steamship case 68 setting up a rival business in 68 unfair, what is 384-393 unfair, what is not 70 COMPULSORY PILOT 132 CONFLICTING RIGHTS. adjustment of 65, 66, 67 in respect of blasting 65 in respect of gas wells 64 in respect of water 63 no right to inflict fraudulent injury 70, 73 no right to intimidate third persons 71 of neighboring landowners 62- 65 of rival traders 68- 70 resulting from competition 67- 74 CONFLICT OF LAWS. intransitory actions 214- 218 under statutes of limitations 239 CONSTITUTIONAL LAW. action under unconstitutional statute 242 confiscatory statutes 480, 481 damaging property, without compensation 49 declaring things to be nuisances 397 legalizing nuisances 45-49, 396 limiting rights of landowner 45 limitations upon police power 42- 44 taking private property 49, 397, 399 CONSPIRACY. as a tort 287-290 damage as an element in 287, 288 essence of, is combination 288 injunction against 514- 516 statutes concerning 501 servants as victims of 289 CONTAGIOUS DISEASE. imputation of, when actionable slander 312 524 Index. CONTEMPT OP COURT. page by violating injunctions 517 CONTRACT. breach of, distinguished from tort 14- 16 breach of, and presumption of negligence 425 determines who is independent contractor 134 discharge of tort by 221-223 election between, and tort action 10, 26,485 exemption from tort liability by 74- 76, 483 for assumption of risk by servant 83, 221 malicious breach of 21n. option to sue in, or in tort 16, 25, 485 suing in, and waiving tort 24, 26 tort springing out of 9, 486 CONTRIBUTION BETWEE3N WRONGDOERS 187,219 CONTRIBUTORY NEGLIGENCE. a bar at common law 430 admiralty view of 430 as an affirmative defense 431 assumption of risk and 439 burden on plaintiff respecting 432 careless conduct induced by defendant 436 carrier's not imputable to passenger 442 cause of danger and cause of harm 435 decisive negligence 431, 440 doctrine of last clear chance 434 forgetfulness of danger, as 438 incapables and 441 in saving human life 437 in saving property 438 husband's, imputable to wife 442 rusticum judicum and 430 servant's, imputable to master 442 violation of rules as 436 what amounts to 432- 434 young children and 44I, 442 CONVERSION. See Trover and Conversion. action in quasi-contract for 26 asportation as an element in 349-352, 357 by agent of principal's property , 356 by bailee or custodian 357, 36I compensatory damages in 205 Index. 525 CONVERSION— ContinMed. page damages in, as affected by tender 864 damages in, for fluctuating property 205 excluding rightful owner or possessor 352- 35f flnder, when guilty of 358- 360 intention to convert is not 350 Interpleader by bailee 362 non-feasance is not 352 option between, and trespass 347 pledgee may commit 363 punitive damages for 204 purchaser may be liable for 354 qualified refusal 361 refusal to surrender as evidence of 360 sale of goods as an element in 353- 355 satisfying judgment for 227 tenant in common may commit 362 tender of goods by converter 363 unlawful detention as 360, 361 wrongful use of property may be 355 CORPORATIONS. charitable 113, 114 classification of 106, 108, 113 dissolution of, not a bar to tort action 230 fraudulent use of name of 389 functions of 106, 108, 109 judicial powers of 110 legislative powers of 110 liability of private 107, 115 liability of public 106, 110 malice entertained by 115 officers of, liability for 108, 110 officers of, liability of 112 public services 474- 476 punitive damages against 204 slander by 116 states as 105 statutory liability of municipal Ill trespass by 116 COVENANT NOT TO SUE . . . , 223 CRIME. distinguished from tort 12 526 , Index. CRIME — Continued. page merger of, in tort 12- 14 not enjoinable 511 DAMAGE. allegation of, in slander of title 383 by public nuisance 408 implied from trespass 338 in nuisance to property 400 in slander of title ( 383 false statements causing 23 general, in slander cases S17 legal, in malicious prosecution 256- 263 mental anguish as a cause of 94- 104, 495 presumed, in libel upon character 303 to person, in malicious prosecution 257 to property, in malicious prosecution 258- 261 to reputation, in malicious prosecution 257 remoteness of 89-94, 95 special, in slander cases , 316 DAMAGES. action for, in case of tort 11, 196, 417 action for, functions of court and jury 210- 212 actual 18, 339, 417 against independent but concurrent wrongdoers-. 206 telegraph and telephone companies 495-499 assessing, date for 205, 339 avoidable 208- 210 compensatory, for assault and battery 270, 271 compensatory for malicious prosecution 261 compensatory, for mental anguish 102, 495 compensatory, or ordinary 199, 317- 319, 495 for seduction of daughter 283- 285 from joint wrongdoers 202, 203 interest, as an element of 206 municipal corporations and punitive 204 nominal 198, 270, 317, 495 nuisance and ^ 417 punitive, against bank Ig punitive, for conversion 204 punitive, for mental anguish 102, 498 punitive, for malicious prosecution 261 Index. 527 DAMAGES — Continued. page punitive or exemplary 199,201,203,318,498 special, against telegrapli company 496,497,498 splitting up, not allowed 212, 213 right to, for trespass to land 339 substantial, though actual not shown 18 three Itinds of 197, 317, 417 trespass, mitigation of 339 DANGEROUS THINGS. liability for 445. 454 DEATH. action for causing 230- 235 dissolution of corporation as its 230 effect of, on tort actions 228- 235 modern legislation as to 229-235 of tort victim 228 Scotch rule in actions for 231 . statute of Edward III 228 DECEIT. as a tort 365- 380 by agent or servant 379, 380 corrupt motive unnecessary 376 definition of , 365 differs from negligence 373, 421 functions of court and jury 379 inducing plaintiff to act 376, 378 infant's liability for 122- 124 intended to induce plaintiff to act 374- 376 knowledge of untruth 372, 373 means of knowledge immaterial 377, 378 misrepresentation of law 371 need not be sole inducement 379 negligent misrepresentation and 373, 374 opinion as distinguished from fact 368, 371 price paid or offered 369 principal's liability for servant's 379, 380 silence amounting to 367 statement of fact, as an element in 366 statement relative to third person's credit S70 torts kindred to 380- 393 trade-marks and 388 528 Index. deception. pace as basis of unfair competition 388 assent of plaintiff secured by ; 77 by silence 367 of plaintiff while acting illegally or immorally 78 DEFAMATION. absolute privilege to utter 320- 322 burden of proof in actions for 291 by corporations 116 by legislators, not a tort 30, 320 by mercantile agencies 329 charging unchastity 95 conditional privilege of 66, 322- 330 construction of language 306- 308 damage caused by 316, 317 defenses in actions for 319- 336 fair comment, and 331- 33G injuries to reputation not always v 292, .293 in performance of a duty 324- 330 issue tendered in action for 291 joint publication of 299, 300 libel as a form of 300- 309 malice in actions for 318 mental anguish caused by actionable 95 newspaper reports 327, 328 presumption of good faith 323 privilege of two kinds 330 province of court and jury in actions for 305, 322, 323 publication of 293-297, 299 public proceedings, reports of 326- 328 remote consequences of 90 repetition of, liability for 90, 29S reputation distinguished from cnaracteir 292 right invaded by 291 self-defense and , 330 slander as a form of ; 309- 319 truth of, as a defense 319 two species of 300 volunteered statements 33O DEFENSES IN TORT ACTIONS 217, 22l- 239 DEFINITION OP A TORT. Austin's 4 Index. 529 DEFINITION OF A TORT— Continued. page avoided by writers 2 Bishop's 3 elements of 11 Judge Finch on 2 Innes on 4 Markby's reference to 1 Sir PYederick Pollock's , 3 Simplifying the 4 DEGREES OF NEGLIGENCE. corresponding to degrees of care 422 examples of 424 gross negligence 423 ordinary negligence 423 slight negligence 423 theories respecting 422 DELICTS. in Scotch law 27 in the law of Louisiana 28 quasi 27, 28 DISCHARGE OF TORTS. by act of the parties 221- 227 by operation of law 228- 239 DISTRESS. as a legal remedy 193 DUTY. arising from the family relation 329 as a ground of privilege in defamation 322- 330 defamation in performance of 324- 330 in reporting public proceedings 326- 328 landowner's, to trespassers 343 legal, breach of 22, 23 moral, breach of 24 moral, nature of 324 of mercantile agencies 329 of ordinary care 426 of telegraph and telephone companies 476- 480 owing to law-breaker 88, 89 owing to the public, in defamation 325 private, and defamation 328- 330 social, nature of 324 towards plaintiff in negligence 420 34 530 Index. DUTY — Continued. pam: towards sendee of telegraph message 487- 494 towards sender of message 485- 487 towards trespassing minors 343 EASEMENT. See Nuisance and Tbespass. EDITOR. libel by 326-328 liberty of press and the 306 reports of public proceedings 326 ELECTION. between contract and tort actions 26 by judgment creditor 226 ELECTRICITY. liability for escaping 450, 451 negligence in use of 451 EMPLOYERS' LIABILITY ACTS 83, 84 ENTRY. See Fobcible Bntby and Detainee. EQUITY. remedy in, for nuisance 407, 418, 501- 517 remedy in, for unfair competition 384- 393 EXECUTIVE OFFICERS. acting under commands of superiors 39- 42 liability of, for injuries to fellow-citizens > . . . . 39 EXTRA HAZARDOUS UNDERTAKINGS. carriers, caterers, etc 454 degree of care required in 445- 448 flre and electricity 450 gunpowder and other explosives 451 liverymen, care required of 454 poisons and similar articles 452- Jb4 FAIR COMMENT. and conditional privilege 33I and personal abuse 332 and public morals 336 criticism of public men as 332 literary and other productions 335 misdescription Is not 333 on candidates for olfice 334 subjects of 331 what comment Is fair 332 335 wide latitude according to 336 Index. 531 false imprisonment. pacb arrest by sergeant-at-arms 41 arrest by servant, master's liability for 154 arrest without a warrant 244- 246 definition of 240- 242 detentions which are not 248 reasonable and probable cause 246, 247 right violated by 240 unlawfulness presumed 242 FALSE STATEMENTS. causing damage, when not a tort 23 FAMILY, MEMBERS OF. defense of 52 injuries to *. 117- 130 tort actions by 117-130 FAMILY RELATIONS. abduction of child 279 actions for wrongful disturbance of 273- 290 criminal conversation 275, 278 damages in actions for seduction 283- 285 enticing husband, action for 277 injuries to parental right in child 280 injuries to wife 278, 279 invasions of, marital torts 273- 279 marital torts against husband 274 marital torts against wife 275 primitive law relating to torts affecting 273 privileged communications between parties to 329 seduction of daughter 281- 285 torts against parent 279- 285 FELONY. merger of in tort 12- 14 FELLOW-SERVANTS 157, 162, 165, 167, 172- 182 FENCE. duty of maintaining 341 liability for spite 45 FINDER. duty and liability of 358- 360 FIRE. accidental, liability for 91 care required in using ' 450, 451 532 Index. FRAUD. See Deceit. pace differs from negligence 421 goods obtained by, in conversion 351 in use of trade-marks 384, 388 in use of trade names 389 FRIGHT, CAUSING HARM. See Mental Anguish. FORCIBLE ENTRY AND DETAINER 189-191, 193 FUNCTIONS OF COURT AND JURY. in actions for damages 210 in actions for deceit 379 in libel cases 305, 322 in- master and servant cases 148, 163, 168 in negligence cases 428, 436 instructions to jury as to proximate cause 93 malicious prosecution and 251 probable cause and the 246, 252 GOVERNMENT. by injunction 500, 501, 518 injunction on behalf of 516 GUEST. at an inn 4, 8 gratuitous, rights of 457 HARMS THAT ARE NOT TORTS. acts of state are 37- 42 arrest of innocent person 29 assented to by plaintiff 74- 85 caused by accident 57- 59 caused by business competition 67- 74 defamation by legislators 30 defense of self 51 defense of family 52 defense of property 53, 55 fright as a cause of 94- 104 in exercise of police power 42- 44 inflicted by insane person 60, 61 inflicted by judicial ofllcers 30- 34 inflicted by neighboring landowners 44, 62- 65 inflicted by quasi-judicial ofiicers 35 legalized nuisances 45_ 49 mental anguish as a cause of 94_ 104 Index. 533 HARMS THAT ARE NOT TORTS— Continued. page plaintiff's illegal conduct as a bar 85- 89 reasonable force in defense of self or property 55 'recaption of property 54 HEALTH. nuisance to 398, 410 HOUSE. as one's castle 55 HUSBAND AND WIFE. actions between 120 actions by 117, llJ common-law rule as to torts by 117 enticing husband, action, by wife for 277 injury to wife 119 invasions of marital rights. 273- 279 legislation affecting 118, 120 liability of husband for wife's torts 119 negligence of either 442 ILLEGALITY OF DEFENDANT'S CONDUCT. causing mental anguish 101 when enjoinable 510 ILLEGALITY OF PLAINTIFF'S CONDUCT. as a bar to recovery 85, 304- 5, 477 difficulty in dealing with 86, 477 duty towards law-breaker 88 necessary element of cause of action 87- 89 rights of trespassers 455- 471 violating Sunday laws 86 IMPUTED NEGLIGENCE. carrier and passenger 442 husband and wife 442 master and servant 442 parent and child 443 INDEMNITY BETWEEN WRONGDOERS 187, 218 INDEPENDENT CONTRACTOR 133- 144 •INFANTS. action by, against parent 129 commanded by parent to commit tort 121 liability of, in tort 121- 126 liability for deceit 122- 124 liability for negligence 126, 441- 445 534 Index. INFANTS — Continued. page parent's liability for torts by 127 tort of, connected with contract 122 trespassing, rights of 459- 471 trover by 124- 126 INFRINGEMENT OF TRADE-MARKS. action for, as a violation of a property right 385, 387 by unfair competition 388- 393 laches in suing for 393 INJUNCTION. against boycotts , 514, 515 against conspiracies 514, 515 agaftnst crime 506, 511 against illegal conduct 510 against libel 512, against nuisances 418, 504- 507 against telegraph and telephone companies 477, 481 against trespass 507- 509 against waste 502- 504 by government 516 classification of tort injunctions 501 common law remedies insufficient 502, 508 contempt by violator of 517, examples of, against nuisance 506 forms of waste enjoinable 504 frequent use of, in tort actions 500 government by 500, 501, 518 granted upon established principles 500 granted when for trespass 508 illegal conduct 510 insolvency of defendant 509 irreparable harm 503, 506, 509, 511 libel when enjoinable 512- 514 modern remedy 504 obligations of 517, 518 past injury 503, 507 political controversies and 510 principles for, against nuisance 505 requisites for 502 service of 517 various mischiefs 510- 516 INNKEEPER, TORT BY , 4, 8 1nde3£. 535 IKSANITt. PAGE as a defense ....< i 60. Gl INTENT. as an element of torts 338, 344, 350, 374, 405 INTENTIONAL WRONGDOING. distinguished from negligence 421 towards trespassers 458 INTEREST. as an element of damages 206- 208 INTIMIDATION. of laborers and others 71 INVITED PERSONS. allured children as 459-471 duty of landowner towards 455, 456 expressly, right of 456 private guests, right of 457 JOINT WRONGDOERS. contribution between "87 damages recoverable from 202 In case of nuisance 414 master and servant as 185-187 publication of defamation by 299, 300 JUDICIAL OFFICERS. acts of, when not tortious 30- 34 arbitrators as 34 assessors as 35 defamation by, privileged 321 Grove v. Van Duyn, doctrine of 33 immunity of, reasons for 31- 33 Lange v. Benedict, doctrine of 32 limits of their immunity 31, 321 of inferior courts 33, 34 of military and naval courts 34 quasi-judicial officers 35, 36 JUDGMENT. discharge by ; 224-227 JURY. See Functions of Coubt and Jury. JUSTIFICATION. in actions for assault and battery 269, 286 in actions for false imprisonment 242-248 536 Index. LANDLORD AND TENANT. PAGE liability of, for nuisance il3 LANDOWNER. and infant trespassers 459-471 care of fire and electricity 450 cattle of, escaping 446 explosives and 461, n. hardship for, under doctrine of alluring nuisances 467 liability of, for negligence 445- 471 liability of, to passers-by 455 liability of, to trespa,ssers 4,58- 471 nuisance by 447- 449 person^, invited by 455 Rylands v. Fletcher and 445- 448 vicious animals of 449 LAST CLEAR CHANCE. doctrine of 434 does not abrogate contributoi-y negligence 434 LAW. Actions on the Case, Treatise on 1 misrepresentation of, and deceit 371 LEAVE AND LICENSE BY PLAINTIFF 76- 78 LEGAL DUTY. breach of, necessary to a tort 22, 23 imposition by law of positive 80 LEGISLATORS. defamation by 30, 320 immunity of , 30 LEX LOCI AND LEX FORI 215-217, 239 LIBEL. See Defamation. a criminal offense 301, 302 n. actionable per se, when 303 affecting one's vocation 304 construction of 306- 308 definition of a civil 302 distinguished from slander 300- 302 illegality of plaintiff's business 304, 305 injunction against 512- 514 innuendo, oflSce of 308 liberty of press and 306 of a class 304, 305 Index. 537 LIBEL — Continued. page proviace of court and jury in actions for 305 upon personal character 303 LIBERTY OF SPEECH AND PRESS 306, 331, 332, 334 LICENSE. as a defense 74-85, 345, 346 LICENSEE. guest as a 467 liability of, for nuisance 414 liability to, of landowner 456- 458 LIMITATION OF ACTIONS. beginning of statutory period 238 conflict of laws relating to 239 exemptions from statutory bar 237 statutes relating to 237 LIQUOR SALOON KEEPER'S LIABILITY 156 LOCAL ACTIONS, FOR TORTS 213, 214 LUNATIC. defamation by 60 liability of, in tort 60 negligence of a 60, 61 reasons for tort liability of 61 MAINTENANCE 265 MALICE. discarded for " bad faith," etc 74 in actions for defamation 318, 322, 330 in actions for malicious prosecution 251 in slander of title 381, 382 master's liability for servant's 153 not necessary in false imprisonment 241 MALICIOUS ABUSE OP PROCESS 262- 264 MALICIOUS PROSECUTION. advice of counsel 254 failure of original suit 253 legal damage in 256- 261 nature of tort 248, 249 probable cause in 252- 256 termination of proceeding complained of 249 under legal process 242 wrongs kindred to 264, 265 538 Indf.X. MANDAMUS. pace against telegraph and telephone companies 477, 481 MANSFIELD, LORD. encouraged quasi-contract actions 25 limited right to waive tort 26 MARINE TORT 197 MARRIED WOMEN. modern legislation concerning 118, 120 tort actions by 117, 120 tort liability of 117, 119 MASTER AND SERVANT. actions involving relation of 130- 187 adoption of torts by master 145 basis of master's liability for servant's tort 130-132, 139 common employment of fellow-servants 181 course of particular servant's employment 149 dangerous instrument used by servant 156 definition of master 130, 139 definition of servant 132, 136, 139 dififerent department doctrine ] 82 duality of service 137 duties of master to servant 157-184, 218 employer's liability for contractor 133, 139- 144 fellow-servants, rules concerning 172- 183 harms by servant not done in master's business 150, 152 indemnity between 218 Independent contractor, who is 133 joint actions against 185-187, 202 liability of master to servant 156- 184 liability of servant to master 184 liability of servant for non-feasance 183 malicious acts of servant 153, 155 master's liability for servant's deceit 379 negligence of master and fellow-servant 179 proper rules by master 158- 160 ratification of torts by master 146 safe appliances , Ig3_ 167 safe place to work 160- 163 scope of servant's authority 146- 150 servant's liability for tort commanded by master 182 special liability of master for servant's tort 154 suitable fellow-servants 157 Index. 539 MASTER AND SERVANT— Continued. page superior-servant test 178 temporary transfer of service 138 test of liability, when tliere are two masters 139 torts against the master 285- 289 two masters of same servant 136 various tests of fellow-service 175- 179 warning servant of danger 167- 109 wrongful acts of servant 151- 154 MAXIMS. a man is presumed to know the law 371 actio personalis moritur cum persona 228, 230 aJterum non laedere 3 ex dolo malo non oritur acto . . . .' 89 in fictione juris subsistit eqxcitas 26m. it is for the public good, that there be an end of litigation. 212, 226 judicial fling at 29 King can do no wrong 40 nemo debit bis vexari 224 res ipsa loquitur 426 sic utere tuo ut alienum laedas 29, 62 volenti non fit injuria 76, 77, 406 MENTAL ANGUISH. as a cause of action 94- 104 caused by words not slanderous per se 94 caused by actionable defamation 95 caused by illegal conduct 101 caused by negligent telegraph companies 102 due to Immoral solicitation 96 fright as a form of 96 not susceptible of valuation 100 origin of doctrine concerning 94 physical derangement caused by 97- 99 reasons for denying remedy for 98- 101 susceptible of valuation 100, 101 test of remoteness of 99 worry as a form of 86 MILITARY AND NAVAL COURTS 34 MILITARY AND NAVAL OFFICERS ." 42 MISFEASANCE AND NONFEASANCE. conversion and 3^2, 353 distinction between, is difficult 10, liability of servant for 183 540 Index. MISREPRESENTATION. See Deceit. page MISTAKE. See Accident, and Law. MOTIVE. See Intent. MUNICIPAL CORPORATIONS. as property-owners 112 nuisances declared by 397- 399 tort liability of 105-112, 204 victims of nuisance 411 NAME, see Trade-Maeks. NEGATIVE TORTS. by factory-owner 5, by inn-keeper 4, by mariner 6n. NEGLIGENCE. alluring nuisances and 459- 471 burden of proof in 425, 431 by independent contractors 133, 139- 142 by lunatics 60, 62 careless conduct induced by defendant 436 cause of danger and cause of harm 435 causing mental anguish 94- 104 contributory 430- 441 doctrine of comparative 440 fellow-servants 172- 183 gross, meaning of 421, 485 in defense of self and property 51- 59 jury and court, functions of, in 428, 429 landowner's liability for 445- 471 last clear chance and contributory 434 life imperiled by 437 master's liability for servant's 130- 187, 442 nature of, as a tort 420 not to be imputed to passenger 442 poisons and similar articles 452 presumption of 425- 428, 494 res ipsa loquitur _. 426, 428 rusticum judieum 43O three degrees of, illustrated 424 telegraph company's 483- 486, 489, 490, 493 towards trespassers 45g_ 471 Index. 541 NEGLIGENCE — Continued. page ttndertak'ings which are extra-hazardous 445- 454 what constitutes contributory 432-434 willful and wanton 421, 458 NERVOUS SHOCK. See Mental Anguish. NON-CONTRACT LAW 3, NON-FEASANCE 183, 352 NOTICE. of danger under volenti non fit injwria 79 NUISANCE. abatement of 194- 196, 416 action at law for 395, 40«, 411, 417 alluring, and infants , 459- 471 amounting to a taking of property 45, animals which are a i 56, cemetery as a 400 coming to a 406 convenience of defendant 407 declaring property a 50, 397, 399 definition of 394, 396 hospital 399 injunction against 407, 418, 509 injury to property by a 400- 402 joint liability for 414 lawful anl laudable business as a 399 legaUzing a 45- 49, 396 liability of creator of 412 liability of grantee of 412 Mability of landlord and tenant for 413 liability of landowner and licensee 414 liability for 63, 80- 82, 414 misconduct of defendant not sole cause of 415 motive of defendant generally immaterial 396 negligence not necessary 405 parties to actions for 409- 416 per se 398, 399 personal, aiscomfort caused by 402, 403 private action for public 408, 409 remedies for 416- 419 temporary annoyance and 404 to health 410 turning lawful acts into a 397 542 Index. obligation. page contract, distinguished from tort 14- 16 imposed by law -. 11, of injunction 517, 58 quasi-contract 26, OFFICE. imputing unfitness for 314 of honor 314, n OFFICERS. See Judicial Officers and Acts of State. OMISSION, TORT BY 4, 5, 6n, 7, lOn OPINION. as distinguished from fact 368 PARENT. action by, for tort to child 128 discipline by 130 mother's legal right as 129 negligence of, imputed to child 443- 445 PARTIES TO TORT ACTIONS. corporations as 113, 116 husband and wife as 117-120 infants as 121-127 masters as 130, 187 parents as 127- 103 servants as 130, 187 State as one of the 105 subdivisions of State as 105- 112 PERCOLATION. of gas and water 63, 64 PERSON. defense of one's 51, 52 PERSONAL ACTION 228, 230 PERSONAL LIBERTY. carefully guarded by our law 29, violated by false imprisonment 240 PERSONAL SECURITY 266- 272 PILOT. shipowner's liability for 132 POISONS, and Similar Articles 452-454 POLICE POWER. destruction of property under , 50, i-a;T:s done in exercise of 42- 48 Index. 543 POSSESSION. p^^,j, distinction between regaining and retaining 54, of plaintiff in actions for trespass 34O of plaintiff in actions for trover 349 recaption for regaining 192 PRESUMPTION OP NEGLIGENCE. wlien contract broken 425 . when no contract 426 PRIVATE WARFARE, as a tort remedy 188 PRIVILEGED COMMUNICATIONS, see Defamation. PROPERTY. action for trespass to 337_ 346 damaging, without compensation 49, defense of 53_ destruction of, in self-defense 56 recaption of 54 taking of, without compensation 49 PROXIMATE CAUSE. arbitrary line often drawn 90 court to determine 92 damages must be due to 498, instruction to jury concerning 93 jury to determine 91 natural and 94, negligence not, of mental anguish 94- 99 statement of rule , 89- 90 PUBLICATION. alleging. In suit for defamation 295 by one spouse to the other 295 communication which Is not 296, 297 evidence of 294, 295 privileged, when 320- 330 publicity not essential to 293- 294 PUBLIC POLICY. and assumption of risk 84 for acts of state 37- 42 for exempting officers from tort liability 30-36, 484 for holding lunatic liable in tort 61 for Invalidity of contracts with carriers 75, 76 for permitting recovery by wrongdoer 85 PUBLIC SERVICE CORPORATIONS. characteristics of *'^*> ^75 544 Index. PUBLIC SERVICE CORPORATIONS— CoMitntted. page definition of ; 476 duties of 476- 480 QUASI-CONTRACT. action in 25 ■ distinguished from true contract 26 QUASI-DELICT. defined 27 in Louisiana 28 la Scotland 27 QUASI-JUDICIAL OFFICERS 35 QUASI-MUNICIPAL CORPORATIONS 106 QUASI-PUBLIC CORPORATIONS 481, 482 QUASI-TORT 28 RAILWAY COMPANY. contract absolving, from negligence ; . . 74- 76 duty of, towards trespassing children 460- 471 jolting of train and negligence 425 negligence of, not imputable to passenger 442 turntables of, as alluring nuisances 460 violation of rules of, as negligence 436 RATIFICATION OF TORTS 146 REASONABLE CAUSE. for anticipating attack 52 REASONABLE COMPENSATION. of telegraph and telephone companies 481 REASONABLE FORCE. in defense of person and property 55 REASONABLE REGULATIONS. by telegraph and telephone companies 482 RECAPTION. exercising right of 54 forcible, of chattels 191- 193 RELEASE, in discharge of a tort 223 REMEDIES. actions for damages, as 196- 213 development of .- 188, 189 distress as one of legal 193 local actions, as ^ 213, 214 Index. 545 REMEDIES— ContinueeZ. paqb negligent misrepresentation^ for 374 self-help as one of several 189-196, 416 REMOTE CAUSE ^9,94, 298, 299, 498 REPETITION OF DEFAMATION 90, 298 RES IPSA LOQUITUR 426-428 RIGHT. absolute, of landowner 44, 337 absolute, to utter defamation ; 320-322 in personam, examples of 6, 7, 8, 9, 10 in personam, violation of 6 in rem, violation of 5, 7 legal, must be invaded, or no tort 22 private. Is invaded by° tort 11 public, is invaded by crime 12 public, is invaded by nuisance 408 RYLANDS V. FLETCHER. doctrine of, as stated by Lord Blackburn 446 generalization in, commented on 447 limited in England 447 not generally approved in America 447- 449 SEDUCTION. action by female vs^ard 22»i cause of action accrues when 238 parent's action for . . . . / .' 281- 285 SELF-DEFENSE. against wrongful assault t>. 50 defamation in 296, 297, 330 SELF-HELP. as a tort remedy 189-196, 416 SERVANT. action against ' 202 conspiracy against • 289 enticing, a tort against the master 285 harm to, as a tort against the master 285- 289 indemnity to 218 intimidation of 286 may defend master • • • 286 negligence of, imputable to master r. . 442 no legal right to " character " 23, 293 picketing of • ,...,,.,,,..,, 286 35 546 Index. SERVANT— Continued. page privileged communication regarding 328 torts against, by influencing master 286 SLANDER. See Defamation. actionable, per se, what is 309- 315 causing special damage - 316 general damage, caused by 317 imputing contagious disease 312, 313 imputing crime , ^ . . . 310, 313 imputing unchastity 312 imputing unfitness for office ■ 314 prejudicing one in profession or trade , 314- 315 SLANDER OF TITLE. damage must be shown 383 falsity and malice in 381, 382 nature of this tort 380 origin of term 381 puffing, advertisement as 382 rival claimants to property 382 STATE. acts of 37- 42 exercise of police powers by 42- 44 suits against 39 STRIKE. a peaceful, is not a tort 68 accompanied by intimidation is a tort 71 SUNDAY LAWS. violation of 86 TELEGRAPH AND TELEPHONE COMPANIES. action by sendee 487- 495 action by sender 485-487, 496 affected with a public interest 476 as common carriers 471 bailees for hii-e 474 common law liability of , 483 compelled to serve all alike . . . .- 476-7, 479 compensation of . . ; , 481 conflict of laws concerning 103 contract by for exemption 483-485, 490- 492 damages Eigainst , , 495 - 499 delay ijl deljvsring messages 492 Index. 547 TELEGRAPH AND TELEPHONE COMPANIES— ConHnued. page differ from common carriers 473 discrimination by 478_ 450 duties to the public 476- 480 duty to sendee 49O gross negligence of 485 injunction against 477 legal status of 471_ 476 liability of in tort 473, 483, 487, 490-493, 497 liability for negligence 483-485, 492 liability for refusal to serve 495 liability for mental anguish 102-104, 495, 499 . may demand prepayment 482 messages, delay in delivering 492 messages, order of transmission 480 non-delivery of messages 493 non-repetition of messages 494 option to sue in contract or in tort 485- 487 proper regulations by " 482 rates of 480, 481, 482 repeating messages 483, 491 rights of ». 481-485 sendee as principal 488 sendee as stranger to contract 488- 490 sendee's damages 497, sender's damages 496, 497 statutes relating to 472, 473, 474, 479, 480, 485, 494 statutory penalty, action for 487 Texas doctrine of mental anguish 102-4, 499 TENANT. See Landlord A^D Texant. TEXAS DOCTRINE. damages for injured feelings 102-104, 499 TEXT-BOOKS ON TORTS. recency of 1 the earliest ■ 1. 2 THEORY OF TORTS. but recently developed 2 TORT. advantage of suing in 17 aflarmatlve * chief characteristics of 11- 26 comonon-law term H 548 Index. TORT — Continued. pace conflict of laws in action for 214- 218 definition of 1, 2, 3, 4, 11 disadvantage of suing in 19 distinction between, and breach of contract 14 distinction between, and crime 12 distinction between, and divorce action 11m extending area of 21 false statement which is a 23 In admiralty lln infaot's liability for 121- 126 involves breach of legal duty 22, 23 is conspiracy a 287,. 288 negative, examples of 4, 5, In TRADE-MARKS. abandonment of 393 deceit in using 388- 392 Injunction as to 513 laches in enforcing right to 393 property in 385, 386 validity of 386, 387- 393 words, symbols, etc., which *are not 388 TRESPASS. 06 initio , 346 action for, by animals 341- 343 action of, for enticing servant 285 action for, or for nuisance 395, 396 Blackstone's definition of 337 breaking and entering in 399 damages for , 399, 340 excusable 29-65, 345 Injunction against 507- 509 injury which is not 340 intention as an element in 338, 344 license to commit 74-85, 345, 346 possession of plaintiff in action for 340 reversioner may maintain 341 to chattels 343_ 346 to realty 337_ 343 trover or, option between 347 writ of, for intimidating servants 285 trespassers, injuries to 458_ 47X Index. ^49 TROVER AND CONVERSION. page action for, originally 347 against whom committed 348, 349 asportation as an element in 349- 352 by agent of principal's property 357 by bailee or custodian 358 action of finding 347 finder, when guilty of 358- SCO goods obtained by fraud 351 pledgee may commit 363 sale of goods as an element in 353- 355 subject matter of 348, tenant in common may commit 362 unlawful detention £^ 360 wrongful use of property as : 355 TWICE IN JEOPARDY 200 UNFAIR COMPETITION. fraud an element in 384, 388, 392 infringing trade-marks So J, J86 nature of 384- 393 term is modern 384 use of packages, etc., as 391- 392 UNLAWFUL ACTS. direct consequences of, liability for 80, 82 UNLAWFUL COMBINATIONS 73 UNLAWFUL EXHIBITIONS. spectators at 81- 83 VALUE. feelings susceptible of 100, 101 VOLENTI NON FIT INJURIA 78, 82, 406 VOLUNTEER. defamatory statement by 330 WAIVER. as a form of discharge 224 of right to trade-mark 393 of conversion, effect of 26 of tort and suing in contract 24 WASTE. injunction to restrain 502- ? 550 IXDEX. WATER. PAGE divertiug, liability for 63 percolating 64 WILLFUL AND WANTON NEGLIGENCE. differs from gross negligence 421 WORDS. actionable per se 309 do not constitute arrest 240 mitigating damages for assault 271 WORRY. See Mental A^'ruiSH. WOUNDED FEELINGS. See Mental Anguish. WRONGDOERS. contribution betwee*- » 187, 219 defamation by several 299 indemnity by one ol joint . . .' 187, 218 judgment against one of several 225 master and servant as joint 185- 187 not barred of recovery 85 plaintiffs who are 85- 89 satisfying judgment against one of several 227 violating Sunday laws , 86 when barred of recovery 87 willful or intentional 421 WRONGS. civil distinguished from criminal 12 directed chiefly against the person 240- 336 directed chiefly against property 337- 394 directed against person and property 395- 471 !*; %